they are discharged and safely landed at the port of delivery; and the insured is protected by the policy, in carrying the goods in lighters to any port of delivery, where such goods are usually loaded. Policies ought always to be construed according to the course of trade in the place; and, in doubtful cases, in favor of the insured. If the owner

of goods insured take them from on board the ship in his own lighter, the insured is discharged. Sparrow v. Corruthus, at N. P. Str. 1236. But where goods are put into a public lighter for the purpose of being landed, the risk continues. Rossere v. London Ass. before Buller at

N. P. June 8, 1784.

The policy affords protection in the port of delivery only until the goods can be landed, and no longer. Parkinson v. Collier, Park. 314. Yet if the cargo be sold without unloading, and the vendee contract for the freight of it to another port, the insurer is discharged. But the general rules may be controled by the usage of a particular trade. Noble v. Kenneuvey, Doug. 492.

Commencement and continuance of the risk. The commencement of the risk varies in almost every case. In outward bound voyages, it is generally made to commence from her beginning to load at her port of departure.

Privateers on a cruize, ships engaged in the coasting trade, or in short voyages, are insured for a limited period of time, and in such cases the risk commences and ends with the term, wherever the ship may happen to be.

If a ship be insured from the port of New-York to any other port, and before she breaks ground, an accident happens to her, the insurer is not answerable, for the risk does not commence till she sets sail on her departure from the port of New-York. But if the insurance be at and from the port of New-York, the insurers are liable to any accident that may happen to her from the time of subscribing the policy.

When a ship is expected to arrive at a certain place abroad, is insursured "at and from" that place, or from her arrival there, the risk begins from the first moment of her arrival at the place specified, and the words first arrival are implied, and always understood in policies so worded. The risk in such cases continues there as long as the ship is preparing for the voyage insured; but if all the thoughts of the voyage be laid aside, and the ship be suffered to lay there for a length of time with the owner's privity, the insurers are not liable.

The risk which is usually made on policies to continue only "until the ship hath moored at anchor 24 hours in good safety," the insurer is liable for no loss after that time. Augusteen v. Bell, at N. C. Park. 35.

This holds, though the cause of the loss existed before the ship's arrival; the master having been guilty of smuggling during the voyage, the ship is seized on this account after she arrives, and has been moored 24 hours. The insurer is not liable, though the forfeiture attached the moment the offence was committed. Lockyer v. Offley, 1 T.

R. 252.

If a ship from necessity be sent from her moorings before the 24 hours are ended, the risk continues. Waples v. Eames, 2 Str. 1248. So if a ship be seized at her port of delivery as prize within 24 hours. Minet v. Anderson at N. P. Peake, 211.

If the risk on a ship be from A. to B. it has been holden, that it lasts till she is unloaded and discharged.

Yet an insurance to Jamaica generally ends as soon as the ship has anchored 24 hours at any port there, though her cargo is to be deliv ered at different places. Camden v. Cowley, 1 Black. 417, 418, Leigh v. Mather at N. P. Esp. Rep. 412, Park 38.

The risk of the furniture of the ship may continue even when put ashore, thus if the rigging and tackle of a ship are put on shore during a repair in the usual course of the voyage, and are burnt by accident, this is a loss within the policy. Pelly v. Roy, Ex. Comp. 1 Burr,

341.

If a loss be within the general words of the policy, it is incumbent on the insurer to show that it arose from a peril not insured against. Describing a voyage in the policies is an express reference to all the circumstances attending it.

An insurance upon an India voyage includes the risk of the country voyage, by the usage of the trade. Solador v. Stephens, 3 Burr, 1707.

If in a policy on an India voyage there be liberty "to touch, stay, and trade, at any port or places," this covers even the risk of a second country voyage. Gregory v. Christie, B. R. F. R. 29, Geo. III.

But the general rule is, that a liberty to touch and stay at any port or place, means only places in the usual course of the voyage. Lavabre v. Wilson, Douglas, 271. And does not authorize the insurer to break bulk and trade. Hill v. Wardell, at R. N. P. Esp. 610. If a ship, through necessity, change the order of the plan, she is to

1

touch; yet if she does not abandon the original voyage, the risk continues, and the insurer is liable, the deviation being justified by necessity, and the original voyage having never been abandoned. Driscol

v. Vovil, 1 Bos. and Pul. 313.

If after the insurance is effected any thing be done by the insured to alter the nature of the risk, this must be done with the consent of the insurers, otherwise it will make void the contract.

If a ship be insured as a private trader, afterwards takes letters of marque without the consent of the underwriters, this discharges the underwriters, though no use be made of the letter of marque. Denison v. Modigliani, 5 T. R. 580.

Whatever may be the intention of the insured, if the ship in fact sail on a voyage different from the voyage insured, the policy is void. A ship is insured from a certain day from A. to B., and before the day she sails on a different voyage, the policy is discharged. Way v. Modigliani, 2 T. R. 30.

The various perils which the insured means to be protected must in every case be distinctly and fully enumerated in the policy, so that they afford full protection against any accident or misfortune that can possibly happen in the course of the voyage, and for which it is meant that the insurer shall be liable.

There are, however, certain losses for which it is never meant that the insurer shall be answerable, being imputable to the owners of the ship, or to the master and mariners whom they employ, rather than the perils of the sea. Such as injuries occasioned to goods by bad storage, by being exposed to wet, thefts, and embezzlement of the master and mariners, &c.

f

The words "lost or not lost," are generally in policies, by which the insurer takes upon himself not only the risk of future loss, but also the loss of any that may have happened. Policies with this clause are not deemed wagers.

Date and subscription of the policy. The sum insured is generally placed after the signature, in the underwriter's hand writing, and in words at length.

There are few instruments to which the true date is more necessary. This date, when compared with the dates of facts connected with the transaction, serves to discover whether there be reason to suspect any fraudulent concealment at the time.

When a policy may be altered. Though a policy of insurance being a contract of indemnity, and being only considered as a simple con

tract, must always be construed as nearly as possible, according to the intention of the parties, and not according to the strict and literal meaning of the words; the general form of the policy, which has been for many ages nearly the same, is never altered but with the utmost precaution, and upon very great consideration; and, therefore, when once a policy is filled and underwritten, no alteration can be made in it but by the full consent of all parties, or by authority of a court of equity, or perhaps a court of common law, and then only in a case where something has, by mistake or fraud, been inserted or omitted, contrary to the manifest intention and the real agreement of the parties; and a very clear case of this sort must be made out by unquestionable testimony to warrant such alteration. But when such a case is made out, the court will direct to be made even after a loss has happened.— Hankey v. Royal Ex. Ass. 1 Vez. 317. Matteaua v. London Ass. 1 Atk. 545.

Of Warranty. Warranty is a stipulation or agreement on the part of the insured, in nature of a condition precedent. It may be either affirmative, as when the insurer undertakes for the proof of some positive allegation, as that the ship insured is neutral property, that the ship is of such a force, that she sailed or was well on such a day, &c.; or it may be promissory, as when the insured undertakes to perform some executory stipulations; as that a ship shall sail on or before some given day, that she shall depart with convoy, that she shall be manned with such a compliment of men, &c.

Warranties are either express or implied. An express warranty is a particular stipulation introduced into the written contract by the agreement of the parties; as that the thing insured is neutral property, that the ship shall sail by a given day, that she shall depart with convoy, &c. An implied warranty is that which reasonably results from the nature of the contract, as that the ship shall be seaworthy when she sails on the voyage insured, that she shall be navigated with reasonable skill and care, that the voyage is lawful, and shall be performed according to law, and in the usual course, and without deviation, &c.

A warranty, like every part of the contract, is to be construed according to the understanding of merchants, and does not bind the insured beyond the commercial imports of the words. Hyde v. Bruce, B. R. Hill, 23 Geo. III. M. S.

Any warranty when once inserted in a policy becomes a binding condition on the insured, and must be literally complied with.

The breach of a warranty, therefore, consists either in the falsehood of an affirmative, or the non-performance of an executory stipulation.

In either case the contract is void; and whatever it may be, or whether a loss proceed from the breach of it or not, the insurer is not liable. Detratim v. Hartley, 1 T. R. 343.

An express warranty being of the nature of a condition precedent, the courts have held, that it must appear on the face of the policy, in order that there may be indisputable evidence of a stipulation, the non-compliance with which must necessarily avoid the contract. Instruction in writing for effecting the policy, therefore, unless inserted in the instrument itself, does not amount to a warranty; per Cur. in Pawson v. Watson, Cowp. 719.

Even a paper wafered to the policy will not make a warranty. Pawson v. Barnevelt, at N. P. Dougl. 12. Beze v. Fletcher, N. P. Dougl. 13. But it will be sufficient if written in the margin of the policy.

When there is a warranty to sail by a given day, nothing will excuse the non-compliance with it. How v. Whitmore, Cowp. 784.

A warranty to sail after a certain day must be observed with strictness. Vigianda v. Grant, N. P. East, 1779..

If the ship sail before the day to join convoy, this shall be a compliance with the warranty, though the way to the place of rendezvous be out of the course of the voyage. Bond v. Nutt. Cowp. 601.

If the voyage be began, the usage may justify going out of the course to join convoy. Thellusson v. Ferguson, Doug. 348.

If a ship once breaks ground and gets fairly under sail before the day, this is a compliance with the warranty, though she be drove back. by stress of weather, or detained by an embargo. Thellusson v. Ferguson, Cowp. 604.

Warranty to sail with convoy. Another species of warranty often inserted in policies in time of war, is to sail or depart with convoy.This, like other warranties, must be strictly performed; and if the ship depart without convoy, from whatever cause, the policy becomes void, and the insurer shall not be answerable for the perils of the

seas.

There are five things essential to the sailing with convoy. 1st. It must be with the regular convoy appointed by government. 2d. It must be from the place of rendezvous appointed by government. 3d. It must be convoy for the voyage. 4th. The ship insured must have sailing instructions. 5th. She must depart and continue with the convoy till the end of the voyage, unless separated by necessity.

Ist, It must be with the regular convoy appointed by government.