Warranty of sea SECTION 2685. Different degrees of seaworthiness at different stages of the voyage. 2686. Unseaworthiness during the voyage. 2687. Seaworthiness for purposes of insurance on cargo. 2688. Neutral papers. 2681. In every marine insurance upon ship or worthiness. 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. Seaworthiness, what. At what time sea NOTE." Belonging to the shipowner." By the former law this warranty was implied in every case.— See Knill vs. Hooper, 2 H. & N., p. 277. But this is not founded upon reason. Insurers know the quality of vessels much better than shippers. "Unless made for a specified length of time."—Fawcus vs. Sarsfield, 6 El. & Bl., p. 192; Thompson vs. Hopper, id., p. 172; see Gibson vs. Small, 4 H. of L. Cas., p. 353; Jenkins vs. Heycock, 8 Moore P. C., p. 351; Biccard vs. Shepherd, 14 Moore P. C., p. 493; Hathaway vs. Sun Mut. Ins. Co., 8 Bosw., p. 33. "That the ship shall be seaworthy." No such warranty is implied as to cargo.Koebel vs. Saunders, 17 C. B. (N. S.), p. 71. And if the insurer knows the ship to be unseaworthy, the warranty does not apply.-Burges vs. Wickham, 3 Best & Sm., p. 669. 2682. A ship is seaworthy, when reasonably fit to perform the services, and to encounter the ordinary perils of the voyage, contemplated by the parties to the policy. NOTE.-See McLanahan vs. Universal Ins. Co., 1 Pet., p. 179; compare Marcy vs. Sun Mut. Ins. Co., 11 La. Ann., p. 748. 2683. An implied warranty of seaworthiness is worthiness complied with if the ship is seaworthy at the time of the commencement of the risk. must exist. NOTE.-See cases cited in note to preceding section; also, American Ins. Co. vs. Ogden (Ct. of Errors) 20 Wend., p. 287; Biccard vs. Shepherd, 14 Moore P. C., p. 471; Treadwell vs. Union Ins. Co., 6 Cow., p. 270; Hathaway vs. Sun Mut. Ins. Co., 8 Bosw., p. 33; and see 2 Pars. Mar. L., p. 134. things are required to constitute ness. 2684. A warranty of seaworthiness extends not What only to the condition of the structure of the ship itself, but requires that it be properly laden, and provided seaworthiwith a competent master, a sufficient number of competent officers and seamen, 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. NOTE.-"Properly laden."-Weir vs. Aberdeen, 2 B. vs. Ocean Ins. Co., 16 Pick., p. 303. "Cables and an- degrees of ness at stages of 2685. Where different portions of the voyage con- Different templated by a policy differ in respect to the things seaworthirequisite to make the ship seaworthy therefor, a war- different ranty of seaworthiness is complied with if, at the com- the voyage. mencement of each portion, the ship is seaworthy with reference to that portion. NOTE.-Biccard vs. Shepherd, 14 Moore P. C., p. 471; Bouillon vs. Lupton, 15 C. B. (N. S.), p. 113; Dixon vs. Sadler, 5 M. & W., pp. 405, 414. worthiness 2686. When a ship becomes unseaworthy during Unseathe voyage to which an insurance relates, an unrea- during the sonable delay in repairing the defect exonerates the insurer from liability from any loss arising therefrom. NOTE. This seems to be the law of New York.American Ins. Co. vs. Ogden, 20 Wend., p. 287. As to the law elsewhere, see 2 Pars. Mart. Law, p. 140. It is certainly no more than a just rule. voyage. Seaworthiness for 2687. A ship which is seaworthy for the purpose purposes of of an insurance upon the ship may, nevertheless, by insurance on cargo. Neutral papers. reason of being unfitted to receive the cargo, be unseaworthy for the purpose of insurance upon the cargo. NOTE.-1 Phil. Ins., Sec. 723; see, also, 2 Pars. Mart. Law, p. 145; see notes to Secs. 2681 and 2684. 2688. Where the nationality or neutrality of a 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. NOTE. "Neutrality of the ship."-Coolidge vs. N. Y. Firemen's Ins. C., 14 Johns., p. 308; Blagge vs. N. Y. Ins. Co., 1 Caines, pp. 549, 564. These cases seem to require documents to show such nationality or neutrality. "Of the cargo."-Barker vs. Phoenix Ins. Co., 8 Johns., pp. 307, 319. "Documents casting suspicion thereon."-Blagge vs. N. Y. Ins. Co., 1 Caines, p. 549. See, particularly, note to Sec. 2669. Voyage insured, how determined. Course of sailing. how determined. ARTICLE VI. THE VOYAGE AND DEVIATION. SECTION 2692. Voyage insured, how determined. 2694. Deviation, what. 2695. When proper. 2696. When improper. 2697. Deviation exonerates the insurer. 2692. When the voyage contemplated by a policy is described by the places of beginning and ending, the voyage insured is one which conforms to the course of sailing fixed by mercantile usage between those places. NOTE.-Brazier vs. Clapp, 5 Mass., p. 1; Phyn vs. Royal Ex. Ass. Co., 7 T. R., p. 505. 2693. If the course of sailing is not fixed by 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. NOTE.-Martin vs. Del. Ins. Co., 2 Wash. C. C., p. 254; Brown vs. Tayleur, 4 Ad. & El., p. 241; 2 Pars. what. 2694. Deviation is a departure from the course of Deviation, the voyage insured, mentioned in the last two sections, or an unreasonable delay in pursuing the voyage, or the commencement of an entirely different voyage. NOTE.-Brown vs. Tayleur, 4 Ad. & El., p. 241; Hamilton vs. Sheddon, 3 M. & W., p. 49. 2695. A deviation is proper: proper. 1. When caused by circumstances over which nei- When ther the master nor the owner of the ship has any control; 2. When necessary to comply with a warranty, or to avoid a peril, whether insured against or not; 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. NOTE.-3 Kent Com., p. 323. Subd. 1.-Such as the winds and waves, pirates, enemies, disabling of the crew, etc. Subd. 2.-Bouillon vs. Lupton, 15 C. B. (N. S.), p. 113; see Robinson vs. Marine Ins. Co., 2 Johns., p. 89; Riggin vs. Potapsco Ins. Co., 7 Harr. & J., p. 279; Scott vs. Thompson, 1 B. & Pul. N. R., p. 181; but compare O'Reilley vs. Royal Exch. Ass. Co., 4 Camp., p. 246. Subd. 3.-Reade vs. Commercial Ins. Co., 3 Johns., p. 352; Graham vs. the same, 11 id., p. 352; Patrick vs. Ludlow, 3 Johns. Cas., p. 10; see Bouillon vs. Lupton, 15 C. B. (N. S.), p. 113. Subd. 4.-3 Kent Com., p. 323; Perkins vs. Augusta Ins. Co., 10 Gray, p. 312; Settle vs. St. Louis Ins. Co., 7 Mo., p. 379; The Boston, 1 Sumn., p. 328; see Lawrence vs. Lydebotham, 6 East, p. 45. 2696. Every deviation not specified in the last When improper. section is improper. Deviation exonerates 2697. An insurer is not liable for any loss hap the insurer. pening to a thing insured subsequently to an improper deviation. NOTE.-Stevens vs. Commercial Mut. Ins. Co., 26 N. Y., p. 397; Elliott vs. Wilson, 7 Bro. P. C., p. 459. Total and partial loss. Partial loss ARTICLE VII. LOSS. SECTION 2701. Total and partial loss. 2702. Partial loss. 2703. Actual and constructive total loss. 2704. Actual total loss, what. 2705. Constructive total loss. 2706. Presumed actual loss. 2707. Insurance on cargo, etc., when voyage is broken up. 2708. Cost of reshipment, etc. 2709. When insured is entitled to payment. 2710. Abandonment of goods on insurance of profits. 2712. Insurance against total loss. 2701. A loss may be either total or partial. NOTE.-See Sec. 2626, ante, and note, where the subject of loss is treated at some length. We will here add, from Marshall's Marine Insurance, p. 373 (5 ed., 1865), Chap. 12: "A loss in insurance is the injury or damage sustained by the insured, in consequence of the happening of one or more of the accidents or misfortunes against which the insurer, in consideration of the premium, has unertaken to indemnify him." This is the usual definition. "Every loss is either total or partial. The term total loss is understood in two different senses-natural and legal."-Id., p. 373. “A partial loss is any loss or damage short of or not amounting to a total loss, in whole or in part, of the thing insured."-Id., p. 374. See Secs. 2762, 2763, and 2764, post. 2702. Every loss which is not total is partial. NOTE.-Bouvier's Law. Dict., Loss; see instances of partial loss given, p. 374, Marsh. Mar. Ins. "Thus if a ship insured for a given voyage arrive at her port of destination and there remains twenty-four hours moored in safety, or if she be insured for a term and survive it, any injury which she may have sustained during the voyage |