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greater or less degree of certainty, will or may follow from our own acts. The law makes us responsible for those effects of our voluntary acts which might reasonably have been foreseen, or which are of a kind analogous to effects which might thus have been foreseen. There is generally no other way of determining whether certain events, or whether events analogous to them in kind, were or might have been anticipated or foreseen, than by an appeal to experience. By applying this maxim, we make that appeal. We determine whether given causes and effects are proximate or remote, in the legal sense of those words, from our own experience of the succession of cause and effect.

The use of the maxim is liable to lead to error by withdrawing the attention from the true subject of inquiry. We cannot add clearness to our reasoning by talking about proximate and remote causes and effects, when we mean only the degree of certainty or uncertainty with which the connection between cause and effect might have been anticipated. But this is an inconvenience which must be submitted to by those who attempt to make a practical application of the maxim.

WARRANTY OF SEAWORTHINESS IN TIME POLICIES.

PRIOR to the year 1850, it appears to have been received as a settled principle of marine insurance, that in all policies on ships and cargoes there was an implied warranty that the ship was seaworthy. But although before that time it was not attempted to take out any class of policies as exempt from this implication of warranty, yet the fact that it might under certain peculiar circumstances be very much modified, was, on several occasions, recognized by eminent judges. Thus in one of the earliest cases bearing upon this subject, it was held, that, in a policy upon a ship which had been out nearly three years at the time the policy was to attach, the warranty of seaworthiness was satisfied if the ship was capable of performing any of the objects of her voyage, and of being safely navigated home. This was in 1815. In 1831, a case arose in the Supreme Court of Massachusetts, in which a similar doctrine was laid down.2 Insurance was effected " on the cargo on board the good ship Tarquin, lost or not lost, now on a whaling voyage in the Pacific Ocean, during her stay, and until her return." The insurance was effected three years after the ship set out on her voyage, and it was contended by the underwriters that this was a policy to attach at its date, and that in point of fact the ship was not at that time seaworthy. The court having held that the policy extended back to the original commencement of the voyage, it became unnecessary to decide the question as to an implied warranty at the date of the policy. Nevertheless, the Chief Justice went on to consider the question under discussion. We quote from his remarks: "Whether, if a policy were effected in terms, to cover the latter part of a long whaling voyage in distant seas, and to take effect on a particular day, where it was known to both parties that the ship must be weakened, the rule of seaworthiness, as a condition precedent, would apply, may be matter of doubt. . . . The general rule that the ship must be seaworthy at the inception of the risk, would probably be applied, it being a necessary incident to the contract. But the rule would 1 Hucks v. Thornton, Holt's N. P. C. 30.

VOL. IV.

2 Paddock v. Franklin Ins. Co., 11 Pick. 227.

15

no doubt be applied with great liberality of construction in the

case supposed.

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If, however, she be a mere wreck, the policy

never attaches." In these two cases no mention is made of time policies as a distinct class; but the difficulty in construing the warranty of seaworthiness is conceived to lie in the peculiar circumstances of particular cases, the general principle being still recognized, that the warranty is a necessary and indispensable incident to every policy, and that although it may be modified in some cases, it can never be wholly dispensed with.

In the English case of Hollingworth v. Brodrick, which was tried in 1837, a distinction was taken by counsel between time and voyage policies in respect of the warranty of seaworthiness. The policy was for twelve months, and it was contended that although in a voyage policy the warranty was satisfied if the ship was seaworthy at the time of the attaching of the policy, yet in a time policy the obligation was more extensive, and imposed upon the assured the duty of rendering the ship seaworthy at the commencement of each separate voyage entered upon during the term insured. But although the question in that form was not decided, it not being necessary to do so, it was distinctly stated, obiter, by Patterson and Littledale, JJ., that the fact of the policy being a time policy made no difference, and that the warranty, being originally satisfied, bound the insured no further, exactly as in the case of voyage policies.1

A case very much like the preceding arose in New York the same year. The action was on a time policy, for six months, and the ship sailed, after the policy attached, in a seaworthy state. She, however, left an intermediate port in an unseaworthy condition, and was afterwards lost by causes attributable in no degree to her unseaworthy state. The same ground was taken in the defence as was taken in Hollingworth v. Brodrick. But the court ruled exactly as in that case, that there was no difference in this respect between time and voyage policies. The question came up again in similar form in the case of Dixon v. Sadler, tried in the Exchequer in 1839.3 This was an action on a policy for six months on "ship and cargo;" the defendant pleaded improper conduct of master and crew in throwing over ballast, &c., by which means the ship was lost. The plea was held bad, for the reason that the 1 Hollingworth v. Brodrick, 7 Ad. & El. 40. 2 Am. Ins. Co. v. Ogden, 20 Wend. 287.

8 Dixon v. Sadler, 5 M. & W. 405.

assurer is bound only to provide a competent captain and crew in the first instance, and is not responsible for their after good behavior or ability. And it was held that this rule applied without any distinction to time and voyage policies. The case was taken to the Exchequer Chamber,1 and the decision of the Court of Exchequer affirmed.2

Thus the adjudged cases stood when the case of Small v. Gibson came up in the Queen's Bench in 1849. This must be considered the most material case upon this question, not only because in it, for the first time, the distinction between time and voyage policies, in respect of the warranty of seaworthiness, was taken in terms, but also because the case was most ably presented and argued by counsel, and all the learning and authorities bearing upon the entire subject most elaborately considered, first by the Queen's Bench, then by the Exchequer Chamber, and finally by the House of Lords. The action was on a policy of insurance on the ship Susan, "lost or not lost, in port or at sea, in all trades and services whatsoever and wheresoever, during the space of twelve calendar months, commencing on Sept. 25, 1843." The plaintiffs alleged loss by perils of the sea. The defence was, that "the ship was not, at the commencement of the risk, nor at the making of the policy, nor on Sept. 25, 1843, seaworthy, or in a fit and proper condition safely to go to sea." On the first trial, in the Queen's Bench,3 this defence was adjudged good. The court held, that, in all cases of marine insurance, there is an implied warranty of seaworthiness "at the commencement of the risk." But the case was taken to the Exchequer Chamber, where the decision of the Queen's Bench was reversed. From the Exchequer Chamber the case went by writ of error to the House of Lords, where the decision of the Exchequer Chamber was affirmed.5 The decision in this case has met with uniform approval in the English courts, and several cases have been decided upon the strength of it. And in this country it has been approved in several instances, and the grounds upon which a majority of the judges went, adopted. It is therefore of impor

1 Sadler v. Dixon, 8 M. & W. 895.

2 We may add a few cases of policies on time, in which it seemed to be taken for granted that the same warranty existed as in voyage policies. Brooks v. Oriental Ins. Co., 7 Pick. 259; Martin v. Fish. Ins. Co., 20 Pick. 389; Cincinnati Mut. Ins. Co. v. May, 20 Ohio, 211; Merchants Mut. Ins. Co. v. Sweet, 6 Wis. 670; Keeler v. Fireman's Ins. Co., 3 Hill, (N. Y.) 250.

3 Small v. Gibson, 16 Q. B. 128.

4 16 Q. B. 141.

5 4 H. of L. Cas. 353.

tance to see just what this case decided, and what it still left open for subsequent adjudication. In the Exchequer Chamber, Baron Parke stated with precision the extent of the decision to be this: That there is no implied warranty of seaworthiness" whereever the ship may be, and in whatever circumstances placed, at the commencement of the term insured." He says further, in stating what it was not intended to decide: "We are far from saying that there is no warranty of seaworthiness at all: so to hold would be to let in the mischief which the law provides against by the implied warranty in a voyage policy; or that there is not the same warranty in the case of a time policy, according to the situation in which the ship may be at the commencement of the term insured." Baron Martin, in the House of Lords, said, "The result of the investigation has satisfied me that there is no distinction between the warranty of seaworthiness in regard to voyage policies and time policies. Under the same circumstances the warrranty is, in my opinion, identically the same." Baron Platt was of opinion that if any warranty could be implied it would apply to the inception of the voyage on which the vessel was when the insurance was made. Mr. Justice Erle was of opinion that there was an implied warranty at the inception of the risk, and gave a dissenting opinion to that effect.

Lord St. Leonards, after giving it as his opinion that there was no warranty implied in the case of the policy under consideration, said, "If however, a ship be about to sail on a particular voyage, and a time policy be effected instead of a voyage policy, I think, as at present advised, that the condition of seaworthiness would be implied." But, on the other hand, Lord Campbell said, “As at present advised, I should decide against the implied condition in all cases of time policies, and should be glad if it were understood, that in all voyage policies there is, and in no time policies, framed in the usual manner, is there, a condition of seaworthiness implied." It will be seen, then, that the decision in Gibson v. Small applies to only one class of cases which may arise under time policies. But in all cases of pure time policies the decision applies. The policy in that case was a pure time policy, "no special circumstances," as to the situation or use of the vessel being alleged. The proposition then, is, that, between voyage policies and pure time policies, there is such a want of analogy that the incident of an implied warranty of seaworthiness, which always attaches to

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