tract. In the case of the warranty, however, compliance must be "absolute and literal" or the policy becomes void from the moment of non-compliance, while as regards a representation, "equitable and substantial fulfilment" is sufficient. In other words, a warranty is either, as Arnold defines it, "A stipulation inserted in writing (or printed) on the face of the policy, on the literal truth or fulfilment of which the validity depends," or else is, as Gow expresses it, "A fundamental and essential factor or condition inherent in each and every contract of marine insurance, without exceptions." A representation, on the other hand, is a statement in the policy less formal and severe than the warranty. The most important thing connected with the representation is the determination of whether or not it is a material statement, i.e., whether or not it has been one of the causes which led the underwriter to accept the risk, or influenced him in fixing the premium. The term "warranty" as used to-day may have two different meanings. In the first place, there is the strict meaning of the term as exemplified by the definitions cited by Arnold and Gow. Among the warranties coming under this meaning may be mentioned certain "implied warranties," to be described presently; or those which oblige the vessel if trading to certain places, to sail within the time prescribed by specified dates; or which prohibit the vessel from carrying certain articles, like combustible or injurious chemicals, or from taking a certain route, or from trading in certain prohibited areas; or which forbid loading the vessel beyond a certain limit with specified articles. On the other hand, the term "warranty" is often spoken of as referring to statements which are opposed to the usual provisions of the pol 'Arnold, "Treatise on the Law of Marine Insurance and Average," p. 625. 2 William Gow, "Marine Insurance," p. 260. icy, and which aim to relieve the company from certain losses for which it would otherwise be liable. Among such statements, commonly found in marine policies, are those freeing the underwriter from loss on account of capture, seizure, or detention by any power or persons, or loss arising from abandonment under certain conditions, or in consequence of the jettison of certain articles, and a host of similar provisions (often including the memorandum and the "free from particular average" clause) too numerous to permit of mention here. Such provisions are frequently introduced by the words "warranted free from," and have consequently acquired the name "warranties," a practice, no doubt, favored by underwriters, because the term "warranty," if applied to statements favorable to the insurer would, owing to the strict interpretation attached to the term, be more apt to render their fulfilment certain by the insured. Viewing warranties from another standpoint, they may be either "expressed" or "implied," according as they are written or printed on the face of the policy, or are of such fundamental importance that their application is universally acknowledged in marine insurance without appearing in the policy. "Expressed" warranties need claim but little of our attention, since the warranties cited above belong to this class. But when we consider "implied" warranties we reach a subject which underlies and vitally affects every contract of marine insurance. In fact, the conditions of these "implied" warranties must be present in every risk before any policy can be legally enforced, and non-compliance with any of their provisions will render the policy null and void. Briefly stated, implied warranties are three in number and provide: 1. That the vessel must be seaworthy in all respects for the intended voyage at the time of starting. This implies that the vessel must be in proper condition as regards the hull, machinery, rigging, the supply of fuel and provisions, the size and stowage of the cargo, the efficiency and sufficiency of the crew, and in all other particulars which, in view of the ordinary perils apt to be encountered, are essential in successfully prosecuting the voyage and carrying the cargo described in the policy. If the voyage is to be divided into several separate stages, this warranty applies at the beginning of each stage. Moreover, when a different equipment is necessary, where, for example, part of the voyage is by river and part by sea, the warranty is nevertheless applicable as regards each stage. 2. That the vessel will proceed in the usual way, directly and without deviation or unnecessary delay, from the port of departure to the port of destination. Only where deviation is permitted or required by the policy, or made necessary by overpowering circumstances or the desire to protect human life, or aid in saving a vessel in distress or the subject matter insured, or where non-compliance is due to barratry of the master and mariners, and this is covered by the policy, is there a justifiable excuse for failure to observe this warranty. And where any deviation has occurred and the cause has disappeared, it is essential that the vessel should without undue delay resume the voyage. Failure to do so will be construed as another deviation, and will nullify the policy. 3. That the adventure shall be legal in all particulars. This implies that the vessel will conform with all legal requirements regarding her papers, and will refrain from engaging in any unlawful trade. All these implied warranties will appear just upon reflection, and the public interest demands that they should be observed. Yet, despite their importance, it is only in recent years that they have been given full effect. The original bills of lading used in shipping cargoes did not exempt the carrier from responsibility for loss or damage unless resulting from unavoidable causes. From time to time, how ever, this responsibility of the carrier was limited through the insertion of stipulations in bills of lading providing against responsibility for loss resulting from the unseaworthiness of the vessel, negligence of master or crew, and other avoidable causes. As the decisions of the courts subjected the carrier from time to time to new liabilities, additional clauses were introduced into the bills of lading to obviate these decisions. As a consequence, the responsibility of vessel owners was reduced to a minimum, and conditions remained in this shape until the year 1893, when Congress passed the so-called Harter act. This act nullified every agreement seeking to relieve the carrier from responsibility for the loss caused by negligence or failure in properly loading and caring for the freight, and at the same time provided that if the ship owner should render the vessel seaworthy in all respects, no responsibility was to attach to any loss which arose from error in navigating or managing the same. |