DALE.

The question, then, simply comes back to this, whether such a case as distinct amounts of preparation being required for distinct portions of the voyage is recognised in the law of insurance? It ought to be so recognised if it arises either from necessity, under the peculiar circumstances of the voyage, or if the practice has been established with respect to any particular class of voyages by mercantile usage. Now, it is sufficient to refer to what was said by Lord WENSLEYDALE, in the case of Biccard v. Shepherd, 14 Moore's P. C. 471, to show that such a state of things has been recognised. That case differed considerably from this, but I refer to it as showing that such a doctrine exists in insurance law as that which I am now discussing. The case is one of the highest authority, as it is evident that the Judicial Committee felt great difficulty about it, and that it received great consideration at the hands of Lord WENSLEYWhat Lord WENSLEYDALE says is this (p. 491): "Some propositions in the doctrine of the implied warranty of seaworthiness, which forms a part of every contract of marine insurance on voyages (for to time policies it does not apply), are perfectly settled. They are laid down in the case of Dixon v. Sadler, 5 M. & W. 405, 9 L. J. (N. S.) Ex. 48 (p. 58, [* 43] ante), in which I gave the judgment in the Court of Exchequer, with the concurrence of my Brethren, founded on the principle laid down in several cases. There is an implied warranty in every insurance of a ship that the vessel shall be seaworthy; by which it is meant that she shall be in a fit state, as to repairs, equipment and crew, and in all other respects, to perform the voyage insured, and to encounter the ordinary perils at the time of sailing upon it. If the assurance attaches before the voyage commences, it is enough that the state of the ship be commensurate to the then risk; 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, and thence to and on the open sea, it is enough if the vessel be, at each stage of the navigation in which the loss happens, properly manned and equipped for it." Lord WENSLEYDALE there contemplated a case of this very kind, and he laid down that it was sufficient if the warranty of seaworthiness were complied with at each stage of the navigation.

How, then, in dealing with a question of insurance, can it be that a change may be made in the state of the vessel with

said

VOL. XIV.

- 6

No. 57. - Bouillon v. Lupton, 33 L. J. C. P. 43.

respect to seaworthiness, and yet no time be allowed for making it? Is it reasonable to consider that as delay which, I will now assume, was contemplated by both parties when the policy was entered into? It is clear that if this change is admissible, a reasonable time must be allowed for making it. That was all that took place. There was no evidence that the vessel stayed at Marseilles longer than was necessary to make the change, if it was lawful for her to stop for that purpose at all. I have already said that I think it was lawful for her so to do, and I think that disposes of the question of seaworthiness, and of time, so far as it relates to delay and deviation after the vessels had started.

I now come to the question which arises under the clause contained in all the policies, " warranted to sail on or before the 15th of August, 1861." That is a question which requires some accurate consideration. It is settled law that under such a clause as this the vessel is bound to start within the time specified on her voyage to her port of destination, fully equipped in all respects. That was so expressly laid down by Lord ELLENBOROUGH in Ridsdale v. Newnham, 3 M. & S. 456 (16 R. R. 327). In that case the ship was loaded at Portneuf, which lies about thirty miles above Quebec, upon the river St. Lawrence. She left Portneuf within the time specified, sufficiently equipped for the voyage from thence to Quebec, but not for her sea voyage. She did not leave Quebec till after the day specified. It was held that the warranty had not been complied with, and the reason given by Lord ELLENBOROUGH is, that the dropping down from Portneuf to Quebec was only preparatory to her voyage, and that she did not commence her voyage till she left Quebec. The case of Pittegrew v. Pringle, 3 B. & Ad. 514, was somewhat similar. There the ship was insured in a society, one of the rules of which was that no vessel should sail for certain ports after the 1st of September; and there was another rule, that the time of clearing at the Custom-house should be deemed to be the time of sailing, provided the ship were then ready for sea. The ship was lying in the river, and was about to proceed in ballast to one of the ports within the prohibition. On the 28th of August the vessel was cleared at the Custom-house at the port of Sligo, within the limits of which port she was then lying, and she was then deficient in ballast, having only fifteen tons of ballast instead of fifty. It had been arranged, in consequence of the shallowness of the water over the

No. 57. - Bouillon v. Lupton, 33 L. J. C. P. 43, 44.

bar at the entrance of Sligo harbour, that she should take the rest of her ballast on board when she got outside. This, however, owing to an accident, she failed to do before the 1st of September, so that she did not proceed on her voyage till after that day. It was held that she had not complied with the above regulations. These and a variety of similar cases are quoted in Phillips on Insurance, 3rd edit., p. 431; and the utmost effect of them is stated in the passage, in which he says: "When the insurance is from an inland port, with warranty to sail by a certain time, the vessel must have its cargo and crew on board, and its clearance, to be ready to proceed on the voyage without * further delay [* 44] at any places that can be considered parts, or branches of, or appendages to, the port named, and auxiliary to its navigation, though this may require dropping down a river or navigating inland waters to a considerable distance." In none of those cases was there the necessity which exists here of dividing the voyage into two distinct parts, and the impossibility that the vessel should perform the first part in a state in which she would be seaworthy for the second. In none of those cases was the vessel seaworthy at the time when, as a matter of fact, the voyage commenced. In this case, looking to the peculiar construction which it is necessary to give to the words " warranted to sail" before a certain day, and the implied warranty that the vessels should start on their voyage in a fit state in which to perform it, I think that the vessels did, by leaving Lyons before the 15th of August, properly equipped for the river voyage, though not for the sea voyage, comply with the warranty. The same reasons which warranted Lord WENSLEYDALE in the case in the Privy Council, warrant us here in holding that the voyage may be divided into two portions for the purpose of considering what is the necessary state of the vessel with respect to preparation. And it would be altogether inconsistent to apply this doctrine to a simple warranty of seaworthiness, and to refuse to apply it to a warranty to sail before a particular day.

As to the vessel Papin No. 6, a somewhat different question arises. She left Lyons on the 24th of July, and arrived at Marseilles on the 29th. Now, though, as I have already said, it was not necessary to have her ready to proceed on her sea voyage by the 15th of August, but only within a reasonable time after her arrival at Marseilles, it was necessary to use all proper despatch

No. 57. Bouillon v. Lupton, 33 L. J. C. P. 44.

in making the necessary preparations. Two of the vessels, the Bourdon and Papin No. 1, were completed ready for sea at Marseilles without any delay, and all three vessels actually set sail on the 23rd of August. It is clear, however, that by using despatch the Papin No. 6 might have sailed before the 20th, and that her preparations were not carried on with the same rapidity as on board the other vessels. The explanation given was this: that it was considered advisable that her voyage should be delayed a few days in order that she might sail in company with the other two vessels; and there can be no doubt that she was kept back for that purpose. The question is, whether that was also a reasonable delay. No doubt, the question what was a reasonable delay at Marseilles must mainly depend on what was a reasonable time within which to make the necessary preparations for the sea voyage; but there may be also circumstances affecting the safety of the vessels which ought also to be taken into consideration. For instance, if the vessel were complete by the evening, the captain might be justified in waiting till the next morning; or, when the vessel was completed, there might be a gale of wind blowing, which would render some delay prudent. This Court would not say dogmatically that the captain must start the very moment the ship was ready, or lose the benefit of the policy. It is for the jury to say whether the further delay was reasonable. In this case they had the evidence before them of a French captain, who said that he should consider it a prudent course for the one vessel to wait for the other two, so that all might sail in company. It is true that he gave as his reason that he should be sorry to sail at all in such a vessel as this without company; but that does not affect his opinion as to the prudence of the course taken. I cannot say,

therefore, that there was no evidence for the jury that a prudent man uninsured would not have waited under similar circumstances; and as it was entirely a question for the jury, I do not think the verdict on that point ought to be disturbed. For these reasons, I am of opinion that the rule ought to be discharged.

BYLES, J. I am of the same opinion. My Brother WILLES has gone into all the questions raised in this case so fully that it is unnecessary for me to add more than that I agree with every word. of his judgment. There is only one point on which I wish to add anything, and that is with reference to the delay of the vessel Papin No. 6 at Marseilles, in waiting for the other two. A good

No. 58. Gibson v. Small. - Rule.

deal of remark has been made upon the evidence of the French captain, but I think that a reasonable consideration for the safety of the lives of the crew is necessary and proper. I also

*

think that the clause in each policy, which gives leave to [*45] the vessel to tow or be towed, shows that the parties con

templated that the vessels would proceed to their destination in company with each other. 1 Rule discharged.

ENGLISH NOTES.

The same rule has been recognised as applying to the implied warranty in a charter-party in Thin v. Richards (C. A. 1892), 1892, 2 Q. B. 141, 62 L. J. Q. 39, 66 L. T. 584, 40 W. R. 617.

AMERICAN NOTES.

In Van Valkenburgh v. Astor M. Ins. Co., 1 Bosworth (N. Y. Super. Ct.), 61, where there was insurance on goods from New York by steamer to Chagres, thence across the Isthmus to Panama, and at and from thence by steamer to San Francisco, one Judge was of opinion that the implied warranty of seaworthiness attached only on the commencement of the voyage at New York, and another held that it attached at the commencement of each. Somewhat analogous to the principal case is Treadwell v. Union Ins. Co., 6 Cowen (N. Y.), 270. In Copeland v. N. E. M. Ins. Co., 2 Metcalf (Mass.), 444, SHAW, Ch. J., says substantially that if a long voyage consists of several stages, it is the owner's duty to fit the vessel for sea at each stage.

No. 58. GIBSON v. SMALL.

(H. L. 1853.)

No. 59.-DUDGEON v. PEMBROKE.

(H. L. 1877.)

RULE.

In a time-policy there is no implied warranty of seaworthiness, either at the commencement of the voyage or at any other point of time.

1 WILLIAMS, J., left the Court before the argument was concluded.