time of the charter, but at the time of sailing,68 and there is a further obligation implied that it shall continue seaworthy during the voyage subject to the exceptions stated in the contract, and to the qualifications which the law makes to the liability of a common or a private carrier, as the case may be." The same principle is applied to charters for a series of voyages or for a period of time as to charters for a single voyage. The owner may be relieved of the obligation of warranty which would otherwise be implied not only by express agreement, but where the charter is a demise,71 a patent defect which the charterer has had an opportunity 68 Cohn v. Davidson, 2 Q. B. D. 455; The Glenfruin, 10 Probate Div. 103; The Undaunted, 11 Probate Div. 46; The Waikato, [1899] 1 Q. B. 56; Bowring v. Thebaud, 56 Fed. 520, 5 C. C. A. 640, 11 U. S. App. 648. 69 See Worms v. Storey, 11 Exch. 427; The Rona, 51 L. T. 28. In Work v. Leathers, 97 U. S. 379, 380, 24 L. Ed. 1012, Swayne, J., said: The owner "is obliged to keep her in proper repair unless prevented by perils of the sea or unavoidable accident. Such is the implied contract where the contrary does not appear. Putnam v. Wood, 3 Mass. 481, 3 Am. Dec. 179." The owner may also be liable for negligence if by failure to repair during the voyage he causes injury to the cargo even though the defective condition of the vessel arose from excepted perils. Thin v. Richards, [1892] 2 Q. B. 141. 70 In Dene Shipping Co. v. Tweedie Trading Co., 143 Fed. 854, 856, 74 C. C. A. 606, the court said: "Appellant seeks to make a distinction between time charters, such as the one in question, and voyage charters. We fail to see what bearing this can have upon the fundamental question in this case, which is that of seaworthiness. Mr. Justice Day, delivering the opinion of the Supreme Court of the United States in The Southwark, 191 As sea U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65, says: 'In the case of The Silvia, 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241, Mr. Justice Gray said: "The test of seaworthiness is whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport." This is the commonly accepted definition of seaworthiness. worthiness depends not only upon the vessel being staunch and fit to meet the perils of the sea, but upon its character in reference to the particular cargo to be transported, it follows that a vessel must be able to transport the cargo which it is held out as fit to carry, or it is not seaworthy in that respect.' The agreement of the owner is that the vessel shall be fit for the services in which it is employed, including therein fitness for the carriage of such reasonable and proper cargo as she may take on board. In this case the owners agreed under the charter that the vessel should be 'in every way fitted for the service. to be employed in carrying lawful merchandise.' They failed to carry out this agreement, and the expenses of the charterer, and deduction for time lost in repairing the resulting damage were properly offset against the charter hire. The decree is affirmed, with interest and costs." 71 See supra, § 1074. to discover by inspecting the vessel will not render the owner liable,72 the same principles being applicable as in case of the sale of a ship or other chattel.73 "A vessel to be seaworthy must be tight, staunch, strong, well furnished, manned and victualled, and in all respects equipped in the usual manner" for the service for which it is engaged.74 What amounts to seaworthiness or the reverse will vary according to the voyage and the nature of the cargo to be carried.75 "Ordinarily . ... the charterer is required to furnish what may be rendered necessary in the way of fittings by reason of the character of the cargo, such as grain, for example, but where the ship, owing to her construction, requires something to be done to put her in the condition presented by ordinary seaworthy vessels for lawful cargo then the burden is justly upon her." 76 72 Sanford & Brooks Co. v. Columbia Dredging Co., 160 Fed. 362, 177 Fed. 878, 101 C. C. A. 92; The Transit, 250 Fed. 71, 162 C. C. A. 243. 73 See supra, §§ 982 et seq. 74 The Jeannie, 225 Fed. 178, 180. The vessel must be seaworthy in respect to stowage of the cargo, Id., p. 183; Corsar v. Spreckels, 141 Fed. 260, 269, 72 C. C. A. 378. Cf. The Thorsa, [1916] Prob. 257. 75 See Thin v. Richards, [1892] 2 Q. B. 141; Maori King v. Hughes, [1895] 2 Q. B. 550; Queensland Bank v. Peninsular, etc., Co., [1898] 1 Q. B. 567; The Caledonia, 157 U. S. 124, 39 L. Ed. 644, 15 S. C. Rep. 537; The Southwark, 191 U. S. 9, 48 L. Ed. 65, 24 Sup. Ct. Rep. 3; The Jeannie, 225 Fed. 178, 180; The Hispania, 242 Fed. 95, 156 C. C. A. 523. 76 In Tweedie Trading Co. v. Dene Steam Shipping Co., 140 Fed. 779, 781, (affd. 143 Fed. 854, 74 C. C. A. 606), the court added: "A cargo of asphalt was lawful and it was known that this ship would in all probability be employed to carry one from Trinidad. The permanent battens were a detriment to the carriage of this material and it was apparently the ship's duty to prepare herself for it." Cf. The Hiram, 101 Fed. 138. There, the vessel was described in the charter as a water-ballast ship, and was so accepted without objection by the charterer, who contracted for the carriage in her of a cargo of cattle. The charterer desired to load a number of the cattle on the deck, which was refused by the master on the ground that it would be unsafe, with the ballast the ship carried. It was held, that he could not be required to provide additional ballast nor could the ship be held liable for his refusal to load the cattle as required by the charterer; it being shown that his objections were well founded, and there being no provision of the charter specifically requiring the vessel to take a deck cargo, or to carry any specific number of cattle. § 1079. Implied obligation to prosecute the voyage promptly and without deviation. The undertaking to begin and continue the voyage with reasonable despatch and without deviation is promissory in character. The owner is not here asserting expressly or impliedly a present fact but promising to do something in the future something moreover which is within his power to do. It is not like an agreement that a certain state of affairs which is not within the control of the promisor shall exist in the future. So far, therefore, as there is any distinction in the legal effect of a warranty and an ordinary promise, the obligation of reasonable despatch should have attached to it the incidents of ordinary promises, and in considering whether a breach excuses the charterer, the test to be applied should be the materiality of the breach." It is true that the owner may be prevented from fulfilling his obligation by matters beyond his control, which will excuse him from liability, but this is true of any promise. Even though the delay is due to perils of the sea and, therefore, the owner is not liable for it, the charterer may, nevertheless, refuse to continue performance if the delay is unreasonable having regard to the character of the commercial adventure in question, or, as it is often put, if the delay frustrates the object of the voyage.78 So where those in charge of the vessel abandon her for whatever cause, the owner of the cargo may treat the contract of affreightment as terminated.7 The right of a charterer to refuse to proceed on account of the shipowner's delay is even clearer where the owner is in fault.80 Unnecessary deviation also subjects the carrier to "Freeman v. Taylor, 8 Bing. 124; MacAndrew v. Chapple, L. R. 1 C. P. 643. 78 Jackson v. Union Marine Ins. Co., L. R. 10 C. P. 125; Tully v. Howling, 2 Q. B. D. 182; Assicurazioni Generali v. Steamship Bessie Morris Co., [1892] 1 Q. B. 571, 577; Porteous v. Williams, 115 N. Y. 116, 21 N. E. 711. 79 The Cito, 7 P. D. 5; The Arno, 72 L. T. 621; H. Newsum & Co., Ltd., v. Bradley, 1917] 2 K. B. 112. 79 80 In Giuseppe v. Manufacturers' Export Co., 124 Fed. 663, the defendants chartered from the owners' agent in Mobile an Italian ship to be loaded in Mobile. The charter party stated that she was then on passage from Sydney to Genoa, Italy, and stipulated that she should 'proceed with all possible dispatch to port of loading to enter upon this charter.' Defendants required the ship, not later than November, to carry a cargo they had liability for damages.81 What amounts to a deviation depends upon the customary route between the ports in question. A more troublesome question is whether the deviation in question was necessary or reasonable. Deviation to save life is permissible but not to save property of third persons.82 Therefore to tow a vessel in distress is wrongful.83 Deviation for repairs made necessary by an excepted peril is permissible, if limited to such a port of refuge as will cause no unnecessary delay or expense.84 If information is received of unusual dangers in the contemplated voyage, a reasonable deviation is permissible to avoid it,85 and even relanding and refusing to carry may be justified if previously unforeseen perils, as danger of capture of a contraband cargo, arise. Moreover, a right to deviate may be stipulated for by the terms of the contract. But such a clause must be given a 87 sold, and relied on the agent's representation that she could reach Mobile by that time. Nothing was said as to whether she was then carrying a cargo. She arrived in Genoa September 27th with a cargo of coal, and sailed from there for Mobile December 7th, not arriving until in the following March, when defendants refused to load her, having previously procured another vessel. The weight of evidence was that there were good facilities in Genoa for discharging coal, and that the ship in the usual course there should have discharged in from 10 to 14 days, and should have been ready to sail in from 10 to 12 days more. It was held, that the provision that she should "proceed with all possible dispatch" was a warranty, and that her remaining in Genoa for 70 days was unusual and unnecessary, and, in view of the circumstances under which the charter was made, relieved defendants from the obligation to accept her when tendered. 81 Thorley v. Orchis S. S. Co., [1907] 1 K. B. 660; Robinson v. Holst, 96 Ga. 19, 23 S. E. 76. 295. See the Harter Act, 27 U. S. Stat. 445, § 3, 3 U. S. Comp. St. (1901), p. 2946, infra, § 1106. 83 Ibid. 84 Phelps v. Hill, [1891] 1 Q. B. 605. 85 The Teutonia, L. R. 4 P. C. 171, 179; Nobel's, etc., Co. v. Jenkins, [1896] 2 Q. B. 326. 86 The Styria v. Morgan, 186 U. S. 1, 46 L. Ed. 1027, 22 Sup. Ct. Rep. 731. The Styria, an Austrian steamship sailing from Trieste via Sicilian ports to New York, took on board at Port Empedocle, Sicily, a quantity of sulphur for New York. Before sailing the master learned that war had broken out between Spain and the United States, and as sulphur was an article contraband of war, he had the sulphur all unloaded and warehoused at Port Empedocle before sailing. The court held that the master was justified in so doing, having reasonable regard for the interests of both ship and cargo. Cf. Mitsui & Co., Ltd., v. Watts, Watts & Co., Ltd., [1916] 2 K. B. 826; Watts, Watts & Co., Ltd., v. Mitsui, [1917] A. C. 227. 87 See Velasco, etc., R. Co. v. The Brixham, 54 Fed. 539; Hurlbut ®. reasonable construction and unless the language clearly requires that result, will not authorize such deviation as would frustrate the object of the voyage.8 § 1080. Effect of breach of warranty. Two methods of dealing with breach of warranty seem suggested by the cases: 1. That a warranty is to be dealt with like any promise in a contract. On this theory the warrantor will always be liable for the damages caused by his breach of warranty, and the other party will be justified in refusing to go on with the contract, or will not be so justified according as the breach is of vital importance or not, and according as the extent of part performance and the impossibility of restoring the parties to their former status may make it desirable to compel the injured party to continue performance and to seek redress in damages. Under the second view the preliminary inquiry whether an undertaking amounts to a warranty depends on the materiality of the promise. But when once it has been determined to be material and therefore a warranty, any breach whatever is operative to entitle the injured party not only to sue for damages, but also to refuse to continue performance. In support of the latter view the analogy of warranties both in the law of sales and of insurance may be cited. Where rescission is permitted for breach of warranty in a sale, it seems to be allowed without regard to the magnitude of the breach, and in insurance law when a stipulation has once been called a warranty, any breach which cannot be disposed of under the maxim de minimis non curat lex is fatal.90 Turnure, 81 Fed. 208, 51 U. S. App. 280, 26 C. C. A. 335, aff'g 76 Fed. 587; Pacific Coast Co. v. Yukon, etc., Co., 155 Fed. 29, 83 C. C. A. 625; Gaither v. Myrick, 9 Md. 118, 66 Am. Dec. 316. 88 Potter v. Burrell, [1897] 1 Q. B. 97; Ardan S. S. Co. v. Theband, 35 Fed. Rep. 620. See also James Morrison & Co., Lim., v. Shaw, etc., Co., [1916] 2 K. B. 783. 89 Infra, § 1462. 90 "A warranty in a policy of insur ance is a condition or contingency, and unless that is performed, it is no contract. It is perfectly immaterial for what purpose a warranty is introduced, but being inserted, the contract does not exist, [or no liability under the contract arises] unless it is literally complied with." Mackie v. Pleasants, 2 Binney, 363, 373. Many decisions are collected in 2 Cooley, Briefs on Ins. 1154 et seq.; 6 Id. 443 et seq., May, Ins., § 151. The dis |