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going to the port of destination of the vessel insured, but the latter will have to join another convoyl or even to proceed alone, if vessels to that port are so directed by the government. If a general rendezvous is appointed, the vessel may sail for that place without convoy, although there is a convoy for ships bound for other destinations between the port of loading and the place of rendezvous. But if the convoy is gone when the vessel arrives, she cannot endeavor to overtake it;5 nor is it sufficient to sail under the protection of a single man-of-war which does not belong to the convoy;6 nor with a convoy appointed for another voyage, though it may be bound upon the same course for the greater part of the way.?
It is generally necessary to obtain sailing orders, because without them the captain cannot answer signals, or know the place of rendezvous in case of a storm, and he does not in effect put himself under the protection of the convoy. But the obtaining the orders does not seem to be in the nature of a condition precedent, for if the commander of the convoy refuses to give them, or they cannot be obtained on account of the weather, the vessel may sail without them.10
single man-of-war to bring vessels to a certain place to join the rest of the convoy, and it was held, that the warranty was complied with by sailing with this vessel.
1 De Garay v. Clagget, Park, Ins. 455. See also, Smith v. Readshaw, per Lord Mansfield, C. J., Park, Ins. 454.
2 In D'Eguino v. Bewicke, 2 H. Bl. 551, the vessel was going to St. Sebastian, and the convoy only went to Bilboa. It was held, that as neither party could know the instructions of government, it was a sufficient compliance with the warranty if the assured took the convoy provided.
3 Lethulier's Case, 2 Salk. 443 ; Bond v. Gonsales, 2 Salk. 445; Gordon v. Morley, 2 Stra. 1265; Campbell v. Bordieu, id.; Hinckley v. Walton, 3 Taunt. 131, 136, per Lord Mansfield, C. J.
+ Warwick v. Scott, 4 Camp. 62.
6 Cohen v. Hinckley, 1 Taunt. 249. Sce also, Gale v. Machell, Park, Ins. 529, 2 Marsh. Ins. 659.
Hibbert v. Pigou, Park, Ins. 443. The vessel in this case sailed with a single ship of war, joined the convoy, and was subsequently lost. It was held, that as she had not sailed with convoy in the first instance, the underwriters were not liable.
Cohen o. Hinckley, 1 Taunt. 249.
* Webb v. Thompson, 1 B. & P. 5; Anderson v. Pitcher, 3 Esp. 124, 2 B. & P. 164. See also, Hibbert v. Pigou, Park, Ins. 443, where this question was discussed but not decided.
9 Veedon v. Wilmot, Park, Ins. 444, note. 1 Victorin v. Cleeve, 2 Stra. 1250.
If a vessel neglects to obey sailing orders in starting, this is breach of the warranty. Not only must a vessel sail with the convoy, but it would seem that she must start as soon as possible, and if she delays, and is lost in consequence thereof, the underwriters are exonerated, although some of the vessels started after she did. If the fleet is dispersed by a storm, the vessel insured may run immediately for her port of destination. So if she is driven back to the port of clearance, she may sail again without waiting for a convoy from that port, or joining one at another port. And it has been held, that if, after the vessel has once joined the convoy, she is separated and lost, the underwriters are liable unless the separation was caused by the wilful fault of the master.5
D. Of the Warranty of the Time of Sailing. Another express warranty of frequent occurrence, is that which relates to the time of the ship's sailing. As to this it is
1 Taylor v. Woodness, Park, Ins. 454.
Laing v. Glover, 5 Taunt. 49. This case was, however, decided under the provisions of the statute of 43 Geo. 3, c. 57. See contra, Morrice v. Dillon, 2 Selw. N. P. 11th ed. 1005.
5 Jeffries v. Legandra, 2 Salk. 443.
6 In Baines v. Holland, 10 Exch. 801, 32 Eng. L. & Eq. 503, the vessel was insured at and from New York to Quebec, during her stay there, and thence to the United Kingdom ; the said ship being warranted to sail from Quebec on or before the 1st of November, 1853. The vessel was lost on the voyage from New York to Quebec. It was set up in defence, that on the 1st November the vessel was at sea on her voyage from New York to Quebec, that the loss did not take place till after the 1st, and that the vessel did not sail from New York in time to enable her to complete the voyage to Quebec, and comply with the warranty of sailing from that port on or before the 1st. On demurrer it was held that the warranty was to be construed as an undertaking to sail from Quebec on or before the 1st, if the vessel arrived there by that time. Parke, B., said: “The most natural construction is, that, so far as relates to the voyage from New York to Quebec, the policy is altogether without limitation as to time; but, as regards the voyage from Quebec to the United Kingdom, the underwriters are not responsible unless the vessel sails from Quebec, on or before the 1st of November, 1853.” In Colledge v. Harty, 6 Exch. 205, 3 Eng. L. & Eq. 550, the policy was made subject to certain rules, one of which was that vessels were not to sail " from any port on the east coast of Great Britain, between the 5th of October and the 5th of April to any port or place in the Baltic .... or to any port or place in the Belts between the 20th of December, and the 15th of February.” On the 8th of February
now quite clear that a ship 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. But if not
the plaintiff's vessel sailed from Newcastle upon Tyne for a port in the Belts. It was held that the rule was a warranty, and that “ to meant towards, and that the defendant therefore was not liable.
1 The ship must be actually moving on her voyage; hence, in a case where there were two anchors out, and one was raised on the day on which she was warranted to sail, and the captain was prevented from sing the other by a heavy swell, it was held not to be a compliance with the warranty, although the ship, lay over night with only one anchor, and got under way the next morning without having had communication with the shore. Nelson v. Salvador, Moody & M. 309, Danson & Ll. 219.
But if she moves with the intention of prosecuting her voyage, that is sufficient. In Cochran v. Fisher, 4 Tyrw. 424, 2 Cromp. & M. 581, the ship was lying in a dock at Dublin, warranted not to sail after August 15. On that day she cleared at the custom-house, and was ready for sea, but as the wind blew directly up the river so that it was impossible to sail, she was warped down the river about half a mile. It was impossible for her to get out of the harbor on that day, and she did not leave till the 17th. Lord Lyndhurst, C. B., said : “ The question turns entirely on the intention of the captain; if, at the time of breaking ground and moving the vessel, he proceeded down the river with a bonâ fide intention of placing her in a more favorable position from which to prosecute the voyage, that would be a compliance with the warranty; but if, as there is some reason to apprehend, he left the dock and warped his vessel down to the place at which she took ground, with no other object than merely and solely to comply with the letter of the warranty, that would not be such a sufficient commencement of the voyage as would be a compliance with the warranty.” Alderson, B., held it to be sufficient if the vessel was moved for mixed purposes. On a new trial the jury found that the master and crew intended to put the vessel in favorable situation for prosecuting the voyage, and not merely and solely to fulfil the warranty; but that at the time when the vessel quitted the dock, he knew it was impossible to get to sea that day. The court then held on this finding that there had been a compliance with the warranty. Fisher v. Cochran, 5 Tyrw. 496, 1 Cromp. M. & R. 809. See also, Bowen v. Hope Ins. Co.,20 Pick. 275 ; Union Ins. Co. v. Tysen, 3 Hill, 118.
In Bond v. Nutt, Cowp. 601, the insurance was at and from Jamaica, warranted to have sailed on or before the 1st of August, 1776. The ship, before that time, sailed from St. Anne's to Bluefields, the general rendezvous for convoy at che Jamaica Station, expecting to join convoy there and sail immediately for England. When she arrived at Bluefields, she was detained beyond the time by an embargo. The question was whether the warranty with regard to the time of sailing was complied with. Lord Mansfield said : “ The question, then, is a matter of fact, and one that admits of no latitude, no equity of construction, or excuse. Had she, or had she not sailed on or before that day? That is the question. No matter what cause prevented her; if the fact is that she had not sailed, though she staid behind for the best reasons, the policy was void ; the contingency had not happened ; and the party interested had a right to say there was no contract between them. Therefore, what Mr. Wallace said in the argument, is very true. If she had been prevented by any accident, from sailing until the 2d of August, as by the sudden want of any necessary repair, or if an enemy had been at the month of the port, the captain would have done very right not to sail,
entirely ready for sea, she has not sailed by merely moving down the harbor. If she moves, ready and intended for sea, but is
but there would have been an end of the policy. .... The great distinction is this : that she sailed from St. Anne's to London by the way of Bluefields; and that it was not a voyage from St. Anne's to Bluefields, with any object or view distinct from the voyage to England. If she had gone first to Bluefields for any purpose independent of her voyage to England, to have taken in water or letters, or to have waited in hopes of convoy coming there, none being ready, that would have given it the condition of one voyage from St. Anne's to Bluefields, and another from Bluefields to London."
See also, Earle v. Harris, 1 Doug. 357; Wright v. Shiffner, 2 Camp. 247, 11 East, 515; Lang v. Anderdon, 3 B. & C. 495, 5 Dowl. & R. 393, 1 Car. & P. 171; and cases in the next note.
Pettegrew v. Pringle, 3 B. & Ad. 514; Lang v. Anderdon, 3 B. & C. 495, 499 ; Graham v. Barras, 3 Nev. & M. 125, 5 B. & Ad. 1011; Ridsdale v. Newnham, 4 Camp. 111, 3 M. & S. 456. In Pettegrew r. Pringle, 3 B. & Ad. 514, the ship was warranted not to sail from ports in Ireland after the 1st of September. The ship dropped down the river from the port of Sligo before that time, in readiness for sea, except that she had not her full quantity of ballast, there being a bar at the mouth of the river which the ship could not cross with the full quantity on board. Boats were waiting outside on the 1st of September, to ship the remainder of the ballast, and the vessel crossed the bar on that day, but struck in doing so, and the master, to ascertain what damage she had received, put into an adjacent port without taking the rest of his ballast, and this was not done till the fourth. Held, that the ship's dropping down the river and crossing the bar, without full ballast, was not sailing. Lord Tenterden, C. J., said: “The general principle of the decisions is this; that if a ship quits her moorings and removes, though only to a short distance, being perfectly ready to proceed upon her voyage, and is by some subsequent occurrence detained, that is nevertheless a sailing; but it is otherwise, if at the time when she quits her moorings and hoists her sails, she is not in a condition for completing her sea voyage.” In Thompson v. Gillespy, 5 Ellis & B. 209, 32 Eng. L. & Eq. 153, the question arose whether the vessel had sailed from Sunderland for Constantinople pursuant to a charter-party. She had left the harbor with an incomplete crew, the master and mate were not on board, the shrouds and cables had not been put in proper condition for the voyage, and the bills of lading were not signed. The ship left the harbor with the intention of anchoring in the roadstead till every thing was ready for the voyage. Held that this was not a sailing. Sce also, Hudson v. Bilton, 6 Ellis & B. 565, 36 Eng. L. & Eq. 248; Sharp v. Gibbs, 1 H. & N. 801, 40 Eng. L. & Eq. 383. In Williams v. Marshall, 6 Taunt. 390, 2 Marsh. 92, 1 J. B. Moore, 168, 7 Taunt. 468, the vessel was licensed to export goods from the port of London before the 10th of the month. The vessel cleared on the 9th at the London custom-house, and arrived at Gravesend on the 12th. There the master is required to deliver certain papers, and he then receives the cockets and the clearing notes. When any drawback is to be repaid to the master on exportation, he cannot entitle himself to it without producing this clearing note. Gibbs, C. J., in 6 Taunt. 390, said: “Whether she as covered by this license, or not, depends on the question whether she sailed on the 10th. I cannot say, however I may be disposed to favor the plaintiffs, that the clearing at the custom-house is an exportation. Considerable light is thrown on the question by the fact, that by the regulations, or at least by the practice of this country, the drawback is not paid till after the passing Grave
afterwards accidentally and compulsorily delayed, this is a sailing. But if when ready and intending to sail, she is stopped by a storm or some similar obstruction ab extra before she gets under way,
it may not be easy to reconcile the authorities. But the reasons given in some of the cases might lead to the conclusion, that, if the policy is not to attach until the vessel sails, it does not attach until an actual sailing, however that may be prevented. But if the policy has previously attached while the ship is in port, and the fact of her sailing or leaving the port on a certain day is a distinct warranty, and she is ready and intending to sail on that day, and is prevented by an accident or obstruction ab extra, it has been held that there is no breach of the warranty. But this may perhaps be doubtful.2
If the warranty be to sail from a place, a coast, or an island, on or before a certain day, the warranty is not complied with by sailing from it to return immediately to it, or from one port in the coast or island to another, but there must be an absolute setting sail with an intent to go finally away from it. It has been held, but, as we think, on insufficient reasons, that a warranty “to depart” means more than a warranty “ to sail;” and if a
send; and therefore upon the interpretation which has prevailed, of those acts of parliament which give a drawback, it appears that ships are not considered as having exported till after passing Gravesend ; therefore, with every disposition to favor this action, we cannot say that the plaintiffs are entitled to recover.”
1 Thellusson v. Fergusson, 1 Doug. 361; Thellusson v. Staples, 1 Doug. 366, note; Earle r. Harris, 1 Doug. 357. See also the two preceding notes.
2 Hore v. Whitmore, Cowp. 784; Bond v. Nutt, Cowp. 601, and cases cited in the three preceding notes. In Hore v. Whitmore, the insurance was at and from Jamaica to London, warranted to sail before 26th July, 1776, and free from all restraints and detainments of kings, princes, etc. The ship was ready to sail before the time, but was detained by an embargo. It was contended that the embargo being expressly insured against, excused the delay. But on the other hand, it was said “that the warranty was positive and express, that the ship should depart on or before the day appointed, and therefore must be complied with. And of this opinion was the court.”
$ Sec Wright v. Shiffner, 11 East, 515; Cruikshank v. Janson, 2 Taunt. 301 ; Ridsdale v. Newnham, 3 M. & S. 456 ; Dennis v. Ludlow, 2 Caines, 111. In Lang v. Anderdon, 3 B. & C. 495, the counsel argued that a different construction should be put upon the words " sail from,” from that put upon the word “sail.” The court did not reject the distinction, but held that it was not necessary for the decision of that case, and it appears never to have been since adopted by the courts. See 1 Arnould on Ins. 602. If insurance is effected on a vessel at A, with liberty to touch at B, warranted to sail after a certain day, the warranty applies to the sailing from A, and the vessel must leave that port after the day named. Vezian v. Grant, Park on Ins. 430.