a voyage policy, becomes entirely unintelligible when it is attempted to apply it to a pure time policy. If, however, enough of the characteristics of a voyage policy are ingrafted upon a time policy to enable the warranty to acquire an intelligible meaning, then perhaps the warranty may be implied. But as the general principle is, that, in pure time policies no warranty can be implied, if, in any case a time policy is so modified by the characteristics of a voyage policy as to render the warranty intelligible, the pleadings must specially state such modifying circumstances. Such was the scope of the decision in Gibson v. Small.1 The decision settled the law in England upon the main question, and it was adopted and approved soon after in a case in this country. The facts and the state of the case were mainly those of Gibson v. Small, and Mr. Justice Grier, referring to that case with approval, and adopting the principles there laid down, in respect of the exact point decided, held 2 that," the plea must state such facts and circumstances as shall show, either that at the time. the insurance commenced, the ship was in her original port of departure and commenced her voyage in an unseaworthy condition, and so continued till the time of her loss; or that having come into a distant port in a damaged condition, before or after the risk commenced, where she might and ought to have been repaired, and the owner or his agents neglected to make such repairs, and the vessel was lost by a cause which may be attributed to the insufficiency of the ship." In this case, it will be observed, Mr. Justice Grier states only one case in which he conceives the warranty of seaworthiness would be implied, after the analogy of voyage policies, that in which, at the inception of the risk, the vessel is in her original home port.3 A case soon came up in the Privy Council in England, brought by appeal from the Supreme Court in Calcutta, involving this point. It was not denied that the ship was seaworthy at the 1 We must except the solitary dictum of Lord Campbell, which, as we have seen, went much farther, and asserted that there could be no implied warranty in a time policy, under whatever circumstances it might have been made. This dictum of Lord Campbell, and more especially the theory of time policies which led him to adopt it, we shall consider more at length hereafter. 2 Jones v. The Ins. Co., 2 Wallace, Jr. 278. 3 The case mentioned in the second part of the ruling would involve no warranty in the strict sense of that word, as a condition precedent, but only an obligation on the part of the assured, to keep the vessel seaworthy if he can, a doctrine peculiar to the United States. 4 Jenkins v. Heycock, 8 Moore P. C. 351. original commencement of the voyage, but, during the continuance of the risk, she left an intermediate port in a damaged state, and this fact was pleaded. The court held the plea bad, on the ground that there was no difference in this respect between a time and a voyage policy. Sir John Jervis, however, said, "If it were necessary to the decision of this case, we should be inclined to go to the extent of what Lord Campbell said in the House of Lords." - Before the decision in Gibson v. Small was finally given in the House of Lords, a case involving similar facts and circumstances came up in the Supreme Court of Massachusetts.1 The policy was for one year on the "ship Riga, at and from the place or port where she was on the 30th March, 1848, to and at all ports and places to which she might proceed in that time." The policy was effected 10th April, 1848. There was nothing either in the policy or in the evidence to show where the ship was, at the time the policy attached, or in what sort of service she was engaged. The case was, therefore, like that of Gibson v. Small, that of a pure time policy, unmodified by any of the incidents of a voyage policy. Mr. Chief Justice Shaw was careful to distinguish the precise case before the court, and did not wish to be considered as deciding any thing more than the exact question involved. In the first place he distinguished the case from that in which the vessel is in port at the time of the policy's attaching, and sails afterwards, — whether a home, foreign, or neighboring port, "a place where fall repairs can be had or not, or whether it be a desolate and savage coast, where no repairs can be had." It would seem that it made no difference what the facilities for rendering the vessel seaworthy were at the port of departure, and the class of cases which the Chief Justice wished to distinguish would seem to consist of those into which one element of a voyage policy was introduced; viz., that of a definite place whence, in addition to a time when, the policy is to take effect. He also distinguished the case from that of a policy made to cover in terms the latter part of a voyage already begun, the risk to commence on a day fixed after the commencement of the voyage. This case is similar to that supposed by the Chief Justice in a case which we have cited,2 more than twenty years before. He was then of opinion that the warranty would be implied at the commencement of the term insured, "it 1 Capen v. Wash. Ins. Co., 12 Cush. 517. 2 Paddock v. Franklin Ins. Co., 11 Pick. 227. being a necessary incident to the contract," but that it would be applied" with great liberality of construction;" and he did not intimate that he had changed his opinion. The tenor of the decision, however, would seem to be opposed to the implication of the warranty, as such, at the commencement of the risk, or of the term insured, and the only warranty which it was suggested might reasonably be claimed, was, that the vessel was seaworthy at the commencement of the voyage in the course of which the policy attached. The defence in the case was that the vessel was so much damaged and decayed on the 30th March, 1848, when the risk commenced, as to be unable to bear the perils of navigation, for and during the term of one year, and therefore the implied warranty (which was claimed to have existed at the inception of the risk) was not fulfilled, and the policy never attached.1 In this state of the case, the court ruled upon the points urged, that there is no implied warranty, in the ordinary sense of that word, on a policy on time, for a term certain, at all times and places, either at the making of the policy or at the time when the risk is to commence. In order, however, that there may be a subject of insurance, there is a condition that the ship is in existence, and in as good condition as is reasonable under the circumstances in which she may be, if in port, that she is portworthy, and will sail seaworthy, if at sea, that she sailed seaworthy, and was there "salvus 99 not lost. The policy would then attach. Thus we have a decision in this country, covering the exact ground of Gibson v. Small, in England, viz., that in a time policy, no special circumstances as to the situation or intended uses of the vessel being stated, there is no implied warranty of seaworthiness, in the established sense of that phrase, at the commencement of the risk; i.e., the time at which the policy is to attach.2 In the case 1 Another point was that this warranty applied as a condition at the beginning of each voyage, undertaken during the term insured, -a point similar to that urged and overruled repeatedly, in the cases which we have cited. It was again held in respect of this point, that the insured came under the same obligation, as to repairing, as in voyage policies, vide Hollingworth v. Brodrick, Am. Ins. Co. v. Ogden, and Dixon v. Sadler, ubi supra. 2 The other question as to there being such warranty at the time of the making of the policy, we put out of consideration, inasmuch as the date of the policy has no perceivable connection with the question of seaworthiness, and there is only one remark, in Park on Insurance suggesting any such idea, and the context there shows it to be a misstatement. Park on Insurance, at the beginning of the chapter on "Seaworthiness." of Michael v. Tredwin, the policy was from the meridian of the day of sailing from Suez, to the meridian of the 20th March, 1853. The defence was that the ship was not, at the time of sailing from Suez, nor at any time of the day of sailing from Suez, seaworthy, or in a fit and suitable condition safely to go to sea. The plea was held bad, because it did not state this to be a policy to attach at the commencement of voyage from Suez; and therefore the case was, to all intents and purposes, identical with that of Gibson v. Small, and concluded by the decision in that case. The policy, then, was exactly the same that it would have been had no mention been made of Suez, and therefore, "no special circumstances being alleged," the case came within the operation of Gibson v. Small. Up to this time it will be seen no court had gone beyond Gibson v. Small, although in one case there was an intimation on the part of the court, of a disposition to adopt Lord Campbell's theory.2 But a case came up in the Queen's Bench, directly after that of Michael v. Tredwin, involving the strongest analogies between time and voyage policies. The insurance was "at and from the meridian of 21st October, 1854, to the meridian of 1st March, 1855." The first plea in the defence averred that at the time when the policy took effect, and down to the time of sending the ship to sea, she was an outward-bound ship, lying in a British port where the owners resided, that the ship was chartered for a particular voyage, from Sunderland to Constantinople, and that the plaintiffs, the same being the owners, sent her to sea in an unseaworthy state, and when she was not in a fit and proper condition safely to go to sea; and that she was, afterwards, while on the high seas, in that condition, lost. The substance of the second plea was, that the plaintiffs did as alleged in the first plea "knowingly." The third plea embodied the first and second, and added that "by reason of the premises" the ship was wrecked and wholly lost. The Court consisted of Lord Campbell, C.J., Coleridge, Wightman, and Erle, JJ. It was held, Mr. Justice Erle dissenting, that the first and second pleas were bad, on the ground that there is, under no circumstances, any implied warranty of seaworthiness in time policies. Mr. Justice Erle again presented a very able and elabo 1 17 C. B. 551. 2 See remarks of Sir John Jervis, in Jenkins v. Heycock, 8 Moore P. C. 351. 3 Thompson v. Hopper, 6 El. & Bl. 172, 937. rate dissenting opinion, reiterating his views, as set forth by him in the case of Gibson v. Small, and again coming to the conclusion that the implied condition of seaworthiness applies to time policies as well as to voyage policies, in all cases where the circumstances attending the making of the insurance do not expressly rebut the presumption of the existence of such implication. In regard to the third plea, the court were unanimous in the opinion that it was good, upon the ground that the plaintiffs were charged with personal misconduct, whereby the loss was occasioned, and they should not be allowed to profit by their own wrongful act. Upon this point, the case went to the Exchequer Chamber, where it was held that the plaintiffs were entitled to recover, because their negligence was not the proximate cause, but only a cause without which the loss would not have happened; the rule, "causa proxima, non remota, spectatur," being thus literally applied. A case not unlike the one we have been considering, arose directly after it in the Queen's Bench. The court reiterated the principles laid down in Thompson v. Hopper, Mr. Justice Erle again dissenting and referring for his reasons to the preceding case.2 The court in this case, however, held, that although there was no implied warranty at the commencement of the risk, yet the insurers were not liable for repairs rendered necessary, not by the perils of the sea, but by the unseaworthy condition of the ship at the commencement of the risk. Immediately after these cases were decided in England, a case came up in the Superior Court of New York, involving one of the points discussed in the English cases. surance was from 22d March, 1854, to 22d March, 1855. On the 5th February, 1855, the vessel sailed from Hong Kong for Shanghai, and back to Hong Kong. She never reached Shanghai, but was obliged to put into Woosung. The captain, in the exercise of his discretion, made some slight repairs, and started for Hong Kong. On the way she was lost. Mr. Justice Hoffman considered that it must be presumed that the ship was seaworthy, both at the inception of the risk on the 22d March, 1854, and also on the 5th February, 1855, when she set sail from Hong Kong, since nothing was alleged to the contrary. The question then was very much narrowed down in respect of the warranty of seaworthiness, the only question being whether there was any such warranty 1 El. Bl. & El. 1038. The in 2 Fawcus v. Sarsfield, 6 El. & Bl. 192. 3 Hathaway v. Sun Mut. Ins. Co., 8 Bosw. 33. |