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constitute a warranty; as in the case of a vessel described in the policy as an “ American ship,” when it was ruled that this expression was equivalent to an express declaration that the nationality of the ship was American (a).
Every warranty must be expressed upon the face of the policy. The place of its insertion is immaterial, whether in the body, margin, or at the foot of the document; but it must appear somewhere. An express declaration written upon a paper, which is folded inside the policy at the time of subscription does not constitute a warranty ; neither does one which is gummed or wafered to the policy itself (6); but records or other papers may be made a part of the written contract, by a distinct reference to them in the policy (c).
It is of no avail to plead inability, accident, or even the operation of a peril insured against, as an excuse for non-compliance with an express warranty. Thus, a vessel was warranted to sail on a certain day, and was in readiness to fulfil the condition, when she was arrested by the authorities, and detained until after the specified date. It was held that, notwithstanding the detention was occasioned by the intervention of superior force, and that “restraint of princes” was a peril insured against, the underwriter was discharged by the breach of the warranty (d).
The only legitimate grounds for non-compliance are: First, such a change of circumstances as to render the warranty inapplicable, as in the case of a vessel“ warranted to sail with convoy,” supposing peace were known to have been proclaimed before the ship sailed; and secondly, if, subsequently to the agreement to insert a warranty being entered into, and prior to the time for the execution of it, a law were passed rendering fulfilment illegal (e).
Warranties may refer to the date of the ship's sailing ; to her classification, construction, equipment or nationality ; to the weight or description of cargo, the course to be pursued during
the voyage, or to a number of other circumstances connected with the risk.
An express warranty in frequent use is the following (f):Warranted not to sail from the Baltic, White or Black Seas,
or British North America, between the 1st day of October and the 1st day of April, nor from the West Indies on Gulf of Mexico between the 1st day of August and the 12th day of January, nor to sail to the Baltic before the 20th day of March, nor after the 10th day of September, and not to go to the Azores.
A distinction has been drawn by the Courts between a mere warranty" to sail” inserted in a voyage policy, and a warranty “ to depart,” or “ to sail from ” a specified port, on or before a given date. In the former case, the warranty is satisfied, if there be a bonâ fide commencement of the voyage, the ship being in a state of complete readiness to pursue the same, though she should not quit the port, within the time stipulated; but, in the latter case, the vessel must not only have broken ground on the voyage, but have quitted the port, within the limit of time imposed by the warranty (g). In accordance with this ruling, coupled with mercantile usage, the expression “ to sail from the Baltic, White or Black Seas, or British North America,” will require the vessel to pass without the limits of her port of departure in the localities desigrated, in a state of complete equipment and fitness for the voyage; and the expression “to sail to the Baltic,” will be satisfied if the vessel break ground on her voyage thereto, in a similar state of preparation.
Where a policy contained the clause—“Warranted no St. Lawrence between 1st October and 1st April,” it was held by the House of Lords, reversing the decision of the Court of Session, that the loss of a vessel which was in the Gulf, but not in the River St. Lawrence, within the prohibited time, was not recoverable, as the words of the warranty included the whole of the St. Lawrence Navigation (h).
(f) Termed “ Lloyd's Warranties." (g) For the cases, see Arnould, 4th
ed. pp. 552–563.
(h) Birrellv. Dryer, L.R. 9 Ap. Ca. 345.
CONSTRUCTION OF THE POLICY.
THE ASSURED—THE SHIP—THE VOYAGE.
1.-RULES OF CONSTRUCTION. In the construction of the policy, as of other instruments, the object in view is to place that signification upon its terms which most aptly expresses the real intention of the parties to the contract; and, every rule of interpretation should be used in subordination to that end. Lord Ellenborough, alluding to this subject in Robertson v. French (a), made the following observations :-" The same rule of construction which applies to all other instruments, applies equally to this, viz., that it is to be construed according to the sense and meaning, as collected, in the first place, from the terms used in it, which terms are to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the subject-matter, as by the known usage of trade, or the like, acquired a peculiar sense, distinct from the popular sense of the same words, or unless the context evidently points out that they must, in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special and peculiar sense.”
As the policy is a mercantile instrument, the terms must receive the meaning attached to them by mercantile usage. Accordingly, in a question as to whether Mauritius, which geographically appertains to Africa, could be considered one of the “East India Islands,” within the meaning of a policy of
(a) 4 East, 134.
insurance, it was decided that evidence was admissible to prove that in mercantile acceptation the latter designation was applicable (b). Upon the same principle, where a question arose as to the meaning of the word “ cargo,” it was held that the term, being a mercantile one, must be interpreted by the jury and not by the dictionary (c). It is not, however, to be supposed that parol evidence can be allowed to set up a meaning totally at variance with that which the terms of the policy clearly express; for, to quote the words of Lord Lyndhurst, “usage may be admissible to explain what is doubtful, it is never admissible to contradict what is plain” (d).
Another rule of general application is, that general terms following particular ones apply only to such matters as are ejusdem generis(dd). Thus, as we shall hereinafter find occasion to notice, the words“ all other perils, losses, and misfortunes ”in the enumeration of the perils insured against, are to be under: stood as relating solely to such risks as are similar to though not identical with those already specified.
The policy is a printed form, in which blanks are left for the insertion in writing of names and such other conditions as may be requisite to adapt the general words to the particular contract which it is desired to effect (e). As the written terms constitute the specific part of the contract, greater weight is to be attached to them than to the printed words which are common to all policies; and, if there be anything in the former contradictory to the latter, the written words control the printed ones. Accordingly, as stated by Lord Ellenborough in Robertson v. French, it is a rule for the construction of policies that, “if there is any reasonable doubt about the sense or meaning of the whole, the words superadded in writing are entitled to have a greater effect attributed to them than the printed words; inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general formula adapted equally to their case and that of all other contracting parties upon similar occasions and subjects” (f).
(5) Robertson v. Clarke, 1 Bing. 445.
(c) Houghton v. Gilbart, 7 Carr. & P. 701.
(d) Blackett v. Royal Exchange As surance Co., 2 Cr. & J. 249. In this case, it was decided that evidence was inadmissible to show that underwriters never paid for the loss of boats slung on the outside of the ship upon the quarter, as such an exception was at variance with the plain words of the
policy and the invariable usage of the trade to carry a boat in that position.
(dd) This rule is based on one of Bacon's maxims (Reg. 10) which is thus expressed : “For all words, whether they be in deeds, or statutes, or otherwise, if they be general and not express and precise, shall be restrained unto the fitness of the matter or person.” (e) Park on Insurance, p. 5.
II.—THE CUSTOM OF LLOYD'S. In the construction of the policy, as of other written instruments, usage is admissible to explain anything that is doubtful in its terms, as also to imply conditions and annex incidents which do not appear on the face of the contract. All mercantile usage is not, however, of the same weight; for, as already stated (g), a distinction is to be drawn between customs which are notoriously prevalent throughout the mercantile world and customs which are peculiar to a trade, place, or class of persons. The former, as we have had occasion to observe, have been incorporated into the law of England, of which they form a part, and are binding on all without proof (h). “In matters of shipping and insurance," as it was said by an old writer, “judgment is given according to the maritime laws and ordinances, and according to the customs observed among seafaring people” (i). From mercantile usage in the wider sense of the term, were derived the implied warranty of seaworthiness, the similar warranty which prohibits deviation from the ordinary course of the voyage, the rule by which all material information relative to the risk must be disclosed, the custom by which goods shipped on deck are not covered by a policy expressed in general terms, without express reference to the place of stowage, and other fundamental rules.
On the other hand, customs which relate to a particular trade
(f) 4 East, 136.
(i) Roccus de Assec., cited in Stevens on Average, p. 32, note.