goes into lighters, to enable them to go over the bar into the inner harbour, where they discharge the remainder: the captain in this case anchored two miles and a quarter farther out than ships usually lie for that purpose, and then went on shore to report his ship and cargo, and to obtain permission and give directions to discharge the cargo; he returned in five or six days, *when he was accompanied by Prussian soldiers, and a pilot, who took possession of the ship and cargo, and discharged part of it into a lighter in the place where the ship remained at anchor, and afterwards carried her over the bar into the inner harbour, where the goods were finally confiscated. (1) The captain's anchoring at the place in question seemed to shew that he considered it as his port of discharge. (m) This decision was followed in another case, where a seizure in Pillau Roads, at some distance from the harbour of Pillau, but at a place where ships often unload a part of their cargoes, with a view to lighten them and enable them to cross the bar, was held to be a loss from which the underwriters were exempted by the warranty. (n) And so where the captain of a ship (warranted free from seizure in the port of discharge), having arrived within about two miles and a half from the harbour of Rugenwald, cast anchor, and made a signal for a pilot, when a pilot-boat came out, whith douanniers on board, who carried him into the harbour, where the cargo was seized and condemned; this was considered to be a loss within the warranty. (0) But a difference of opinion has arisen concerning the extent of a warranty, which frees the underwriters from a seizure in the ship's port or ports of discharge; and the cases upon this subject are scarcely reconcilable. If underwriters should desire, when they effect a policy to any district or place, to exempt themselves from liability for a confiscation or seizure, &c., through the means of a force issuing from the land (or even a maritime force authorized by the government, &c.) while the ship is waiting at or near any port, with a view to obtain information, and to discharge her cargo as soon as possible; the contract should be framed accordingly, or in more limited or general terms, if required. *But the terms "warranted free from seizure in her port of discharge" are precise, and require a limited interpretation. In the Court of C. P., a capture by a French privateer, while the ship was in the roads of Pillau, was held not to be within the meaning of the warranty, as a seizure in a port of discharge. (p) The authority of this case seems questionable, although the prin (1) Dalgleish and Others v Brooke, 15 East, 295; said in 4 Taunt 394, to be at variance with Brown v Tierney, 1 Taunt 517, and it seems justly. In 4 Taunt 724 it is said that the facts in Dalgleish v Brooke, did not support the doctrine in this case, but that the doctrine was right. Mr Stevens, in his treatise on average, refers the professional reader to the Ord of Koningsberg, sect 9, 10, 11, concerning the extent of the ports of Pillau and Ko ciple upon which it was decided is correct. The Court observed, that the ship was as much at sea as ever she was, and that it was never the practice wholly to discharge a ship in the roads of Pillau. On this principle, where the master intended to go to Wismar, but being informed that the French were in possession of that place, came to an anchor in the open sea, at the south point of the isle of Poehl, about seven English miles distant from Wismar, and not within reach of any guns from the shore, the case was held not to be within the exemption from capture and seizure in the ship's port of discharge; the ship here was not within the port, nor even within the roads of Wismar, though the captain was as certain of being taken in the place where he was as if he had been in the port. (q) If a vessel be taken at her moorings, being neither within the caput portus nor within that part of the haven where ships usually unload, the underwriter is not discharged by a warranty against capture in the ship's port of destination. (r) So where a vessel destined to discharge at Pillau, anchord two German miles from Pillau, three English miles without the roadstead, where vessels unload, in order to come over the bar into the inner harbour, and was captured at her moorings by soldiers coming off in a boat from Pillau; this was held not to be a loss within the warranty against confiscation in the port of discharge. (s) It has been considered to be the province of a jury to determine whether the place where the seizure was made was the ship's port of discharge or not; and when the vessel is not in the port, nor even in a place where ships usually discharge their cargoes, the jury will be directed to find against the underwriters' exemption, under a clause which frees *them from liability for a seizure in port. (t) So the jury will determine according to the nature of the voyage, and the documentary evidence, (such as the policy, charter-party, invoice, and bill of lading, &c.) whether the ship, when she cast anchor at a certain. place, had elected that as her port of discharge, or whether the master's intention was suspended, and he merely waited off the place for information. (u) The underwriters may, if they think proper, exempt themselves from responsibility for a seizure, &c. by a force issuing from the land, (or from any other source, when the ship has arrived off or at any port at which she may wait for information as to the discharging her cargo; or off, or at any port of discharge ;) but an appropriate description should be adopted in the policy to give them the benefit of that exemption. When a loss is occasioned by the event embraced by this species of warranty, the insured cannot recover for a partial sea damage which the ship had sustained in a previous part of the voyage. Thus where an American ship insured from New York to London, and warranted free from American condemnation, having sailed away (q) Mellish v Staniforth, 4 Taunt 499. (r) Keyser v Scott, 4 Taunt 660. and infra, next note. (3) Levy v Vaugham, 4 Taunt 337. Reyner v Pearson, 4 Taunt 662. Leven in the night for the purpose of eluding an embargo, was driven on shore by the force of the ice, wind, and tide, and sustained a partial damage, but was seized the next day, and finally condemned by the American government for the breach of an embargo; the Court of King's Bench held, that the insured could not recover for the partial damage which the ship had sustained by the stranding. (x) For the total loss which happened by American condemnation, and was excepted out of the policy, rendered the previous damage wholly immaterial. It seems however, in such a case, that the insured might recover for actual disbursements made for the repair of damage occasioned by sea perils before the total loss; since these would be included in the authority given to the insured to sue, labour, and travail for the defence, safeguard, and recovery of the property insured. (y) When this species of warranty is inserted in the policy, the insured *cannot deviate from the usual course, in order to avoid the excepted peril, for that would be to throw the liability upon the underwriters by an indirect course, when they would have been exempted if a direct course had been pursued. And, therefore, where a policy contained a warranty against seizure and the consequences thereof, in port, in La Guayra, and the ship ran to sea before she was properly laden, and was in consequence obliged to go to a port out of the course of the voyage, the underwriters were held to be exempted from a subsequent loss. (z) If no warranty had been inserted, the underwriters would have been liable for the loss notwithstanding the deviation. (a) (x) Livie v Jansan, 12 East, 648. (y) 12 East, 648. (z) O'Reilley and others v Royal Exchange Assurance Company, 4 Campb. (*344) 246. (a) O'Reilly and Others v Gonne, 4 Campb 249. 261 *CHAPTER XIII. OF MISREPRESENTATION AND CONCEALMENT. A WARRANTY is always inserted in a policy, and when inserted, it forms an express condition, and must be strictly complied with. But, on the other hand, a representation, that is, a statement of collateral circumstances not embodied in the policy, will not vitiate the policy, although it may be in some degree erroneous, if it be fairly and substantially true, and do not materially prejudice the underwriters. An assertion of a material fact, which the insured knows to be false, or which he makes in an unqualified manner, without knowing whether it is true or not, will vitiate a policy. For, as by the law of merchants, all dealings must be fair and honest, fraud infects and vitiates every mercantile contract. (a) We shall proceed to consider, in what cases a misrepresentation will avoid a policy, and when it will not have that effect. 1st, With respect to evidence offered to contradict the express terms of the policy. 2dly, With reference to the period of time when it is made; and, 3dly, With reference to the substance of the representation. When the term representation is used, it is always understood to apply to a statement of facts which are collateral to the written policy; for a parol or collateral statement would not be admissible to contradict the express terms of the policy subscribed by the underwriters. Thus where a policy was effected generally on ship or ships, but the broker said, "I bar the Woolton," and referred to his letter of orders, this statement was not deemed sufficient to exempt the ship Woolton, from the operation of the policy, especially *as the letter of orders which the broker referred to did not fully warrant him in excepting the Woolton. (b) The Court in this case took occasion to observe, that it would be of the worst effect if a broker could be admitted to alter a policy by parol accounts of what passed when it was effected. (b) It may perhaps be doubtful whether a positive representation by the broker, excepting a particular ship, when the insurance is generally on ship or ships, would not vitiate the contract; (c) but in general a representation must be collateral (a) Per Lord Mansfield, Cowp 788. (b) Weston v Eames, I Taunt 115. But in this case the representation by the broker was not a positive statement, excepting the ship Woolton, and therefore the policy was not void on the ground of misrepresentation. See 2 Stark Rep 573, 5, 6 ante, see also Bize v Fletcher, Dougl 292. (c) Argdo, 1 Taunt 116. to the policy, and cannot be admitted to contradict an express clause contained in it. (d) 2. Time when made. A representation made to the underwriter who first signs a policy enures for the benefit of any one who may sign it after him; and in such a case, if the representation be false in a material point, the policy will be wholly void. (e) But this rule, which has been said to rest upon precedent rather than on reason, has not been carried farther; for a representation made to a second or subsequent underwriter will not affect the liabilty of one who may sign the instrument afterwards. (f) The representation to be binding on the insured must either be made to the first underwriter or to the individual who intends to place a reliance on it. (g) And though a representation made to the first underwriter enures for the benefit of any one who may sign the policy after him; it seems that the converse of the rule is not maintainable, and that a second or subsequent underwriter cannot be charged nor his liability extended through the means of a communication made to the first underwriter. (h) The policy itself is the regular evidence to shew who was the first underwriter, and an unstamped slip is not admissible to prove that a party whose name does not appear first on the policy was in truth the first who agreed to the contract. (i) *A representation made to the underwriters at the time when their names are put down upon the slip is binding on the insured, unless qualified or withdrawn by some communication between that time and the execution of the policy. (k) But where a broker in effecting a policy on goods said at the time of subscribing the slip, that the ship on board of which they were was an American, but nothing was afterwards represented on the subject, and when the the policy was signed, the broker said generally, that it was an insurance on goods in the Hermon, without describing her as of any particular country; the case was considered as standing without any representation, and the first conversation was regarded as controlled and qualified by what followed. (1) 3. Thing misrepresented. A misrepresentation by the insured or his agent of a material fact, will vitiate a policy, whether the party asserts a fact which he knows to be false, or positively makes an assertion which he does not know to be true. Thus where a broker represented that the ship which was insured on a voyage from New York to Philadelphia was seen safe in the Delaware on the 11th of December, and in fact she had been seen in the Delaware on the 8th or 9th, but was lost two days before the 11th December, the mis-statement was held to be fatal, although it occurred through a mistake on the part of the broker, and not by de (d) 2 Stark Rep 576. (e) Pawson v Watson, Cowp 789. Dougl 11 note 3 S C. (f) Brine v Featherstone, 4 Taunt 869. Bell and Others v Castairs, 2 Campb 543. 14 East, 374, SC not S P. (g) Id ibid. 573. (i) Marsden v Reid, 3 East, 572. (k) Edwards v Footner, 1 Campb 530. (1) Dawson v Atty, 7 East, 367, as cited by Lord Ellenborough, 1 Campb 530, but according to the report of the case in 7 East, the distinction between that case and (h) Robertson v Majoribanks, 2 Stark 1 Campb is rather nice. |