If the insured state his representation as fact, and it prove untrue, it will avoid the policy. Mackdowal v. Fraser, Dougl. 247.

A misrepresentation, whether by the insured or agent, and whether fraudulent or innocent, avoids the contract. Fitzhebert v. Mather, 1, T. R. 12.

Concealment consists in a fraudulent suppression of any fact or circumstance material to the risk. This, like every other fraud, avoids the contract ab initio upon principles of natural justice; for as the facts on which the risk must be estimated generally lie within the knowledge of the insured or his agent, the underwriter must in most cases rely on him for all the necessary information to decide upon what terms he will take the proposed risk.

A well founded suspicion of a concealment will amount to proof of fraud. Park. 209. 1 John's Cas. 1.

Concealment of the time of the ship's sailing avoids the policy. M. Andrews v. Bell, Esp. Rep. 373.

If a ship is to be employed in a service of peculiar danger, this should be stated to the insurers. A material concealment is fatal, though the fact concealed was not disclosed, because the broker thought it immaterial. Shirley v. Wilkinson, Doug. 306. Even doubtful rumors respecting the safety of a ship ought to be disclosed. Da Costa v. Scandaret, 2, P. W. 170. Seaman v. Fonnereau, 2, Str. 1183, the assured need not disclose that the vessel had papers on board which are necessary for the prosecution of the voyage according to the usage of trade, though the possession of such papers shall increase the risk of capture. 6 Cranch, 278. But the non-compliance with an ordinance, though it be contrary to the law of nations, ought to be disclosed.

Sea worthiness. In every insurance, whether of ships or goods, there is an implied warranty of the sea worthiness of the ship, that is to say, that she shall be "tight, staunch and strong, properly manned, provided with all necessary stores," and in every respect fit for the voyage.

When a ship is lost, or is in the course of the voyage condemned as incapable of proceeding to her place of destination, and this cannot be ascribed to stress of weather or any accident, the presumption is, that she was not sea worthy, in so far as to throw the proof that she was sea worthy on the insured. A ship must not only be perfect in herself, but must from the nature of her structure be capable of per forming the voyage on which the insurance is made, otherwise she is

not tight, staunch and strong, according to the tenor of the charterparty; and it is also required that there shall be good and sufficient evidence of this, and also that the insured shall bring forward all the evidence he has of the condition of the ship at the time she sailed, and when the loss happened, or that she was condemned as unfit to proceed on her voyage. If on the other hand, the loss or disability of the ship may be fairly ascribed to sea damage, the proofs of the unsea-worthiness lies on the insurers.

A ship may not only be changed from necessity, but the proceeds of goods saved from shipwreck may be invested in new goods, and the risk will continue on these in a new ship. Plantamour v. Staples, B. R. M. 22, Geo. 3.

Deviation is a voluntary departure, without reasonable cause, from the regular course of the voyage insured. From the moment this happens the contract becomes void. The course of the voyage does not mean the nearest possible way, but the usual and regular course. Accordingly stopping at certain places on the voyage is no deviation, if it be customary so to do; but such usage can only be supported by long and regular practice. Bond v. Nutt. Cowp. 601.

A deviation does not vitiate or avoid the policy, but only determines it from the time it takes place. Green v. Young, 2 Raym. 840. 2 Salk. 444. But though the insurer is after the deviation discharged from responsibility, he is entitled to retain the whole premium. Nothing will justify a deviation but necessity: a letter of marque is not at liberty to cruize after prizes; but she may give chase to an enemy that comes in her way. Jolly v. Watker at N. P. East, Vac. 1781. The ship not only must not depart from the direct course of her voyage, but must also use reasonable expedition; for any unnecessary delay will be considered equivalent to a deviation. Park. 313. The cases of necessity under which a deviation is generally defended are stress of weather, want of necessary repair, joining convoy, escaping from an enemy, and mutiny of the crew.

As to stress of weather, a ship driven by a storm into any port out of the course of her voyage, is not obliged to return back to the point from which she was driven, but may make the best of her way to the port of her destination.

A second cause of justifiable deviation is, when a ship is obliged to go out of her direct course in order to join convoy.

A deviation may, in like manner, be justified, if done to avoid an enemy.

And lastly a deviation is justifiable when the captain, under the com

pulsion of a mutinous crew, is forced to leave the direct course of his voyage and put into port. Elton v. Brogden, 2, Str. 1264. But if a vessel be captured and taken out of her course by reason of her having contradictory papers on board, it is a deviation. 1 John Cas. 341, or if a vessel remain longer in port than is necessary to complete the repairing or avoid the danger, it is a deviation. 7 Cranch, 487.

Loss is the injury or damage sustained by the insured in consequence of one or more of the accidents or misfortunes against which the insurer, in consideration of the premium, has undertaken to indemnify the insured, and which perils are all distinctly enumerated in the policy.

Loss is either total or partial. The term total loss means not only the total destruction of, but also such damage to the thing insured, as renders it of little or no value to the insured, although it may specifically remain. Thus a loss is said to be total, if in consequence of the misfortune that has happened, the voyage be lost or not worth pursuing, and the projected adventure frustrated; or if the value of what is saved be less than the freight, &c.

A partial loss is any thing short of a total loss. Thus if a ship insured for a particular voyage arrive at her port of destination, and there remain 24 hours, moored in safety, or if she be insured for a term, and survive the term, no injury which she could have sustained during the voyage in one case, or during the term in the other, however great, can amount to a total loss. So, in the case of an insurance on goods, the insurer contracts that they shall arrive safe at the port of delivery. If they specifically remain, and are landed at the port of delivery, however damaged in the voyage, the injury will only amount to a partial loss: being of the nature of those losses which are the subject of avePartial losses are sometimes stiled average rage contributions.

losses.

Losses by perils of the sea. These are generally understood to be such accidents or misfortunes as proceed from sea damage; that is to say, such as arise from stress of weather, wind, waves, lightning, tempest, rocks, sand, &c. This sort of loss may happen by the ship's foundering at sea, and then it must, in most cases, be a total loss. It may be by stranding, either accidental, when the ship is driven on shore by the wind and waves; or voluntary when she is run on shore, either to preserve her from a worse fate, or with a fraudulent purpose. If the stranding be followed by shipwreck, then it becomes a total loss;

if she is got off and rendered fit to continue the voyage, it is a partial and general average loss. It may also happen from the ship striking on a sunken rock, which may occasion the springing a leak, or absolute shipwreck.

If a ship be not heard of for a reasonable time, she shall be presumed to have foundered at sea, and the insured has a right to recover as such of the underwriters. Green v. Brown, 2. Strange. 1199.

In France, after a year from the ship's sailing on common voyages, and two years on distant voyages, the insured have a right to abandon, and demand payment without any farther proof of the loss. In Spain, if a ship has not been heard of for a year and a half, a voyage to and from the Indies, she is deemed lost. In England and in the United States there is no specific limitation of time, but generally depends on circumstances. Green v. Brown, Str. Rep. 1199. Gordon v. Brown 2 Johns Rep. 153. Brown v. Nelson, Caines Rep. 525. 1 Holt's N. P. Rep. 242.

A ship destroyed by the worm was ruled by Lord Kenyon not to be within the covenant of loss by the perils of the sea, and there was a verdict for the defendant. Rhol v. Parr, Esp. 444.

If

any animals be insured, their death occasioned by tempest, shot of the enemy, jettison in a storm, or any other extraordinary accident, is a loss within the policy, but not so if occasioned by disease.

Where a ship is damaged by running foul of another, it is a loss within the policy, unless occasioned by the misconduct of the master or mariners of the ship insured; but in the latter case the misconduct of the master or mariners would appear to amount to barratry, and in that point of view the insurers be liable for the loss. An action however would lie against the master or owners of either ship, to whom negligence or misconduct is imputable, for the loss he has occasioned.

A loss by fire which is merely accidental, and not imputable to the master or mariners, is undoubtedly within the policy. If a ship be burnt by order of the state where she happens to be, to prevent infection, this also has been held a loss within the policy.

If a ship be attacked by an enemy, and the captain, unable to defend her, leave and set fire to her, to prevent her falling into the enemy's hands, the insurer is liable.

Capture, is where a ship is taken by an enemy in war, or by way of reprisals, or by a pirate. Capture may be with an intent to possess the ship and cargo, or only to seize the goods on board as contraband; the former is a capture, the latter only an arrest or detention. Every cap

ture, whether lawful or unlawful, is within the policy; provided the words in the policy be sufficiently comprehensive. Where the ship is recaptured before abandonment, it is a partial loss; and the insurer is bound to pay the salvage, and other necessary expenses the insurer may have incurred to recover his property. In general, whenever a ship is taken by the enemy, the insured may abandon, and demand as for a total loss: but he is not bound to abandon; if he do, the insurer, in case of recapture, will stand in his place, and is liable for all fair charges occasioned by the capture.

Where a ship warranted neutral is captured as an enemy's ship, and the owners, after an interlocutory decree against them, agree to a compromise; this being done bona fide, the insurer is liable for the sum paid by the insured under such compromise. Berens v. Rucher, 1 Bl. 313. By St. 22 Geo. III. c. 35, it is declared unlawful to ransom any British ship taken by the enemy.

Loss from Collision of ships. When it can be proved, that a fault was committed by one party for want of due skill or care, and the disall damaster was the consequence thereof, the party in fault must pay ages; thus if the vessel that has the wind free, must get out of the way of the vessel that is close hauled. The Woodrof Sims. 2 Dod. Adm. Rep. 83. The Thames, 5 Rob. Adm. Rep. 345.

For neglect of due means to check a vessel entering a river or harbor, where others lie at anchor, is a fault which creates responsibility for damages which may ensue. Neptune 2d. 1 Dod's Adm. Rep. 467.

But when the collision arose by wind or weather exclusively, without any negligence or fault, open or concealed the damage must be borne where it falls. Abbott on Shipping, 354. Marshal on Ins. 493.

When both parties are to blame, and where the fault cannot be detected, the ships contribute equally.

Jettison. All damages arising immediately from jettison, or other act of necessity, is to be matter of general average, and therefore if in cutting away a mast the cargo be by that means injured, or if the throwing overboard any part of the cargo, the other part of the cargo is injured, the damage goes into general average. Maggralt v. Church, 1 Caine's Rep. 196.

Loss by detention of Princes, &c. There is an obvious difference between this and capture; the object of one is prize, that of the other detention, with a design to restore the ship or goods detained, or pay the value to the owners; and though neither of these should be done,