SECTION XV. SEAWORTHINESS. EVERY policy, whether on ship or goods, contains an implied warranty that the ship shall be seaworthy when she sails, that is, that she shall be tight, staunch, and strong, properly manned, provided with all necessary stores, and in all respects fit for the intended voyage, and navigated with reasonable skill, and according to law. If a ship be seaworthy at the time that she sails on her voyage, it is sufficient; it is not necessary that she should be seaworthy from the moment when the policy attaches, or the risk commences. On a policy "at and from " the port at which the ship was undergoing repairs at the time of insurance; it was held, that though she was not then seaworthy for the intended voyage, she was sufficiently so in the harbour . stitutes seawor To satisfy a warranty of seaworthiness, it is necessary not What cononly that the hull of the vessel be tight, staunch, and strong, but that she be also furnished with ground-tackling sufficient to en- thiness. counter the ordinary perils of the sea; and therefore, where it appeared that the best bower-anchor and the cable of the small bower-anchor were defective, the vessel was held not to be seaworthy d. Where a vessel had been lengthened and insured for a foreign voyage, but the new parts were not fastened with hanging knees; held, that she was not seaworthy for such a voyage at the commencement of the risk e. A ship to be seaworthy must be rendered as secure as possible from capture, as well as from the perils of the sea. A neutral vessel is not seaworthy, unless she is provided with documents to prove her neutrality 6. a Marsh. 153. As sea-worthiness is a condition or implied warranty in every policy, there need be no representation made at the time of her condition, for if she sails without being so, there is no valid policy. Shoolbred v. Nutt, Park, 346. Hayward v. Rogers, 1 East, VOL. II. 590. b Forbes v. Wilson, Id. 155. Forbes v. Wilson, Park, 344. I I If the ship be seaworthy at the commence ment of the risk, it is sufficient. The ship must be provided with a competent It is a clear and established principle, that if a ship is seaworthy at the commencement of the risk, though she becomes otherwise in one hour afterwards, the warranty is complied with, and the underwriter is liable. But, where the inability of a ship to perform the voyage insured, appears in a short time from the period of her setting sail, the presumption is, that the inability arose from causes existing previously to the commencement of the voyage, and that she was not then seaworthy. Therefore where a ship sailed on her voyage, and a few days afterwards, without any adequate cause arising after the period of her sailing, became so leaky as to compel the master to return to Honduras; on returning thither, she struck on a reef of rocks, and was lost; held, that she was not seaworthy at the time of the commencement of the risk. So, where a ship sailed, and soon afterwards encountered a storm, became leaky, put back, and was found on survey to be materially decayed, and a damage was discovered which could not fairly be considered as the effect of a storm; held, that she was not seaworthy when she sailed on the voyage insured; and that on a question as to seaworthiness, honesty of intention is no answer, but the fact of seaworthiness must appear, or otherwise the underwriter is discharged; and though a vessel, after sailing, encounters a storm, yet, unless the damage which renders her unfit for the voyage can be fairly considered as the effect of such storm, the implied warranty is not complied with b. An implied warranty of seaworthiness requires that the ship should be provided with a sufficient crew, of competent skill, a captain, and a pilot when necessary. The underwriters were held not to be liable, where the crew were insufficient, person qua- in not having a person on board able to take the captain's lified to navigate her. place on his being dangerously ill, and the ship was conse crew, and a Watson v. Clark, 1 Dow. 336. 344. 348. Munro v. Vandam, Park, 333. Douglas v. Scougall, 4 Dow. 269. Parkes v. Potts, 3 Dow. 23. Beach v. Cawley, Park, 343. Tait r. Levi, 14 East, 481. Forshaw v. Chabert, 3 B. & B. 158. 6 Moore, 369. "The vessel must not only be seaworthy, but the crew must be adequate to discharge the ordinary duties, and to meet the usual dangers to which she is exposed." Per Lord Ellenborough, C. J., in Hunter v. Potts, S. N. P. 1011. quently obliged to deviate from her course to find a person to direct her a. When a ship homeward bound to the port of London, received a pilot at Orfordness, as directed by 5 Geo. II. c. 20, and dropped him before she reached her moorings in the river Thames, after which she was sunk by an accident; it was held, that the underwriters were discharged from liability; Lord Kenyon, C. J., observing, that "in this case the captain did not perform his duty, for he had no pilot on board at the time when the accident happened; and it is one of the things implied in contracts of this kind, that there shall be some person on board the ship apparently qualified to navigate her." b petent crew in the first instance, it is sufficient. If the owner in the first instance provides the ship with a If a comcompetent crew, the implied warranty is complied with, though be provided the ship be lost through the negligence of the crew. The owner having provided a competent master and crew in the first instance, has discharged his duty, and is not responsible for their negligence, as between him and the underwriters d. The implied warranty of seaworthiness, in a policy on a ship, does not extend to her being seaworthy at every port which she leaves in the course of her voyage e. Where a vessel, engaged in the southern whale and seal fishery, and with liberty to chase and capture prizes, is insured in August, 1807, with a retrospect to the first of August, 1806, although at the time of her insurance she was not competent to pursue all the purposes of her voyage, her crew being reduced by death and casualties; if she had a competent force to pursue any part of Clifford v. Hunter, M. & M. 103. 3 C. & P. 16. But it was considered to be a question of fact for the jury, and not a question of law to be determined by the judge, whether the not having a sufficient person to manage the ship when the captain was ill, amounted to a breach of the warranty. Id. Law v. Hollingsworth, 7 T. R. 160. It was mooted in this case, but the court refrained from expressing their opinion, whether it is es sentially necessary, to the right of Busk v. Royal Exchange Assur- Per Bayley, J., in Walker v. Maitland, 5 B. & A. 173. Shore t. Bentall, 7 B. & C. 798. n. Bishop v. Pentland, Id. 219. e Holdsworth v. Wise, 1 M. & R. 673. 7 B. & C. 794. her adventure, and could be safely navigated home, she is to be deemed seaworthy a. If a vessel at the outset of her voyage be by mistake or accident unseaworthy, owing to some defect which is remedied before any loss happens in consequence of it, the policy will not, on that account, be void. Therefore where a ship insured at and from a port, sailed on her voyage in an unseaworthy state, in consequence of having a greater cargo than she could safely carry, and the defect was discovered before any loss accrued, and part of the cargo was discharged, and a loss subsequently accrued, in no degree attributable to her having been overladen in the early part of her voyage; held, that the underwriters were liable for such loss b. In a policy by a member of a mutual insurance club, there was a memorandum, amongst other exceptions, warranties, rules, terms, conditions, and agreements, that "all ships were to be inspected and approved by a committee of the club, and that all chain cables were to be properly tested;" held, in an action for a loss, that it was not a condition precedent which made it necessary for the insured to prove that a chain cable had been tested previously to the voyage . SECTION XVI. DEVIATION. A deviation By deviation is meant a departure, without necessity or justifiable cause, from the usual course of the voyage insured. By from the usual course of the voyage, the terms of the contract, the insurer only runs the risk of the without voyage agreed upon, and of no other; it is therefore a connecessity, dition necessarily implied in the policy, that the ship shall pro will vitiate the policy. ceed to her port of destination, by the shortest and safest If the insured deviated without necessity or a justifiable cause, it is a breach of the implied warranty, the effect course. a Hucks v. Thornton, Holt, 50. Harrison v. Douglas, 5 Nev. & Payment of Harr. & Woll. 380. of which is not to avoid the policy, but to discharge the underwriter from all subsequent responsibility. As if a ship or goods be damaged before deviation, and be lost after deviation, the insurer is not answerable for the loss, but he is responsible for the damage sustained previous to the deviation b. The reason why a deviation discharges the underwriter is, not that the risk is thereby increased, but because the insured has without necessity substituted another voyage for that which was insured, and thereby varied the risk. The shortness of the time or of the distance makes no difference as to its effect on the contract; whether it be for a month, or for one mile, or for one hundred, the consequence is the same. Where goods were insured from Dunkirk to Leghorn, and the ship came to Dover, in her way to procure a Mediterranean pass, it was held to be a deviation e. stitutes a deviation. If a ship insured for one voyage sails upon another, though What conshe be taken before the dividing point of the two voyages, it is a deviation which discharges the insurer. But if the ship sails on the intended voyage, and a deviation is afterwards intended, which is not carried into effect, it will not avoid the policy 8. "Where the insurance is on a voyage to a given place, and the captain when he sails does not mean to go to that place at all, he never sails on the voyage insured. But where the ultimate termini of the intended voyages are the same as those described in the policy, although an intermediate voyage be contemplated, the voyage is to be considered the same until the vessel arrives at the dividing point of the two voyages. The departure from the course of the voyage insured then becomes a deviation; but before the arrival at the dividing point, there is no more than an intention to deviate, which, if not carried into effect, will not vitiate the policy."h Where a |