Every fact and circumstance relating to the contract of insurance must be stated with the most scrupulous regard to truth. The voyage insured must, therefore, be truly and accurately described in the policy ; namely, the time and place at which the risk is to begin, the place of the ship's departure, the place of her destination, and the time when the risk shall end ; whether on goods or on the ship. If a blank be left for the place either of the ship's departure or destina tion, the policy will be void for the un certainty.
A warranty is a stipulation or agree ment on the part of the insured, in nature of a -condition precedent, or thing abso lutely and strictly to be performed, as the very basis of the contract ; as that the thinginsured is neutral property ; that the ship is of such a force, that she sailed, or was well on such a day, fac.; or as that a ship shall sail on or before some given day ; that she shall depart with convoy ; that she shall be manned with such a complement of men, &c. These warran ties are either expressed or implied.
An implied warranty is that which reasonably results from the nature of the contract, as that the ship shall be sea worthy when she sails on the voyage in sured, that the voyage is lawful, and shall be performed according to law, and in the usual course, and without deviation.
There are five things essential to a sailing with convoy : 1. It must be with the regular convoy appointed by govern ment. 2. It must be from the place of rendezvous appointed by government.
3. It must be a convoy for the voyage.
4. The ship insured must have sailing in structions. 5. She must depart and con: tinue with the convoy till the end of the voyage, unless separated by necessity.
Neutral property, in the sense of which that expression must be understood in this warranty, is that which belongs to the subjects of a state in amity with the belligerent powers. The documents re quisite for neutral ships are : 1.The pass port. 2. The sea-letter, or sea-brief. 3. The proofs of property, which ought to show that the ship really belongs to the subjects of a neutral state. 4. The muster-roll. 5. The charter-party. 6. The bill of lading. 7. The invoices. 8. The log-book, or ship's journal. 9. The bill of health. But though the want of some of these papers may be taken as strong presumptive evidence, yet it is not conclusive evidence against the ship's neutrality.
Representatione. A representation in an insurance is denoted to be a collateral statement, either by word of mouth, or in writing, of such facts or circumstances relative to the proposed adventure, and not inserted in the policy, as are neces sary for the information of the insurer, to enable him to form a just estimate of the risk.
A misrepresentation in a material point avoids the contract ; and the insured can not recover on the policy for loss arising from a cause unconnected with the fact misrepresented. So if it be made with out knowing whether it be true or false, or even if the person making it believe it to be true; but if he only give it as his belief, without knowing the contrary, it will not affect the contract. Conceal ment consists in a fraudulent suppression of any fact or circumstance material to the risk. This, like every other fraud, avoids the contract ab initio, upon princi ples of natural justice. But it is not merely on the ground of fraud that a con cealment avoids the contract ; even an innocent concealment of material facts will avoid the policy.
&a-worthiness. In every insurance, whether of ship or goods, there is an im plied warranty of the sea-worthiness of the ship, that is to say, that she shall be tight, staunch, and strong, properly manned, and provided with all necessary stores, and in every other respect fit for the voyage.
Deviation, is a voluntary departure, without reasonable cause, from the regu lar course of the voyage insured. From the moment this happens the contract becomes void. The course of the voyage does not mean the nearest possible way, but the usual and regular course. Ac cordingly, stopping at certain places on the voyage is no deviation, if it be cus tomary so to do ; but such usage can only be supported by long and regular practice.
Loss, is either total or partial. The term total loss means not only the total destruction of, but also such damage to the thing insured, as renders it of little or no value to the insured, although it may specifically remain. Thus, a loss is said to be total, if, in consequence of the misfortune that has happened, the voyage be lost or not worth pursuing, and the projected adventure frustrated; or if the value of what is saved be less than the freight, &c. A partial loss is any thing short of a total loss; such losses are some times styled average losses. Losses by perils of the sea are generally understood to be such accidents or misfortunes as proceed from sea damage ; that is to say, such as arise from stress of weather, winds, waves, lightning, tempests, rocks, sands, &c.