river navigation (as was disclosed when the policy was effected), and which, although unfit for ocean navigation, had been made as seaworthy as her size and construction would admit; it was held the underwriters were liable. Burges v. Wickham, 3 B. & S. 669; 33 L. J., Q. B. 17; accord. Clapham v. Langton, 5 B. & S. 729; 34 L. J., Q. B. 46, Ex. Ch. See also Bouillon v. Lupton, ante, p. 385. As to evidence of unseaworthiness, see Merchants' Trading Co. v. Universal Marine Co., cited L. R., 9 Q. B. 596; and Anderson v. Morice, L. R., 10 C. P. 58, 609, Ex. Ch. ; affirm. on this point, 1 Ap. Ca. 713, D. P. It is not a statutory unseaworthiness if a ship sail in contravention of 16 & 17 Vict. c. 107, ss. 170-2, with a deck cargo and without a certificate of clearance. Wilson v. Rankin, L. R., 1 Q. B. 162, Ex. Ch.

There is no implied warranty of seaworthiness where the policy is merely a time policy. Gibson v. Small, 4 H. L. C. 353; Jenkins v. Heycock, 8 Moo. P. C. 351; Fawcus v. Sarsfield, 6 E. & B. 192; 25 L. J., Q. B. 249; Dudgeon v. Pembroke, 2 Ap. Ca. 284, D. P.; and Thompson v. Hopper, 6 E. & B. 172; 25 L. J., Q. B. 240. But, if the injury or loss happen to the ship at sea, when exposed to the ordinary operation of wind and waves, in consequence of its being, to the knowledge of the assured, in a defective state, or improperly equipped, the insurer will not be liable for injury thus occasioned by the misconduct of the assured; S. C., Id.; provided such state was the immediate cause of the loss; S. C., E. B. & E. 1038; 27 L. J., Q. B. 441, Ex. Ch. Where a partial loss arises, not from the perils insured against, but from the vice of the subject of insurance, though this was not known to the assured, the insurers are not liable. Fawcus v. Sarsfield, supra; see also Steel v. State Line S. Ship Co., 3 Ap. Ca. 72, D. P.

Where a question arises as to the seaworthiness of a ship, ship-builders, though they have never seen the ship, may state their opinion on examining a survey taken by others, it being a matter of skill and science. Beckwith v. Sydebotham, 1 Camp. 117; Thornton v. R. Exch. Assur. Co., Peake, 25, vide ante, pp. 165, 166.

Where the policy expressly admits seaworthiness, the underwriter cannot dispute it, even where the loss was by reason of unseaworthiness. Parfitt v. Thompson, 13 M. & W. 392.

Deviation.] A deviation from the voyage insured is a defence to an action on the policy, as being a breach of an implied warranty on a voyage policy; even although the degree or period of risk is not thereby increased, for the assured has no right to substitute a different risk. African Merchants, Co. of, v. British & Foreign Marine Insur. Co., L. R. 8 Ex. 154, 157, Ex. Ch. In this case the policy was partly a voyage and partly a time policy. Where the insurance is on a voyage to a given place, and the captain when he sails does not mean to go to that place at all, he never sails on the voyage insured, and the policy does not attach; Wooldridge v. Boydell, 1 Doug. 16; but, where the ultimate termini of the intended voyage are the same as those described in the policy, although an intermediate voyage be contemplated, the voyage is to be considered the same until the vessel arrives at the dividing point of the two voyages. The departure from the course of the voyage insured then becomes a deviation; but, before the arrival at the dividing point, there is no more than an intention to deviate, which alone will not vitiate the policy. Kewley v. Ryan, 2 H. Bl. 343; Hare v. Travis, 7 B. & C. 14. It is a deviation avoiding the policy to slacken sail for the purpose of acting as convoy to a prize. Lawrence v. Sydebotham, 6 East, 45; or, to take a vessel in tow. Scaramanga v. Stamp, 5 C. P. D. 295, C. A. But, a deviation for the purpose of saving life is not a forfeiture of the policy; secus, if for the mere purpose of saving property. S. C. All deviations by reason of inevitable accident or stress of weather, to obtain needful pro

visions, or do needful repairs, or avoid capture, are implied exceptions to the warranty. 3 Kent, Com. 316, 317; per cur., in Urquhart v. Barnard, 1 Taunt. 456; O'Reilly v. Gonne, 4 Camp. 249. A deviation does not discharge the insurer from liability for previous loss, but, only from loss accruing after the deviation. Green v. Young, 2 Ld. Raym. 840; 2 Salk. 444. If there be in the policy liberty to touch at several named ports, and the order of touching is specified in it, that must be followed, otherwise they must be visited in the order usual on similar voyages, unless circumstances justify a different order. Gairdner v. Senhouse, 3 Taunt. 16; 3 Kent, Com. 314, 315. Where the policy was "at and from B. A. and port or ports of loading in the province of B. A.," and the vessel went to L. in the province to load, and not getting a full cargo there, returned to B. A. to complete her cargo, and on the voyage there was lost; it was held that there had been no deviation; though it would have been otherwise had the vessel once started from L. on her way home. Harrower v. Hutchinson, L. R., 4 Q. B. 523. The judgment was reversed on other grounds in L. R., 5 Q. B. 584, Ex. Ch.

In the case of an insurance "at and from a port," an unreasonable delay of the ship in reaching the port, so that the risk is varied, will prevent the policy from attaching. Mount v. Larkins, 8 Bing. 108; De Wolf v. Archangel Insur. Co., L. R., 9 Q. B. 451. So, where the delay is after the risk has attached, and is not caused by the perils insured against, it is in the nature of a deviation, and the underwriter is discharged. Palmer v. Marshall, 8 Bing. 79, 317. Unreasonable delay is properly a question for the jury. Palmer v. Marshall, supra; Hamilton v. Sheddon, 3 M. & W. 49. But, in case of a seeking ship, much greater latitude for the seeking adventure must be allowed. Phillips v. Irving, 7 M. & Gr. 325.

Full disclosure.] See post, p. 404, et seq., Concealment.

Other implied warranties.] There is no implied warranty on the part of the owner of goods insured, that the ship shall be in all respects properly documented; therefore, where the captain neglected to mention the goods in the ship's manifest, as required by 13 & 14 Car. 2, c. 11, &c., this was held no defence by the underwriter against the owner of the goods. Carruthers v. Gray, 3 Camp. 142. Nor, does the owner of goods warrant that the ship shall not change her nationality, although the loss is occasioned by such change. Dent v. Smith, L. R., 4 Q. B. 414. Goods must be properly stowed; but lading them on deck is not necessarily improper, as some writers have supposed. Milward v. Hibbert, 3 Q. B. 120.

Licence.] Where the voyage has been legalised by a licence, such licence. must be produced unless lost, when oral evidence of its contents is admissible. Kensington v. Inglis, 8 East, 288. But, where a licence was granted by the Secretary of State in this country pursuant to 48 Geo. 3, c. 126, oral evidence was excluded on the ground that there must have been some register of it preserved in the office of the Secretary of State, which would be better than oral evidence. Rhind v. Wilkinson, 2 Taunt. 237. By the above-mentioned statute a duplicate of the order in council, authorising the grant of the licence, is to be annexed to it; where, therefore, the licence was lost, examined copies of the order in council from the council books and of the licence in the office of the Secretary of State were held to be the only proper evidence. Eyre v. Palsgrave, 2 Camp. 605. Proof that a vessel warranted to carry a French licence remained at Bordeaux a month after the inspection of a document purporting to be a French licence, and of other

documents, by the officers of the French Government, is prima facie evidence that the document is genuine. Everth v. Tunno, 1 Stark. 508. Where the licence is general some evidence must be given to apply it to the voyage in question. Barlow v. M'Intosh, 12 East, 311. On proof that goods, which cannot be exported without a licence, were duly entered for exportation at the custom-house, it was presumed, in action against the shipowner, that there was a licence to export them. Van Omeron v. Dowick, 2 Camp. 44.

Proof of loss-Perils of the sea.] If the insurance is with the words "lost or not lost" it will attach, although the subject-matter had been in fact lost at sea at the time of insurance, provided the party insured was at the time ignorant of the loss. 3 Kent, Com. 258, 259; Mead v. Davison, 3 Ad. & E. 303.

The proximate and not the remote cause of loss is to be regarded, and any loss caused immediately by the perils of the sea is within the policy, though it would not have occurred but for the concurrent actions of some other cause which is not within it. Dudgeon v. Pembroke, 2 Ap. Ca. 284, D. P.; W. India Telegraph Co. v. Home & Colonial Insur. Co., 6 Q. B. D. 51, C. A. But, where the insurance is against perils of the sea, and mischief is occasioned by the sea, the natural and unavoidable consequence of which is to cause a further mischief, this consequential injury is also a peril of the sea; as, where the sea-water damages part of a cargo, which thereby becomes putrid, so as to injure another part of the cargo in contact with it. Montoya v. London Assur. Co., 6 Exch. 451; 20 L. J., Ex. 254. Where, however, the goods were not actually damaged, but sold for less because they had formed part of a cargo of goods which were damaged: this loss was held not to be within the policy. Cator v. Gt. W. Insur. Co. of New York, L. R., 8 C. P. 552. A loss by perils of the seas, though remotely occasioned by the negligence of the crew, is within the policy. Walker v. Maitland, 5 B. & A. 171; Bishop v. Pentland, 7 B. & C. 219; Shore v. Bentall, 7 B. & C. 798, n. So, a loss occasioned by the mistake of the master, provided he was a person of competent skill when the policy was effected. Phillips v. Headlam, 2 B. & Ad. 380. So, though the ship was damaged by negligent loading, and became leaky, and was run ashore to prevent sinking. Redman v. Wilson, 14 M. & W. 476. A loss, occasioned by running foul of another vessel by misfortune, is a loss by the perils of the seas. Buller v. Fisher, 3 Esp. 67. So, if the ship was run down by another ship, though through gross negligence on the part of the other ship. Smith v. Scott, 4 Taunt. 126. So, where the vessel is wrecked in consequence of the gross misconduct of the master. Heyman v. Parish, 2 Camp. 149. Where a portion of the goods was saved from the wreck and got on shore, but they were plundered by the natives and never came to the hands of the owners, this is a loss by perils of the sea. Bondrett v. Hentigg, Holt, N. P. 149. So, where the insurance was on gold, and the ship was stranded abroad, and the gold was taken charge of by the foreign authorities; expense was incurred in vainly endeavouring to get the ship off, and the authorities having apportioned the expense between the parties, refused to give up the gold until the share of expense due from the plaintiffs had been paid; it was held that the amount so paid by them was a loss by perils of the seas, for whether the charge was legal or not, a vis major prevented the plaintiffs obtaining the gold without paying the sum, and this was the immediate consequence of the wreck. Dent v. Smith, L. R. 4 Q. B. 414. So, on an insurance on goods, where the ship was stranded and utterly disabled from proceeding, and while she lay in the sand was seized and confiscated by the foreign authorities. Hahn v. Corbett, 2 Bing. 205.

Proof of Loss.-Perils of the Seas.

391

But, if the ship be merely temporarily disabled, and afterwards seized, this is a total loss by capture, and if this be an excepted risk, the insured cannot recover for the previous partial loss by perils of the sea. Livie v. Janson, 12 East, 648. Several thousand bags of coffee were insured against perils of the sea, with warranty against capture, and all the consequences of hostilities; the captain, misled by the extinction of a light, owing to hostilities between two neighbouring states, ran the ship ashore, and she was lost; 120 bags of the coffee were saved by salvors, and 1,000 bags more would have been saved but for the interference of one of the hostile parties, after which the ship went to pieces: it was held that the underwriters were liable for a partial loss; for that the cause of the wreck was perils of the sea, and that the putting out the light, though an act of hostility within the exception, was too remotely connected with the loss to be taken as the cause; but that the loss of the 1,000 bags was within the exception. Ionides v. Universal Marine Ass., 14 C. B., N. S. 259; 32 L. J., C. P. 170. Where the insurance was on cattle warranted free from mortality, and they in the course of the voyage were killed by the rolling of the ship in a storm; this was held a loss by the perils of the seas. Lawrence v. Aberdein, 5 B. & A. 107. So, under a similar policy, where the horses, owing to a storm, broke down the partitions, &c., between them, and so kicked and injured each other that they died. Gabay v. Lloyd, 3 B. & C. 793. But, where the voyage is retarded by tempestuous weather, and the delay so occasioned causes the insured cargo to become putrid, so that it is necessarily thrown overboard, this is not a loss occasioned by "perils of the seas," or by "other perils." Taylor v. Dunbar, L. R., 4 C. P. 206. See also Tatham v. Hodgson, 6 T. R. 656.

A transport was insured for 12 months, during which she was ordered into a dry harbour the bed of which was uneven, where, the tide having left her, she received damage from an unusual sea swell; this was held a loss by perils of the sea. Fletcher v. Inglis, 2 B. & A. 315. But, if the damage be occasioned merely by the ship taking the ground on the ordinary reflux of the tide, this is not a peril of the sea. Magnus v. Buttemer, 11 C. B. 876; 21 L. J., C. P. 119. So, where a ship was hove down upon a beach within the tideway to repair, and the tide rising, she was bilged and damaged; it was held not to be a loss by the perils of the seas. Thompson v. Whitmore, 3 Taunt. 227; Phillips v. Barber, 5 B. & A. 161.

Where a ship sinks from her own inherent weakness, and not from any external violence, this is not a loss by perils of the sea. Merchant's Trading Co. v. Universal Marine Co., cited L. R., 9 Q. B. 596. See also Anderson v. Morice, and Dudgeon v. Pembroke, cited ante, p. 388. So, where a ship became so injured by worms during her voyage as to be unable to proceed, and was condemned as irreparable, this is not a loss by perils of the seas. Rohl v. Parr, 1 Esp. 445.

An insurance against "perils of the sea" does not cover an injury resulting from the ordinary chemical action of the sea-water upon an article exposed to the action in such a state as inevitably to receive injury from it; Paterson v. Harris, 1 B. & S. 336; 30 L. J., Q. B. 354; nor from damage arising from the nature and collocation of the cargo; The Freedom, L. R., 3 P. C. 594.

Where two ships were injured by collision, and the owners of one were in consequence compelled by a court of admiralty to pay damages, this was held not a loss by perils of the seas; nor, could they recover the extra expense of maintaining the crew whilst the ship was under repair, owing to damage by the sea. De Vaux v. Salvador, 4 Ad. & E. 420. It has, in consequence, become the frequent practice to add what is called a collision clause in modern policies, making the underwriters liable for any damages

that the shipowner may have to pay, owing to the ship having come into collision with another ship; but this will not extend to the costs the shipowners incur in successfully defending a collision suit brought against them; Xenos v. Fox, L. R.,3 C. P. 630; in Ex. Ch., L. R., 4 C. P. 665; nor, to liability for personal injury, occasioned on board the other ship, unless expressly so extended; Taylor v. Dewar, 5 B. & S. 58; 33 L. J., Q. B. 141; and, where goods are lost through a collision occasioned by negligence of the crew, this is not a loss by perils of the sea, or by barratry of masters or mariners, accident, or damage of the seas; Grill v. General Iron Screw Colliery Co., L. R., 3 C. P. 476, Ex. Ch. See further, post, p. 426.

Where a ship was disabled by perils of the seas from pursuing her voyage, and the master, having no other means of defraying the expense of repairs, sold part of the goods insured, and applied the proceeds towards the expense, it was held that this was not a loss of the goods by perils of the seas. Powell v. Gudgeon, 5 M. & S. 431; Sarquy v. Hobson, 2 B. & C. 7; S. C. in Ex. Ch., 4 Bing. 131; 1 Y. & J. 347. So, when in a like case the master, in order to repair, raised money on a bottomry bond, which the owner of the goods was forced to pay in order to avoid their being sold. Greer v. Poole, 5 Q. B. D. 272; see also Philpot v. Swann, 11 C. B., N. S. 270; 30 L. J., C. P. 358, cited post, p. 398. A ship was wrecked, sunk, and sold by the owner and master after a survey by captains approved by the agent of Lloyd's two days afterwards she was got clear off by the purchaser and repaired, but at great expense, and she might then have returned to England in ballast, or with certain kinds of cargo. Ld. Tenterden held, that not only must the owner act honestly, but that the underwriters were not liable unless he formed the best and soundest judgment that could be formed under the circumstances, and, that if the ship could have been brought to England, even in ballast, so as to have repaid the money expended in repairs, they ought to have been made by the captain; and he left it to the jury to say, whether the captain exercised a sound judgment, as well for the benefit of the underwriters, as for the owners. Doyle v. Dallas, 1 M. & Rob. 48. See Gardner v. Salvador, Id. 116, and Cobequid Marine Insur. Co. v. Barteaux, L. R., 6 P. C. 319. The question is, whether he actually exercised a sound judgment; and proof of his inability to do so by reason of habits of drunkenness or otherwise, is legitimate evidence. Alcock v. R. Exch. Assur. Co., 13 Q. B. 292. If a ship, agreed to be seaworthy, is damaged by a storm, so that the expense of repair will exceed the value of the ship when repaired, it is a total loss by perils of the seas, though the ship was an old and partially decayed one, and the expense would, on that account, be increased. Phillips v. Nairne, 4 C. B. 343. See Grainger v. Martin, and other cases, post, pp. 397, 398.

A ship, never heard of after sailing, is presumed to have foundered at sea. Green v. Brown, 2 Str. 1199; Newby v. Read, Park's Ins., 8th edit., 148. It is sufficient to prove that the ship has not been heard of in the country from which she sailed, without calling witnesses from the port of destination to prove that she never arrived there. Twemlow v. Oswin, 2 Camp. 85. The time within which a missing ship will be presumed lost must depend on the circumstances of the case. In Houstman v. Thornton, Holt, N. P. 242, a ship which had sailed on a 7 weeks' voyage, and had not been heard of for 8 or 9 months, was presumed to be lost. Where it was proved that the vessel (a foreign one, and trading between foreign ports) sailed on the voyage insured with the goods on board, but had never arrived at her port of destination, and that a report prevailed at the place whence she sailed that she had foundered at sea, but that the crew were saved-this was held sufficient prima facie evidence of a loss by the perils of the seas, and the plaintiff wa