Warranties may be express or implied, and in either case the general law of warranty applies to them.

Express warranties exist when the assured, in whatever is a * part of the policy, undertakes that certain things ex ist, or have been done, or shall exist or be done. A breach of a warranty is equally fatal, whether the thing warranted be material or immaterial, (q) or was or was not intended, or was or was not the fault of the insured, or was made, not by the per son insured, but by those employed by him. (r) And warranties must be not only substantially, but strictly complied with. (s) Any positive assertion may be a warranty, if it be a direct and not a collateral assertion. Thus, if a vessel is described as "the American ship, called the Rodman," (t) or as being in port on a certain day, (u) or goods are said to belong to persons who are American citizens, (v) there is in either case a warranty of the fact; but calling a vessel by an English or American name, is not a warranty that she is an American or English ship; (w) nor is a stipulation that the insurers are not to be liable for damage to her sheathing, a warranty that she has sheathing. (x)

(m) Mumford v. Commercial Ins. Co. 6 Johns. 262; Dodge v. Union Ins. Co. 17 Mass. 471; Shultz v. Ohio Ins. Co. 1 B. Mon. 336.

(n) Le Cheminant v. Pearson, 4 Taunt 367.

(o) See Barker v. Phoenix Ins. Co. 8 Johns. 307; Jumel v. Marine Ins. Co. 7

Johns. 412; Lawrence v. Van Horne, 1 Caines, 276; Potter v. Prov. Ins. Co. 4 Mason, 296; Le Cheminant v. Pearson, Taunt 367.

(p) Livie v. Janson, 12 East. 648; Schieffelin v. N. Y. Ins. Co. 9 Johns. 21 Knight p. Faith, 16 Q. B. 649; Stewart v. Steele, 6 Scott, N. R. 927.

1 In Matheson v. Equitable Ins. Co. 118 Mass. 209, it is said that by the general law of marine insurance, independently of any particular clause in the policy or local usage, if a partial loss of a vessel insured is repaired by the insured, and a total loss afterwards happens during the term of the policy, the insurer is liable for the amount of both losses, although it exceeds the amount named in the policy. See, however, Alexandre v. Sun Ins. Co. 51 N. T. 253; Lidgett v. Secretan, L. R. 6 C. P. 616.

It is held, that a policy is avoided by any breach of warranty at the commencement of a risk, although afterwards, and before any loss, the warranty is complied with. (y)

If a warranty be lawful when made, but becomes illegal afterwards, a subsequent breach does not discharge the insurers; for the law cannot require the doing of an act which the law prohibits. (z)

Express warranties usually relate to the ownership, and the neutrality of the property, the lawfulness of the goods, or of the voyage, the time of sailing, and the taking of convoy. The insurers have the right of selecting the persons whom they insure; but they may waive this right, and the owners need not be named. But there may be an express warranty * of the ownership, and even if there be none, the owner cannot be changed by a transfer of property without the insurer's consent. (a)

The warranty of neutrality is intended to protect the insurers from any risk arising from the belligerent character of the property. The nationality of a person, or of his property, is generally

(q) Blackhurst v. Cockell, 8 T. R. 360; Newcastle Ins. Co. v. Macmorran, 8 Dow, 262.

(r) Duncan v. Son Ins. Co. 0 Wend. 488.

(s) Pawson v. Watson, Cowp. 786; De Hahn v. Hartley, 1 T. R. 343, 2 id. 186; Sawyer v. Coasters Ins. Co. 6 Gray, 221.

(t) Barker v. Phoenix Ins. Co. 8 Johns. 807; Atherton v. Brown, 14 Mass. 152; Vandenheuvel v. United Ins. Co. 2 Johns. Cas. 127.

(u) Kenyon v. Berthon, 1 Dong. 12, note.

(v) Walton v. Bethune, 2 Brev. 458.

(w) Clapham v. Cologan, 8 Camp. 382.

(x) Martin v. Fishing Ins. Co. 20 Pick. 389.

(y) Rich v. Parker, 7 T. R. 705; Goicoechea v. La. Ins. Co. 18 Mart. La. 51; Hore v. Whitmore, 2 Cowp. 784.

(z) Brewster v. Kitchell, 1 Salk. 108, 1 Ld. Raym. 317.

(a) See ante, p. *355, note (j).

determined by his domicile; 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 a 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, * and in a proper way, all the usual and proper docu ments 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)

(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. 260; The Emmanuel, 1 id. 296; The Providentia, 2 id. 142; The Thomyris, Edw. 17. For the American rule, see Mr. Monroe's letter to Lord Mulgrave, Sept. 23,1806, Mr. Madison's letter to Messrs. Monroe and Hackney, May 17, 1806, and the memorials of the merchants of Baltimore, New York, Boston, and Salem, 6 Am. State Papers, 330-355, 367-379.

(c) Eden v. Parkison, 2 Doug. 732; Saloucci v. Johnson, Park, Ins. 449; Tyson v. Gurney, 3 T. R. 477.

(d) The Vrow Elizabeth, 6 Rob. Adm. 2; The Primus, 1 Spinks, Adm. 363.

(c) The Primus, supra; The Vreede Scholtys, 6 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. 847.

(g) The Carolina, 1 Rob. Adm. 306; The Josephine, 4 id. 26; The Frances, 8 Cranch, 359; The Francis, 1 Gallis. 446.

(h) See The Merrimack, 8 Cranch, 317.

(i) Barker v. Phoenix Ins. Co. 8 Johns. 307; Griffith v. Ins. Co. of N. A. 6 Binn. 464; Blagge v. N. Y. Ins. Co. 1 Caines, 649; The Success, 1 Dods. 132; Catlett v. Pacific Ins. Co. 1 Paine, C. C. 694; 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, 606, per Marshallf C. J.; Calbreath v. Gracy, 1 Wash. C. C. 219, per Washington, J.

If neutral interests or property are lost, because they were undistinguishably mixed with those which are belligerent, (l) or by resistance to rightfully demanded search, (m) or by an attempt at rescue, (n) or by seeking or receiving belligerent protection, (o) or by anything 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 not 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 * 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 con(l) The Princessa, 2 Rob. Adm. 49.

(m) The Maria, 1 Rob. Adm. 860; Garrets v. Kensington, 8 T. R. 230; Snowden v. Phoenix Ins. Co. 8 Binn. 468; Brown v. Union Ins. Co. 5 Day, 1.

(n) Garrels v. Kensington, 8 T. R. 280; M'Lellan v. Maine Ins. Co. 12 Mass. 246; Robinson v. Jones, 8 Mass. 686; Brown v. Union Ins. Co. 6 Day, 1.

(o) The Maria, 1 Rob. Adm. 840; 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.

(q) Barker v. Blakes, 9 East, 283 The Nereide, 9 Cranch, 888.

(r) The Neptunus, 2 Rob. Adm. 110 The Barque Coosa, 1 Newb. Adm. 398.

(s) Harratt v. Wise, 9 B. & C. 712 Naylor v. Taylor, 9 B. & C. 718; Medeiros v. Hill, 8 Bing. 281.

(t) See Baines v. Holland, 10 Exch. 801; Colledge v. Harty, 6 Exch. 206; and cases infra.

(u) Cochran v. Fisher, 4 Tyrw. 424, 2 Cromp. & M. 581; Fisher v. Cochran, 6 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.

tinue 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 anything 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 * 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)