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struction should always be refused; and such a ruling can never become a good cause for reversing the judgment. It is clearly error in a court, said Taney, U.J., to charge a jury upon a supposed or conjectural state of facts, of which no evidence has been offered, as the instruction presupposes that there is some evidence before the jury which they may think sufficient to establish the fact hypothetically assumed in that way by the court, and if there is no evidence which they have a right to consider, then the charge does not aid them in coming to a correct conclusion, but its tendency is to embarrass and mislead them, as it may induce them to indulge in conjectures instead of weighing the testimony: (U. S. v. Breitling, 20 How. 254). When a prayer for instruction is presented to the court, and there is no evidence upon the subject in the case for the consideration of the jury, it ought always to be withheld, and if it is given under such circumstances, it will, as a general rule, be regarded as error in the court, for the reason that its tendency may be, and often is, to mislead the jury, by withdrawing their attention from the legitimate points of inquiry involved in the issue: (Goodman v. Simond, 20 How., p. 359.)

Attempt is made in argument to maintain that the plaintiffs had no insurable interest in the barque unless it be assumed that it was created by a bottomry bond, but the court is entirely of a different opinion, as it is alleged in the declaration that the advances were made to equip the vessel and to procure for her a cargo in the voyage from a foreign port to the port of destination. Founded as the declaration is upon the policy of insurance it must be construed in connection with the policy.

By the terms of the policy the insurance is upon the barque, her tackle and apparel, which is the proper language to be employed in a case where the assured had an interest in the vessel. Advances made on the credit of a ship for necessary repairs or supplies in a foreign port create a maritime lien upon the ship, and it is well settled law that a maritime lien is a jus in re, and that it constitutes an incumbrance on the property of the ship which is not divested by the death or insolvency of the owner: (The Young Mechanic, 2 Curt. 404; s. c., Ware Adm. R. 535; 1 Pars. M. Law, 489; 3 Kent, Com. 170, 11th edit.; General Smith, 4 Wheat. 438.) Such a lien may be enforced by a process in rem, which is founded on a right in the thing, the object of the process being to obtain the thing itself, or a satisfaction out of it, for some claim resting on a real or quasi proprietary right in the thing: (The Commerce, Bl. 580; Buck et al. v. Ins. Co., 1 Pet. 165; The Maggie Hammond, 9 Wall. 456.) Liens of the kind constitute an insurable interest, and it is quite clear that enough is alleged in the declaration to warrant the conclusion that the advances made in this case are properly to be regarded as constituting a maritime lien upon the barque: (Seamans v. Loring, 1 Mas. 127; 1 Phil. on Ins., 5th edit., 8. 204; Hancock v. Ins. Co., 3 Sumn. 132).

Contracts for repairs and supplies may be made by the master to enable the vessel to proceed on her voyage, and if it appears that they were necessary for the purpose, and that they were made and furnished to a foreign vessel or to a vessel of the United States in a port other than a port of the State to which the vessel belongs, the primâ facie

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presumption is that the repairs and supplies were made and furnished on the credit of the vessel, unless it appears that the master had funds in hand or at his command which he ought to have applied to the accomplishment of those objects, and that the material men knew that fact or that such facts and circumstances were known to them as were sufficient to put them upon inquiry and to show that if they had used due diligence in that behalf they might have ascertained that the master had no authority to contract for such repairs and supplies on the credit of the vessel: (The Lulu, 10 Wall. 197; The Patapsco 13 Wall. 333; 2 Pars. on Ship. 322 to 337).

Whenever the necessity for the repairs and supplies is once made out, it is incumbent upon the owners, if they allege that the funds could have been obtained upon their personal credit, to establish that fact by competent proof, and that the material men knew the same or were put upon inquiry, as before explained, unless those matters fully appear in the evidence introduced by the other party: (The Grapeshot, 9 Wall. 141; Thomas v. Osborn, 19 How. 22).

Apply those principles to the case, and it is clear that the objection that the plaintiffs had no insurable interest in the barque utterly fails, and it is not controverted that the advances were made to equip the vessel and to procure a cargo for her in the described voyage; and it is sufficient that such an allegation affords a primâ facie presumption that the advances were made on the credit of the vessel, as the record fails to disclose any fact or circumstance to overcome that presumption. Such advances constitute a lien upon the ship, and such a lien gives the lender an insurable interest in the ship: (Seamans v. Loring, 1 Mas. 127; 1 Phil, on Insurance, 5th edit., sect. 204 Godin v. Insurance Company, 1 Burr 499; Lucena v. Craufurd, 5 Bos. & P. 294; Wells v. Ins. Co., 9 S. & R. 103).

Absolutely nothing appears in the record to support the theory that any such defences as those assumed in the prayers for instruction were in fact set up by the defendants in the subordinate court, except what is contained in the prayers for instruction presented to the court. They pleaded a general denial of the allegations of the declaration, and that the barque was unseaworthy at the inception of the risk and throughout the voyage, but no mention is made of any such defences as those implied in the prayers for instruction in any other part of the record, nor is there any evidence whatever upon the subject. Defences in avoidance of the claim made in the declaration must be proved in the court of original jurisdiction, and if not proved there they cannot be successfully set up in the appellate court to support an assignment of error. Other matters were discussed at the bar, but it is not necessary to examine any other of the propositions submitted, as these suggestions are sufficient to dispose of the case.

Judgment affirmed.

COURT OF COMMON PLEAS. Reported by ETHERINGTON SMITH and J. M. LELY, Esqrs., Barristers-at-Law.

April 29 and Nov. 2, 1874.

DANIELS v. HARRIS.

Marine insurance-Policy on cargo-Extent of implied warranty of seaworthiness-Deck cargoJettison to save ship-Risk to ship and cargo on an ordinary voyage.

The warranty of seaworthiness implied in a policy of marine insurance is to be considered with reference to each subject matter of insurance, and the ship can only be said to be seaworthy for the purposes of that warranty if it is seaworthy in respect of that subject-matter."

In a policy on cargo, the implied warranty that the ship is seaworthy, cannot be considered to contemplate the destruction, in order to save the ship on an ordinary voyage, of that very cargo which is the subject-matter of insurance. Where a policy is effected on deck cargo, it is not a compliance with the warranty of seaworthiness that the ship can, without danger to herself, should she encounter ordinary rough weather, be made seaworthy by the jettison of the deck cargo, which is the subject-matter of the insurance. Semble, that if the policy had been on the ship and under-deck cargo, and not on the deck cargo, the implied warranty of seaworthiness would have been satisfied by the safety of the ship and underdeck cargo, and would not have been affected by the peril to or loss of the deck cargo, provided that the latter, by reason of the facility with which it could have been got rid of, would have caused no danger to the ship, or subject-matter of insurance. THIS was an action on a policy of insurance upon wine shipped on board the steamer Murillo, from San Lucar to London, and was tried before Brett, J., at the Guildhall.

The plaintiffs obtained the verdict, and a rule nisi was granted for a new trial, on the ground of misdirection, and also that the verdict was against the weight of evidence. The misdirection com. plained of was with reference to the meaning of seaworthiness.

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One of the questions left to the jury was, was the ship unseaworthy on leaving San Lucar? and the explanation the learned judge gave was to this effect that although a deck cargo which could not be got rid of might render a ship unseaworthy, yet the jury might take into account the facility that existed of getting rid of wine by staving in the casks.

The facts, which are fully stated in the judg. ment of the court, were shortly, that the ship sailed from San Lucar in the month of February, having a considerable number of casks of wine stored on deck, and on encountering weather worse than the ordinary rough weather of that time of year in the Bay of Biscay, some of the casks got loose and endangered the safety of the ship so much that the whole of the deck cargo was jettisoned by means of staving in the casks.

The jury were asked: First, was there a concealment of the fact that all the cargo was on deck? secondly, was there a concealment of the number of casks in which the wine on deck was contained? and if yes, was it material? thirdly, was the ship unseaworthy on leaving San Lucar? To all these questions the answer was in the negative.

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Benjamin, Q.C. (C. Russell, Q.C. and W. G. Harison, with him), showed cause. The terms of the policy were: "7000l. on wine in casks on or under deck, so valued at 10s. per cent., to return 48. 9d. per cent. for interest under deck on arrival." This shows clearly that the underwriters were informed that most of the wine would be on deck. And so we say that the implied warranty as to seaworthiness is modified by the knowledge imparted to the underwriters. In Arnould on Marine Insurance, 4th edit., vol. 2, p. 766, it is said: "Goods carried on deck are primâ facie not in their proper place; besides, it is nearly always true of them that they impede the navigation of the ship. On both grounds, it is a received rule that deck lading gives no occasion to general average. But an exception to this general rule may be created by custom, as where it is the custom in a particular trade to carry part of the cargo, or articles of a certain character on deck; for by the custom the deck becomes a proper place for the goods, and those who embark in that trade as merchants, shipowners, or insurers, accept the impediment of deck lading as another peril of the traffic, with the usual incident of general average in the case of deck cargo attaching to the adventure." Here we may similarly say that the casks of wine were in their proper place, because it was known to all parties that they would be carried there, and so the insurers accepted that as one of the risks. Ard they would know also that it was a risk to the cargo and not to the ship, and did not make the ship unseaworthy, though the goods were more exposed to loss. That this was contemplated is shown by the return of the rate of premium for all goods carried below deck. As the warranty of seaworthiness is only an implied warranty, it is modified by facts which show that the condition of the ship and the mode of loading were known to and in contemplation of the underwriters.

Then, as to the misdirection. What the learned judge said was, "Here again the burden of proof lies on the defendant," viz., with reference to the unseaworthiness of the ship. And, again, "There may be an extra risk to the goods, but if the ship is not risked there is not unseaworthiness." But surely this is a perfectly right direction; it is proper to leave to the jury the consideration of the character of the cargo in determining seaworthiness. In Foley v. Tabor (2 F. & F. 663), Erle, C.J., says: Seaworthiness is a word of which the import varies with the place, the voyage, the class of ship, or even the nature of the cargo. And you are to take this as the law on the subject, that a ship will be unseaworthy if the risk is materially increased by reason of difficulty in navigating the ship, caused either by overloading or by bad stowage of the cargo." This was in his summing up to the jury, and shows what may be left for their consideration. [Lord COLERIDGE, C.J.-Why are you not to consider the cargo in two ways? If the character of the cargo being heavy, and its being on deck makes her unseaworthy, why may not its being light or easily got rid of, restore her seaworthiness ?] It seems only reasonable that it should; the consideration is, whether at the commencement of the voyage the ship was seaworthy with reference to her own safety, not as to the safety of the cargo. The case of Burgess v. Wickham (8 L. T. Rep. N. S. 47; 3 B. and S. 669),

In

shows what limitation is to be fixed to the general and implied warranty of seaworthiness. Blackburn, J., says: I think seaworthiness is relative to the nature of the adventure in every respect;" and Cockburn, C.J., says: "The authorities which bear upon the subject appear to me fully to establish that, while, by the law of England, there is in every voyage policy an implied warranty of seaworthiness, the term 'seaworthiness' is a relative and flexible term, the degree of seaworthiness depending on the position in which the vessel may be placed, or on the nature of the navigation or adventure on which it is about to embark." that case a ship which, as was known to the defendants, had originally been only a river steamer, was strengthened as far as possible for an ocean voyage; but even when so strengthened, she was not as fit for the voyage as it would have been proper she should be if she had been an ordinary sea-going vessel. Yet it was held that, the facts being known, she was in a condition to satisfy the warranty of seaworthiness, it being limited to the capacity of the vessel. So here, this was a named ship, known to the defendants, with a named cargo, and a named mode of stowing it, all communicated to the defendants; and she was therefore, within the above rule, seaworthy at the commencement of the voyage.

Sir John Karslake( Q.C., Butt, Q.C., and Cohen, QC., in support of the rule.-If the plaintiffs are right their argument goes to this, that as soon as the underwriters know that some cargo will be carried on deck, they must be taken to waive all question of seaworthiness. The direction was in effect this: if the stowing of the vessel was such that if she encountered the ordinary weather of the time of year, the deck cargo would have to be jettisoned, but if she had only smooth weather she might have got safely home, then the circumstances which would make the cargo easily jettisoned would make her seaworthy, though otherwise she would not be so. Now it is admitted that there is a warranty of seaworthiness of some sort necessarily to be implied, and that being so, the direction amounts to this, that a vessel being unseaworthy may become seaworthy by the facility of getting rid of deck cargo if bad weather be encountered. The learned judge adopted the evidence of Bethel, the engineer, and founded his direction upon it. The witness said, "I should have thought she would labour very much, and probably we should have to throw it overboard in the Bay of Biscay, loaded in such a way: and he added that he would not have sailed in her if it had not beea a cargo that could be got rid of. It is clear, however, from this evidence, that she would have been called unseaworthy at the time she left her moorings; and if the doctrine laid down be upheld, it must be carried to this extent, that if she had gone down she was still seaworthy. Supposing that they did not succeed in staving in the casks which, in ordinary bad weather, was necessary to be done to save the ship, yet she would be seaworthy. Now, can it be said that the absolute necessity of throwing overboard that which is the subject matter of the insurance, in the event of that occuring which must be anticipated, admits of the ship being nevertheless seaworthy? We may take another illustration to show the results if the doctrine be carried to its legitimate conclusions. The ship is supposed to have sailed with a sufficient crew. In bad weather the casks get

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loose, and disable so many of the crew that the rest cannot start the casks and let out the wine. Yet it would have to be said that she was seaworthy, because the subject matter of the insurance was such that if other things had not happened it might have been thrown overboard, and the immediate danger to the ship dispersed, and herself made competent to get to the end of the voyage. What is the true meaning of " ordinary perils of the sea ?" Underwriters do not contract to provide against them: as Brett, J., said at the trial, rough weather must be expected at the time of year." The term seaworthy must include ordinary bad weather, though not extraordinary, and when rough weather is to be anticipated, the vessel must be freighted accordingly. It is never a question whether a ship can encounter extraordinary bad weather, but ordinary perils of the seas. [Lord COLERIDGE, C.J.-Here the loss was occasioned by extraordinary weather.] Yes; and if the ship was seaworthy the underwriters are liable for loss by jettison; but the learned judge throughout told the jury that, in considering whether the ship was able to encounter ordinary perils, they were to take into account the facility of jettison; but it is contended that he ought to have asked them whether the ship, when she left Spain, was fit to carry the cargo as it was, and without alteration, that is, without jettison. The ship must be seaworthy at the commencement of the voyage, and it is not enough that she can be made so in the course of it. The Quebec Marine Insurance Company v. The Commercial Bank of Canada (3 Mar. Law Cas., O. S., 414; 22 L. T. Rep. N. S. 559; L. Rep. 3 P. C. App. 235) clearly establishes this: that if a ship start with a defect, although it be remedied before loss, yet the warranty of seaworthiness is not complied with and the contrary doctrine which had been deduced from a dictum of Lord Tenterden, in Weir v. Aberdeen, (2 B. & Ald. 320) is shown not to be correct, and certainly was not the ratio deci⚫ dendi, even if Lord Tenterden be correctly reported. [BRETT, J.-It does not follow that the jury may not say the defect is so small as not to amount to unseaworthiness. Suppose a ship starts with a leak, but the carpenter stops it in five minutes, is she unseaworthy ?] Yes. In Phillips on Insurance, sect. 695, it is stated, "The assured is understood to warrant that the ship is at the commencement of the voyage, seaworthy, viz.; that the materials of which the ship is made, its construction, &c., and outfit generally, are such as to render it in every respect fit for the voyage insured." [BRETT, J.-Look at the next paragraph, that says that if the deficiency be temporary, and admitting of a ready remedy, the insurance is not forfeited.] It is not enough to say that the ship can be made seaworthy after the commencement of the voyage; for she must at the time be fit to carry cargo and earn freight. Sect. 723 says that, if the cargo has to be relanded for making repairs, the warranty is not complied with.

So too, the ship must not be overloaded, and Foley v. Tabor (ubi sup.), cited by the other side, really shows that the ship is unseaworthy if the difficulty of navigating be increased by overloading. It becomes, then, a question whether it is usual for cargo to be stowed in such a way as this. In Parsons on Marine Insurance, vol. 1, p. 376, it is laid down that the ship must be adapted to the risk assumed, and must

be properly loaded, not only as to the storage of the goods, but also as to weight and quantity: (see Weir v. Aberdeen, ubi sup., and Lidgett v. Secretan, ante, vol. 1, p. 85; 24 L. T. Rep. N. S. 942; L. Rep. 6 C. P. 616). The judgment of Lord Wensleydale in Biccard v. Shepherd (14 Moo. P. C. 471), shows that a ship, being unseaworthy, may become unseaworthy by being overloaded. There additional cargo was taken on board at an intermediate port, and as such additional cargo made the vessel unseaworthy, the assured were held not entitled to recover in respect of the second shipment. See also Gibson v. Small (4 H. of L. Cas. 353), and Bouillon v. Lupton (15 C. B., N. S., 113). But the direction of the learned judge in this case is directly opposed to all these authorities, for he would say that a ship may be overloaded and yet seaworthy, because of the facility of getting rid of the excess load. We contend that seaworthiness has reference to the cargo as well as to the ship, for the latter must be fit to carry the former safely in ordinary rough weather. The implied warranty of the shipowner is, in the words of Lord Ellenborough in Lyon v. Mells (5 East, 428), "that his vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the public." As between the freighter and the shipowner, the undertaking of the latter is shown to be to have the ship fit to receive any reasonable cargo of the nature that he undertook to carry: (see Stanton v. Richardson, ante, vol. 1, p. 449; ante, p. 228; 27 L. T. Rep. N. S. 513; L. Rep. 7 C. P. 421) No underwriter would insure at 108. per cent. if the vessel could not carry her cargo through ordinary rough weather. But Biccard v. Shepherd (ubi sup) is an authority that the underwriter is not liable to the assured if she could not; and in Hare and Wallace's American Leading Cases, vol. 2, p. 753, in the case of Prescott v. The Union Insurance Company (1 Whart. Penn. 399), the direction in the following terms was upheld: "The idea of seaworthiness is not limited to the sufficiency of the vessel merely to save the lives of the persons who may be on board, but extends also to her sufficiency for the safety of the property on board of her.

Cur.adv. vult.

Nov. 2―The judgment of the court (Lord Coleridge, C.J., Brett and Denman, JJ.) was delivered by

BRETT, J.-In this case the action was brought on a policy of insurance to recover an alleged total loss by jettison of wine, valued at 70007., loaded on board the steamship Murillo.

The policy was, "at and from San Lucar, on wine in casks or under deck." The wine insured was all on deck, so loaded at San Lucar, after the ship's hold had been filled with other cargo. The insured wine was jettisoned in bad weather by staving in the casks. The ship and underdeck cargo arrived safe.

The defendants pleaded with other pleas, "that the said ship, at the commencement of the said insured voyage in the said policy mentioned, was not seaworthy.

In summing up the case to the jury upon this plea, Mr. Justice Brett commenced by telling them "that the question was, whether the defendant had proved that the ship was unseaworthy. But that means," he said, "not only whether the mere ship, as a built ship, was seaworthy, but whether loaded as she was, with the

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cargo which she had on board stowed in the way it was, the ship was fit to undergo all the ordinary risks of the voyage upon which she was to sail at the time of year at which she was to sail. If the ship was not seaworthy in that sense, then the policy fails, because the assured of goods is taken to warrant that the ship is seaworthy. It signifies not whether he is innocent, whether it is not in the least degree his fault, if in point of fact the shipowner or the master makes the ship by stowage or otherwise unseaworthy; then in treating the case as between the two innocent parties, the assured and the underwriter, it is the assured and not the underwriter who has to lose. The question is, not whether the goods themselves were at more than ordinary risk; goods on deck are always assumed to be at more than ordinary risk. If the fact of their being on deck does not affect the safety of the ship, their own additional risk is immaterial; the question is, whether the putting the goods on deck did or did not make the ship unseaworthy. The question for you is, whether the ship, that is, including the cargo on and under deck, was in a fit condition on leaving San Lucar to encounter with safety the ordinary perils of an ordinary voyage from San Lucar to England at that time of the year. Your answer must depend upon the view you take of the evidence. and upon the exercise of your own knowledge and judgment."

The learned judge, in commenting on the evidence, said: "No one would be of opinion that, either for the cargo itself or for the ship, it is as good a way to load cargo on deck as to put it under deck, but does it or does it not make a great difference, in your judgment, what kind of deck cargo there is ? if the deck cargo had been stiff machinery, heavy rigid machinery, which could not have been got rid of off the deck in bad weather, if the weight of such a cargo had been anything like the weight of this wine, you would probably say that with such a weight on deck, and the impossibility of getting rid of it, the state of things would have been very dangerous for the ship; but then the real point for you is, whether you think it makes a difference in that respect that the cargo could be dealt with as this cargo would be. The weight of it as weight was liquid, how would you get rid of wine encumbering the ship on deck? How long would it take ship's carpenter and his men to stave the casks ? What would be the effect on the ship of letting the wine run out? The question is, not of danger to the wine, but of danger to the ship. I apprehend, myself, that you will all be of opinion that having this deck cargo did add to the difficulties of the ship, and that unless it could have been got rid of, and with tolerable quickness, it would have been a danger to the ship to the extent of making her unseaworthy; but the question is, what is the effect, in your judgment, of the facility of starting the wine? I cannot help thinking that the effect of having a deck cargo does necessarily add to the danger of a ship; but the question is, whether it puts her into so much danger as to make her unseaworthy; that is to say, whether it puts her in danger of being unable to meet the ordinary rough weather of the voyage on which she is sailing.'

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Speaking of what would be an ordinary voyage in this case, the learned judge said: "It would not be right to say that for a ship coming across the Bay of Biscay in February, an ordinary voyage means a voyage without rough

weather. It is clear that coming across the Bay of Biscay and up the English Channel at that season, you must meet with rough weather. Therefore it must not be taken to be sufficient that the ship would be able to encounter without danger smooth or fair weather only, but the question is, whether she would be able to encounter without danger rough weather also. But there is at every season of the year some weather rougher than the ordinary rough weather of that season, and although the ship ought to be able to stand, not only the smooth but also the ordinary rough weather of the season in which she sails, yet the value of insurance is, that it insures against damage or loss, by reason of the rougher weather than the ordinary rough weather of the season, Therefore, you are not to consider whether this ship would have been safe without rough weather. She was bound, when she left San Lucar, to be in such a condition, with regard to herself and her cargo, as to be able to surmount the ordinary occurrences of an ordinary voyage in that season, including the rough weather which must be anticipated at that time of year; and the question for you is this-it being a fact clearly proved, as I think, that if the cargo could not have been got rid of, the ship would have been in great danger in a voyage with the ordinary rough weather of the season; the question is, whether your view of that state of things is modified by a consideration of what kind of cargo it was on deck, and the mode in which such a cargo could be got rid of. If you are of opinion that that kind of cargo, although it was too heavy for the comfort of the ship, and as long as it existed of that weight, was a danger to the ship, yet when ordinary danger came on, that is ordinary rough weather came on, it could be got rid of so quickly that practically it did not endanger the ship, although it endangered itself, then you may say that the ship was seaworthy, notwithstanding the weight of the cargo on deck; but if you think that the cargo was such that, with such weather as ought to have been anticipated on such a voyage, it could not have been got rid of before the ship would be in danger, then I think you would say that the ship was unseaworthy at starting. If you think the ship was not seaworthy at starting from San Lucar, within the definition I have given, you will find for the defendant, otherwise for the plaintiff."

The jury having found a verdict for the plaintiff, a rule was moved for and granted, on the ground of misdirection, and the case was argued in Easter Term last.

The first point to be considered is what would be the exact import conveyed to the jury by this summing up. In laying down the propositions of law, as such, we are of opinion that the direction was correct. The first proposition laid down as to seaworthiness seems to us to be entirely right. The terms of the proposition as to what is to be considered an ordinary voyage, seem to us to be right. The question is, what is the effect of the remarks made during the comment on facts. We are of opinion, upon consideration, that they would lead the jury to conclude that they were directed, as matter of law that although they should find, as matter of fact, that if the deck cargo were not got rid of, the ship, with the cargo under and on her decks, would be in danger of destruction in the ordinary rough weather of the voyage insured, yet if the deck cargo could in such weather be got

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The stipulation as to seaworthiness is a warranty, not express but implied. It is, unless expressly or by necessary implication negatived, to be implied in every marine voyage policy of insurance, whether the subject-matter of insurance be ship, cargo, freight, profits, commission, or other. The warranty thus implied has always been stated in all decided cases, and in all works of authority, in the same terms. Those terms are: That the assured warrants that at the time when the policy attached, or should have attached, the ship was seaworthy." It is not " that the subject-matter of insurance would be in no danger on an ordinary voyage: "The terms which have been used or not, in a policy on cargo, for example, that such cargo will be in no danger if the voyage be an ordinary voyage, but they have been that for such a voyage "the ship was seaworthy." The same terms being so used with regard to all policies, do they mean the same thing in all policies? If they were express words in the policy, being the same words used in documents in pari materiâ, it should seem that they should bear the same meaning in all. Is it different, because the warranty is an implied one, and the terms which have been used have not been the phraseology of the parties to the contracts, but of those who have declared or treated of the law?

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When one asks whether the warranty has the same meaning in all the policies, the question is, whether the same warranty in extent and effect is to be implied in every policy. considering this question, we must proceed, as in all the other questions which are for ever raised for judicial decision by the never ceasing variety of commercial transactions; we must proceed according to authority, so far as it goes, and then, if the case in hand be outside and beyond the authorities, by applying to it the principles to be extracted from the authorities, that is to say, the principles which were applied to them in their time.

First, then, according to the authorities, has the implied warranty been the same in extent and effect in all policies? It has not. With regard to policies on the same subject-matter, as on ships, the extent of the warranty, as to the condition of the ship, has been held to be different for different voyages, for the same voyage at different seasons, for the same voyage at the same season, according to whether the same ship was in ballast or loaded with one kind of cargo, or another. The required condition of the ship has been held to be different when the ship was to enter under policy in port from what it must be when going to sea under the same policy. It has been held to be different for a coasting voyage, or lake, or river, or canal voyage, from what it must be for an ocean voyage under the same policy. It is unnecessary to cite fully well known authorities. Allare brought forward and discussed in Phillips on Insurance, §§ 695 to 723, inclusive. In 719" The warranty of seaworthiness varies in different places; a vessel considered seaworthy for a voyage in one