totally lost near Ireland. Lee, C. J. held, that the sense of the warranty was not to be taken literally; that the meaning was not only to depart with convoy, but to keep with convoy during the whole voyage, and that this had always been so holden; that absolute necessity alone, such as rendered it impossible to keep with convoy, could excuse; as being driven by a tempest to some foreign port or place where convoy could not be had; but that was not the present case, the ship having been driven into an English port. He, therefore, was of opinion, that this was not a loss within the policy; and accordingly a verdict was found for the defendant. But if a ship sails with convoy, and is separated by stress of weather, and does all in her power to rejoin the convoy, this will be considered as a sufficient compliance with the warranty, so as to render the insurers liable. The security of trade, in time of war, has been considered as depending so essentially on ships sailing with convoy, that by a statute (47) (which continued in force during hostilities with France) several enactments were made to enforce it. Neutral Property.-If the insurance be effected in time of war, and the party insuring be the subject of a neutral state, it is usual for him, in order to induce the underwriter to accept a smaller premium, to warrant that the subject matter of the insurance is neutral property, which is usually done by inserting in the policy the words "warranted neutral," or warranted neutral property;" by which is to be understood, that the thing insured is neutral property at the time when the risk commences, not that it shall continue so during the whole voyage, for the risk of future war is undertaken by the insurer in every policy. But though it is not necessary, that a ship, warranted neutral, should continue neutral during the whole voyage; because if she be neutral at the time of sailing, the breaking out of war on the next day will not discharge the underwriter, yet the ship must not forfeit its neutrality by the misconduct of the parties on board; hence where, on an in x Jeffery v. Legendra, 3 Lev. 320. Carth. 216. Salk. 443. 1 Show. 320. 4 Mod. 58. reported for the judgment only in Holt, 465. y Stat. 43 G. 3. c. 57. See Cohen v. Hinckley, 1 Taunt. R. 249. z Eden v. Parkison, Doug. 732, a. (47) A similar statute was made during the preceding war. See stat. 38 G. 3. c. 76. surance of a ship warranted neutral, it appeared that the master and crew had broken their neutrality, in the course of the voyage insured, by forcibly rescuing the ship, which had been seized and carried into port by a belligerent power, for the purpose of search, it was holden, that the assured could not recover. That a warranty of neutrality may be satisfied, it is necessary, 1. That the vessel insured should belong to the subject of a neutral state. 2. That the vessel should be navigated, not only according to the law of nations, but also in conformity to the particular treaties subsisting between the country to which she belongs and the belligerent states (47). If, therefore, a state in amity with a belligerent power has, by treaty, agreed that the ships of their subjects shall only have that character when furnished with certain documents; whoever warrants the ship to be the property of such subject, should provide himself, at the time when the ship sails, with those documents, which have, by the country to which she belongs, been agreed to be the necessary proof of that character (48). In an action on a policy upon a ship warranted Dutch property, it appeared that the ship in question was originally a French privateer bearing a French name; that having been captured by the English, she was carried into Liverpool, and there named the Three Graces. A merchant there purchased a Garrels v. Kensington, 8 T. R. 230. b Barzillai v. Lewis, Park, 526. and Ms. note of Buller, J. cited by Law rence, J. in Pollard v. Bell, 8 T. R. 441. S. C. 3 Doug. 126. (47) "Courts of admiralty are to proceed on the known jus gentium, or on the treaties between particular states; such treaties do not alter the jus gentium with respect to the rest of the world, but as between those particular states they are considered as engrafted on the jus gentium." Per Ld. Kenyon, C. J. in Bird v. Appleton, 8 T. R. 567. (48) N. There is not an implied warranty on the part of the owner of goods insured, that the ship shall be in all respects properly documented. Where through the negligence of the captain, the goods had not been regularly entered in the ship's manifest, for exportation, as required by stat. 13 and 14 Car. 2. and other statutes; the loss not having been occasioned by this omission, it was holden that the underwriters were liable. Carruthers v. Gray, 3 Campb. 142. 15 East, 35. S. C. In the case of an insurance upon goods, in a certain ship, which ship is not represented as a neutral at the time when the insurance is effected, although she be in fact a neutral, it is not necessary that she should be documented as such. Dawson v. Atty, 7 East, 367. See Bell v. Carstairs, 14 East, 393. her for a house at Amsterdam. Having been insured by a Dutch name, and warranted as in the policy, she went to sea, was captured by the French, and finally condemned by the parliament of Paris, under her English name, as lawful prize. The court were of opinion, that the sentence of the parliament of Paris was conclusive against the warranty. So where it appeared, that a ship, warranted American, had not on board a passport, which was required by the treaty between France and America; it was holden, that the assured could not recover, inasmuch as the warranty had not been complied with; for that required that the ship should be entitled to all the privileges of the American flag, and in order to be entitled to these privileges, she should have had a passport. But it is not necessaryd, in order to satisfy a warranty of neutrality, that the vessel should be navigated in conformity to an ex parte ordinance made by one of the belligerent states, and to which the neutral state is not a party. A neutral ship may carry enemy's property from its own to the enemy's country, without being guilty of a breach of neutrality; provided that neither the voyage or commerce be of a hostile description, nor otherwise expressly or impliedly forbidden by the law of this country; although such ship, in consequence of carrying enemy's property, be liable to detention or to be carried into British ports for the purpose of search. The evidence usually adduced to falsify this warranty, or to prove a breach or forfeiture of neutrality, which amounts to a breach or forfeiture of the warranty, is the judgment or sentence of a court of admiralty, or other court having jurisdiction in questions of prize, by which the ship or goods insured, and warranted neutral property, have been condemned as prize. Since the judgment of the House of Lords in Lothian v. Hendersong, it may be assumed as the settled doctrine of a court of English law, that all sentences of foreign courts of competent jurisdiction to decide questions of prize, are to be received here as conclusive evidence in actions upon policies of insurance, upon every subject immediately and properly within the jurisdiction of such foreign courts, and upon which they have professed to decide judicially. c Rich v. Parker, 7 T. R. 705. See d Mayne v. Walter, Park, 531. S. C. f Marsh. 288. g Bos. & Pul. 499. per Ellenbo⚫ rough, C. J. delivering the opinion of the court in Bolton v. Gladstone, 5 East, 155. and per Sir J. Mansfield, C. J. in Siffken v. Lee, 2 N. R. 489. Consequently, where such sentences are given in evidence, and it appears that they proceed on a ground which falsifies the warranty of neutrality, the assured will thereby be prevented from recovering. In one case, indeed, where a ship was condemned as lawful prize in a foreign court of admiralty, and it was not stated in the sentence upon what ground the condemnation proceeded, it was holden, that a sentence of condemnation, as lawful prize, afforded a presumption that the goods were enemy's property, unless the contrary appeared on the sentence. In Baring v. Clagett, 3 Bos. and Pul. 201, the court being of opinion that the sentence of condemnation proceeded either on the ground of the ship not being neutral property, or on the ground that she was not properly documented, so as to entitle herself to the privileges of a neutral, adjudged the sentence to be conclusive evidence against a warranty of neutrality. Whether the foreign sentence profess distinctly and directly to condemn the ship, on the ground of its being enemies' property, or whether it can be collected only from other parts of the proceedings, that such was the ground of decision, our courts are equally bound by the sentence; and this rule holds, although it appears on the face of the sentence, that the prize-court arrived at the conclusion through the medium of rules of evidence, and rules of presumption, established only by the particular ordinances of their own country, and not admissible on general principles. In short, wherever the foreign courts adjudge the vessel to be good prize, upon a ground within their jurisdiction, and such ground falsifies the warranty, our courts will, by the comity of nations, which has always prevailed among civilized states, give credit to and consider themselves as bound by their adjudication, without examining the reasons by which the foreign courts have arrived at their conclusion (49). Hence, as foreign courts of admiralty may decide h Saloucci v. Woodmass, Park, 362. i Bolton v. Gladstone, 5 East, 155. 3 Doug. 345. S. C. k Bolton v. Gladstone, 2 Taunt. 85. (49) "A warranty of neutrality must, I conceive, now be understood, as containing in itself (among other things) a stipulation that the contract of assurance shall be void, if the subject-matter warranted neutral be condemned as enemies' property; and, if a warranty of neutrality contains this stipulation, the sentence of a court of competent jurisdiction, condemning a ship on account of its want of neutrality, is the proper evidence, according to every principle and rule of our law, to determine that fact." Per Lawrence, J. in Lothian v. Henderson, 3 Bos. and Pul. 524. on the construction of treatiesk if they expressly adjudge a ship to be lawful prize for a breach of treaty, such sentence is conclusive in our courts against a warranty of neutrality, although, in this sentence, the foreign court may have referred to ex parte ordinances, and drawn inferences from such ordinances, in order to show an infraction of treaty. The sentence is equally to be regarded, as evidence of the facts inducing the condemnation, and upon which the condemnation proceeds, as of the judicial act of condemnation. In the case of an insurance upon ship, goods, and freight, all belonging to nearly the same American proprietors, which, as it appeared by the sentence, had been condemned on account of the common default of all the proprietors, in their joint character of ship owners, in not having a regular passport on board, as required by the treaty of their own state with France: it was holden, that the assured could not claim from the underwriter an indemnity for a loss thus occasioned by themselves; although the ship was not warranted or represented to be an American; for the ship owner is bound to have such documents as are required by treaties with particular nations on board, to evince his neutrality in respect to such nations. By the sentence of a French court of admiralty it appeared, that the ship insured,, "warranted American," had been condemned as enemy's property, for want of having on board a role d'equipage, or list of the crew, such as was required by a marine ordinance of France, and adjudged by the court there to be requisite within the meaning of the treaty of commerce between France and America, it was holden to be conclusive evidence against the warranty of neutrality, though, in fact, the ship was American. So where the sentence states, that the ship was condemned on the ground of having violated her neutrality", and acted contrary to the law of nations and the faith of treaties, such sentence is conclusive evidence against the warranty of neutrality. But where the grounds of confiscation are stated obscurely, and the court cannot collect what the precise ground was ; or where the sentence adjudges the ship to be lawful prize, not because it is enemies' property, but for reasons which lead to a contrary conclusion P; or if it appear, that the condemnation proceeded solely on the ground of the ship having violated an ex parte ordinance, to which the neutral k Baring v. Royal Exch. Ass. Comp. o Bernardi v. Motteux, Doug. 574. 5 East, 99. 1 Bell v. Carstairs, 14 East, 374. m Geyer v. Aguilar, 7 T. R. 681. n Garrels v. Kensington, 8 T. R. 230. Fisher v. Ogle, 1 Campb. 418. p Calvert v. Bovil, 7 T. R. 523. recognized by Tindal, C. J. delivering judgment, Dalgleish v. Hodgson, 7 Bingh. 504. |