of the ownership, and even if there be none, the owner cannot be changed by a transfer of property without the insurers' consent. (a)

The warranty of neutrality is intended to protect the in surers from any risk arising from the belligerent character of the property. The nationality of a person, or of his property is generally determined by his domicil; and that subject is considered elsewhere.

One important rule, that a country which, during peace, confines the trade of its colonies to its own subjects, cannot, during war, open such trade to a neutral,— has been strongly asserted in England, and as strongly denied in this country. (b) A warranty that the property is of a country then known to be at peace, is a warranty that the property is neutral by ownership, and is protected from belligerent risk by the usual documents and precautions. But a policy is not avoided, when the property is made belligerent by war after the policy is made. (c)

The warranty of neutrality of a ship is broken, if a belligerent owns any part of the ship. (d) The warranty of neutrality of goods extends only to the interest of the assured; (e) but property held by a neutral in trust for a belligerent, is belligerent property; (f) and if goods are shipped by a belligerent to a neutral, the belligerent retaining the control of them, and the neutral not having ordered them, the goods are belligerent. (g) But the mere right of a belligerent seller to stop the goods in transitu, does not make the goods belligerent. (h)

A ship must always have and always use, in a proper time,

(a) Scc ante, p. 355, note (j)

(b) See Mr. Justice Duer's essay on this subject, in 1 Duer Ins. 698-725. In support of the English rule, see The Ebenezer, 6 Rob. Adm. 250; The Emmanuel,

id. 296; The Providentia, 2 id. 142; The Thomyris, Edw. 17. For the American rule, see Mr. Monroe's letter to Lord Mulgrave, Sept. 23, 1805, Mr. Madison's letter to Messrs. Monroe and Pinckney, May 17, 1806, and the memorials of the merchants of Baltimore, New York, Boston, and Salem, 5 Am. State Papers, 330 -355, 367-379.

(c) Eden v. Parkison, 2 Doug. 732;

Saloucci v. Johnson, Park Ins. 449; Ty son v. Gurney, 3 T. R. 477.

(d) The Vrow Elizabeth, 5 Rob. Adm 2; The Primus, 1 Spinks, Adm. 353.

(e) The Primus, supru; The Vreede Scholtys, 5 Rob. Adm. 5, note; Barker v. Blakes, 9 East, 283; Livingston v. Maryland Ins. Co. 6 Cranch, 274.

(f) Murray v. United Ins. Co. 2 Johns. Cas. 168; The Abo, 1 Spinks, Adm. 347.

(g) The Carolina, 1 Rob. Adm. 305; The Josephine, 4 id. 25; The Frances, 8 Cranch, 359; The Francis, 1 Gallis. 445. (h) See The Merrimack, 8 Cranch, 317

and in a proper way, all the usual and proper documents to prove her neutrality. (i) The same rule applies to goods; (j) but leave is sometimes expressly given to carry simulated or false papers, and an established usage might have the same effect. (k)

If neutral interests or property are lost, because they were undistinguishably mixed with those which are belligerent, (7) or by resistance to rightfully demanded search, (m) or by an attempt at rescue, (n) or by seeking or receiving belligerent protection, (0) or by any thing which gives to a belligerent the right of treating the property as belligerent, all these things are breaches of neutrality. But some of them at least might be justified by compulsive necessity, and then would not discharge the insurers. (p)

The ship and cargo are distinct as to neutrality. It is no breach of the warranty of her neutrality that the ship carries belligerent goods; and neutral goods on board a belligerent are nor necessarily liable to be made prize of war. (q)

If a blockade exists, and notice of the blockade has been given by the blockading power to any foreign government, no individual of the nation thus notified is protected against seizure by his ignorance of the blockade; (r) but insurers are not discharged by the breach of the blockade, unless that breach was made with actual notice or knowledge. (s)

It may be added, that breaches of blockade have given rise, especially in the English courts, to a great variety of questions

(i) Barker v. Phoenix Ins. Co. 8 Johns. 307; Griffith v. Ins. Co. of N. A. 5 Binn. 464; Blagge v. N. Y. Ins. Co. 1 Caines, 549; The Success, 1 Dods. 132; Catlett v. Pacific Ins. Co. 1 Paine, C. C. 594; Calbreath v. Gracy, 1 Wash. C. C. 219. (j) Griffith v. Ins. Co. of N. A. 5 Binn. 464.

(k) Livingston v. Maryland Ins. Co. 7 Cranch, 506, per Marshall, C J.; Calbreath v. Gracy, 1 Wash. C. C. 219, per Washington, J.

(1) The Princessa, 2 Rob. Adm. 49. (m) The Maria, 1 Rob. Adm. 360; Garels v. Kensington, 8 T. R. 230; Snowden v. Phoenix Ins. Co. 3 Binn. 468; Brown v. Union Ins. Co. 5 Day, 1.

(n) Garrels v. Kensington, 8 T. R. 230;

M'Lellan v. Maine Ins. Co. 12 Mass. 246; Robinson v. Jones, 8 Mass. 536; Brown v. Union Ins. Co. 5 Day, 1.

(0) The Maria, 1 Rob. Adm. 340; The Joseph, 1 Gallis. 548; The Julia, id. 594, 8 Cranch, 181.

(p) As where the act is rendered necessary by the illegal conduct of the captor. M'Lellan v. Maine Ins. Co. 12 Mass. 246. See also, Snowden v. Phoenix Ins. Co. 3 Binn. 457.

(9) Barker v. Blakes, 9 East, 283; The Nereide, 9 Cranch, 388.

(r) The Neptunus, 2 Rob. Adm. 110; The Barque Coosa, 1 Newb. Adm. 393.

(s) Harratt v. Wise, 9 B. & C. 712; Naylor v. Taylor, 9 B. & C. 718; Medei ros v. Hill, 8 Bing. 231.

and adjudications, which it is not considered desirable to notice in detail; especially as some of the foreign decisions would be at least doubted in this country.

An express warranty of frequent occurrence relates to the time of the ship's sailing. (t) A ship sails when she frees herself from her fastenings, and moves with the intention of going at once to sea; (u) although afterwards accidentally and compulsorily delayed. (v) But she does not sail by merely moving down the harbor and reanchoring, if she moved without being ready to continue her voyage uninterruptedly. (w) If when ready and intending to sail she is stopped before getting under way, by a storm or any adequate obstruction from without, there are authorities which indicate that this is a compliance with the warranty. We should say, however, that if the policy were not to attach until the sailing, it attaches in no case until actual sailing. (x) A warranty to sail from a certain territory, or coast, or island, is not satisfied by sailing from one part to another part of it, or by any thing less than sailing with the intent to go entirely away from it. (y) A warranty "to depart" has been held to mean more than a warranty" to sail." (z) And the terms "final sailing" (a) or being "despatched from " (b) a place, mean something more than is expressed by the word sailing.

English policies often contain a warranty to sail with convoy; but we have as yet had few or no warranties of this sort in this country, and no decisions directly bearing upon them. (c) Policies may and often do contain a variety of special warranties and

(t) See Baines v. Holland, 10 Exch. 801; Colledge v. Harty, 6 Exch. 205; and cases infra.

(u) Cochran v. Fisher, 4 Tyrw. 424, 2 Cromp. & M. 581; Fisher v. Cochran, 5 Tyrw. 496, 1 Cromp. M. & R. 809; Bond v. Nutt, Cowp. 601; Nelson v. Salvador, Moody & M. 309.

(v) Thellusson v. Fergusson, 1 Doug. 361; Earle v. Harris, id. 357.

(w) Pettegrew v. Pringle, 3 B. & Ad. 514; Lang v. Anderdon, 3 B. & C. 499; Graham v. Barras, 3 Nev. & M. 125, 5 B. & Ad. 1011; Risdale v. Newnham, 4 Camp. 111, 3 M. & S. 456; Thompson v. Gillespy, 5 Ellis & B. 209; Hudson v.

Bilton, 6 id. 565; Sharp v. Gibbs, 1 H & N. 801.

(x) See Hore v. Whitmore, Cowp. 784, Bond v. Nutt, id. 601.

(y) Wright v. Shiffner, 11 East, 515, Cruikshank v. Janson, 2 Taunt. 301; Ridsdale v. Newnham, 3 M. & S. 456; Lang v. Anderdon, 3 B. & C. 495.

(2) Moir . Royal Exch. Ass. Co. 3 M. & S. 461, 6 Taunt. 241; Van Baggen v. Baines, 9 Exch. 323.

(a) Roelandts v. Harrison, 9 Exch. 444. (b) Sharp v. Gibbs, 1 H. & N. 801. (c) For the English authorities on this subject. see 2 Parsons, Mar. Law, 122.

stipulations, and these have been much litigated. Of them it is only necessary to say, that the general rules of the law of warranty govern them whenever applicable, and the meaning of the mercantile terms used is determined by usage, or by the law-merchant. (d)

SECTION XII.

OF REPRESENTATIONS AND OF CONCEALMENTS.

It is sometimes difficult to discriminate between express warranties and representations; but it is important to do so, as the rights and obligations created by representations differ in many respects from those which arise from express warranties. It is a general rule that every direct statement contained in a policy, and by that is meant whatever forms a part of the policy, is to be regarded as a warranty. (e) We may define a representation, in language used by the Supreme Court of the United States. It should be "an affirmation or denial of some fact, or an allegation which would plainly lead the mind to the same conclusion." (ƒ) It may be made orally, or in writing, or by presenting a written or printed paper. And if it be false, and tends to obtain for the party uttering it the forming of the contract, or some advantage in the contract, it is a misrepresentation. And by the law of insurance, a misrepresentation, whether intentional or not, and whether fraudulent or not, discharges the insurers. (g)

The representation may be drawn by inference from the words of the policy, as those words constitute a warranty only when they express a direct statement. Thus, if the policy says the

(d) See Callaghan v. Atlantic Ins. Co. 1 Edw. Ch. 64; Kenyon v. Berthon, 1 Doug. 12, note; Colby v. Hunter, Moody & M. 81; Blackhurst v. Cockell, 3 T. R. 360; Bulkley v. Derby Fishing Co. 1 Conn. 571; Bidwell v. Northwestern Ins. Co. 19 N. Y. 179.

(e) Bean v. Stupart, 1 Doug. 11; Kenyon v. Berthon, 1 Doug. 12, note; Jen26

VOL. II.

nings v. Chenango Co. Ins. Co. 2 Denio, 75; Glendale Woollen Co. v. Protection Ins. Co. 21 Conn. 19; Routledge v. Burrell, 1 H. Bl. 254; Williams v. New England Ins. Co. 31 Maine, 219.

(f) Livingston v. Maryland Ins. Co. 7 Cranch, 506.

(g) Lewis v. Eagle Ins. Co. 10 Gray, 508; Anderson v. Thornton, 8 Exch. 425.

ship sailed between the 13th and 21st of September, this is a warranty. But if the language express that the vessel was expected to sail between the 13th and 21st of September, this is only a representation that the insured did not know that she had sailed before the 13th. (h)

It has been intimated, that the ground upon which misrepresentations discharge insurers is fraud, either actual or constructive. It is quite certain, however, that they have this effect whether made fraudulently or not. (i) Nor need it refer to a matter concerning which some representation is necessary. (j) It must however be material; that is, it must have the tendency above spoken of, to induce the making of the contract, or to render its terms more favorable to the insured; (k) and if it were in reply to a distinct question of the insurers, this fact would go very far, and would be nearly, although perhaps not quite conclusive, (7) in proof of its materiality.

It may rest upon a previous fact, as if an insured obtains insurance from some party merely to decoy subsequent insurers into their bargain; this would operate as a misrepresentation and discharge the subsequent insurers. (m)

Concealment of facts which ought to have been stated, operates in the same way, and is subject to the same rule as misrepresentation; and therefore neither inadvertence, or mistake, or forgetfulness, (n) prevents its operation, if it be material. (0) There may, however, be this distinction. An innocent mis

(h) Stewart v. Morison, Millar Ins. 59. See also, Hodgson v. Richardson, 1 W. Bl. 463, 3 Burr. 1477; Reid v. Harvey, 4 Dow, 97; Seton v. Low, 1 Johns. Cas. 1; Palmer v. Warren Ins. Co. 1 Story, 360.

(i) Mr. Arnould in his work on Ins. 495, contends that a misrepresentation avoids the contract on the ground of constructive or legal fraud. See also, Pawson v. Watson, Cowp. 785; Cornfoot v. Fowke, 6 M. & W. 379; Elkin v. Janson, 13 M. & W. 658. But see 2 Duer Ins. 647; 1 Phillips Ins. § 537. However this may be, it seems well settled, that a false representation is sufficient to avoid the policy. Lewis v. Eagle Ins. Co. 10 Gray, 508; Anderson v. Thornton, 8 Exch. 425.

(j) Sawyer v. Coasters Ins. Co. 6 Gray,

221; Lewis v. Eagle Ins. Co. 10 Gray, 508.

(k) Flinn v. Headlam, 9 B. & C. 693, Clason v. Smith, 3 Wash. C. C. 156; Rice v. New England Ins. Co. 4 Pick. 443; Sibbald v. Hill, 2 Dow. P. C. 263.

(1) Burritt v. Saratoga Co. Ins. Co. 5 Hill, 188; Dennison v. Thomaston Ins. Co. 20 Maine, 125.

(m) Whittingham v. Thornburgh, 2 Vern. 206; Wilson v. Ducket, 3 Burr. 1361.

(n) Curry v. Commonwealth Ins. Co. 10 Pick. 535; Sawyer v. Coasters Ins. Co. 6 Gray, 221; Dennison v. Thomaston Ins. Co. 20 Maine, 125.

(0) Maryland Ins. Co. v. Ruden, 6 Cranch, 338; Hurtin v. Phoenix Ins. Co 1 Wash. C. C. 400.