ence to its length and other particulars, and with a competent and skillful master, of sound judgment and discretion; and, in general, especially in steamships and vessels of the larger size, with some person of sufficient ability and experience to supply his place, temporarily, at least, in case of his sickness or physical disqualification. Owners must see to it that the master is qualified for his situation, as they are, in general, in respect to goods transported for hire, responsible for his acts and negligence."

56

In STEEL v. STATE LINE S. S. CO., Lord Cairns defines seaworthiness as follows:

"I think there cannot be any reasonable doubt entertained that this is a contract which not merely engages the shipowner to deliver the goods in the condition mentioned, but that it also contains in it a representation and an engagement—a contract by the shipowner that the ship on which the wheat is placed is, at the time of its departure, reasonably fit for accomplishing the service which the shipowner engages to perform. Reasonably fit to accomplish. that service the ship cannot be unless it is seaworthy. By 'seaworthy,' my lords, I do not desire to point to any technical meaning of the term, but to express that the ship should be in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter in crossing the Atlantic.

*

"But, my lords, if that is so, it must be from this, and only from this, that in a contract of this kind there is implied an engagement that the ship shall be reasonably fit for performing the service which she undertakes. In principle, I think there can be no doubt that this would be the meaning of the contract; but it appears to me that the question is really concluded by authority. It is sufficient to refer to the case of Lyon v. Mells," 57 in the court of

56 3 A. C. 72, 76, 77. See, also, Bullard v. Roger Williams Ins. Co., 1 Curt. 148, Fed. Cas. No. 2,122.

57 5 East, 428.

queen's bench during the time of Lord Ellenborough, and to the very strong and extremely well considered expression of the law which fell from the late Lord Wensleydale when he was a judge of the court of exchequer, and was advising your lordship's house in the case of Gibson v. Small." 58

As a general rule, the burden of proving unseaworthiness is on the underwriter.59

But where a vessel which has been exposed to no unusual peril suddenly develops a leak within a short time, this may raise a presumption of unseaworthiness.60 In reference to this Judge Curtis says:

"But, as I have already indicated, the presumption is that this brig was seaworthy, and the burden of proof is on the underwriters by some sufficient evidence to remove this presumption. This may be done either by proving the existence of defects amounting to unseaworthiness before she sailed, or that she broke down during the voyage, not having encountered any extraordinary action of the winds or waves, or any other peril of the sea sufficient to produce such effect upon a seaworthy vessel, or by showing that an examination during the voyage disclosed such a state of decay and weakness as amounted to unseaworthiness, for which the lapse of time and the occurrences of the voyage would not account. * * *

"There is such a standard, necessarily expressed in general terms, but capable of being applied, by an intelligent jury, to the proofs in the cause. The hull of the vessel

58 4 H. L. Cas. 353.

59 Nome Beach Lighterage & Transp. Co. v. Munich Assur. Co. (C. C.) 123 Fed. 820; Fireman's Fund Ins. Co. v. Globe Nav. Co., 236 Fed. 618, 149 C. C. A. 614; Pickup v. Insurance Co., 3 Q. B. D. 594. 60 Bullard v. Roger Williams Ins. Co., 1 Curt. 148, Fed. Cas. No. 2,122. See, also, Moores v. Underwriters (C. C.) 14 Fed. 226; Batchelder v. Insurance Co. of North America (D. C.) 30 Fed. 459; Work v. Leathers, 97 U. S. 379, 24 L. Ed. 1012; Ajum v. Insurance Co., [1901] A. C. 362.

must be so tight, stanch, and strong as to be competent to resist the ordinary attacks of wind and sea during the voyage for which she is insured."

This warranty of seaworthiness applies at the commencement of the voyage. A vessel may be in port, and require extensive repairs, but, if these repairs are made before she sails, so as to make her seaworthy at sailing, she fulfills what is required of her.

This condition always applies to insurance under voyage policies. As to time policies, there is quite a difference between English and American decisions. Under the American decisions a vessel, when insured by a time policy, must be seaworthy at the commencement of the risk. If, when so seaworthy, she sustains damage, and is not refitted at an intermediate port, and a prudent master would have refitted her there, and she is lost in consequence of the failure to refit her, she would be unseaworthy, and the underwriter would not be liable. If, however, she is not refitted, and is lost from a different cause, the underwriters would be liable, though a prudent master would have had her refitted."2

In England, on the other hand, there is no warranty of seaworthiness on time policies, either at the commencement of the voyage or at any other time.63

61 McLanahan v. Universal Ins. Co., 1 Pet. 171, 184, 7 L. Ed. 98; St. Paul Fire & Marine Ins. Co. v. Pacific Cold Storage Co., 157 Fed. 625, 87 C. C. A. 14, 14 L. R. A. (N. S.) 1161; Stetson v. Insurance Co. of North America (D. C.) 215 Fed. 186. But such a warranty does not apply to lighters employed to land the cargo. Pacific Creosoting Co. v. Thames & Mersey Marine Ins. Co., Ltd. (D. C.) 210 Fed. 958; Thames & Mersey Marine Ins. Co. v. Pacific Creosoting Co., 223 Fed. 561, 139 C. C. A. 101.

62 Union Ins. Co. v. Smith, 124 U. S. 405, 8 Sup. Ct. 534, 31 L. Ed. 497; Cleveland & B. Transit Co. v. Insurance Co. of North America (D. C.) 115 Fed. 431 (discussing the Inchmaree clause, which is intended to cover latent defects in machinery or hull not due to want of due diligence by owners); Luckenbach v. W. J. McCahan Sugar Refining Co., 248 U. S. 139, 39 Sup. Ct. 53, 63 L. Ed. 170, 1 A. L. R. 1522.

63 Dudgeon v. Pembroke, 2 A. C. 284. Section 36, cl. 5, of the

This condition only applies to the vessel. There is no implied condition that the cargo shall be fitted to withstand the voyage for which it is insured.*

SAME-DEVIATION

28. It is an implied condition of a voyage policy that the vessel will take the course of sailing fixed by commercial custom between two ports, or, if none is fixed, that it will take the course which a master of ordinary skill would adopt. Any departure from such course, or any unreasonable delay in pursuing the voyage, constitutes what is known as a "deviation."

The reason is that such an act on the part of the vessel substitutes a new risk different from the one which the underwriters have assumed, and, after such deviation commences, the insurers are not liable for any loss incurred during the deviation. The cases on this subject are numerous. Whether an act is a deviation depends largely upon the particular language of the policy and the course of trade.

65

In HEARNE v. NEW ENGLAND MUT. MARINE INS. CO., a vessel was insured to a port in Cuba, and at and thence to a port of advice and discharge in Europe. The vessel went to the port in Cuba, and discharged, and then, instead of sailing direct to Europe, sailed for another port in Cuba to reload, and was lost on her way there. The court held that this constituted a deviation, and released

Marine Insurance Act 1906, provides: "In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness."

64 Koebel v. Saunders, 17 C. B. N. S. (112 E. C. L.) 71; 144 Reprint, 29.

the underwriters, and that, in the face of the express language of the contract, it was not admissible to prove a usage in such voyages to go to two ports in Cuba, one for discharge and another for reloading.

66

In Columbian Ins. Co. v. Catlett, which was the case of a voyage policy from Alexandria to the West Indies and back, it was held that, as the known usage of the trade allowed delay to accomplish the object of the voyage by selling out the cargo, it was not a deviation to remain for that purpose, provided the time so occupied was not unreasonable.

67

In Wood v. Pleasants, it was held that a stoppage on the way for the purpose of taking on water, and only for that purpose, was not a deviation, assuming that the vessel had a proper supply at the time of sailing.

In West v. Columbian Ins. Co.,69 a vessel insured on a voyage to Pernambuco unnecessarily anchored off port, when she might have gone directly in. It was held that this delay was such a deviation as discharged the underwriters.

Under the decisions, it is not a deviation for a vessel to delay, or go out of her way, in order to save life at sea, but would be for the purpose of saving property. Under the special facts of special cases this principle is sometimes difficult to apply; for a vessel in deviating to save life can sometimes best accomplish it by saving property, as, for instance, by taking a disabled vessel in tow. But when, after doing so, the facts are such that the lives can be saved without the property, a continued attempt to save the property is a deviation.

66 12 Wheat. 383, 6 L. Ed. 664.

67 Fed. Cas. No. 17,961, 3 Wash. C. C. 201.

68 Fed. Cas. No. 17,421, 5 Cranch, C. C. 309. See, also, Martin v. Delaware Ins. Co., Fed. Cas. No. 9,161, 2 Wash. C. C. 254.

HUGHES, ADM. (2D ED.)-5