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SECTION VI.

THE MEMORANDUM.

THIS word is retained, because the English policies have attached to them a note or memorandum providing that the insurers shall not be liable for any loss upon certain articles therein enumerated (and thence called memorandum articles), unless it be total, or greater than a certain percentage. In our policies, the same thing is provided for, but usually by a clause contained in the body or in the margin of the policy. The general purpose is to guard against a liability for injuries which may very probably not arise from maritime peril, because the articles are in themselves perishable; but which injuries it might not be easy to refer to the precise causes which produced them Thus, grain, fish, hides, fruit, etc., are very liable to be some. what injured on the voyage, and if there has been bad weather, or a greater leak than usual, it is impossible to say whether these goods have lost value from their own decay, or from a peril of the sea. It is therefore provided, that the insurers shall no pay unless there be a total loss by a sea-peril, which ends all question, or so large a loss as ten or twenty per cent.; for this could hardly happen without visible and certain cause. And then, if the cause was shown to be not a peril insured against, the insurers would not be liable.

The perishable articles thus excepted, and the percentage of loss necessary to charge the insurers, vary very much at amer ent times and in different States.

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A STIPULATION or agreement in the policy, that a certain thing shall be or shall not be, is an express warranty. And every warranty must be, if not strictly, at least accurately complied with. Nor is it an excuse that the thing is not material; or that the breach was not intended, or not known; or that it was caused by an agent of the insured. A warranty is equally effectual if written upon a separate paper, but referred

to in the policy itself as a warranty. And the direct assertion or allegation of a fact may constitute a warranty.

If the breach of the warranty exists at the commencement of the risk, it avoids the whole policy, although the warranty was complied with afterwards and before a loss, and although all other risks were distinct from that to which the warranty related. Thus, if a vessel is warranted "coppered," and she is not coppered, and is lost by the ignition of cotton in the hold Here, the breach of the warranty, that is, the want of the copper, has nothing to do with the loss; but the insurers would be discharged.

If the breach occur after the risk begins, and before a loss, and is not caused or continued by the fault of the insured, the insurers are held; and so they are if a compliance with the warranty becomes illegal after the policy attaches, and it is therefore broken.

The usual subjects of express warranty are, first, the ownership of the property, which is chiefly important as it secures the neutrality, or freedom from war-risks, of the property insured. The neutrality of the ship and of the cargo must be proved by the ship's having on board all the usual and regular documents. False papers may, however, be carried for commercial purposes, either when leave is given by the insurers, or when it is permitted by a known and established usage.

If neutrality is warranted, it must be maintained by a strict adherence to all the rules and usages of a neutral trade or em. ployment. Without warranty, every neutral ship is bound to respect a blockade which legally exists by reason of the presence of an armed force sufficient to preserve it, and of which the neutral has knowledge.

The second most common express warranty is that of the time of the ship's sailing. She sails when she weighs anchor or casts off her fastenings, and gets under way, if the intention be to proceed at once to sea without further delay. She must have been actually under way. But if she moves with the intention of prosecuting her voyage, this is sufficient. But if not entirely ready for sea, she has not sailed by merely moving down the harbor. If she moves, being ready and intended for

sea, but is afterwards accidentally and compulsorily delayed, this is a sailing. Nor is the warranty complied with by leaving a place to return to it immediately; or by going from one port of the coast or island, which she is warranted to leave, to another. If the ship is warranted "in such a harbor or port,” or "where the ship now is," this means at the time of the insurance. And "warranted in port" means the port of insurance, unless another port is expressed or distinctly indicated.

SECTION VIII.

IMPLIED WARRANTIES.

THE most important of these warranties-which the law implies, or makes for the parties without their saying anything about them, although they may, if they please, make them for themselves-is that of seaworthiness. By this is meant, that every person who asks to be insured upon his ship, by the mere force and operation of law, warrants that she is, in every respect,-hull, sails, rigging, officers, crew, provisions, imple ments, papers, and the like,-competent to enter upon and prosecute that voyage at the time proposed, and encounter safely the common dangers of the sea. If this warranty be not complied with, the policy does not attach, whether the breach be known or not, unless there is some peculiar clause in the policy waiving this objection.

If the ship be seaworthy and the policy attaches, no subse quent breach discharges the insurers from their liability for a loss previous to the breach. Even if the policy does not attach at the beginning of the voyage, if the unseaworthiness be capable of prompt and effectual remedy, and be soon and entirely remedied, the policy may then attach. If the insurance is "at and from" a port, there is no implied warranty in the nature of a condition precedent to the attaching of the policy, that the vessel shall be then seaworthy in the sense of being fit for sea, and it is sufficient if she is portworthy. But the policy is avoided if she goes to sea in an unseaworthy condition. The general rule is, that, if unseaworthiness prevents the policy from attaching at the proper commencement of the risk, the contract becomes a nullity.

If she becomes unseaworthy in the course of the voyage, from a peril insufficient to produce it in a sound vessel, this may be evidence of inherent weakness and original unseaworthiness; and then the policy never attached. But if originally seaworthy, and by any accident made otherwise, the policy continues to attach until she can be restored to a seaworthy condition by reasonable endeavors. And the general rule is, that she must be so restored as soon as she can be. It is the duty of the master to repair her as soon as he can; by the aid of another ship if that may be, but if otherwise, not to keep her at sea if she can readily make a port where she can be made seaworthy; and not to leave that port until she is seaworthy. It is the rule that a ship must not leave a port in an unseaworthy condition, if she could there be made seaworthy; if she does, the insurers are no longer held. But their liability may be, not destroyed, but only suspended, if the seaworthiness be cured at the next port, especially if that be not a distant port.

There cannot possibly be a definite and universal standard for seaworthiness. The ship must be fit for her voyage or for her place. But a coasting schooner needs one kind of fitness, a freighting ship to Europe another, a whaling ship another, a ship insured only while in port another. So as to the crew, or provisions, or papers, or a pilot, or certain furniture, as a chronometer or the like; or the kind of rigging, or sails. In all these respects, much depends upon the existing and estab lished usage. There is, perhaps, no better test than this; the ship must have all those things, and in such quantity and of such quality as the law requires, provided there is any positive rule of law affecting them; and otherwise such as would be deemed requisite according to the common consent and usage of persons engaged in that trade. And the reason for this rule is, that this is exactly what the insurers have a right to expect, and if the insured intend anything less, or the insurers desire anything more, it should be the subject of special bargain.

If a policy be intended to attach when a ship is at sea, the ship must be seaworthy in that sense and in that way in which a ship of her declared age, size, employment, and character, after being at sea for that time, under ordinary circumstances,

ought to be in, and may be expected to be in by all concerned. The standard of seaworthiness is to be found from the usage and understanding of merchants, at the place where the ship belongs, and not at that where the ship is insured.

SECTION IX.

REPRESENTATION AND CONCEALMENT.

If there be an affirmation or denial of any fact, or an allegation which would lead the mind to a conclusion, whether made orally or in writing, or by exhibition of any written or printed paper, or by a mere inference from the words of the policy, before the making of the policy, or at the making, and the same be false, and tend to procure for him who makes it the bargain, or some advantage in the bargain, it is a misrepresentation And it is the same thing, whether it refers to a subject concern ing which some representations were necessary, or otherwise.

Concealment is the suppression of a fact not known to the other party, referring to the pending bargain, and material thereto.

A misrepresentation or a concealment discharges the in surers. To have this effect, it must continue until the risk begins, and then be material.

It is no defence that it was innocent, and arose from inadvertence or misapprehension, because the legal obligation of a full and true statement is absolute; nor that the insurers were not influenced by it, if it were wilfully made with intention to deceive.

If it be in its nature temporary, and begins after the risk begins, and ends before a loss happens, the insurers are not discharged. And if it relate to an entirely separate subject. matter of insurance, as the goods only, and has no effect upon the risk as to the rest, as the ship, for example, it discharge the insurers only as to that part. Ignorance is never an excuse, if it be wilful and intentional. If one says only he believes so and so, the fact of his belief in good faith is sufficient for him. But if he says that is true of which he does not know whether it be true or false, and it is actually false, it is the same misrep

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