thereafter during the voyage, as loss from unseaworthiness is among the perils insured against. The plaintiffs, under such a policy, make out a prima facie case by showing seaworthiness at the inception of the risk. But in time policies there is implied a warranty that the vessel will be kept in repair and made seaworthy at all times during the continuance of the risk, so far as that is reasonably possible, and this implied covenant imposes upon the insured the duty of active diligence to keep the vessel in good order and in a seaworthy condition."1 This language, probably, must be understood in a sense somewhat similar to that employed by Mr. Justice Blatchford in the case of the Union Ins. Co. v. Smith, just cited, for it is not to be supposed that the court could spell out of a policy that insures even against barratry an absolute and continuous warranty obligatory upon the assured and his agents during the voyage and in foreign ports to keep the ship as seaworthy as possible. Where at the time of the commencement of the risk a ship was not in port, but off on a distant voyage, it was held that the implied warranty of seaworthiness was not applicable.2 § 101. Seaworthiness is what.-A ship is seaworthy when reasonably fit to perform the services and to encounter the ordinary perils incident to the voyage.3 This requires that the ship on sailing should be tight and staunch in hull, properly rigged and laden, provided with a competent master, a sufficient number of competent officers and seamen, as well as with a pilot when required by law or custom, and with the requisite appurtenances and equipments such as ballast, cables, anchors, cordage and sails, food, water, fuel and lights, and other necessary or proper stores and implements for the voyage.* Her cargo must be properly stowed, and the weight of it not in excess of the vessel's safe carrying capacity. In the case of an insurance being effected on cargo which is 1 Berwind v. Greenwich Ins. Co., 114 Q. B. 596. Thebaud v. Phoenix Ins. N. Y. 234 (1889), Brown, J. Co., 52 Hun. 495 (1889), by Van Brunt, 'M'Lanahan v. Universal Ins. Co., 1 Pet. 170. of such a nature or so stowed as to render the vessel unseaworthy, it will be no extenuation to show that in case of need the cargo can be readily jettisoned, for the warranty of seaworthiness is to be considered in relation to the subject-matter insured, and cannot be taken to contemplate the destruction of that very cargo which it is designed to protect.1 Neither the ignorance nor the innocence of the insured will avail to relieve him from the consequence of a breach of the warranty, though all reasonable precautions were taken to secure the seaworthiness of the vessel on sailing, and her unseaworthy condition arose from a latent defect. For an actual fulfillment of the implied condition is indispensable. Upon the same principle, an insurance on cargo is invalidated if the vessel sail unseaworthy, though the assured be ignorant of her state, or powerless to alter it.2 The implied condition of seaworthiness is to be confined to the ship by which the insurance is effected, and cannot be extended to lighters employed to land the cargo. There is no implied warranty that the cargo itself is seaworthy. The standard of seaworthiness required to satisfy the warranty is not uniform in every case, but variable according to circumstances. Thus, if the voyage comprises several distinct stages, each of which requires a different degree of seaworthiness, the warranty will at least be satisfied if the vessel is seaworthy for each stage alone at the commencement of it. For instance, in a policy "at and from," the risk is divisible into two distinct parts, the risk in port and the risk at sea, and a different degree of seaworthiness is required at the commencement of each of these sections. The vessel on sailing must be fit for the voyage, but for the risk to attach in port it is only necessary that she should have arrived there in a state of sufficient seaworthiness to lie in reasonable security until properly repaired and equipped for the voyage. So where the voyage consists partly of river and partly of 'Lane v. Nixon, L. R., 1 C. P. L. R., 1 Exch. 206. 412. sea navigation, and requires a different state of equipment for each stage.1 If the vessel be unseaworthy for any distinct stage of the adventure on entering upon it, the policy, it has been held, will be avoided, and no subsequent loss will be recoverable, though the defect may have been remedied before loss, and the loss have occurred irrespective of it.2 The warranty of seaworthiness in general only attaches at the inception of the risk; so that in the case of an insurance out and home, if the risk be one and indivisible, the starting of the vessel outward in a seaworthy state will satisfy the warranty, and there will be no breach though the vessel should be unseaworthy upon sailing on her homeward passage or from any intermediate port. The standard of seaworthiness may, also, have a relation to the character of the ship insured, and if an insurer agrees with full knowledge of the facts to insure a vessel incapable, from size or construction, of being brought up to the ordinary standard of seaworthiness, the implied warranty will be satisfied if the vessel is made as seaworthy as her capacity will admit of.3 But, as a rule, the character of the voyage, rather than the purpose for which the ship was originally constructed, must determine the question whether this warranty has been kept.4 Where the nationality or neutrality of a ship or cargo is an express warranty, it is implied by the warranty of seaworthiness that the ship will carry the requisite documents to show such nationality or neutrality.5 § 102. Implied Warranty: Deviation.--There is a second implied warranty in marine insurance; namely, that when the voyage contemplated by a policy is described by places of beginning and ending, there shall be no voluntary deviation or departure from the course fixed by mercantile usage, and no unreasonable delay in the commencement or prosecution of the voyage.1 If the course of sailing between the places named is not fixed by mercantile usage, such a course must be pursued as would appear reasonably direct and advantageous to a master of ordinary skill and discretion.2 A deviation is a variation, and not necessarily an increase of the risk insured.8 Where a policy of insurance was effected on a ship, at and from Montreal to Montevideo, and a delay occurred in the arrival of the vessel at Montreal, which, by converting the voyage from a summer into a winter one, materially affected the risk and rate of premium, it was held that the policy would not attach.1 An alteration in the vessel's port of destination is fatal to the contract. If a vessel is insured to several ports of discharge not mentioned by name in the policy, she must visit them in the geographical order in which they occur from the port of departure; but, if the ports are designated by name, they must be visited in the order in which they are mentioned in the policy. It is not, however, essential that a vessel thus insured should proceed to all the ports named. She may go to one or more and omit the rest. But such ports as she does call at must be visited in the order above described, and it is not lawful for her to re-visit any. This rule is binding unless the departure is warranted by recognized usage.5 A deviation from the direct course of the voyage insured, though in conformity with usage, will not be covered unless made in furtherance of the adventure to which the policy relates." 1 Burgess v. Equitable Marine Ins. Cranch, 26. Snyder v. Atlantic MuCo., 126 Mass. 70. tual Ins. Co., 95 N. Y. 196; s. c., 47 Am. Rep. 29. 2 Hearne v. Marine Ins. Co., 20 Wall. 488. Turner v. Protection Ins. Co., 25 Me. 515; s. c., 43 Am. Dec. 294. Reade v. Commercial Ins. Co., 8 Johns. 352; s. c., 3 Am. Dec. 495. De Wolf v. Archangel Mar. Bank & Ins. Co., 2 Asp. Mar. L. C. 273. 5 " McCall v. Sun Mutual Ins. Co., 66 N. Y. 505. • Pearson V. Commercial Union 'Maryland Ins. Co. v. Leroy, 7 Assur. Co., L. R., 1 App. Cas. 498. § 103. Deviation, when Proper.-A deviation is justifiable, and does not exonerate the insurers, if it is necessitated either by physical or by moral force.1 Thus a deviation is proper when caused by circumstances over which neither the master nor the owner of the ship has any control, or when necessary to comply with a warranty or to avoid a peril whether insured against or not, or when made in good faith and upon reasonable grounds of belief in its necessity to avoid a peril, or when made in good faith for the purpose of saving human life or relieving another vessel in distress. If a vessel is forcibly diverted from her course by stress of weather, the compulsion of an enemy in time of war, or the violence of a mutinous crew, such a deviation is excusable. If a vessel put into a port outside the ordinary course for repairs or necessary supplies, or to set her cargo in order, or to procure fresh hands required for the navigation, or if she remain in her port of lading to avoid a capture, or depart from the usual course from the same motive, or, in short, if she commit any deviation the adoption of which is so urgently demanded by the force of circumstances as to become imperative to a reasonable mind, the divergence will not invalidate the policy. A departure from an ordinary course of the voyage with the object of saving persons whose lives are in jeopardy is allowed on the ground of humanity, but the same immunity will not be extended in favor of a deviation made solely for the purpose of saving property. A departure to learn whether a port not of destination is blockaded is a deviation. Unreasonable delay amounts to a deviation. In time policies, especially on voyages in inland waters, a deviation from the permitted course has been held to suspend and not to avoid the policy.5 § 104. Illegality.-There is a third implied warranty, that the adventure shall be a legal one both as regards its nature and the mode in which it is prosecuted." 1 Burgess v. Equitable Marine Ins. Co., 126 Mass. 70. 2 Co. of African Merchants v. British & Foreign Marine Ins. Co., L. R., 8 Exch. 154. 'Audenreid v. Mercantile Mut. Ins. Co., 60 N. Y. 482. Wilkins v. Ins. Co., 30 Ohio St. 317. Greenleaf v. St. Louis Ins. Co., 37 Mo. 25. Hennessey v. Manhattan 'Maryland Ins. Co. v. Woods, 6 Fire Ins. Co., 28 Hun, 98. Cranch, 29. 6 Redmond v. Smith, 7 M. & G. 457. |