must be so tight, stanch, and strong as to be competent to resist the ordinary attacks of wind and sea during the voyage for which she is insured."

This warranty of seaworthiness applies at the commencement of the voyage. A vessel may be in port, and require extensive repairs, but, if these repairs are made before she sails, so as to make her seaworthy at sailing, she fulfills what is required of her."r

This condition always applies to insurance under voyage policies. As to time policies, there is quite a difference between English and American decisions. Under the American decisions a vessel, when insured by a time policy, must be seaworthy at the commencement of the risk. If, when so seaworthy, she sustains damage, and is not refitted at an intermediate port, and a prudent master would have refitted her there, and she is lost in consequence of the failure to refit her, she would be unseaworthy, and the underwriter would not be liable. If, however, she is not refitted, and is lost from a different cause, the underwriters would be liable, though a prudent master would have had her refitted.62

In England, on the other hand, there is no warranty of seaworthiness on time policies, either at the commencement of the voyage or at any other time."

61 McLanahan v. Universal Ins. Co., 1 Pet. 171, 184, 7 L. Ed. 98; St. Paul Fire & Marine Ins. Co. v. Pacific Cold Storage Co., 157 Fed. 625, 87 C. C. A. 14, 14 L. R. A. (N. S.) 1161; Stetson v. Insurance Co. of North America (D. C.) 215 Fed. 186. But such a warranty does not apply to lighters employed to land the cargo. Pacific Creosoting Co. v. Thames & Mersey Marine Ins. Co., Ltd. (D. C.) 210 Fed. 958; Thames & Mersey Marine Ins. Co. v. Pacific Creosoting Co., 223 Fed. 561, 139 C. C. A. 101.

62 Union Ins. Co. v. Smith, 124 U. S. 405, 8 Sup. Ct. 534, 31 L. Ed. 497; Cleveland & B. Transit Co. v. Insurance Co. of North America (D. C.) 115 Fed. 431 (discussing the Inchmaree clause, which is intended to cover latent defects in machinery or hull not due to want of due diligence by owners); Luckenbach v. W. J. McCahan Sugar Refining Co., 248 U. S. 139, 39 Sup. Ct. 53, 63 L. Ed. 170, 1 A. L. R. 1522.

63 Dudgeon v. Pembroke, 2 A. C. 284. Section 36, cl. 5, of the

This condition only applies to the vessel. There is no implied condition that the cargo shall be fitted to withstand the voyage for which it is insured.o

SAME-DEVIATION

28. It is an implied condition of a voyage policy that the vessel will take the course of sailing fixed by commercial custom between two ports, or, if none is fixed, that it will take the course which a master of ordinary skill would adopt. Any departure from such course, or any unreasonable delay in pursuing the voyage, constitutes what is known as a "deviation."

The reason is that such an act on the part of the vessel substitutes a new risk different from the one which the underwriters have assumed, and, after such deviation commences, the insurers are not liable for any loss incurred during the deviation. The cases on this subject are numerous. Whether an act is a deviation depends largely upon the particular language of the policy and the course of trade.

65

In HEARNE v. NEW ENGLAND MUT. MARINE INS. CO., a vessel was insured to a port in Cuba, and at and thence to a port of advice and discharge in Europe. The vessel went to the port in Cuba, and discharged, and then, instead of sailing direct to Europe, sailed for another port in Cuba to reload, and was lost on her way there. The court held that this constituted a deviation, and released

Marine Insurance Act 1906, provides: "In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness."

64 Koebel v. Saunders, 17 C. B. N. S. (112 E. C. L.) 71; 144 Reprint, 29.

the underwriters, and that, in the face of the express language of the contract, it was not admissible to prove a usage in such voyages to go to two ports in Cuba, one for discharge and another for reloading.

In Columbian Ins. Co. v. Catlett," which was the case of a voyage policy from Alexandria to the West Indies and back, it was held that, as the known usage of the trade allowed delay to accomplish the object of the voyage by selling out the cargo, it was not a deviation to remain for that purpose, provided the time so occupied was not unreasonable.

In Wood v. Pleasants," it was held that a stoppage on the way for the purpose of taking on water, and only for that purpose, was not a deviation, assuming that the vessel had a proper supply at the time of sailing.

In West v. Columbian Ins. Co.,68 a vessel insured on a voyage to Pernambuco unnecessarily anchored off port, when she might have gone directly in. It was held that this delay was such a deviation as discharged the underwriters.

Under the decisions, it is not a deviation for a vessel to delay, or go out of her way, in order to save life at sea, but would be for the purpose of saving property. Under the special facts of special cases this principle is sometimes difficult to apply; for a vessel in deviating to save life can sometimes best accomplish it by saving property, as, for instance, by taking a disabled vessel in tow. But when, after doing so, the facts are such that the lives can be saved without the property, a continued attempt to save the property is a deviation.

66 12 Wheat. 383, 6 L. Ed. 664.

67 Fed. Cas. No. 17,961, 3 Wash. C. C. 201.

68 Fed. Cas. No. 17,421, 5 Cranch, C. C. 309. See, also, Martin v. Delaware Ins. Co., Fed. Cas. No. 9,161, 2 Wash. C. C. 254.

HUGHES,ADM. (2D ED.)-5

It was

A leading case is SCARAMANGA v. STAMP." a case arising out of a charter party (in which there is also an implied warranty not to deviate), where a disabled vessel was taken in tow, causing considerable delay to the other vessel. The court held, under the facts, that the delay was unjustifiable.

On the other hand, in Crocker v. Jackson," Judge Sprague held that a departure of the vessel from her course in order to ascertain whether those on board a vessel in apparent distress needed relief, and the delay in order to offer such relief, was not a deviation, though such action for the mere purpose of saving property would be. He held, also, that, if both motives existed, it would not be a deviation, and that, if the circumstances were not decisive, or were ambiguous, as to the motives of the master of the salving vessel, the court would give him the benefit of the doubt.

Distinction between Deviation and Change of Voyage

It is important to bear in mind the distinction between a deviation and an entire change of voyage. As to the former, a mere intention formed to deviate does not avoid the policy until that point is reached where the act of deviating commences. Up to that point the policy is still in force. On the other hand, a change of voyage avoids the policy ab initio, because that substitutes a different risk from the one on which the underwriter has made his calculations.

The test as between the two is that, as long as the termini remain the same, and the master, on leaving, intends to go to the terminus named, and then goes out of his way, or is guilty of an unreasonable delay, it is a deviation; but, if the terminus is changed, then it is a change of voyage. This is illustrated by Marine Ins. Co. of Alexandria v.

69 4 C. P. D. 316; Id., 5 C. P. D. 295. 70 1 Spr. 141, Fed. Cas. No. 3,398.

Tucker." There, a vessel was insured at and from Kingston, Jamaica, to Alexandria. The captain, at Kingston, took on a cargo for Baltimore, intending to go to Baltimore, and then to Alexandria. His ship was captured before reaching the Capes. The court held that this was merely an intended deviation, as the actual deviation would not have commenced until he had gone inside of the Capes. to the parting of the ways for the two ports, and that, as no man could be punished for a mere intention, the underwriters were liable. In such case, had he intended to go to Baltimore alone, and not to Alexandria (the terminus named in the policy) at all, it would have been a change of voyage, and his policy would have been void at once.

SAME-ILLEGAL TRAFFIC

29. It is an implied condition that a vessel shall not engage in illegal trade.

This is but another phase of the principle that a contract tainted with illegality is void. Hence any trade which contemplates dealing with an alien enemy, or a violation of the revenue laws of the country whose law governs the policy, renders the contract void.72

Care must be taken to remember the difference between the effect of illegal trade known to the parties and its effect when unknown. Even when equally known to both parties, the contract is void, because the court will not lend its aid to enforce such contracts. On the other hand, such a voyage known to one party and unknown to the other is void on a different principle, namely, that the failure of the insured to give the underwriter information of the character of the trade avoids the policy on the ground of misrepresentation or concealment.

713 Cranch, 357, 2 L. Ed. 466.

§ 29.

72 Jansen v. Mines Co., [1902] A. C. 484.