1866.

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at Sierra Leone, and none having come off, he attempted to enter the port without one. Dixon v. Sadler(a) decides that there is no implied warranty to keep up the seaworthiness. There the underwriters were held liable for the consequences of the wilful, but not barratrous, act of the master and crew in rendering the vessel unseaworthy before the end of the voyage by throwing overboard a part of the ballast; and Redman v. Wilson (b) is to the same effect. There it was a voyage policy from London to Sierra Leone and back, and the insurers were held liable for a constructive total loss, the immediate cause of which was the perils of the sea, although the cause of the unseaworthiness was negligence in the loading of her cargo on the coast of Africa. In Biccard v. Shepherd (c) it was in the contemplation of the parties that the sea voyage should be considered as commencing at different times, and as consisting of two stages; and it is in such case only that an exception to the general rule can be allowed.

The 7th plea is bad.

ferred to.]

[Fawcus v. Sarsfield (d) was re

Sir George Honyman for the Defendant.—The proposition on behalf of the Defendant is that an underwriter insures against sea perils, and not against the vice of the thing insured, or against a loss arising from the defective condition of the bottom in which it is carried. "The insurer is entitled to expect that the shipowner will do all that it behoves a careful and conscientious man to do to secure the safety of the crew who are to navigate the vessel, and of the merchant's goods which are to be conveyed in it; so that the risk covered by the insurance shall be limited to those perils incidental to navigation against which the care

(a) 5 M. & W. 405.
(b) 14 M. & W. 476.

(c) 14 Moore, P. C. 471.

(d) 6 E. & B. 192.

.

and skill of man cannot provide:" Burges v. Wickham (a). It is admitted on this demurrer that the lighter was not seaworthy for the purpose, and that the loss arose from that cause; and it is sought to make the underwriters liable for loss arising wholly from the vice of the lighter, against which it is said the shipowner was under no obligation to provide. Seaworthiness is a term of flexible meaning, and is to be understood with reference to the risks to be incurred, and implies fitness to encounter the hazard of the situation in which the vessel is placed when the risk attaches: Small v. Gibson (b). When the goods here were put into the lighter, a different risk was incurred, and a different degree of fitness in respect of the lighter was required from the seaworthiness required in respect of the ship at the commencement of the voyage. The landing of the goods was a stage or gradation of the voyage, and in that case the observations of Erle, C. J., in Thompson v. Hopper (c), at p. 181, which have been cited on the other side, show that the warranty of seaworthiness, though fulfilled in respect of one stage, is not at an end. In principle no distinction can be drawn between the obligation of the assured in respect of his warranty of seaworthiness at the four stages of a whaling voyage there referred to, and the obligation here when the goods were put into the lighter. There is no warranty that the state of things at the commencement shall continue; but there is a warranty that at the different stages the vessel shall be seaworthy for each particular stage. Biccard v. Shepherd (d) is precisely in point. There the Privy Council said in effect that there were two warranties, one to be implied at the commencement of the voyage, the other at the commencement of a new stage of it.

It is not necessary to consider whether the voyage including the landing of the goods at Melbourne is to be

(a) 3 B. & S. 669, 683.

(b) 16 Q. B. 128.

(c) 6 E. & B. 172.

(d) 14 Moore, P. C. 471,

1866.

LANE

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[Smith, J. If purpose when

regarded as two voyages or not; the Courts have said that
where the different parts of a voyage present different risks,
the warranty shall extend to each stage.
the ship's boats are sound and fit for the
they are put into the ship, but should happen to be un-
sound when the cargo is discharged at the end of the
voyage, would the underwriter in that case be liable for
loss occasioned by their not being seaworthy? Byles, J.
Or suppose it should be necessary to land the goods by
means of a raft or catamaran, or on the backs of coolies,
would a warranty of their fitness be implied?] [Koebel v.
Saunders (a) was referred to.]

The 7th plea is in substance like the 3rd plea referred to at p. 191, in Thompson v. Hopper (b), and by the majority of the Court held good. [The Court intimated that this plea was ambiguous, and recommended an application to a Judge at chambers, either to amend it or strike it out; and it was agreed that no judgment should be pronounced upon it till after the trial.]

Watkin Williams in reply.-If the implied warranty of seaworthiness is broken the insurer is discharged. It is reasonable, therefore, that it should altogether depend upon usage, and upon the knowledge or means of knowledge which the assured has of the condition of the ship, and the means which he has of putting her in a proper state, and be limited to the commencement of the voyage. In Duer on Marine Insurance, vol. 2, pp. 669, 670, 671, the author criticizes a passage in Phillips, wherein it is stated that a representation may supersede an implied warranty, such as that of seaworthiness, and observes that the remarks in the judgment on which he bases his proposition were extrajudicial, and says:-" In what sense it is that the implied warranty of seaworthiness ceases, or how its obligation can

(a) 17 C. B., N. S. 71.

(b) 6 E. & B. 172.

be lessened, by the disclosure of material facts not incon-
sistent with the warranty, but meant to confirm and extend
it, or why the underwriters should refrain from making
proper inquiries as to the condition of the ship, from the
fear that these strange consequences may follow, it is cer-
tainly not easy to comprehend. . . . It is plain that an
implied warranty can never be superseded by a representa-
tion, unless the facts represented are inconsistent with the
truth or obligation of the warranty. That upon such a
representation, an implied warranty, and especially that of
seaworthiness, may cease, I have already intimated, and
the question seems hardly susceptible of doubt. There is
no law
prohibiting the insurance of an unseaworthy
vessel; .. the warranty is not implied from the terms of
the policy, but rests on the supposition that the seaworthi-
ness of the vessel is the basis of the contract in the under-
standing of the parties. And this supposition may with
the same propriety be repelled by parol evidence, as the
similar presumption in the case of a usage. I conceive the
rule to be universal, that an obligation implied by law,
unless upon grounds of morality or public policy it im-
poses an imperative duty, may always be released by parol,
by the party in whose favour it exists. Cuilibet licet re-
nunciari juri pro se introducto."

The principles upon which the implied warranty of seaworthiness in respect of the ship rests are pointed out by Lord Campbell in Gibson v. Small (a), who, at p. 421, says:-"The only consideration pointed out for extending the implied condition of seaworthiness to time policies, which made any impression on me, is that it does extend to voyage policies on goods, although the assured can have no control over the repairs or equipment of the ship. But between the assured on goods and the underwriter there is the shipowner, who must be considered

(a) 4 H. L. C. 353.

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the agent of the assured, and he does undertake that the ship shall be tight, staunch, and strong, and every way fitted for the voyage. If this undertaking is broken, the merchant has no remedy against the underwriter, but he obtains a full indemnity by suing the shipowner, and thus, either with the shipowner or the underwriter, the merchant is secure; so that the implied condition in his policy in no respect interferes with the object of insurance, or with the interests of commerce." And Martin, B., at pp. 370,371, says:-"In voyage policies the owner knows, or has the means of knowing, the condition of his ship, the sufficiency of his stores, and the competency and fitness of the master and crew. It is his bounden legal duty towards the mariners for the safety of their lives, and towards the merchants who load their goods, that the ship should be tight, staunch, and strong, and in every way fitted for the voyage,' or in other words, 'seaworthy;' and it may most properly be implied that, in his contract with the underwriter, the owner shall be taken to warrant, as the foundation of the contract, that the ship, the subject-matter of the insurance, is or shall be at the time of sailing a seaworthy ship, and that the premium is to be calculated on the principle that the perils insured against are to be borne by a vessel prepared to resist, and, if possible, to overcome them."

[Foley v. Tabor (a) and De Cuadra v. Swann (b) were referred to.]

ERLE, C. J. I am of opinion that our judgment should be for the Plaintiff. The action is brought upon a policy upon goods from Liverpool to Melbourne, until the goods are landed. The ship arrived at Melbourne, and the sixth plea alleges that the damage happened whilst the goods were in a lighter intended to convey them to the shore, and that such lighter was not seaworthy. The question is,

(a) 2 F. & F. 663.

(b) 16 C. B., N. S. 772.