tion of ex $1459. The eventual falsity of a representation as Representa to expectation does not, in the absence of fraud, avoid pectation. a contract of insurance. ARTICLE V. IMPLIED WARRANTIES. SECTION 1460. Warranty of seaworthiness. 1461. Seaworthiness, what. 1462. At what time seaworthiness must exist. 1463. What things are required to constitute seaworthiness. 1464. Different degrees of seaworthiness at different stages of the voyage. 1465. Unseaworthiness during the voyage. 1466. Seaworthiness for purposes of insurance on cargo. 1467. Neutral papers. 1 seaworthi ness. S 1460. In every marine insurance upon ship or Warranty of freightage, or upon anything belonging to the shipowner', unless made for a specified length of time, a warranty is implied that the ship' shall be seaworthy. By the present law this warranty is implied in every case (see Knill v. Hooper, 2 H. & N., 277). But this is not founded upon reason. Insurers know the quality of vessels much better than shippers. Fawcus v. Sarsfield, 6 El. & Bl., 192, Thompson v. Hopper, id., 172; see Gibson v. Small, 4 H. oj L. Cas., 353; Jenkins v. Heycock, 8 Moore P. C., 351; Biccard v. Shepherd, 14 Moore P. C., 493; Hathaway v. Sun Mutual Ins. Co., 8 Bosw., 33. ness, what. S1461. A ship is seaworthy, when reasonably fit Seaworthito perform the services, and to encounter the ordinary perils of the voyage, contemplated by the parties to the policy. See M'Lanahan v. Universal Ins. Co., 1 Pet., 179; com- S 1462. An implied warranty of seaworthiness is complied with if the ship is seaworthy at the time of the commencement of the risk. At what worthiness time sea must exist. What things are Id.; American Ins. Co. v. Ogden [Ct. of Errors], 20 S1463. A warranty of seaworthiness not only exrequired to tends to the condition of the structure of the ship constitute Beaworthi ness. Different degrees of ness at different stages of itself, but also requires that it be properly laden,1 and provided with a competent master, a sufficient number of competent officers and seamen,3 and the requisite appurtenances and equipments, such as ballast,' cables and anchors, cordage and sails, food, water, fuel and lights," and other necessary or proper stores and implements for the voyage. 5 1 Weir v. Aberdeen, 2 B. & Ald., 320; and see Chase v. Eagle Ins. Co., 5 Pick., 51; Walden v. N. Y. Firemen's Ins. Co., 12 Johns., 128. 9 Draper v. Com. Ins. Co., 4 Duer, 234; reversed on the ground that the real master was competent (21 N. Y., 378). Silva v. Low, 1 Johns. Cas., 184. 'Deblois v. Ocean Ins. Co., 16 Pick., 303. Wilkie v. Geddes, 3 Dow, 57. • Wedderburn v. Bell, 1 Camp., 1. Fontaine v. Phoenix Ins. Co., 10 Johns., 58; Moses v. Sun Mutual Ins. Co., 1 Duer, 159. 1464. Where different portions of the voyage, seaworthi- contemplated by a policy, differ in respect to the things requisite to make the ship seaworthy therefor, the voyage. a warranty of seaworthiness is complied with, if, at the commencement of each portion, the ship is seaworthy with reference to that portion. Unseaworthiness during the voyage. Biccard v. Shepherd, 14 Moore P. C., 471; Bouillon v. S1465. When a ship becomes unseaworthy during the voyage to which an insurance relates, an unreasonable delay in repairing the defect exonerates the insurer from liability for any loss arising therefrom. This seems to be the law of this state (American Ins Co. v. Ogden, 20 Wend., 287). As to the law elsewhere, see 2 Pars. Mar. L., 140. ness for purposes of insurance on cargo. S1466. A ship which is seaworthy for the purpose Seaworthi of an insurance upon the ship, may, nevertheless, by reason of being unfitted to receive the cargo, be unseaworthy for the purpose of insurance upon the cargo. 1 Phil. Ins., § 723. See also 2 Pars. Mar. L., 145. papers. S 1467. Where the nationality or neutrality of a Neutral ship' or cargo' is expressly warranted, it is implied that the ship will carry the requisite documents to show such nationality or neutrality,' and that it will not carry any documents which cast reasonable suspicion thereon.3 'Coolidge v. N. Y. Firemen's Ins. Co., 14 Johns., 308; Blagge v. N. Y. Ins. Co., 1 Cai., 549, 564. * Barker v. Phoenix Ins. Co., 8 Johns., 307, 319. sured, how S1468. When the voyage contemplated by a policy Voyage inis described by the places of beginning and ending, determined the voyage insured is one which conforms to the course of sailing fixed by mercantile usage between those places. Brazier v. Clapp, 5 Mass., 1; Phyn v. Royal Ex. Ass. Co., S1469. If the course of sailing is not fixed by 1. mercantile usage, the voyage insured by a policy is the way between the places specified, which, to a master of ordinary skill and discretion, would seem the most natural, direct and advantageous. Martin v. Del. Ins. Co., 2 Wash. C. C., 254; Brown v. Tayleur, 4 Ad. & El., 241; 2 Pars. Mar. Law, 281. Deviation, what. When proper. When improper. Deviation exonerates the insurer. S1470. Deviation is a departure from the course of the voyage insured, mentioned in the last two sections,' or an unreasonable delay in pursuing the voyage2; or the commencement of an entirely different voyage. 'Brown v. Tayleur, 4 Ad. & El, 241. 'Hamilton v. Sheddon, 3 M. & W., 49. S 1471. A deviation is proper: 1. When caused by circumstances over which neither the master nor the owner of the ship has any control ;1 2. When necessary to comply with a warranty, or to avoid a peril, whether insured against or not;3 3. When made in good faith, and upon reasonable grounds of belief in its necessity to avoid a peril ;'or 4. When made in good faith, for the purpose of saving human life, or relieving another vessel in distress.5 Such as the winds and waves, pirates, enemies, disabling of the crew, &c. Bouillon v. Lupton, 15 C. B. [N. S.], 113. See Robinson v. Marine Ins. Co., 2 Johns., 89; Riggin 3 Kent Com., 323; Perkins v. Augusta Ins. Co., 10 S 1472. Every deviation, not specified in the last section, is improper. $1473. An insurer is not liable for any loss happening to a thing insured subsequently to an improper deviation. Stevens v. Commercial Mut. Ins. Co., 26 N. Y., 397: Elliott v. Wilson, 7 Bro. P. C., 459. ARTICLE VII. LOSS. SECTION 1474. Total and partial loss. 1475. Partial loss. 1476. Actual and constructive total loss, 1477. Total loss, what. 1478. Constructive total loss. 1479. Presumed actual loss. 1480. Insurance on cargo, &c., when voyage is broken up. 1481. Cost of reshipment, &c. 1482. When insured is entitled to payment. 1483. Abandonment of goods on insurance of profits. 1485. Insurance against total loss. S1474. A loss may be either total or partial. S1475. Every loss which is not total is partial. Bouvier's Law Dict.. Loss. Total ard partial loss. Partial loss. S 1476. A total loss may be either actual or con- Actual and structive. S1477. An actual total loss is caused by: 1. A total destruction of the thing insured; 2. The loss of the thing by sinking, or by being broken up; 3. Any damage to the thing which renders it valueless to the owner for the purposes for which he held it; or, 4. Any other event which entirely deprives the owner of the possession, at the port of destination, of the thing insured. See De Peyster v. Sun Mut. Ins. Co., 19 N. Y., 272; Coit N. C., 266; Adams v. Mackenzie, 13 C. B [N. S.], 442 ; constructive total loss. Total loss. what. ive total S1478. A constructive total loss is one which gives Construct to a person insured a right to abandon under section loss. 1487. |