(1) Ougier v.

pany, uniformly reserved, in the charterparty, the liberty of employing the vessel one year on intermediate voyages from port to port in India. A similar usage prevailed in Newfoundland voyages, and it was held that the assured was not bound to state this to the underwriters. Lord Ellenborough said, 'The underwriter must refer himself to the usage of the trade, which he Jennings, 1 is bound to know;'(1) 'Is it notorious that ships in this trade Camp. 505. n. upon their arrival at Newfoundland, are either employed in (2) Vallance banking, or take an intermediate voyage? If so, it must be pre- Camp. 503. sumed to be equally in the knowledge of both parties."(2)

v. Dewar, 1

It is not requisite to disclose any facts that are stated in the Facts stated policy, or any circumstance which is provided for by the ex- in the policy. press stipulations of the parties, and a representation of this

sort is of no avail, since it will be controlled and superseded by

the written contract.

Whatever is the subject of an implied agreement of the par- Subjects of ties, needs not be represented except in reply to inquiries made implied warby the insurers. It is an implied agreement on the part of ranty. the assured in every policy, whether on the ship, cargo, or freight, that the ship is seaworthy, and in every respect sufficient and well fitted for the voyage on which she is bound. The assured is not therefore required to state, in the first instance, any facts which only affect the seaworthiness of the ship.

The owner of goods insured from Madeira to Charleston had, The ship the day before effecting the policy, received a letter from the leaky. captain, at Madeira, stating that the ship was very leaky, and that ten pipes of wine had been half covered with water,' of which he did not inform the underwriter, who on that account refused to pay a loss. Lord Mansfield told the jury that there should be a representation of every thing relating to the risk, except it be covered by a warranty. It is a condition or im- (3) Shoolbred plied warranty in every policy, that the ship is seaworthy; and . Nutt, Park, therefore there need be no representation of that.'(3)

346.

character.

In case of insurance on a ship at and from Trinidad to Lon- Ship surveydon, the owners had received a letter from the captain, in the ed on account West Indies, stating that the ship was in very good order, but of her bad that he had had a survey on her on account of her bad character,' of which they did not inform the underwriter. The jury found that if this letter had been disclosed it would have varied the premium, even if the survey, which was very favourable to the character of the vessel, had been laid before the underwriter, at the same time; for it was said by some of the witnesses that surveys made in the West Indies were of very little authority. It was insisted in behalf of the underwriter that the disclosure of the information would have varied his opinion as to the prudence of underwriting the risk. Lord Ellenborough, giving the opinion of the court, said, 'Is it then to be laid down as a principle that every fact known to the assured with respect to the condition, quality, and circumstances of the ship, prior to the period of effecting the insurance, which may possibly guide the judgment of the underwriter in undertaking or refusing to un

dertake the insurance, is to be communicated to him? It would certainly have some weight in guiding the judgment of an underwriter on such a subject, to know how old the ship was, where she was built, whether originally British or foreign, what was the form of her construction, whether clinker-built or not, whether copper-bottomed or not, what repairs she had received, and when and in what docks those repairs were done, and if the voyage were, as this was, a voyage home, what accidents the ship had met with in her outward voyage. All this may be very convenient and proper for the insurer to be informed of, and all this he may ask of the assured; and if the assured should withhold, upon being asked for it, any material part of such required information, his policy could not be sustained for a moment, for such a suppression would be a fraudulent concealment of material facts. But is it a duty of the assured in the first instance, (1) Haywood and as a condition precedent on his part, to inform the underv. Rodgers, 4 writer of all these circumstances to the extent of his, the assurEast, 590. See Shoolbred ed's, own actual knowledge on the subject? He thought it was v. Nutt, Park, not, and gave the opinion of the court that there was no concealment.(1)

346.

Where the assured had received a letter from the captain, informing him that the vessel had been detained at Savannah two weeks by the sickness of the crew, and saying also, I am at sea with all the hands sick except two, and in a few days expect to get them once more on their legs; they are all better to-day ;' and this information was not disclosed to the underwriters; the court intimated no opinion that the policy was affected by the suppression of the letter.(2)

Though an implied warranty excuses the assured from making any statement relating to the subject of it in the first instance; yet he is bound to make true answers to the inquiries of the underwriters relating to the same subject, and if he voluntarily make any statement respecting it, he will be answerable for the truth of the statement. There can therefore be no concealment of facts relating to the subject of an implied warranty, except in the case of the assured's not giving true and sufficient answers to inquiries made by the underwriters.

The ship Suffolk, insured from Belfast to Lisbon and thence to New York, had previously sailed from New Orleans to Belfast, and upon that voyage the master, Cartwright, had put into Havana for water, as he informed his owners, upon whom he drew a bill while at Havana in favour of an Havana merchant for 800 dollars, which the owners had refused to pay, giving as a reason that no account of supplies for the Suffolk was sent with the bill, and they had understood from the captain that he put into Havana only for water. On the same voyage from New Orleans to Belfast, the Suffolk had been compelled by tempestuous weather to put into Cork, in Ireland, where she underwent repairs, and thence arrived safe at Belfast, where the voyage insured was to commence. While the Suffolk was at Cork, March 19th, 1811, Messrs. Harvey and Co. the agents of the vessel there, wrote to Cropper and Co. of Liverpool, under

6

whose general control and direction the vessel and cargo had been put by the owners, that a vessel had got foul of the Suffolk, and carried away her bowsprit; that they feared Captain Cartwright was careless of his business, and his amount of repairs and expenses would astonish them all; and that his detention had been very great, yet he seemed very easy under it.' Cropper and Co. of Liverpool, had sent to the owners in New York a copy of this letter, and written to them, 'This day we shall write again [to Cartwright, the captain,] pointedly, and urge that necessity of economy and despatch, which we early enjoined him to observe. All that in us lies shall be done to get the Suffolk on to Belfast, and to guard your interest; but if a master of a ship will not do his best, an agent is placed in ungrateful circumstances.' The letter from Liverpool had been received by the owners before they effected the policy in question. They replied to their Liverpool correspondents,' that the information confirmed their apprehension as to Captain Cartwright's conduct; and that if he was still under their control they wished them to discharge him.' Neither the letter from Liverpool, nor the circumstance of the bill from Havana, were disclosed to the underwriters at the time of effecting the insu rance. Cartwright still continued in the vessel, and sailed on the voyage insured to Lisbon, where he took in a cargo of salt for New York, but he sailed for New Orleans, and on the voyage thither, touched at Matanzas, where he hypothecated the ship and cargo to raise money, which did not appear to have been necessary for the purpose of procuring supplies or repairs. The assured demanded indemnity for the loss occasioned by this misconduct and fraud of Cartwright. The insurers refused to pay, on the ground that there had been a concealment. For the assured it was urged that the intelligence from Liverpool related to a subject of an implied warranty,' that the master shall have ordinary integrity, or a good moral character at the place from whence the vessel sails, when the risk commences,' and therefore that the assured was not bound to disclose these facts, unless particular inquiries had been made. For the underwriters it was replied, that the nautical skill of the captain was a subject of the implied warranty of seaworthiness, but not his moral character; and as the barratry of the master was one of the risks insured against, any facts showing the moral character of the captain, that might be a ground on which to calculate the extent of that risk, ought to have been disclosed. Platt, J. in giving the opinion of the court, said, 'There should be a representation of every fact within the knowledge of the assured which is material to the risk incurred by the underwriter, except it be covered by a warranty. Unseaworthiness, under this policy, is at the risk of the assured, and therefore they are not bound to disclose any thing, unsolicited, on that subject. If the letters charged to have been concealed, related merely to unseaworthiness, it is a sufficient answer that the assured never sought indemnity against that risk. In this view of the case, it appears to me that the assured were not bound to disclose the

(1) Walden v. N. York Firem. Ins.

Co. 12 Johns. 128.

What is published in a

letters and other facts in regard to the character and conduct of the captain.(1)

At the time of insuring the ship Louisitania from the Brazils to Lisbon, it was communicated that she had been out fiftyseven days, but the assured did not inform the underwriters that the Victorioso, which sailed in company with his ship, had arIntelligence rived at Lisbon. This circumstance had however been publishpublished at Lloyd's. ed in the list of arrivals at Lloyd's, where the policy was ef fected. Burrough, J. said, 'The arrival of the other vessel (2) Friere v. must be presumed within the knowledge of the underwriters, Woodhouse, 1 from the circumstance of its being contained in Lloyd's printed Holt, 572. lists. A special jury of merchants concurred in this opinion.(2) But the insurers are not presumed to know all the marine intelligence published in the newspapers of the place, even though Gazette is not taken in their own office. Insurance was made in New York presumed in all cases to be on the 'sloop Friendship, from Washington in N. Carolina to known to the Charleston in S. Carolina.' A newspaper of the 19th of April, taken at the office of the insurers, contained intelligence that 'a New York sloop, bound from Wilmington in N. C. to Charleston in S. C. had been stranded on Ocracoke-Bar.' On account of this intelligence the risk was refused at one office on the 20th of April, and afterwards, on the same day, the assured applied for the policy in question, without disclosing this intelligence; and the policy was held to be void.(3)

insurers.

(3) Dickenson

v. Com. Ins.

Co. of N. Y.

Anthon's

Cas. at N. P.

92.

The ship not ready to sail

It is not necessary to disclose that the ship is not ready to sail immediately. At the time of effecting a policy on the 19th immediately. of June, upon a vessel and cargo from Pictou in Nova Scotia to Liverpool, the assured had received a letter from the captain, dated at Pictou the 11th of May, stating that the ship had received much damage on the outward voyage, and stood in need of great repairs. This was not communicated to the underwriters, who contended that it should have been so, as affecting the time when the vessel would sail, as otherwise the insurers might take a winter risk, when they only intended to take a summer risk. Lord Ellenborough said, 'If it was necessary to have disclosed this letter, as governing the time when the vessel would sail, it would in all cases be necessary to inform the underwriters when repairs were wanting; and he believed it very frequently happened that a ship must have something done to her before she could sail on the homeward voyage. If the underwriters wished to have particular information on this subject they ought to ask for it.'(4)

(4) Beckwith

v. Sydebotham, 1 Camp. 116.

False clear

ance.

(5) Barnewall

v. Church, 1 Caines, 217. See also Tal

cot v. Mar.

Ins. Co. 2
Johns. 130.

It is not requisite to inform the insurers that the ship takes out a clearance for a port of destination different from that for which she in fact sails, unless the false clearance affects the risk materially. A vessel cleared out at Honduras for Portsmouth, for the purpose of saving duties, though she sailed for New York, to which port she was insured. The omitting to disclose this fact did not affect the policy.(5)

So in the case of a ship insured from London to Nantz, with liberty to touch at Ostend, for which port she took a clearance, for the purpose however of avoiding certain duties, and without

any intention of touching at Ostend, it was held that the policy was not affected by the omission of the assured to state the purpose of clearing for Ostend. The same vessel had fictitious papers of clearance from Ostend, of which also no disclosure had been made to the insurers. But it appeared that this was the (1) Planché usage of the trade, with which the insurers were presumed to be . Fletcher, acquainted.(1)

Doug. 251.

Registered ships are, in England, required by law not to sail Convoy. without convoy during war, unless with a license for that purpose. Insurance being made on a ship not required to be registered, and which might accordingly sail without convoy, the jury found that the fact of the ship's not being registered, need not be disclosed to the insurers; and the court acquiesced in this verdict, thinking it a question that depended in some measure on usage, and so to be determined by the jury.(2) (2) Long v. But where the broker was informed by the owner of goods Duff, and insured from Bristol to Port Mahon, that the ship was to ton, 2 B. & P. have gone to Falmouth to join convoy, but he supposed the wind was contrary and she could not fetch the port, but he knew nothing about it himself,' but did not disclose this circumstance to the insurers, though he knew it to be a fact that the vessel had sailed without convoy; this was held to be a material concealment.(3)

same v. Bol

209.

(3) Sawtell v. Loudon, 5 Taunt. 359;

3. C. 1 Marsh Rep. 99.

with the con

At the time of effecting a policy, Nov. 12th, on wines on board the Stag, from Oporto to Liverpool,' a part of the premium to be returned for convoy, the assured did not disclose either of two letters received the 30th of October from his correspondents at Oporto, one of the 11th of the same month, saying, 'We The ship did are loading the wines on the Stag, Captain Wheatley, who pre- not sail at the tends to sail after to-morrow,' the other of the 13th, by which it time, and appeared that the vessel was to sail with convoy. The convoy with which the Stag proposed to sail had arrived on the 30th of voy proposed. October, and the Stag was not included in the list of ships entered at Lloyd's as having sailed with the convoy. Lord Ellenborough said, 'The letter of the 11th would have made known to the insurer the captain's intended time of sailing, that of the 13th, that the lading was completed and she was ready to sail ; he would have found that the convoy had arrived without her, and from that circumstance must have inferred a disappointment in the original intention of the parties; I cannot help thinking these letters were material.' Grose, J. said, 'It is not the less a concealment because made without any view of fraud.' (4) Bridges Le Blanc, J. thought that the facts, if disclosed, would have Hunter, 1 M. shown that the ship was a missing ship.(4)

& S. 15.

Where the assured did not disclose a letter from the Cape of Intelligence of Good Hope, stating that there were then two or three French armed ships privateers in those seas, it was held to be a material conceal- hovering near. ment.(5)

(5) Beck

In effecting insurance on the 24th of March, upon the priva- waite v. Nalteer Hazard, from the 6th of that month, for two months, the grove, 1 Holt, broker omitted to disclose, that on the 8th and 9th of March cited 3 Taunt. there were reports in Jersey, whence the Hazard had sailed on 41.

288. n. and