Baring v. Royal Exchange Assurance Company1 was an action against the underwriters for £5000 on goods, being one-half of the cargo, warranted American property, on board the "Rosanna,' warranted an American ship. On the voyage from Surinam to London, Rotterdam, Amsterdam, or Hamburg, she was captured by a French privateer and carried into La Rochelle. Ship and cargo were condemned upon the ground that the provisions of the treaty of 6 February, 1778, between France and the United States had been infringed. By Article XXV of this treaty it was stipulated that the vessels of either party should be provided with sea-letters or passports specifying the name, the property, and the tonnage of the ship, together with the name and residence of the master. Further, a complete list of the crew and passengers was to be furnished to the marine officials at the port of embarkation, and a copy to be carried on board and produced when required.

It was held that the French sentence of condemnation, which had proceeded on the ground of infraction of treaty between France and the United States, was conclusive in our Courts against a warranty of neutrality of such ship and cargo in an action of insurance against the underwriters.

Here the passport,

Baring v. Christie' was a similar case. instead of giving the residence of the master, described him as "George B. Dominick, master or commander of the ship called 'Mount Vernon,' of the town of Philadelphia." Upon the capture of the vessel by a French cruiser she was, upon the ground of this infraction of the treaty of 1778, condemned.

In delivering the judgment of the English Court upon the construction of this description, Lord Ellenborough said that “the town of Philadelphia" could not by any fair construction be referred to the master of the ship, but referred only to the ship, and that consequently the passport was not such as required by Article XXV of the treaty.

3

In Barker v. Phoenix Insurance Company, it was objected that sailing without a register was a breach of warranty. At the time of the policy there were two kinds of American vessels, the one registered and the other unregistered, but carrying a sealetter or official certificate of ownership. Both kinds were recognized by municipal law as American vessels, and both were equally entitled by the law of nations to protection as American property. In this case the vessel had a sea-letter, and Kent, C.J., held that there was no use in requiring a register for any object

within the purview of the warranty. The want of it did not enhance the risk.

In coming to this conclusion, the learned Judge relied upon the opinion expressed by Sir William Scott in the "Vigilantia," where he went out of his way to lay down his view upon the abstract question of law.

"I conceive," he said, "the rule to be that where there is nothing particular or special in the conduct of the vessel itself, the national character is determined by the residence of the owner; but there may be circumstances arising from that conduct which will lead to a contrary conclusion. It is a known and established rule with respect to a vessel, that if she is navigating under the pass of a foreign country she is considered as bearing the national character of the nation under whose pass she sails; she makes a part of its navigation, and is in every respect liable to be considered as a vessel of that country."

Moreover, there must not be on board any papers which will increase the risk or falsify the warrant. A letter, therefore, in sympathetic ink, stating the property to be in other than the assured, is a violation of the warranty. So, too, is any act or omission of the assured or his agent by claiming falsely or omitting to claim.3

But if there is no warranty of the national character of a ship, and she is not represented to be of any particular country at the time of the policy, she need not be documented as of the country to which she belongs, and if captured and condemned by a foreign State for the want of the documents required by treaty between that State and her own, the assured may recover against the underwriter.

In Dawson v. Atty, Lord Ellenborough, C.J., said that as the ship was not represented as American at the time when the insurance was effected, the assured was not bound by it; and there being no undertaking in the policy itself that she was American, there was no necessity for her being documented as such. But the law as to documenting would appear to apply only to express and not to implied warranties. In Elting v. Scott and Seaman," the policy contained no warranty of neutrality or of the character of the vessel, and, consequently, it was held that the assurers had taken on themselves all risks, belligerent as well as neutral. It was given in evidence that the vessel in which the cargo insured was shipped had not a sea-letter on board at the time of capture, and

1

I Rob., I (1798).

2 Cancre v. Union Insurance Company, Cond. Marsh, 406a.

3 Galbraith v. Gracie, Cond. Marsh, 4066.

4 7 East, 367 (1806).

5

62 John., 157 (1807).

that the want of this or of some other papers was the cause of her condemnation. But it was held that where the national character of a vessel is not warranted or represented, it is not incumbent on the assured to show that she had a sea-letter or other papers required by the laws of the country or by treaties with foreign nations. Upon this point, Kent, C.J., in delivering the opinion of the Court, said:

"I very much doubt whether it be part of the implied warranty of seaworthiness that a vessel shall have her proper documents on board. There is no case that goes to that length. These documents are only material when the national character of the vessel is warranted or represented. In the present case it does not appear to what nation or to what individual the vessel belonged. All that is stated is, that she was to sail on a voyage from Curaçoa to New York; the plaintiffs, as insurers of the cargo on board, took upon themselves belligerent risks. The sea-letter and other documents could only have been requisite to protect the vessel as a neutral, but it was no part of the contract that she was to sail in that character; or to protect her against the revenue laws of Curaçoa, but their laws we are not to notice; or to comply with the laws of our own country to which the vessel was bound, but there is no evidence that she was sailing in contravention of our laws. A vessel may be competent to perform the voyage insured without the possession of these documents; and although we do not profess to declare a very strong opinion on this point, we are inclined to think that the want of those documents could not have furnished to the plaintiff a valid defence against the policy."

To the general rule that concealment of papers constitutes a breach of warranty there would appear to be an exception, at any rate, in American practice. It was held in Livingstone v. the Maryland Insurance Company1 that if by the usage of the trade insured it be necessary that certain papers should be on board, the concealment of those papers would not affect the assurer's right to recover upon the policy.

"The question," said Story, J., "must always be whether there be a concealment of papers material to the preservation of the neutral character. It would be too much to contend that every idle and accidental or even meditated concealment of papers manifestly unimportant in every view before the prize tribunal should dissolve the obligation of the policy. And if by the usage and course of trade it be necessary or allowable to have on board spurious papers covered with a belligerent character, whatever effect it may have upon the rights of the searching cruiser, it would be difficult to sustain the position that the concealment of such papers, which, if disclosed, would completely compromit or destroy the neutral character, would be a breach of the warranty. In such case the disclosure of the papers produces the same inflamed suspicions, the same legal right of capture and detention, the same claim for further proof, and the same right to deny it, as the concealment would. If the concealment would

17 Cranch, 506 (1813).

induce the conclusion that the interest was enemy's covered with a fictitious neutral garb, the disclosure would not in such a case less authorize the same conclusion. In such case it would depend upon the sound discretion of the Court, under all the circumstances of the case, to allow the veil to be drawn aside and admit or deny the claimant to assume his real character. Whenever, therefore, the underwriter has knowledge and assents to the cover of neutral property under belligerent papers (as he does in all cases where the usage of the trade demands it), he necessarily waives his rights under the warranty, so far as the visiting cruiser may demand the disclosure of such papers. In other words, he authorizes the concealment in all cases where it is not necessary to assume the belligerent national character for the purpose of protection."

It was further held that no acts justifiable by the usage of the trade and done by the assured to avoid confiscation under the laws of one of the belligerents could avoid the policy. But any acts or omissions by the assured or his agents which, according to the published notification or decisions of the belligerents, though not according to international law, would enhance the danger of capture or condemnation, might if such acts or omissions were unreasonable, unnecessary, or wanton, form a sound objection to the right of recovery upon the policy. The insured can have no right to jeopardize the property by any conduct, which the fair objects of voyage or the usage of the trade do not justify.

With respect to the allowance of freight to neutral ships carrying enemy's goods, it is asserted on the authority of Sir Henry Martin,' an eminent practitioner and afterwards Judge of the Court of Admiralty, that so far back as the year 1640 it had never been the practice to condemn neutral ships for having enemy's goods on board without allowing freight for the enemy's goods which were condemned.

It was held in the "Carlos F. Roses "2 that as the vessel was an enemy's vessel the presumption was that the cargo was also enemy's property, and this could only be rebutted by clear and positive evidence to the contrary.

Thus in the " Betsey" it was held that a prize court of a belligerent Power is entitled to proof of the neutrality of the cargo on board an enemy's vessel, and that in the absence of proof may condemn it as the property of unknown belligerent

owners.

Transfers of vessels prior to the declaration of war will be regarded with grave suspicion.

1 "The Atlas," 3 Rob., 304, note.

2 177 U.S. Rep., 655 (1900).

3 36 Ct. Cl., 256 (1901).

It was held in the "Benito Estenger"1 that transfers of vessels flagrante delicto cannot be sustained if subject to any condition by which the vendor retains an interest in the vessel or its profits, any control over it, or any right to its restoration upon the conclusion of the war. It was also held that the burden of proof of the validity of such transfers lies on the vendor claimants.

1 176 U.S. Rep., 568 (1900).