question, the Bourdon, the Papin No. 1, and the Papin No. 6, which were or had been river steamers built for and employed in the navigation of the Rhone, and were then at Lyons: and, in order to strengthen them and put them into condition for performing the seavoyage to the Danube, they had them (and a fourth vessel called the Creuzot) repaired under an agreement whereby the three first-named vessels were to be completed and ready to depart by the 15th of July, 1861.

In the month of July, 1861, the plaintiffs, through their agents, effected the three policies of insurance in question on the hull and machinery of the three steamers Papin No. 1, Papin No. 6, and Bour don, then at Lyons. The policies were subscribed in the usual manner by the defendant, an underwriter at Lloyd's.

The steamer Papin No. 6 left Lyons on the 24th of July, and the Papin No. 1 and the Bourdon on the 2d of August, 1861.

The first part of the voyage from Lyons to Galatz consists of a river voyage down the Rhone for a *distance of about three hun[*117 dred miles, viz. from Lyons to Arles, at or near the mouth of the Rhone. This navigation can be performed only by vessels of light draught and without masts or standing rigging, in consequence of the shallowness of the water and of there being several bridges across the Rhone; and, according to the French law, it is necessary that there should be a special permit for this river voyage, and that the vessel should be manned by a competent river crew.

It was admitted, on behalf of the defendant, that the vessels were when they left Lyons, and continued to be throughout the river navigation, in a fit, proper, and sea-worthy state and condition for the navigation of the river.

The vessels, on leaving Lyons, had their masts on board, but none of the said masts up; it being, as before mentioned, impossible to descend the Rhone with the masts up, on account of the bridges over the river. The steamers, at the time they left Lyons, were not furnished with rigging, sails of any kind, compasses, chains, or seaanchors,—all of which were indispensable for the voyage to Galatz; and they were manned with river crews, and not with sea crews. The rigging, sails, compasses, chains, and sea anchors for such voyage could not be purchased at Lyons, but might, if necessary, have been purchased at Marseilles or some other seaport, and sent up to Lyons. A crew for a sea voyage could not be procured at Lyons. Chains and sea-anchors could not have been carried on board the said steamers during the river navigation, on account of the draught of water.

The steamer Papin No. 6 reached Arles on the 28th of July, left it on the 29th, and reached Marseilles on the same night, and was notified on the following day. The Bourdon reached Arles on the 6th of August, left Arles on the same day, arrived at Marseilles on the 7th, and was notified on the following day. The Papin No. 1 reached Arles on the 8th of August, left Arles on the same day, and arrived at Marseilles and was duly notified on the 9th. It was necessary, for the reasons and purposes hereinafter mentioned, that all the three steamers should proceed to and stay at Mar

seilles.

[*118

Arles is a port on the Rhone a little above the mouth of the river,

and Marseilles is distant about thirty miles from the mouth of the Rhone. According to the French law, the river navigation stops at Arles; from Arles to Marseilles is considered a sea voyage. The voyage between these two places is a coasting voyage of about thirtytwo English miles.

The three steamers left Arles in the same condition (except as to the crews) in which they left Lyons. They were not, nor was either of them, manned with complete sea crews; but some additional sailors were taken on board each of them at Arles, to assist the several river crews in bringing the steamers round from Arles to Marseilles; and each vessel was under the charge of a skilled and competent sea cap tain.

Masts, ropes, chains, and sea-anchors could have been obtained at Arles, but not so conveniently or expeditiously as at Marseilles. A sea crew might be obtained at Arles. Compasses and sails could only be obtained at Arles by ordering them from Marseilles. There ar no persons at Arles competent to adjust the compasses, which was necessary in the case of each of the three steamers.

When the steamers left Arles, and throughout the voyage to Mar seilles, they were in fit and sufficient state and condition to perform that portion of the voyage; but they were not sea-worthy for the voyage to Galatz: and some alteration in their rudders was neces

sary.

*The French law requires that every vessel, before putting

*119] to sca, should undergo two inspections by a commission of

"capitaines visiteurs;" that she should receive on the first occasion a certificate of survey enumerating what (if any) repairs, alterations, or additions are necessary to render her fit to put to sea; and that, on the second inspection, she should receive a certificate of fitness or sea, reciting the requisitions made in the first, and specifying that they had severally been complied with. In all cases the two inspections are indispensable, even though upon the first inspection no re pairs, alterations, or additions may have been ordered. The French law, in the case of a steamer, further requires that there should be another inspection by other officers, to test her fitness for sea in respect to her machinery, and to certify thereto. When these and other provisions of the law have been complied with, the vessel, unless she is navigating backwards and forwards between fixed ports under a regular license, must obtain a "permit de partir" before she will be allowed to leave port.

The commission of inspection for all ships and steamers to sail from the Mediterranean coast of France, sits at Marseilles, where the commissioners reside.

In the case of the three steamers in question, the several inspections and certificates above enumerated were necessary; and the same could not have been had at any other place than Marseilles.

Upon the arrival of the vessels respectively at Marseilles, the furnishing them and fitting them out with what was required for the voyage to Galatz was commenced and proceeded with. The masts and rigging were set up; and the sails were put on board and fixed. The measurements for these sails had been taken at Lyons by a ship

[*120

broker of Marseilles in the early part of *July; and the sails were ordered to be and were ready at Marseilles for the several vessels at the times of their respective arrivals at that port. Chains and sea-anchors were also put on board the several steamers, and their compasses were adjusted.

The crew of the Papin No. 6 were hired and went on board her at Marseilles on the 30th of July; that of the Bourdon were hired and went on board her at Marseilles on the 7th of August; and that of the Papin No. 1 were hired and went on board her about the 16th or 17th of August.

Application was made on the 13th of August to the "capitaines visiteurs" to inspect all the three vessels. The first survey of those officers took place on the 16th of August. The certificates of such surveys were signed on that day, and registered in the registry office of the Tribunal de Commerce at Marseilles on the 20th. The second survey of the "capitaines visiteurs" on each of the three vessels took place on the 19th of August; and the certificates of such last-mentioned surveys were registered as required by the French law on the 20th.

The "rôle d'équipage," or muster-roll, was presented for signature and duly signed on the 19th of August. The French law requires that the said rôle d'équipage should be signed before the sailing license is granted. The sailing license or permit de partir was applied for on the 19th of August; and a provisional permit, which was suffi cient to authorize the vessels' sailing on the voyage, was granted on the 20th.

The three vessels were ready to sail for Galatz on the morning of the 20th of August, and not before.

The Papin No. 6 might have been properly equipped, certified, and ready to sail from Marseilles some days before the 20th of August: but her equipment was not hastened as much as it might have been, because *it was deemed prudent and reasonable, for the common inte [*121 rests of the underwriters and the assured, that she should be delayed for the purpose of sailing in company with the other two vessels. A captain in the French navy gave evidence to this effect.

The three vessels were detained by stress of weather at Marseilles from the 20th of August until the 23d, on which day they set sail in company.

It was admitted on behalf of the defendant, that, at the time the three vessels so left Marseilles, they were in all respects sea-worthy for the voyage to Galatz. No delay or deviation took place from the time of the vessels' leaving Marseilles.

The three steamers all went down together in the Black Sea on the 14th of October, 1861, the first day they got into the Black Sea, and within a day's sail of their destination, and were totally lost.

The Lord Chief Justice left it to the jury to say whether there was an unreasonable delay in the fitting out of all or any of the said three steamers at Marseilles, and requested the jury, in the event of their thinking, that, in the case of the Papin No. 6, there had been unreasonable delay, to find specially whether it was prudent and reasonable, for the common interest of the underwriters and the assured, that the

l'apin No. 6 should be delayed for the company of the other two vessels.

The jury found that there was no unreasonable delay as regarded the Papin No. 1 and the Bourdon; and, as regarded the Papin No. 6, that the delay was justified by the fact of her waiting for the other vessels.

Upon these findings, his Lordship directed the verdict to be entered for the plaintiffs; reserving leave for the defendant to move to enter the verdict for him as to all or any of the vessels, upon the grounds,first, that the warranties as to the sailing on or before *the 15th

*122] of August, 1861, were not complied with,-secondly, that the vessels were bound to sail on or before that day, properly equipped for the voyage, without being afterwards delayed for the purpose of preparations and being made ready for the voyage,-thirdly, that the vessels were not sea-worthy at Lyons, nor at the time of their commencing their voyage upon the open sea: and, as to the vessel Papin No. 6, on the further ground that the delay at Marseilles in waiting for the other vessels was not justifiable.

Bovill, Q. C., in Easter Term last, obtained a rule nisi accordingly, or for a new trial, on the ground that the verdict was against the evidence on the last point, viz. as to the Papin No. 6. He cited Ridsdale v. Newnham, 4 Campb. 111, 3 M. & Selw. 456, Pettigrew v. Pringle, 3 B. & Ad. 514 (E. C. L. R. vol. 23), and 1 Arnould on Insurance, 2d edit. 643. [WILLES, J., referred to Biccard v. Shepherd, 14 Moore's P. C. 471.]

Horace Lloyd and Watkin Williams showed cause.-Two questions are presented for consideration in this case,-first, whether there has been a compliance with the warranty "to sail on or before the 15th of August,"-secondly, whether there was a deviation, more especially on the part of one of the vessels, the Papin No. 6, by an unreasonable delay at Marseilles after the commencement of the voyage. The whole law upon the subject of the warranty to sail on or before a given day will be found in the cases of Ridsdale v. Newnham, 4 Campb. 111, 3 M. & Selw. 456, Pettigrew v. Pringle, 3 B. & Ad. 514 (E. C. L. R. vol. 23), Cochrane v. Fisher, 2 C. & M. 581, 4 Tyrwh. 424 (in error, 1

M. & R. 809, 5 Tyrwh. 496), and Lang v. Anderdon, 3 B. & C. 495 (F. C. L. R. vol. 10), 5 D. & R. 393. The result seems to be, that, in order to comply with a warranty to sail, the ship must not only have broken ground on or before the day, but she must have done *so with an intention of at once proceeding on her sea voyage, *123] being then in a state of perfect readiness for it. Sea-worthiness is a relative term, having reference to the particular perils the ship may be expected to encounter: Gibson v. Small, 4 House of Lords Cases 353. Here, the insurance is for a voyage from Lyons to Galatz,-Lyons being about three hundred miles up the Rhone, and Galatz about ninety-five miles from the mouth of the Danube (see Schilizzi v. Derry, 4 Ellis & B. 882),-with leave to call at all ports and places in the Mediterranean for all or any purpose; and it was declared "that it should be lawful for the vessels to proceed and sail to and touch and stay at any ports or places whatsoever and wheresoever, and with leave to tow and be towed, without being deemed any deviation, and without prejudice to the insurance." The Rhone, as is

well known, and as the underwriters must be assumed to have known, is a narrow and swift river, spanned by several bridges, and having its course obstructed by shoals and mud-banks which make its navi gation exceedingly difficult, and only to be performed by a vessel without masts and having on board a river crew. The facts show that the vessels, which all left Lyons before the 15th of August, 1861, started with everything on board and in all respects completely fit for the voyage down to Arles. It appears also that it was convenient in the highest degree for the vessels to go to Marseilles for some of the equipment necessary for the sea portion of their voyage, and absolutely essential that they should go there for some of them, and especially for the surveys required by the French law and for the permit de partir, without which they could not have proceeded to sea. That the vessels left Lyons in a fit state for the prosecution of the voyage down the river, is conceded; and it was proved that what was done at Marseilles was proper and necessary to be done there; and the [*124 jury have found that there was no unreasonable delay. In Dixon v. Sadler, 5 M. & W. 405, 414, Parke, B., thus lays down the law as to the implied warranty of sea-worthiness,-"In the case of an insurance for a certain voyage, it is clearly established that there is an implied warranty that the vessel shall be sea-worthy, by which is meant that she shall be in a fit state as to repairs, equipment, and crew, and in all other respects, to encounter the ordinary perils of the voyage insured, at the time of sailing upon it. If the insurance attaches before the voyage commences, it is enough that the state of the ship be commensurate to the then risk;(a) and, if the voyage be such as to require a different complement of men, or state of equipment, in different parts of it, as, if it were a voyage down a canal or river, und thence across to the open sea, it would be enough if the vessel were at the commencement of each stage of the navigation properly manned and equipped for it." Several cases are referred to as establishing that principle: and it received the confirmation of the judicial committee of the Privy Council in the recent case of Biccard v. Shepherd, 14 Moore's P. C. 471. In the case of an insurance of a vessel on a voyage to the Greenland fishery, it is well known that part of the necessary equipment, as well as the crew, are taken on board when the vessel arrives at the Orkney Islands. There, the warranty to sail on or before a given day would be complied with by a departure in a state of fitness for that portion of the voyage. This voyage clearly is one which is divisible into distinct parts or stages, according to the rule laid down by Lord Wensleydale; and it is enough if the vessels, at the time of their departure from Lyons, were, as the jury have *found, and as indeed the defendant admitted, in a fit state to [*125 undertake the voyage to Arles, and fit on leaving Arles for the voyage to Marseilles. The rule laid down in Arnould on Insurance, § 228, upon the authority of Lang v. Anderdon, 3 B. & C. 495 (E. C. L. R. vol. 10), 5 D. & R. 393, Ridsdale v. Newnham, 4 Campb. 111, 3 M. & Selw. 456, and Pettigrew v. Pringle, 3 B. & Ad. 514 (E. C. L. R. vol. 23), applies only to a voyage from port to port. In the last-mentioned case the vessel put into another port, and made that for all essential purposes the port of departure. This is well illustrated by the case (a) Annen v. Woodman, 3 Taunt. 30; Hibbert v. Martin, Park Ins. 6 edit. Vol. 1, p. 299, n.