Shoolbred v. Nutt, Sit. tings at Guildhall after Hil. 1782. Haywood v. Rogers, The sea-worthiness of the ship being thus shewn to be an implied condition in this species of contract, it follows of course, that, in entering into the engagement, it is not necessary that there should be any previous representation of the condition of the ship; because, unless it be fit for the performance of the voyage insured, there is no binding contract; but any insufficiency of the vessel in a former voyage will not vacate the policy. Thus in an action upon a valued policy of insurance upon the ship Two Sisters, and a cargo of wheat and wines, from Madeira to Charlestown; the ship had sailed from London to Madeira. The plaintiff, who was owner of the cargo, ordered his broker to procure an insurance from Madeira for the voyage to Charlestown, which was accordingly done; but he did not communicate to his broker or the underwriters two letters which he had received from his captain the day before he effected the insurance, stating, that the ship had arrived at Madeira, but was very leaky, and that the pipes of wine had been half covered with water. But it was proved at the trial, that the leak had been completely stopped before she sailed from Madeira, and of course before the commencement of the risk insured. In her voyage to Charlestown she was taken, and the plaintiff abandoned. Lord Mansfield told the jury, "that there should be a representation of every thing relating to the risk, which the underwriter has to run, except it be covered by a warranty. It is a condition, or implied warranty, in every policy, that the ship is sea-worthy; and therefore there need be no representation of that. If she sailed without being so, there is no valid policy. Here the leak was stopped before she sailed from Madeira, and she sailed in good condition from thence; and there is no occasion to state the condition of a ship or cargo at the end of her former voyage." There was a verdict for the plaintiff. And upon the authority of this case, and the reason of the 4 East, 590. thing, the Court of King's Bench declared, after time taken to deliberate upon a motion for a new trial, by Lord Ellenbo rough Chief Justice, that an assured having impliedly warranted his ship to be sea-worthy, and having concealed no circum stance stance relative to the sea-worthiness, which he was required to disclose, and not having, at the time of effecting the policy, known of any fact which rendered her, with reference to the risk insured, otherwise than sea-worthy, is entitled to recover. Upon this principle also depends the decision of some modern cases; for if it be necessary that the ship itself should be sufficient for the voyage, it has been held to be an implied condition, that she should be furnished with every thing necessary for the purposes of safe and careful navigation (a). In an action upon a policy on ship and goods from Stettin to London, it appeared that the captain had taken a pilot on board at Orfordness on entering the river Thames, who again quitted her at Halfway Reach; after which, and before she had come to her moorings higher up the river, the accident happened which occasioned the loss, and in consequence of which the vessel filled with water before she had been moored twenty-four hours. But the precise time, at which the damage was sustained within those limits, or by what particular default, was not ascertained. The captain had also left the ship before the time of the actual loss. It further appeared that the pilot taken in at Orfordness was not properly qualified at the time according to the provisions of the 5 Geo. 2. c. 20. for the regulation of pilots on the river Thames, but it did not appear that this fact was known to the captain, and the pilot had since received his regular qualifications. The plaintiff having obtained a verdict, a motion was made to set it aside; and after argument, Lord Kenyon said, -"The principle on which this case must be determined seems to be admitted on all hands, namely, that the assured cannot recover on a policy of assurance, unless they equip the ship with every thing necessary to her navigation during the voyage: the ship herself must be sea-worthy, she Law v. Hol- Wilkie v. (a) And, therefore, in a late case in the House of Lords, Lord Eldon stated, that under this implied warranty, it is not only necessary that the bull of the vessel be tight, &c.; but that the ship be furnished with ground 3 Dow. 57. tackling, sufficient to encounter the ordinary perils of the sea; and therefore where the best bower-anchor, and the cable of the small bower-anchor were found defective, ship was not sea-worthy. must Tait v. Levy must have a sufficient crew, and a captain and pilot of competent skill. I do not feel that I am bound in this case to decide whether or not it be necessary that there should be on board the vessel a pilot qualified according to the act of parliament referred to. This case may be disposed of without deciding that question. It might be contended, though with what effect I will not say, that if the captain had taken a pilot, who represented himself duly qualified, and whom the captain believed to be so, but who in fact had not a qualification, the captain would have discharged his duty, and the underwriters would have been answerable for any loss that had happened. But in this case, the captain did not perform his duty: for he had no pilot on board at the time when the accident happened; and it is one of the things implied in contracts of this kind that there shall be some person on board the ship apparently qualified to navigate her. If the underwriters had been previously informed that there wonld be no pilot on board during the ship's sailing up the river Thames, probably they would not have undertaken the risk. On the ground, therefore, that there was no pilot on board when the accident happened, I am of opinion that there must be judgment of nonsuit." Mr. Justice Grose." The question is not, whether the assured can recover in a case where there was a pilot on board, though not properly qualified; but, whether or not the defendant be liable for a loss, which happened to the vessel when there was no pilot of any kind on board? I think he is not, because it is understood in all contracts of insurance that there should be such a person on board the ship." Mr. Justice Lawrence concurring, the rule for entering a nonsuit was made absolute. Upon the same principle the Court of King's Bench lately 14East, 481. held that there was a failure of the implied warranty on the part of the assured, that a captain and crew of competent skill and knowledge for the declared purpose of the voyage, should be provided: the captain was so grossly ignorant as not to know Tarragona from Barcelona, the express war ranty ranty in the policy being that the vessel should not go higher up the Mediterranean than Tarragona. The same principle of an implied warranty that every Farmer v. ship insured shall be duly navigated was the rule of de- Legg, 7 Term Rep. cision in another case, and was taken to be so well estab- 186. lished both at the bar and on the bench, that that point was never mooted; and the only question made upon the occasion was, Whether the condition had not been performed? It was an action on a policy of insurance on the Cadiz Dispatch, on a voyage from London to the coast of Africa; and the principal question was, Whether the ship had been navigated in the manner prescribed by the statute of 31 Geo. 3. c. 54. s. 7. (a)? for if not, it was agreed that the insurance was void. The statute requires that no person shall take the command of an African ship until he shall have made oath, and produced to the officer of the customs a certificate attested by the respective owner or owners that he has already served in that capacity during one voyage, or as chief mate and surgeon during two voyages, &c. under certain penalties. The Court were of opinion, that the certificate produced in the particular case, being signed by the then owner, did not comply with the requisitions of the statute, that therefore the ship was not duly navigated, and confirmed the judgment of nonsuit, which had passed against the plaintiff at Guildhall, by Lord Kenyon's directions. I have alluded to the above decision, as strongly confirming the principles of law, which are the subject of the present chapter. I think it proper to mention that the difficulty which occurred in the last case from the manner in which the acts of parliament were penned, has been removed by the statute 39 Geo. 3. c. 80. s. 23. requiring expressly that the certificate shall be signed by the owner or owners of the ships or vessels in which the captain has formerly served. But as it (a) This was one of the statutes passed on the subject for regulating the African slave-trade; it has since been continued down by several acts from time to time; and the reference is made to this particular act, as being set out in Mr. Serjeant Runnington's edition of the Statutes: but the act quoted in court was 32 Geo. 3. c. 52. But the slave-trade is now entirely abolished by stat. 47 Geo. 3. c. 36. See ante, p. 34. note (a). had Wedder- N. P. I. had been as much the custom in the outports to receive certificates of one form as of the other, on account of the doubtful penning of the former acts, the legislature in the last mentioned statute (s. 38.) has provided that no policies of insurance made before the statute now in recital shall be held to be void, on account of the irregular certificates given under the former statutes. The present Lord Chief Justice also, Lord Ellenborough, has had occasion to declare the law upon this very important subject, and to shew that the principle of sea-worthiness extended to the goodness of the sails and rigging, as well as to the sufficiency of the hull; and for its importance I give His Lordship's opinion at length. It was an insurance on goods on board the Minorca, "at and from Jamaica to London," at a premium of ten guineas, to return five pounds per cent. if the ship sailed from the A Campbell, place of rendezvous with convoy for the voyage and arrived. The first count of the declaration stated the loss to be, by the barratry of the master; the second, by the perils of the sea. The ship sailed for England with convoy in the end of July, and parted from the fleet on the 12th of August, and was never more heard of, whence she was supposed to have foundered. The defence rested on two grounds: first, that she was not properly equipped with sails; and secondly, that she had not a sufficient crew. It appeared in evidence, that the sails, which were used in stormy weather, were in good condition; but that her maintop gallant sails and studding sails, which are useful in light breezes, were extremely rotten, and almost quite unserviceable. The evidence about the state of the crew was contradictory. Lord Ellenborough." In an action of this kind, the plaintiffs are bound to prove, not only that the ship was tight, staunch, and strong, but that she was properly equipped with sails, and other stores: and that she was manned with a sufficient crew to navigate her on the voyage insured. These are conditions precedent to the policy attaching, and if they were not complied with, so that the peril was enhanced, from whatever cause this might arise, and though no fraud was |