Nos. 58, 59.-Gibson v. Small; Dudgeon v. Pembroke. — Notes. 95, 45 W. R. 70, where a steamship insured on a time-policy had started for her voyage with an insufficient supply of coal. Left helpless in calm weather forty miles from her port of destination, she was towed in by a steam trawler and a tug, to whom salvage was paid. The owners were held not entitled to recover the salvage from the insurers, that being an expense occasioned not by a peril of the sea, but immediately and solely by the inherent defect in the thing itself; namely, the ship, as furnished for the voyage. AMERICAN NOTES. Parsons says (1 Insurance, p. 389): "Another question exists as to this implied warranty in case of time-policies, which is involved in still greater difficulty and uncertainty; it is, What is this warranty, or condition, in respect to the continuance and maintenance of the seaworthiness of the vessel? This subject has been very much considered quite recently in England and in this country. The authorities are entirely irreconcilable. Some eminent English Judges go so far as to say that there is no implied warranty of seaworthiness in time-policies. No Court in this country has gone to that extent. In a recent case in New York, the reasoning in the English cases seems to have been approved, and this warranty brought down to the narrowest limits. On the other hand, in a still later case in Massachusetts, this implied warranty is recognized in time-policies not only as distinctly existing, but as subject only to those modifications or qualifications which the nature of time-policies and the circumstances of each case make necessary. In our notes we endeavor to exhibit these conflicting views as fully as the space we can give to them permits. We confess that this latest decision appears to us to be sustained by reasons and arguments which we think it would be difficult to answer. The statement of Lord CAMPBELL, that there is no implied warranty in a time-policy, although apparently approved in later English cases, cannot be law. If a vessel insured in her home port for a year sails in utter weakness and decay, and with no peril whatever she sinks in a day, it is impossible that the insured should recover; and so, indeed, Baron PARKE admits, although at one time he seemed to adopt Lord CAMPBELL'S view. This broad negation is confined in its application, by the eminent Judges who make it, to the implied warranty of seaworthiness at the beginning of the risk; and the reasoning by which it is sustained seems to be, that a policy on time is not a contract of insurance, but an ordinary contract in writing.' We have no doubt, however, that it is a contract of insurance, aud one of great use and importance. At the same time we admit that it is an insurance of a peculiar character, and that the warranty of seaworthiness must be construed here and elsewhere with reference to its subject-matter, and in conformity to its character. Time-policies constitute indeed a large and important class of the contracts of insurance in common use; for this method of insurance is much better adapted than any other to many circumstances in which it is desirable that maritime property should be placed under insurance. We have said in our introductory chapter that the requirement ance. Nos. 58, 59.-Gibson v. Small; Dudgeon v. Pembroke. —Notes. of seaworthiness of the vessel is of the very essence of the business of insurIt should be carefully adapted to every kind of maritime condition; but if it be destroyed in any, that kind of insurance will cease. If, for example, the assertion of Lord CAMPBELL and Baron PARKE is to be taken and applied, as literally true, to all time-policies, there would soon be an end of time-policies. Or rather, as this kind of policy has now become almost indispensable, insurers would insert express warranties, making it possible for them to estimate their risks, and to insure on time for premiums which would be safe for insurers, and yet so low as to permit merchants to pay them. If we say, first, that there is an implied warranty of seaworthiness in time-policies, and then, that this warranty must be so qualified as to be adapted to the requirements and circumstances of such risks, the only question is, Where shall we find the necessary or proper qualifying rules? "Amid such conflict of opinions, and upon a subject in itself so difficult, we can scarcely hope to state any conclusions which would commend themselves as entitled to general adoption. We are willing however to say, first, that the universal requirement of all insurance, that a vessel shall sail on her voyage in a seaworthy condition, applies equally to time-policies. And we draw the inference that in all such policies there is an implied warranty of seaworthiness at the beginning of the voyage. Then we should be unwilling to say that there was the same implied warranty at the beginning of the risk, or of the time; because the seaworthiness then required must depend upon the events which have occurred between the beginning of the voyage and the beginning of the risk. If by reason of sea perils which have occurred, aided by wear and the mere lapse of time, the vessel has come into a condition very far indeed from what would be seaworthy at the beginning of the voyage and she were at sea, the policy might still attach. If she were in port in this bad condition, we should say that the policy would attach, if there had been no negligence in putting her into a better condition. But the main question comes in here, If the vessel be, when the policy attaches, or at any subsequent period, in a port where she can be repaired and made seaworthy, but these repairs are omitted and she goes to sea in an utterly unseaworthy condition, are the insurers still held? It is plain that they cannot be so held, unless on the supposition, so broadly stated by CAMPBELL and PARKE, that there is no implied warranty of seaworthiness in a time-policy, or else on the milder supposition that, the implied warranty of seaworthiness at the beginning of the voyage being satisfied, this warranty has thereafter no application and no operation. We confess ourselves unable to make either of these suppositions. They seem to us opposed to the very nature and fundamental principles of marine insurance. And holding the principle which we have already stated, that this warranty of seaworthiness is implied in every contract of insurance in which it is not expressly negatived, and that it is always to be construed in reference to the character and circumstances of the case, we cannot but think that the essential principle of insurance would be better satisfied by saying that under a time-policy, as under every other policy, the vessel must leave every port in a seaworthy condition, provided she could be put into a seaworthy condition in that port." Nos. 58, 59.-Gibson v. Small; Dudgeon v. Pembroke. - - Notes. Gibson v. Small is cited in Van Valkenburgh v. Astor M. Ins. Co., 1 Bosworth (N. Y. Super. Ct.), 73. In the subsequent case of Hathaway v. Sun M. Ins. Co., 8 Bosworth, 33, the rule of Gibson v. Small was adopted, and the Court gave the following review of the American authorities: "This rule has been adopted to a considerable extent by the Supreme Court of Massachusetts in the case of Capen v. The Washington Insurance Company, Nov. 24, 1853, stated by Mr. Phillips (Vol. 1, p. 409, ed. of 1854, reported 12 Cushing, 517). The policy was upon a vessel then at sea, for one year. She arrived at Boston, her home port, then made a passage to Norfolk, and took a cargo for Sicily. Being found, after sailing, unfit to proceed by reason of the weakness and defectiveness of her timber, she put back to Savannah, where it was found that she required extensive repairs, to procure which she sailed with a light cargo for New York, where the repairs would cost less than at Savannah; and on that passage was burnt. The examination at Savannah showed that the condition of her timbers was such that she would have required, within the year, great repairs to fit her for carrying the usual cargoes, on the usual voyages of vessels of her class. Chief Justice SHAW stated the opinion of the Court to be that there was no warranty of seaworthiness in the strictest sense of the term, but that the only implied condition is, that the vessel is in existence as a vessel, at the commencement of the risk, capable of being made useful for navigation, and in a safe condition, whether at sea or in port, and is seaworthy when she first, sails; or if she is at sea, that she had sailed in a seaworthy condition, and is safe.' "In the leading case in our own Courts (The American Ins. Co. v. Ogden, 15 Wend. 535; 20 id. 287) it is assumed that there is an implied warranty of seaworthiness in a time-policy, and it is expressly decided that this implied warranty is complied with if the vessel be in a seaworthy condition at the commencement of the risk; that it is not requisite she should be seaworthy at the beginning of each successive voyage or passage during the continuance of the risk, and that if the vessel, subsequently to the attaching of the risk, sustain damage, and is not improperly refitted at an intermediate port, the insurer is liable for a future loss, unless the same is the result of that omission to refit, and that has arisen from bad faith or want of ordinary care and prudence." Gibson v. Small was cited and its doctrine adopted in Merchants' Ins. Co. v. Morrison, 62 Illinois, 242; 14 Am. Rep. 93, the Court observing: "The question was examined in the English Courts with so much research and ability that it would be idle, if not presumptuous, to attempt to throw any further light upon it." But the same Court, in Hoxie v. Pac. M. Ins. Co., 7 Allen, 211, held that in a time-policy on a vessel on which the commencement of the risk is in a foreign port, where repairs may be made, there is an implied warranty of seaworthiness both for port and in setting out. The Court said: "It cannot be denied that until the recent discussions arising in the cases of Capen v. Wash. Ins. Co. and Small v. Gibson it had always been assumed as a settled doctrine of the law of insurance that in policies on ships and vessels, whether for a voyage or for time, there was an implied warranty of seaworthiness. Nos. 58, 59. Gibson v. Small; Dudgeon v. Pembroke. - Notes. "So in the adjudicated cases in this country and in England, and in all the approved text-writers of both countries, it seems to have been assumed without doubt or question that in policies for a specified time, as well as those for specified voyages, there was a warranty by the assured of the seaworthiness of his ship or vessel. Hucks v. Thornton, Holt N. P. C. 30; Hollingworth v. Brodrick, 7 Ad. & El. 40; Sadler v. Dixon, 8 M. & W. 895; 3 Kent Com. (6th ed.) 287, 307; 1 Phil. Ins., §§ 695, 727. In the case of Martin v. Fishing Ins. Co., 20 Pick. 389, which was the case of a policy on a vessel for a term of six months, both counsel and Court assumed that in a policy on time there was an implied warranty that she was seaworthy when the policy attached and the risk commenced. These authorities, and others which might be adduced, verify the statement of Mr. Justice ERLE in Thompson v. Hopper, ubi supra, that 'it does not appear that any person ever expressed the opinion that there was no warranty in any time-policy, until Baron PARKE spoke in the House of Lords.' "But although the doctrine of warranty of seaworthiness as applied to time-policies was not doubted or called in question until the recent discussions already alluded to, it was nevertheless suggested long since that some modification of it, as it was usually understood in respect to voyagepolicies, might become necessary in certain cases where insurance was effected on a ship or vessel while at sea, for a limited time. Such seems to have been the intimation of the late Chief Justice of this Court, in Paddock v. Franklin Ins. Co., 11 Pick. 231, accompanied however with a distinct intimation that the warranty of seaworthiness, although it might be applied with great liberality in such cases, would not be wholly dispensed with." "From this brief summary of the authorities, there would seem to be no foundation in them for the position that there is no warranty of seaworthiness in any policies on time-a warranty which is said to lie at the basis of the contract of marine insurance. It is easy to see a good reason for holding that a policy on time, effected on a vessel when at sea, does not include any warranty of her seaworthiness at the commencement of the risk. In such case the insurance is on a vessel in an unknown sea in an unknown State.' The insured has no means of knowing her actual condition, or if she is injured and out of repair, of restoring her to a condition of seaworthiness. Both parties enter into the contract with a full knowledge of these facts. It would not only be pushing a rule of law to an unreasonable extent to say that under such circumstances the assured undertakes to warrant his ship, of the condition and circumstances of which he can know nothing, to be then seaworthy for any purpose, but it would be contrary to the manifest intent and understanding of the parties. In such cases, the circumstances attending the making of the contract of insurance tend directly to rebut any implication of a warranty of seaworthiness at the inception of the risk. But when it is attempted to go further, and to say that because in certain cases of insurance on time it cannot be reasonably held that there is an implied warranty of seaworthiness at the inception of the risk, there is no such implied warranty at all in any such policy, whatever may be the circumstances under which the contract was entered into, the reasoning is fallacious and unsound." In 14 Am. & Eng. Enc. of Law, p. 367, the editor states that no warranty of seaworthiness is implied in England in time-policies, citing the principal cases, and then continues: "In the United States generally the law is otherwise;" but his notes hardly bear him out, for they state that the English doctrine prevails (apparently) in the Federal Courts (citing Union Ins. Co. v. Smith, 124 United States, 405; Jones v. Ins. Co., 2 Wallace, Jr. (U. S. Circ. Ct.), 278); in Connecticut (Hoxie v. Home Ins. Co., 32 Connecticut, 21; 85 Am. Dec. 240); in Pennsylvania (Dallam v. Ins. Co., 6 Philadelphia, 15); in Wisconsin (Merchants' M. Ins. Co. v. Sweet, 6 Wisconsin, 670); apparently in Ohio (Gazzam v. Cincinnati Ins. Co., 6 Ohio, 72); in New York (America Ins. Co. v. Ogden, 20 Wendell, 287); in Illinois (Merchants' Ins. Co. v. Morrison, 62 Illinois, 242; 14 Am. Rep. 93); and so of late in Massachusetts (Horie v. Pac. M. Ins. Co., 7 Allen, 211); although the early cases were the other way (Capen v. Wash. Ins. Co., 12 Cushing, 517). No. 60. FURTADO v. ROGERS. (1802.) RULE. AN insurance effected in England in time of peace on foreign property does not cover a loss by capture of that property by a British ship after hostilities between the two countries have been commenced. An insurance effected in England on a French ship previous to the [191] commencement of hostilities between this kingdom and France does not cover a loss by British capture. Assumpsit on a policy of insurance. The declaration, after setting out a policy of insurance in the usual form, dated the 19th of October, 1792, on the ship Petronelli, "at and from Bayonne to Martinique, and at and from thence to return to Bayonne," and making all the necessary averments, stated the loss in these words: "And the said Joseph Furtado. further says, that afterward and after the said ship had so arrived at Martinique aforesaid, in the said writing or policy of assurance mentioned, and whilst she remained there and before her depart |