A Treatise on the Law of Insurance

(1) Vezian v. Grant, Park, 485.

ship was insured' at and from Martinico, with liberty to touch at Guadaloupe, warranted to sail after the 12th of January.' She sailed from Martinico to Guadaloupe before the 12th of January, and proceeded from Guadaloupe on the voyage insured, after the 12th of January, without putting into Martinico, as was intended, if a full cargo had not been obtained at Guadaloupe. Mr. Justice Buller thought this was not a compliance with the warranty.(1)

Departure is A distinction has been made between a warranty to sail, and a different from warranty to depart. Insurance was made on the ship Neptunus, sailing. at and from Memel to England, warranted to depart on or before the 15th of September.' The vessel, with her clearances and cargo on board, and being completely ready for the voyage, hove up her anchor and got under weigh on the 9th of September, with the intention of proceeding to England, there being at the time some prospect of favourable weather. Before she had been half an hour under weigh the weather changed, and she was obliged to come to anchor at the Haff or rivermouth, within the distance of a half of a mile from the sea, where she lay, with above thirty other ships, until the first op portunity for sailing, which was on the 21st of September. Chief Justice Gibbs said, 'If this warranty had been that the vessel should sail on or before the 15th of September, I should have thought most clearly that she had sailed. The warranty to sail means that she shall commence her voyage, and in the present case the ship was under weigh and in the prosecution of her voyage, before the time prescribed. The decisions hitherto have been, that when a vessel got under weigh the warranty was complied with. But I think the word depart will not bear that construction, but must mean a departure from the port of Memel.' Dallas, J. 'I am of opinion that there is a distinction between sailing and departing.'(2)

(2) Moir v., Roy. Ex. Ass Co. 1 Marsh. Rep. 576. S. C. 6 Taunt. 241; 3 M. & S. 461; 4 Camp. 84.

(3) 13 Car. II.
stat. 1. c. 9.

(4) 22 Geo.
II. c. 33. s. 2.
(5) 38 Geo.
III. c. 76.
(6) 43 Geo.
III. c. 57.
See Long v.
Duff, and
Long v. Bol-
ton, 2 B. & P.
209.

Section 4. Convoy.

Another express warranty that frequently appears in English policies is that of convoy. Several laws have been enacted in Great Britain on this subject. In 1661 a law was passed prescribing to the officers of the public armed ships, their duty in Convoying merchantmen in time of war.(3) A similar act was again passed in 1749.(4) And by an act of 1798,(5) continued in 1803,(6) all vessels having a British register, with some exceptions enumerated in the statute, are forbidden to sail without convoy, in time of war, under the penalty, among others, of forfeiting the insurance. In the United States there is no similar law, and as convoy has rarely been provided by government, and has been in very little use, this warranty does not appear in American policies, and should it hereafter be introduced, it will no doubt be under laws and usages different from those of Great Britain.

It was long ago decided that this warranty was complied with by taking such convoy as was provided by the government for vessels bound on the voyage insured, and if convoy was usually furnished for only a part of the voyage, it was no breach of the warranty to perform the remainder without any convoy.(a)

Warranty to sail with convoy, or which is the same in this respect, to depart with convoy, is a warranty to take convoy for the whole voyage, or for that part of it for which convoy is usually supplied by the government.(1)

(1) Lilly v. The vessel must not only sail with the convoy,(2) but the cap- Ewer, Doug. tain must also, either before, or at the time of sailing, take sailing 72. orders, or directions as to keeping with the convoy, obeying Woodness, signals and the like, from the commander of the convoy, except, Park, 510. perhaps, where he is unavoidably prevented, without any fault (3) Webb v. on his part, from receiving such orders, in which case he must Thompson, 1 take the earliest opportunity of obtaining them.(3) But if the vessel cannot sail fast enough to keep with the convoy, or be parted by a storm or other inevitable accident, it is not a breach of the warranty.(4)

B. & P. 5;
Victorin v.

Cleeve, 2 Str.
1250; Ander-

son v. Pitcher, 2 B. & P. 164; 3 Esp. 124; Waltham v. Thompson, 1 Marsh. Rep. 376; Verdon v. Wilmot,

Mod. 58; 2

A warranty that the ship or goods are neutral, or neutral property, is an engagement on the part of the assured, that it is own- Park, 500. n. (4) Manning ed by persons resident in a country at peace when the risk bev. Gist, gins, and who have the commercial character of subjects of Marsh. 367; such country, and that it shall be accompanied with such docu- Simond v. Boydell, ments, and shall be so managed and conducted by the assured Doug. 268; and their agents, as to be entitled, as far as depends on them, to Jefferies v. all the protection and privileges of property belonging to the Legendra, 4 subjects of such country. And so a warranty that the property Salk. 443. is Dutch or American, or of any particular national character, is an engagement that it is owned by persons having the commercial character of Dutchmen or Americans, or of the subjects of such other nation, and that it shall be so documented, and so conducted by the assured and their agents, as not to forfeit, as far as depends on them, any of the advantages to which the property of the subjects of such nation is entitled. If the property insured is warranted to be American, at a time when the United States are at peace, it is precisely the same as a warranty of neutrality, and these two forms of warranting are used indifferently for the same purpose.

A statement of the fact that the property is neutral, whether How this war incidentally or directly, whether as a part of the description of ranty may be

(a) Bond v. Gonsales, 2 Salk. 445; Smith v. Readshaw, Park, 510; Hibbert v. Pigou, Park, 498; Gordon v. Morley, 2 Str. 1265; Lethulier's case, Salk. 443; D'Eguino v. Bewicke, 2 H. Bl. 551; Audley. Duff, 2 B. & P. 111; Everard v. Hollingsworth, 2 B. & P. 111. n.; Campbell v. Bourdieu, 2 Str. 1265; De Garey v. Clagget, Park, 511; Warwick v. Scott, 4 Camp. 62.

made.

(1) Sleght v. Rhinelander, 1 Johns. 192.

Property warranted neutral must be own ed by neutrals.

(2) Supr. 29. & seq.

(3) Skin. 327.

If the war

ranty be falsi

fied as to a part of the

property this defeats the contract.

the property, or in the form of warranting, will equally constitute a warranty. So the warranty of a fact necessarily implying the neutral or national character of the property, will have the same construction as a formal and direct warranty to this effect. Where a policy effected in the United States contained the following note; 'Ñ. B. The vessel sails under a sea-letter;' it was held to be a warranty of American property.(1)

It has already appeared that the national character of any person, for all commercial purposes, depends upon his domicil, and he is taken to have the commercial character of the nation where he has his residence.(2) What has been said in regard to national character, is applicable to the present subject, but need not be repeated. If property be insured as belonging to the subjects of any particular country, as Hamburghers, which is owned by the subjects of another, as Frenchmen,(3) or if it be warranted to belong to neutrals, when it is owned by belligerents, the insurers are not bound by their subscription. A falsification of the warrants, in regard to a part of the property insured, will defeat the policy as to the whole.(4)

Where the assured being neutrals were part-owners of goods, the other part-owner being a belligerent, and the policy was intended to cover only the interest of the neutral part-owners, Chief Justice Marshall said, 'The assured are not understood to warrant that the whole cargo is neutral, but that the interest insured is neutral.'(5)

(4) Calbraith v. Gracie, Condy's Marsh. 388. n.; Goold v. Unit. Ins. Co. 2 Caines, 73. (5) Livingston A vessel warranted American had been conveyed by John . Maryl. Ins. Bazing, an American, to Murray and Hart, Americans also, by Co. 6 Cranch, a bill of sale absolute in its terms, but in fact in trust for Nathaniel Bailey, of Jamaica, a British subject and belligerent, as security for a debt due to him from Bazing; it was held that the warranty was not complied with. Mr. Justice Radcliff said, 'A warranty of neutrality requires that the property should be wholly neutral. If one of the belligerents had an interest, whether partial or entire, the risk was thereby increased, and the warranty not complied with."(6)

274.

Property held in trust for a

belligerent.

(6) Murray v. Unit. Ins. Co.

2 Johns. 168.

Property sold by a neutral to a bellige

(7) Ludlow v.

During a war between France and England, an agreement was made by an American for a sale of goods to Frenchmen, rent, to be de- to be delivered at St. Vallery, in France, but the goods were to livered in the be at the risk of the vender until delivered. Under this agreebelligerent ment the goods were shipped and insured with a warranty that country. they were American. It was the opinion of the court in New York that the warranty was complied with, from which, however, Mr. Justice Kent dissented.(7) So if goods be contracted for with a belligerent to be delivered to a neutral in a neutral country, the goods retain their belligerent character until they are delivered according to the agreement.(8) And in opposition to the above decision in New York, it has been decided in the House of Lords, in England, that property going to be delivered in the belligerent country, and under a contract to become the property of the belligerent immediately on arrival, if taken in transitu, is to be considered as belligerent property, unless the contract is made in time of peace and without any contempla

Bowne, 1 Johns. 1.

(8) The Sally,

3 Rob. 300. n.; The

Atlas, 3 Rob.

299; The Anna Catha

rina, 4 Rob. 107, 113. n.

3 Rob. 299.

The property

sold to a belligerent during

the risk.

tion of a war."(1) Upon the authority of this case Sir William (1) The Sally, Scott decided that goods sold at Vigo, by an American merchant, 3 Rob. 300. to the Spanish government, to be delivered at Seville, and paid . A. D. 1795. for when delivered, and to be at the risk of the vender until so (2) The Atlas, delivered, became, by this contract, Spanish property.(2) The property must not only be owned by neutrals at the commencement of the risk, but must continue to be so, as far as must not be depends on the assured or owners. Dollars were insured and warranted Danish property. They belonged to one Ferrall, of St. Croix, who assigned half of his interest in them to Amoresta, a Spaniard and belligerent, to secure him for advances. This (3) Goold v. was held to be a breach of the warranty. The court said the Un. Ins. Co. property must not cease to be neutral by the act of the assured.(3) 2 Caines, 73. The warranty is, that the property is neutral at the beginning If the property of the risk, and shall continue to be so, as far as this depends on becomes bellithe assured or his agents. But if he becomes a belligerent, or gerent withthe property assumes a belligerent character immediately after out the act of the risk commences, by an act of his government, or that of his agent, it is any other government, it is not a breach of the warranty. This not a breach. is one of the risks taken by the insurers.(4)

· Section 6. Origin of Property Warranted Neutral.

the assured or

(4) Eden v.
Parkinson,
Doug. 732;
Garrels v.
Kensington, 8
T. R. 234;

Property, though owned by persons domiciled in a neutral Saloucci v. country, may yet be in itself of a belligerent character. The Johnson, produce of a belligerent colony, shipped directly from the co- Park, 556. lony to the mother country, by whomever owned, has been held Colonial trade in England to be belligerent property; but if owned by neu- of a belligetrals, and exported from such colony for a neutral country, it is rent carried neutral both during the exportation to the neutral country, and its re-exportation thence to a belligerent one. The question in such cases always is, whether an importation is intended, or whether there has been an actual importation, into the neutral country, or whether the whole transportation from the colony to the mother country, is one entire voyage.

on by a neu

tral.

Goods warranted Dutch were taken on board at St. Eustatia, a Dutch island, part of them from on shore, and a part from barks; and it was suggested that some of the barks had come from French islands in the West Indies, and from these, the goods were taken on board of the vessel without having been landed at St. Eustatia. Lord Mansfield said, 'It is now a settled point that it is the same thing as if they had been landed on the Dutch shore, and put on board afterwards,' in which case he (5) Berens v. thought there could be no question as to their neutrality.(5)

This decision, like many others since given in Great Britain, proceeds upon the principle that a neutral country cannot, during a war, carry on a trade between a belligerent country and its colonies, not permitted in time of peace. But this principle has been strongly opposed in the United States; where it has been held that the participation in such a trade by a neutral, is only accepting a favour from the belligerent country, which the neutral has a right to accept, and that the circumstance of the

Rucker, 1 BI.

313.

(1) Vasse v. Ball, 2 Dall.

270.

(2) See Wait's

American

State Papers

for 1806, and

the following (3) The Pho

years.

nix, 5 Rob.

goods being of colonial origin, and the trade being a branch of the colonial trade of a belligerent, is not a breach of the warranty of neutral property.(1) This question has been the subject of much discussion between the governments of the United States and Great Britain.(2)

As there seems not to be any well settled and generally adopted principle of the law of nations on this subject, it can only be said, that, to comply with the warranty of neutrality, the property must, in respect to its origin, and to the trade of which it constitutes a part in time of peace, be such as is recognised to be Rendsborg, 4 neutral by the courts of the country where the contract is made.

20.

(4) The

Rob. 121;

The Jan Fre

derick, 5

Rob. 128.

rina, 5 Rob. 161.

(6) The Anna

The produce of a plantation of a colony of a belligerent country, though owned by a neutral, has been held by Sir William (5) The Vrow Scott to be of a belligerent character.(3) And he gave the same Anna Catha- opinion respecting the produce of a belligerent colony contracted for by a neutral in contemplation of war.(4) But if the produce be delivered before the declaration of a war, it is neutral.(5) Property derived from, or employed under, a contract of a neutral with a belligerent government for a privileged trade, is (7) The Susa, held by Sir William Scott to have a belligerent character.(6) And he considered the interest of a neutral in a house of trade established in a belligerent country to have the national characSt. Jose Indi- ter of such country.(7)

Catharina, 4
Rob. 118.

2 Rob. 251;

The Portland,

3 Rob. 41.

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