duty of the assured to place the underwriter in the same situation as himself; to give to him the same means and opportunity of judging of the value of the risks; and, when any circumstance is withheld, however slight and immaterial it may have seemed to himself, that, if disclosed, would probably have influenced the terms of the insurance, the concealment vitiates the policy.' 46

If the insurance is placed through a distant agent ignorant of a material fact which is known to the principal, it is the duty of the latter to communicate it to the agent if possible; and his failure to do so would avoid the policy."

In England it is the practice to have a preliminary binder before the issuing of the main policy, and the initialing of this by the parties is treated by them as morally binding, although unenforceable as a contract for want of a stamp.

In Cory v. Patton," after this preliminary contract was made, but before the policy was issued, certain material facts came to the knowledge of the agent of the insured; the fact so coming to his knowledge being the very material one that the ship had been lost. The court held, however, that it was not incumbent upon the insured to communicate this fact, though the preliminary contract was not binding, and the policy had not been issued, because he had given all the material facts up to the time of the preliminary contract, and they would not tempt the un

46 See, also, Northwestern S. S. Co. v. Maritime Ins. Co. (C. C.) 161 Fed. 166. Granger v. Providence Washington Ins. Co., 200 Fed. 730, 119 C. C. A. 174. The English Marine Insurance Act, 1906, is an accurate summary of the law as to disclosure and representations. See sections 17-20. See Gow, Mar. Ins. p. 392, and Winter, Mar. Ins. p. 387, for the full text of this act.

47 McLanahan v. Universal Ins. Co., 1 Pet. 171, 7 L. Ed. 98; Kerr v. Union Marine Ins. Co., 130 Fed. 415, 64 C. C. A. 617.

48 L R. 9 Q. B. 577. Merchants' Mut. Ins. Co. v. Lyman, 15 Wall. 664, 21 L. Ed. 246, can hardly be considered in conflict with this.

derwriter to repudiate an obligation treated as a moral one by those in the business.

A leading case on this general subject is IONIDES v. PENDER." There the assured greatly overvalued the goods without disclosing the real valuation to the underwriter, and it was shown that the question of valuation. is, among underwriters, a very material consideration. The court held that this misrepresentation vitiated the policy.

The general doctrine that a warranty, even of an immaterial matter, if broken, avoids the policy, is well settled."

SAME SEAWORTHINESS

27. It is an implied condition of marine insurance on vessel, cargo, or freight that the vessel shall be seaworthy, which means that she must be sufficiently tight, stanch, and strong to resist the ordinary attacks of wind and sea during the voyage for which she is insured, and that she must be properly manned and equipped for the voyage.

The Marine Insurance Act, 1906, expresses this pithily as follows:

"A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured.” 51

Seaworthiness is, necessarily, a variable term. A vessel which is seaworthy for river navigation may not be for bay navigation, and a vessel which is seaworthy for bay navigation may not be for ocean navigation. Hence the seaworthiness implied means seaworthiness for the voyage insured. It applies not only to the hull of the vessel, but to

49 L. R. 9 Q. B. 531.

501 Pars. Ins. 337; Snyder v. Home Ins. Co. (D. C.) 133 Fed. 848; Id., 148 Fed. 1021, 79 C. C. A. 536.

her outfit, including her crew. She must be properly fitted out for the voyage which she is to undertake, and she must have a sufficient and competent crew.

52

In Pope v. Swiss Lloyd Ins. Co., it was held that a vessel with insufficient ground tackle to hold her against ordinary incidents of navigation, including ordinarily heavy weather, was not seaworthy.

In RICHELIEU & O. NAV. CO. v. BOSTON MARINE INS. CO.,53 it was held that a vessel whose compass was defective, though not known to be so, was unseaworthy; for it is implied not merely that the vessel owner will use ordinary care to keep his vessel seaworthy, but that she actually is seaworthy.

In the case of steamers, seaworthiness implies sufficient fuel for the voyage."

54

In the Niagara55 (which was a suit by a shipper, not an insurance case, but which applies on this point) the court says: "A carrier's first duty, and one that is implied by law, when he is engaged in transporting goods by water, is to provide a seaworthy vessel, tight and stanch, and well furnished with suitable tackle, sails, or motive power, as the case may be, and furniture necessary for the voyage. She must also be provided with a crew, adequate in number, and sufficient and competent for the voyage, with refer

52 (D. C.) 4 Fed. 153.

53 136 U. S. 408, 10 Sup. Ct. 934, 34 L. Ed. 398.

54 McIver v. Tate Steamers, Ltd., [1903] 1 K. B. 362; Greenock S. S. Co. v. Maritime Ins. Co., [1903] 1 K. B. 367; [1903] 2 K. B. 657. But fodder for a cargo of cattle is not an appurtenance of the vessel, so as to render her unseaworthy, if not fit for the cattle. Of course such unfitness may be a violation of some special agreement. Tweedie Trading Co. v. Western Assur. Co., 179 Fed. 103, 102 C. C. A. 397.

55 21 How. 7, 16 L. Ed. 41. See, also, Whealton Packing Co. v. Ætna Ins. Co., 185 Fed. 108, 107 C. C. A. 113, 34 L. R. A. (N. S.) 563; Forshaw v. Chabut, 3 Br. & B. 158 (7 E. C. L.); Clifford v. Hunter, 3 C. & P. 16 (14 E. C. L.).

ence to its length and other particulars, and with a competent and skillful master, of sound judgment and discretion; and, in general, especially in steamships and vessels of the larger size, with some person of sufficient ability and experience to supply his place, temporarily, at least, in case of his sickness or physical disqualification. Owners must see to it that the master is qualified for his situation, as they are, in general, in respect to goods transported for hire, responsible for his acts and negligence."

In STEEL v. STATE LINE S. S. CO.," Lord Cairns defines seaworthiness as follows:

"I think there cannot be any reasonable doubt entertained that this is a contract which not merely engages the shipowner to deliver the goods in the condition mentioned, but that it also contains in it a representation and an engagement a contract-by the shipowner that the ship on which the wheat is placed is, at the time of its departure, reasonably fit for accomplishing the service which the shipowner engages to perform. Reasonably fit to accomplish that service the ship cannot be unless it is seaworthy. By 'seaworthy,' my lords, I do not desire to point to any technical meaning of the term, but to express that the ship should be in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter in crossing the Atlantic.

"But, my lords, if that is so, it must be from this, and only from this, that in a contract of this kind there is implied an engagement that the ship shall be reasonably fit for performing the service which she undertakes. In principle, I think there can be no doubt that this would be the meaning of the contract; but it appears to me that the question is really concluded by authority. It is sufficient to refer to the case of Lyon v. Mells," in the court of

56 3 A. C. 72, 76, 77. See, also, Bullard v. Roger Williams Ins. Co., 1 Curt. 148, Fed. Cas. No. 2,122.

57 5 East, 428.

queen's bench during the time of Lord Ellenborough, and to the very strong and extremely well considered expression of the law which fell from the late Lord Wensleydale when he was a judge of the court of exchequer, and was advising your lordship's house in the case of Gibson v. Small."

58

As a general rule, the burden of proving unseaworthiness is on the underwriter.59

But where a vessel which has been exposed to no unusual peril suddenly develops a leak within a short time, this may raise a presumption of unseaworthiness." In reference to this Judge Curtis says:

"But, as I have already indicated, the presumption is that this brig was seaworthy, and the burden of proof is on the underwriters by some sufficient evidence to remove this presumption. This may be done either by proving the existence of defects amounting to unseaworthiness before she sailed, or that she broke down during the voyage, not having encountered any extraordinary action of the winds or waves, or any other peril of the sea sufficient to produce such effect upon a seaworthy vessel, or by showing that an examination during the voyage disclosed such a state of decay and weakness as amounted to unseaworthiness, for which the lapse of time and the occurrences of the voyage would not account.

*

"There is such a standard, necessarily expressed in general terms, but capable of being applied, by an intelligent jury, to the proofs in the cause. The hull of the vessel

58 4 H. L. Cas. 353.

59 Nome Beach Lighterage & Transp. Co. v. Munich Assur. Co. (C. C.) 123 Fed. 820; Fireman's Fund Ins. Co. v. Globe Nav. Co., 236 Fed. 618, 149 C. C. A. 614; Pickup v. Insurance Co., 3 Q. B. D. 594. 60 Bullard v. Roger Williams Ins. Co., 1 Curt. 148, Fed. Cas. No. 2,122. See, also, Moores v. Underwriters (C. C.) 14 Fed. 226; Batchelder v. Insurance Co. of North America (D. C.) 30 Fed. 459; Work v. Leathers, 97 U. S. 379, 24 L. Ed. 1012; Ajum v. Insurance Co., [1901] A. C. 362.