9. On an insurance from London to Gibraltar, warranted to depart with convoy. It appeared that there was a convoy appointed for that trade at Spithead, and the fhip, having tried for convoy in the Downs, proceeded to Spithead, and was taken in her way thither. Lee C. J. held the fhip to be under the defendant's infurance to a place of general rendezvous. Gordon v. Morley, Campbell v. Bourdieu, 2 Stra. 1265. Bond v. Nutt. Per Lord Mansfield. Although the ufual place of rendezvous be out of the direct courfe of the voyage. Cowp. 601. Enderby et al. v. Eletcher, Sittings in London, cor. Lord Mansfield. Trin. 1780. Park, 309. 10. If it be customary for fhips to ftop at certain places lying out of the direct courfe of the voyage, it is no deviation; but it must be the fettled and direct ufage of the voyage and trade. Salisbury v. Townfon, Park, 309. 11. Where there is a deviation through neceffity, it is incumbent on the infured to pursue that voyage of neceflity directly in the fhortest and most expeditious manner, and if the fhip in her way stops at different places and trades there, these are deviations, and not within the protection which the fuppofed neceffity affords to the direct voyage. Lavabre v. Walter, Dougl. 271. 12. Infurance from Carolina to Lisbon, and from thence to Briftol. It appeared that the captain had taken in salt, which he was to deliver at Falmouth before he went to Bristol; but the ship was taken in the direct road to both, before the came to the dividing point where the would have turned off to Falmouth. Lee C. J. held the insurer liable, for it is but an intention to deviate. Fofler v. Wilmer, 2 Stra. 1249. Carter v. Royal Exchange Affur ance Company. S. P. Ibid. S. P. Per Lord Mansfield in Thelusson v. Ferguson, Dougl. 346. 13. The fhip Molly being infured "at and from Maryland to Cadiz," was taken in Chesapeak Buy, in the way to Europe. In an action on the policy against the underwriters, it appeared that the hip was cleared from Maryland to Falmouth, and a bond given, that all the enumerated goods fhould be landed in Britain, and all the reft in the British dominions. An affidavit of the owner Stated that the veffel was bound for Falmouth. The bills of lading were "to Falmouth and a market," and there was no direct evidence whatever that fhe was deftined for Cadiz. The place where the was taken was in the course both to Cadiz and Falmouth. Lord Mansfield told the jury, that if they thought the voyage intended was to Cadiz they must find for the plaintiff; but if they fhould think there was no defign of going to Cadiz, they fhould find for the defendant. And on a motion for a new trial, the court were of opinion on the evidence that the voy age never was defigned for Cadiz, and difcharged the rule. Wooldridge v. Boydell, Dougl. 16. 14. If a thip be infured from a day certain, from A. to B., and before the day fail on a different voyage from that insured, the affured cannot recover, though the hip afterwards fall into the the courfe of the voyage infured, and be loft after the day on See Kewley 15. Deviation or not is a question of fact, to be decided ac- Of Non-compliance with Warranties. 1. A Warranty on a policy of infurance is a condition or con- 2. Action on a policy of infurance on goods, dated 9th Dec. 3. Though a written paper be wrapped up in the policy when it is brought to the underwriters to fubfcribe, and fhewn to them at the time; or even though it be wafered to the policy at the time of fubfcribing, it is not a warranty, but only a reprefentation. Per Lord Mansfield. Parfon v. Wafon, Cowp. 793. Pawfon v. Barnevelt, Dougl. 12. n. Bize v. Fletcher, Ib. 4. Plaintiff infured the ship Martha, at aud from London to New York, the voyage to commence from a day fpecified, and in the margin of the policy was written the fe words "eight ninepounders with clofe quarters; fix fix-pounders on her upper decks; thirty feamen befides paffengers." Per Lord MansfieldThere is no doubt but this is a warranty. Its being written on the margin makes no difference. Bean v. Stupart, Dougl. 10. Kenyon v. Berthon, S. P. Dougl. p. 12. n. 4. De Hahn v. Hartley, S. P. Refolved 1 Term Rep. 343. v. Ryan, 353. 5. In an action on a policy, the declaration stated that a policy was made on the fhip New Wetmorland, at and from Jamaica to London, warranted to fail on or before the 26th of July 1776, free from capture, and free from all reftraints and detainments of kings, princes, and people, of what nation, condition, or quality foever. That the fhip was preparing and ready to fet fail, and would have failed on the 25th of July on her intended voyage, if She had not been detained by Sir B. K. the then governor of Jamaica, and detained beyond the day; that she then failed and was captured. On motion to fet afide a verdict for the plaintiff, the court were of opinion that the warranty was pofitive and exprefs that the fhip fhould depart on or before the day appointed, and therefore must be complied with, and made the rule to fet afide the verdict and enter a nonfuit abfolute. Hore v. Whitmore, Cowp. 784. 6. On the 8th of December 1777, a policy was underwritten by the defendant on goods in a French fhip "at and from Martinico to Havre de Grace, with liberty to touch at Guadaloupe; warranted to fail after the 12th of January, and on or before the ft of August 1778." At the time of the infurance it was not known whether the fhip would load at Martinico or Guadaloupe, the infurers having goods to come from both places, the policy was therefore intended to cover the risk from both or either of them. The fhip having finifhed her outward-bound voyage at Martinico, failed from thence on the 6th of November 1777, for Guadaloupe, where she took in her whole lading without returning to Marti nico, which the captain intended to do, had he not got a complete cargo at Guadaloupe, from whence the fhip failed on 26th of June 1778, and was taken on the 3d of September. On an action against the underwriters it was objected for the defendants, that by the words of the policy the voyage was to commence at Martinico, and not from Guadaloupe, and that the warranty of the time of failing was not complied with; the fhip having failed from Martinico before the 12th of January 1778, viz. 6th November 1777, and the jury, under the direction of Buller J. found for the defendants. Vezian v. Grant, Park, 326. 7. Action on a policy on the fhip Capel, loft or not loft, at and from Jamaica to London; warranted to have failed on or before the 1st of August 1776. The policy was effected on the 20th of Auguft. The fhip was completely laden for her voyage to England at St. Anne's in Jamaica; and failed from St. Anne's bay on the 26th of July for Bluefields, in order to join convoy there, that being the general rendezvous for convoy on the Jamaica station, and where a convoy then lay, which was expected to fail for England every day; but the greater part of the way from St. Anne's to Bluefields is out of the direct courfe of the voyage from St. Anne's to England. She arrived off Bluefields on the 28th or 29th of July, where he was immediately stopped by an embargo laid on all veffels being in any port of Jamaica, and was detained there 'till the 6th of Auguft, when the failed with the convoy for England, but afterwards, being feparated in the paffage, was taken by an American privateer. A verdict being found for defendant, the court of B. R, after two arguments, were of opinion that the voyage from Jamaica to England, began from St. Anne's; the fhip having failed with no other object or view but to make the best of her way to England by the fafeft course, and granted a new trial. Bond v. Nutt, Cowp. 601. Thelufon v. Ferguson, S. P. Dougl. 346. Theluffon v. Staples, Park; 336. 5 8. An 3 8. An embargo was actually published before the fhip failed, and the captain immediately after croffing the bar, returned to make a proteft, and fent his fhip knowingly into the embargo; but he fwore that he expected the embargo was to be taken off, and that he should proceed immediately upon his voyage, and the jury believing him, the infurer had a verdict. Earle v. Harris, cited by Lord Mansfield in Theluffon v. Staples, 16. 9. Rule to fhew caufe why a verdict obtained by the defendant fhould not be fet afide and a new trial had. It was an action on a policy on the fhip Arundel, Captain Mann, at and from Jamaica to London, warranted to depart with convoy. On 25th July the Arundel failed from Morant harbour to Kingston, where the met the Glorieux man of war, Captain C. who was like wife on his way to join Admiral Graves at Bluefields, where the commander in chief had appointed him to rendezvous in order to take the fleet of merchant fhips, which were to fail from thence upon the 1ft of August, under his command, and to convoy them to Great Britain. On their meeting in Kingston harbour Captain Mann applied to Captain C. for failing orders, who said he had none, not having himfelf at that time joined the admiral They proceeded together to Bluefields; but the admiral had failed two days before. The Glorieux and Arundel then failed from Bluefields, the former firing guns, giving fignals, and behaving in every refpect like a convoy, as the captain had promised to do before they failed. They afterwards joined the fleet on the 7th Auguft, and the Arundel was afterwards loft in a storm. The court, Willes J. diffentiente, were of opinion that the warranty in the policy was not complied with, and discharged the rule. For fhips must fail under the convoy appointed by the government of the country, who proportion the ftrength of it to the neceffity of the times. That it was a question of fact, whether the Glorieux was a part of the convoy or not, and it appeared from the evidence that he was not, for to make her fo it must appear that he was under the orders of the admiral. Hib bert v. Pigou, East. 23 G. 3. Park, 339. 10. The warranty" to depart with convoy," or "to fail with convoy," means to depart with a convoy intended for the whole voyage. But when a convoy for the whole voyage is clearly intended, an unforeseen feparation is an accident to which the underwriter is liable. Lilly v. Ewer, Dougl. 72. Vid Jeffries v. Legendra, 16Vin. 407. Carth. 216. 4 Mod. 58. S. P 10. A fhip warranted to depart with convoy waited for it two months, and then failed out of the harbour to join it, pursuant to a fignal made by the admiral of the convoy as he paffed the harbour, a yawl being also sent in to order the fhips which were there out. She joined the fleet, but could not get to a man of war for failing orders, owing to tempeftuous weather, and was afterwards captured. Lee C. J. held, that as the captain had done every thing in his power to receive failing orders, it was a departing with convoy. Victoria v. Cleave, 2 Stra. 1250. VOL. V. Gg 12. Action Saloucciv. 12. Action on a policy, there being a warranty to depart with convoy. It appeared in evidence that the commodore of the convoy had made fignals for failing the night before, and made repeated ones the next morning from 7 till 12, notwithstanding which the ship infured did not fail till two hours after him, in confequence of which the was taken by a privateer. The plaintiff was nonfuited. Taylor v. Woodness, cor. Lord Mansfield, at Guildhall, Hil. 4 G. 3. Park, 349. 13. Plaintiffs infured the Fonge Herman Hiddinge, and her cargo, at and from L'Orient to Rotterdam, "warranted a neutral Ship and neutral property." The fhip being captured during her voyage by fome Englife men of war, in an action against the underwriters on the policy, the declaration ftated, that the defendants fubfcribed the policy on 28th November 1780, and that the ship and cargo were at that time neutral property. It ap peared in evidence, that the ship and cargo were neutral property at the time of the fhip's departure from L'Orient, and fo continued until the 20th of December 1780, when hoftilities com. mencing between the English and Dutch, the hip and cargo ceafed to be neutral property, and were taken on the 25th of December 1780. The court of B. R. were of opinion, that the infured only warranted the property neutral at the time of her departure, and not that they were to continue fo during the whole voyage, and the poftea was delivered to the plaintiffs. Eden & al. v. Parkinfon, Dougl. 705. S. P. Paik, 364. Tyfon et al. v. Gurney, B. R. 30 G. 3. Ib. 353. S. P. Adm. 14. In an action on a policy of infurance upon the Joanna, "warranted neutral fhip and neutral property." A condemna tion of a foreign court of admiralty is not condusive evidence that the ship was not neutral, unless it appear that the condemnation went upon that ground. Bernardi v. Motteux, Dougl. 554 15. But if it appear evident without any ambiguity, that the fentence of a foreign court of admiralty proceeded upon the groundof the property not being neutral, that is conclufive evidence against the infured that he has not complied with the warranty, and the underwriter is no longer refponfible. Barzillay v. Lewis, B. R. Trin. 22 G. 3. Park, 359. De Souza v. Ever, Guildball, Hil. 1782. cor. Lord Kenyon, S, P. 16. Action against the underwriters on a policy of infurance on goods warranted neutral. The fentence of the Spanish court of admiralty, condemning the fhip and cargo as good and lawful prize, and not stating the fpecial ground of the fentence, was held to be conclufive evidence of the falsehood of the plaintiff's warranty. Saloucci v. Woodmafs, B. R. Hil. 24 G. 3. Park, 362. 17. If the ground of the decision appear to be not on want of neutrality, but upon a foreign ordinance manifeftly unjust and contrary fo the law of nations, and the infured has only infringed fuch law; as the condemnation did not proceed on the point of neutrality, |