When the Master should set Sail on the Voyage: His Duty to comply with the Warranty in the Policy. warranties § 135. THE master must strictly comply with all warranties Duty to contained in the policy of insurance. Non-compliance with a comply with warranty, relating either to the actual state, position, or circum- in policy. stances of the vessel, or to something that is to be subsequently F Warranty "to sail." according to the warranty. done with her, avoids the policy. (a) According to English law it seems that breach of a warranty of the latter kind avoids the policy ab initio, so as to prevent the assured from recovering for a loss prior to the breach ;(b) but it appears to be otherwise in the United States.(c) In policies of insurance one of the most general of all the express warranties is that which alleges that the ship has sailed, or which stipulates that she shall sail on, before, or after some certain day mentioned in the policy.(d) In considering, therefore, when the ship should set sail, the master should carefully comply with the terms, not only of the charter-party,(e) but also of the policies of insurance, since if Consequences he does not sail according to the warranty contained in the policy of not sailing he will forfeit the policy and discharge the underwriter from his liabilities thereunder, and render himself liable for such neglect Where no of duty.(ƒ) And in the absence of a warranty, if the policy is warranty, duty not to delay "at and from " a port, any unreasonable delay between the time unreasonably. when the policy attaches "at" the port, and the time when the ship sails on her voyage, amounts, as we shall see, to a deviation and discharges the underwriter. In such a case, so long as she is bona fide preparing for her voyage, by repairs or the like, the delay is excused, and the underwriter continues liable.(g) Meaning of warranty "to sail." What is a compliance with such warranty: generally. § 136. In all cases a warranty in a policy of insurance "to sail," means "to sail on the voyage insured," before the day limited, with the intention of at once prosecuting it, and in a state of perfect fitness and preparation for completing it, unless the voyage insured be such as to require a different complement of men or state of equipment in different parts of it. Under a warranty "to sail," not being a warranty "to sail from" a particular point of departure, if the ship has been unmoored and has got under way, in complete preparation for the voyage, with the purpose of proceeding to sea, without further delay at the port of departure, on or before the day limited in the warranty, then although she may have gone ever so short a distance, and although she may have afterwards put back from stress of weather, or from apprehension of an enemy in sight, or although she may have been stopped by an embargo, or have been in any way involuntarily detained, yet, as there was a beginning to sail on the voyage insured on or before the day named, the warranty is held to have been complied with.(h) (a) Arnould, § 224; as to the warranty of neutrality, see § 115 sup. ; as to warranty to sail with convoy, $§ 171-174 infra. (b) Arnould, § 224. (e) See §§ 148 et seq. infra. (g) Infra $$ 179-183. (h) Arnould, § 228; per Lord Tenterden, C.J., Pittegrew v. Pringle, 3 B. & Ad. 514, 520; Bond v. Nutt, 2 Cowp. 601, 607; Cochrane v. Fisher, 2 Cr. & M. If, on the other hand, the ship is not in a state of complete preparation for her sea voyage at the time when she quits her moorings and sets sail, and is not bona fide intended to proceed directly and immediately upon it, this is not a compliance with the warranty.(i) different stages. But if the voyage be such as to require a different complement On voyage of men or a different state of equipment, in different parts of requiring different it—as if it were a voyage down a canal or river, and thence to equipment at and on the open sea-it is a sufficient compliance with the warranty to sail on the day named, if the ship sail on or before the day, in a state commensurate with her risk for that stage of her voyage, although not then in a state adequate to a different risk at a later stage of the voyage.(k) § 137. If a ship, warranted to sail on or before a day named, Where ship and completely ready to sail on that day, is prevented from so prevented from sailing by doing by stress of weather, or other extraordinary inevitable peril extraordinary or restraint, not excepted in the policy, and afterwards sails with- peril. out unnecessary delay, the question whether the warranty is complied with is not free from difficulty, and one upon which, it is said, the decisions are not in harmony.(1) It has been held in one case that under such circumstances the warranty is not complied with.(m) And it is submitted that the ground of decision in each of the cases which may appear to conflict with it, was that the ship had in point of fact sailed, according to the definition given above,(n) before the time for doing so had elapsed.(0) It is said, however, by a very high authority, that the proposition which seems to come nearest to reconciling the decisions of the Courts is the following: "If the risk has previously commenced under the policy, and the vessel is wholly ready to depart by the time warranted, so far as the fitting out, loading, manning, and clearing out, and all other preparations and preliminaries to the actual departure depending upon the assured, are fully completed, and nothing hinders her sailing but some peril insured against by the policy, or which if it had occurred at any subsequent stage of the voyage would not have discharged the underwriter, the warranty 581; 1 C. M. & R. 809; per Sir J. (k) Bouillon v. Lupton, 15 C. B. N. S. 113, infra § 138; cp. Biccard v. Shepherd, 14 Moo. P. C. 471, sup. § 98; and distinguish Ridsdale v. Newnham, 3 M. & S. 456, infra § 138. (1) Phillips on Ins. 773. (m) Nelson v. Salvador, M. & M. 309, infra§ 138; and see Pittegrew v. Pringle, 3 B. & Ad. 514. (n) Supra § 136. (0) Lang v. Anderdon, 2 B. & C. 495; Bond v. Nutt, Cowp. 601; Earle v. Harris, Doug. 357; Thelluson v. Fergusson, Doug. 361; Nelson v. Salvador, M. & M. 309; Cochrane v. Fisher, 2 C. & M. 581; 1 C. M. & R. 809. Cases as to to sail is complied with, unless a different construction is expressly indicated by the policy. "But if the risk is to commence only at the sailing of the ship, and the assured is responsible for and the underwriter free from all preceding risks, perils, and losses, then the warranty is not complied with, unless she actually sails within the time warranted."(p) § 138. The meaning of the expressions in policies which relate to the time of sailing will be best explained by the following cases: (1) The expression "to sail on or before" a certain day. In Wright v. Shiffner,(q) the policy was, " at and from Surinam, and all or any of the West Indian Islands (except Jamaica), to London"; and the warranty was "to sail on or before the 1st August." The ship sailed from Surinam, her last port of loading, where she had cleared out, completely loaded and provisioned for the homeward voyage, before the day specified, and thence proceeded to Tortola, one of the West Indian Islands (which was not out of her usual course to England, and was the general rendezvous for convoy), in order to join convoy; and she finally sailed from Tortola with convoy after the 1st August. It was held that the ship had satisfied the warranty by sailing from Surinam, her last loading port, completely loaded and provisioned, before the 1st of August. In Ridsdale v. Newnham,(r) a ship was insured "at and from Portneuf to London," with a warranty "to sail on or before the 28th October." On the 26th October, the ship, having completed her loading, dropped down the river St. Lawrence from Portneuf to Quebec (being the first place at which she could obtain her clearances), with a crew which, though sufficient for the river navigation, was not sufficient for her voyage across the Atlantic. She arrived at Quebec on the evening of the 28th, but did not complete her crew nor obtain her clearance at the Custom House there until the 29th, and she did not actually leave the port of Quebec till the 30th. It was held that the ship's dropping down from Portneuf without her sea complement of men was clearly not a beginning to sail on the voyage, but only a sailing preparatory to the voyage; that it was therefore not a compliance with the warranty, and that the underwriters were therefore discharged; and Lord Ellenborough said: "Warranted to sail on such a day must mean to sail on her voyage; that is, when the ship could get her clearances and sail equipped for the voyage. In Bouillon v. Lupton,(s) on the other hand, ships were insured (p) Phillips on Ins. 773. (q) 11 East, 515. (r) 3 M. & S. 456. Cp. Pittegrew v. Pringle, 3 B. & Ad. 514. (s) 15 C. B. N. S. 113. warranty to "at and from Lyons to Galatz," and warranted "to sail on or Cases as to before the 15th of August, 1861." They left Lyons on August meaning of 2nd, with a river crew and captain, and without masts or anchors, sail. which it would have been impossible to carry on the river voyage. It was necessary to call at Marseilles in any case for sailing licences. The ships arrived at Arles on the 6th and at Marseilles on the 7th and 8th of August. Owing, in the first instance, to the necessity of complying with French law as to certificates of completeness and sailing licences, and afterwards to bad weather, they did not sail from Marseilles until the 23rd. They were properly equipped for each part of the voyage when they commenced it. It was held that, it being impossible for the vessels to perform the first part of the voyage in a state in which they would be seaworthy for the last, and a consequent necessity for dividing the voyage into two distinct parts, they had complied with the warranty to sail on the 15th of August, as well as the implied warranty of seaworthiness. In Nelson v. Salvador,(t) the insurance was "at and from Tobago to London," with a warranty "to sail on or before the 10th August." On the 9th August the ship took out her clearances for London on the voyage insured, and on the 10th had finally completed her loading and got her passengers on board. At this time she was moored in Tobago Bay with a bower anchor and a stream anchor, and there was no impediment to her sailing, had the wind permitted; in fact, on that day the stream anchor was raised, some of the sails were set, and the ship moved forward about thirty fathoms, by heaving in that extent of the cable of the bower anchor. It was, however, observed that a heavy swell was setting into the bay, so that, if the ship had departed that day, it was feared that she would be lost in getting out, and therefore the ship lay where she was till the 11th, when she got under weigh and finally left the port, having had no communication with the shore after the morning of the 10th. It was held that this was not a compliance with the warranty, as, in order to have complied with it, the ship must have been actually on her voyage on the day specified; that there was no such sailing, and that the underwriters were discharged. § 139. (2) The expressions" to depart," "to sail from," mean "To depart." that the ship must be out of port and actually at sea, with all "To sail complete for the voyage, on or before the day mentioned.(u) In Lang v. Anderdon,(x) a policy was effected on goods "by ship or ships" "at and from Demerara to London," with a warranty "to sail from Demerara on or before the 1st August, 1823." (t) M. & M. 309; cp. and distinguish Cochrane v. Fisher, 2 C. & M. 581; 1 C. M. & R. 809, infra § 140. (u) Phillips on Ins. 777. from." |