Form and construction of. detail which would constitute a breach of the contract of neutrality, as they must necessarily depend upon the law of nations, and the particular treaties of states. (1) If a loss arise from an act of the belligerent states which is against the law of nations or the treaty with the neutral state, the insurer will be liable; and therefore an assured upon an American ship and cargo, provided with such a passport as was required by the treaty between America and France, and with all other usual American papers and documents, was held entitled to recover against an underwriter of a policy on such ship and goods in the case of a capture by a French privateer, notwithstanding a sentence of condemnation of the same as lawful prize by a French court of admiralty, such sentence proceeding on the ground of a breach of French ordinances requiring certain particulars to be observed in respect of the ship documents beyond what was necessary by the treaty. (2) It is sufficient if the warranty be true when made. The risk of future war is undertaken by the insurer in every policy. The warranty is, that things shall stand so at the time, not that they shall continue so. If goods be insured from A. to B. in a neutral ship, it is sufficient to charge the underwriters that the ship was neutral when she sailed, though hostilities commence during her voyage (3). Two neutral Prussians, one of them resident in England and the other at Koningsberg, having licence to export to all Baltic ports, some whereof were hostile, are not precluded from recovering on an insurance of goods exported and confiscated by an act of the Prussian government then neutral. (4) If a ship be not expressly warranted of any particular country, it should seem there is an implied warranty in a policy of insurance that she shall be properly owned, navigated, and documented according to the laws of that country and her particular treaties with foreign states (5). If a neutral American ship, insured here, be captured by a French ship, and condemned in Form and cona French court as prize, upon the express ground stated in the struction of, sentence of condemnation (which is evidence for this purpose), that the ship was not properly documented according to the existing treaty between France and the United States of America (conjointly with the suppression of papers by the captain after the capture, on which no opinion was given by the court), the neutral assured cannot recover their loss against the British underwriter, although there was no warranty or representation that the ship was American; the neglect of the shipowners themselves, who are bound at their peril to provide proper national documents for their ship, being in such a case the efficient cause of the loss. Neither can the agent of the assured, some of whom were also interested in the cargo as well as the ship, recover for the loss of the cargo insured, which was also condemned at the same time and for the same reason, such assured of the goods being implicated in the same neglect in their character of shipowners. But it is otherwise in the case of a mere assured of goods, who is not answerable for the proper documenting of the ship, without a warranty or representation of her national character. (1) decisions of A sentence of a foreign court of prize lawfully constituted How far the is conclusive evidence in an action upon a policy of insurance, foreign prize upon every matter within the jurisdiction of such court upondence to falsify which it has professed to decide, though the decision may be the contract of unjust and incorrect (3), provided the incorrectness of the de- neutrality. (2) cision does not appear on the face of the sentence (4); and no evidence can be received to falsify the facts affirmed by such sentence, nor to shew that the conclusion was unfounded, although the sentence proceeded to refer to certain ordinances or documents containing rules to direct the judgment of its courts in the consideration of the question, by which rules the prize court appeared to have regulated their judgment in the conclusion they had drawn (5); and the sentence of condemnation will be conclusive proof of the condemnation, though the ground of the sentence do not appear on the face of it (6). It should seem that struction of. Form and con- the sentence of a prize court, sitting under a commission from a belligerent within a neutral state, would, if acquiesced in by the neutral, be conclusive upon the parties (1); but a sentence of a foreign court of admiralty is only conclusive here in an action on a policy of insurance as to the express ground of the sentence, but not as to any of the premises (noticed in the consideratory part of the sentence) that led to the adjudication (2). And the sentence of a foreign prize court is not evidence of facts which can be collected from it merely by indirect inference (3); neither is it conclusive evidence if the sentence state the special grounds of the sentence, and such special grounds do not necessarily lead to such conclusion; and it will not be conclusive if it be ambiguous and undecisive (4). And a warranty of neutrality is not falsified by a sentence of a foreign court of admiralty condemning a ship for navigating contrary to the ordinances of that belligerent state, to which the neutral country had not assented (5). Where the assured agreed to produce proof of the ship's being neutral, &c. and on the trial in an action on the policy did do so, it was held that the insurers were liable, notwithstanding they produced a French sentence of condemnation to falsify the warranty (6). The mere representation of neutrality is not falsified by the sentence of a prize court. (7) 4.The name, &c. of the ship and master. The name of the ship, and the place where it lies, and the name of the master of the ship, should be accurately described. A misdescription in the name of the ship or in its qualities will frequently be fatal, for as all ships are not all of equal strength and goodness, nor equally capable of performing any particular voyage, the insurer would be unable to form a just judgment of the risk unless he were informed of the name and description of the vessel. This being inserted in the policy, it becomes a part of the contract that the adventure shall be on board the very ship specified, and no other; nor can any other vessel be substituted for it, unless through necessity, or with the consent of the insurer. To avoid any inconvenience which may arise from (1) 4 Esp. 25. 27. S. P. con. 1 Campb. 429.; and see 8 T. R. 230. 268. 270. 274. 1 Rob. A. R. 135. 139. 140. 144. 2 Rob. 210. n. S. C. 2 East, 477. 2 Rob. 209. (2) 8 T. R. 192. (3) I Campb.418. S. P. Dougl. (6) 3 Bos. & Pul. 499. an accidental mistake in the name of the ship, it is usual to add Form and conin the policy to the name given, these words, "or by whatever struction of, name or names the same ship should be called," in which case, although it appear that the real name of the ship was different from that inserted in the policy, yet if the identity of the ship can be proved, and it does not appear that the underwriter will sustain any prejudice, the variance will be held immaterial (1). Where there is a policy on goods to be thereafter declared by ship or ships, if the broker by mistake makes a written declaration on goods by a wrong ship, to which the underwriters put their initials, he may afterwards, in compliance with the orders of the assured, declare upon goods by another ship without the assent of the underwriters, and without a new stamp (2). Insuring a vessel in an English name is no warranty that she is English. (3) The name of the place where the ship is lying at the time of entering into the policy should be described accurately. A policy on a vessel during one month remaining in Portsmouth harbour "securely moored," is not vacated by the vessel's changing her mooring within the same harbour. (4) The name of the master should also be specified, because his character and ability are frequently material subjects of consideration in estimating the risk. If the name of the master stood alone in the policy, without any clause to enable the insured to employ another in his place, it would be a part of the contract that he and no other be substituted in his place, unless in a case of necessity, or by consent of the insurer: to obviate the difficulties that must arise from this, the following words are always added in our policies, or whosoever else should go for master in the said ship; but though this clause enables the owner to change the master when he sees occasion to do so, yet he ought not to do this wantonly or unnecessarily, much less ought he to name one person when he means to employ another, for this could only be done for the purpose of deceiving the underwriters, and would of itself be strong evidence of fraud. (1) 6 East, 385. 382. (3) 3 Campb. 382. 6 East, (2) 3 Campb. 158. 1 M. & S. 382. Form and construction of. 5. The losses which the insurers insure. The policy next proceeds to state the different perils insured against. The various perils against which the insured means to and risks against be protected must be distinctly enumerated in the policy. This part of the policy is so full, that scarcely any loss that is lawful to insure against can be considered as omitted. In our common policies, they are set forth in the following words: "touching the adventures and perils which we the insurers are content to bear, and do take upon us in this voyage, they are of the seas, men of war, enemies, pirates, rovers, thieves, jettisons, letters of marque, reprisals, takings at sea, arrests, restraints, and detainments of all kings, princes, and people, of what nation, condition, or quality whatsoever, barratry of the master and mariners, fire, and all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the said goods and merchandizes, and ship, &c., or any part thereof." Under the words, and of all other perils, losses, and misfortunes that have or shall come to the hurt, &c., every species of risk to which ship and goods are exposed from the perils of sea voyages is embraced. This general contract is however qualified, as we shall hereafter see, by the usual printed memorandum, which will presently be considered in the natural order of the instrument. In most policies are inserted the words "lost or not lost," by which the insurer not only takes upon himself the risk of future loss, but also the loss of any that may already have happened (1). We shall consider the subject of losses within the meaning of the policy in the following order; 1st, by perils of the sea; 2d, by capture; 3d, by jettison; 4th, by arrests, &c.; 5th, by barratry; 6th, by fire; 7th, by other losses. Loss by perils of the sea. 1st, By perils of the sea. Losses by perils of the sea are understood to mean only such as proceed from mere sca damage (2), that is, such as arise from stress of weather, winds, and waves, from lightning and tempests, from striking against rocks, sands, &c., and in these cases the underwriters are liable, if the loss arises immediately from such perils of the sea, though remotely from the negligence of the master or mariners (3). A loss occasioned by another ship running down the ship insured through gross negligence (4), or by misfortune (5), is a loss by perils of the sea; a vessel wrecked by the barratry of the (1) Marsh. 237. (2) Marsh. 416. (3) 5 Barn. & Ald. 171. 2 B. & A. 73. (4) 4 Taunt. 126. See 5 Barn. & Ald. 171. (5) 3 Esp. 67. |