voyage, this interruption of the voyage would not, according to Scott v. Thompson (d), be regarded as a deviation. In the case cited, the insurance included the risk of capture, and the vessel was detained six weeks. The Court held that where the deviation was necessitated by superior force there was no ground for distinction between a policy confined to particular risks and a general policy embracing all risks. Implied Warranty of Seaworthiness.-In Wedderburn v. Bell (e), where a missing ship was found not to have been efficiently provided with sails, Lord Ellenborough said:-"A person who underwrites a policy upon a vessel has a right to expect that she will be so equipped with sails, that she may be able to keep up with the convoy and get to her port of destination with reasonable expedition. She must be rendered as secure as possible from capture by the enemy, as well as from the danger of the winds and waves. But here the vessel appears to have been deficient in sails, on which her speed might materially depend; and if so, the risk thereby being greatly increased, the policy never attached." It appeared that the sails for use in stormy weather were in good condition, but that the maintopgallant sails and studding sails, useful in light breezes, were rotten and practically unserviceable. From this case it would seem that an equipment which will fulfil the implied warranty of seaworthiness in time of peace, may be regarded as insufficient if there be a risk of hostile capture. (d) 1 B. & P. N. R. 181. Vide also Arnould's Insce., 5th ed. p. 503, note. (e) 1 Camp. 1. X. MISREPRESENTATION AND CONCEALMENT. "ON the true principles of equity and justice, for the sake of that consensus indispensable to a contract, concealment or misrepresentation by the assured, whether wilful or not, of any such facts as might reasonably be supposed to have influenced the underwriter in taking the risk or fixing the rate of premium, will avoid the policy" (a). The technical distinction between representation and warranty, and the general principles of law in connexion therewith, need not be entered upon here: for information on such points reference should rather be made to treatises on marine insurance generally. The object of this chapter is to indicate the points-other than those relating to marine insurance generally, in times of peace-upon which insurers should, in time of hostilities or apprehended hostilities, give accurate and full information to underwriters. Misrepresentation.-In Reid v. Harvey (b), where the insurer knew that the vessel had sailed without convoy, and nevertheless secured as a condition of the insurance a provision for return for sailing with convoy, thereby leading the underwriter to believe that there was a prospect of her so sailing, this was held to be a fraudulent misrepresentation which voided the policy. In Edwards v. Footner (c), where a representation was made that the ship was to sail with convoy and a certain armament, and this representation was not substantially complied with, the policy was held to be void. (a) Arnould's Insce., 5th ed. 507. (b) 4 Dow's Rep. 97. (c) 1 Camp. 530. See also Pawson v. Watson, 2 Cowp. 785. "If, with the intention to deceive, the owner of a ship states to the underwriter that he believes the ship to be neutral, knowing nothing on the subject, and having no reason to believe either way, the better opinion would seem to be that the representation, if false, would avoid the policy" (d). "Every misrepresentation," said Lord Eldon in Sibbald v. Hill (e), "is fatal to a contract which is made under such circumstances and in such a way as to gain the confidence of the other party, and induce him to act when otherwise he would not." In Seymour v. London and Provincial M. I. Co. (f), an insurance had been effected on goods "warranted no contraband of war." The vessel was herself destined to a neutral port on the borders of belligerent soil. The interest insured was condemned as being actually intended for enemy use, and the British Court approved of the decision of the belligerent prize court. The policy was declared void on the grounds of misrepresentation and breach of warranty. In Macdowell v. Fraser (g) the assured, owing to an erroneous computation as to dates, represented the ship to be safe in the Delaware on 11th December. It turned out that on the 9th December she had been lost by running against a chevaux de frise placed across the river, and the misrepresentation was held to have voided the policy. In Christie v. Secretan (h), where the broker spoke of the ship as an American, but said he was directed not to warrant anything; this was held to be a representation binding the assured to have the vessel documented as American. In another case (i), however, where the broker had stated to the underwriter, when the insurance was opened, that the ship was an American, and on closing the policy observed only that it was an insurance on goods by The Hermon," without a word as to the national character of the ship, Lord Ellenborough held that the first conversation had been qualified and controlled by what followed, (d) Arnould's Insce., 5th ed. 520. (e) 2 Dow's P. C. 263. (f) 41 L. J. C. P. 193; and p. 199, supra. (g) Doug. 247, 260. See also Arnot v. Stewart, 5 Dow, 274. (h) 8 T. R. 192. (i) Dawson v. Atty, 7 East, 367. and that the ship was not represented to be an American so as to require documents of nationality. (See Arnould's Insurance, 5th ed. p. 540, note, for the learned author's comment on this, as he calls it, remarkable decision.) In Woolmer v. Muilman (k), where the insurance was effected with the warranty "Neutral ship and property," the interest being in fact not neutral, the policy was held to be void, though the loss was due to perils of the sea. For, the fact that the loss, in parallel cases, is in no way connected with the circumstances of the warranty or misrepresentation, is not material. And this is so whether the misrepresentation be wilful, or whether it be due to ignorance, accident, or mistake. A misrepresentation, if fraudulently made, whether it be material or not, will void the policy. This, however, will not be so if the representation, though not strictly, be substantially fulfilled, where there is no moral fraud (1). But a warranty must be in all cases strictly complied with (m). Concealment.-"Concealment, in the law of insurance, is the suppression of a material fact within the knowledge of one of the parties which the other has not the means of knowing or is not presumed to know. A material fact in this connexion is one which, if communicated to the other of the parties, would induce him either to refrain altogether from the contract, or not to enter into it on the same terms " (n). If a person intending to insure should receive a report of such a nature as to materially affect the risk to be covered, he must acquaint the underwriter with it. Otherwise the insurance may be held void on the ground of the concealment, even though the report subsequently prove to be unfounded (o). "The assured," said Lord Mansfield in Carter v. Boehm (p), "need not mention what the underwriter ought to know; what (k) 3 Burr. 1419; 1 Black. 427. See also cases cited in note, Arnould's Insce., 5th ed. 515; and Fernandes v. Da Costa, Park's Insce., 8th ed. 407. (1) Pawson v. Watson, 2 Cowp. 785. (m) De Hahn v. Hartley, 1 T. R. 345. (n) Arnould's Insce., 5th ed. 545. (0) Vide cases cited in Arnould's Insce., 5th ed. 563, note. (p) 3 Burr. 1905; 1 Black. R. 593. he takes upon himself the knowledge of; or what he waives being informed of. . . . The underwriter is bound to know every cause which may occasion political perils; from the rupture of states, from war, and the various operations of war." This was an insurance on a so-called fort in Sumatra. On its being captured by a French ship of war the underwriters objected that they had not been informed of its deficiency of defensive power, and that, owing to certain circumstances, the French might seek to take it. The Court held that the underwriters, having asked no questions, took upon themselves the knowledge of the state of the place; and that the chances of the French making a visit to it were a matter of mere speculation. Judgment for the plaintiff. In the above trial the learned judge observed that in the case of an insurance on a privateer, the underwriter need not to be told of the secret enterprises contemplated. For from the nature of the contract he waives this information. But "any circumstance within the knowledge of the assured, and not equally within the knowledge of the underwriter, which affects the national character of the subject insured, and therefore exposes it to capture or detention, must be disclosed to the underwriters" (q). But ignorance of an exceptional circumstance, though material to the risk, will apparently excuse the assured in respect of his failure to communicate such information to the underwriter. As where a vessel insured, warranted Portuguese, was condemned by a French Court on the ground that she carried an English supercargo, contrary to a recent French ordinance, of which the insurer and the underwriter were both ignorant (r). "If both parties were ignorant of the ordinance," said Lord Mansfield, "the underwriter must run all risks. It must be a fraudulent concealment of circumstances that will vitiate a policy." In the United States it has been held that new or shifting ordinances of foreign states, by which the property is exposed to seizure, must be disclosed to the underwriter if the insurer knows of them; for the underwriter cannot be presumed to be necessarily aware of such ordinances (s). And in the same country it has been held that failure to disclose that the property insured belongs to a (9) Arnould's Insce., 5th ed. 559. (r) Mayne v. Walter, Park's Insce., 8th ed. 431. |