son of the existence of force in reserve, as when it is given by reason of force employed."

In Ionides v. Universal M. Ins. Co. (1863) 14 C. B. N. S. 259, Erle, Ch. J., in discussing the meaning of the term "consequences of hostilities," said: "Suppose there was a hostile attempt to seize the ship, and the master in seeking to escape capture ran ashore and the ship was lost: there the loss would be a loss by the consequences of hostilities within the terms of this exception. Or, suppose the ship chased by a cruiser, and, to avoid seizure, she gets into a bay where there is neither harbor nor anchorage, and in consequence of her inability to get out she is driven on shore by the wind and lost; that again would be a loss resulting from an attempt at capture, and would be within the exception. But I will suppose a third case,-the ship chased into a bay where she is unable to anchor or to make any harbor, and getting out again on a change of wind, but in pursuing her voyage encountering a storm which but for the delay she would have escaped, and being overwhelmed and lost: there, although it may be said that the loss never would have occurred but for the hostile attempt at seizure, and that the consequence of the attempt at seizure was the cause without which the loss would not have happened, yet the proximate cause of loss would be the perils of the sea, and not the attempt at seizure. Take another instance. The warranty extends to loss from all the consequences of hostilities. Assume that the vessel is about to enter a port having two channels, in one of which torpedoes are sunk in order to protect the port from hostile aggression, and the master of the vessel in ignorance of the fact enters this channel, and his ship is blown up; in that case the proximate cause of the loss would clearly be the consequences of hostilities, and so within the exception. But, suppose the master, being aware of the danger presented in the one channel, and, in order to avoid it, attempts to make the port by the other, and by unskilful navigation runs aground and is lost,-in my opinion that would not be a loss within the exception, not being a loss proximately connected with the consequences of hostilities, but a loss by a peril of the sea, and covered by the policy."

The forces of a rebel government may be considered as enemies within the meaning of a policy of marine insurance against acts of enemies. Monongahela Ins. Co. v. Chester (1862) 43 Pa. 491; and see also in this connection cases cited in the note to Andersen v. Marten, supra, under heading, "What constitutes a capture within terms of insurance or warranty."

Insurance on a vessel expressed as being "only to cover those risks excluded by the 'warranted free of capture, seizure, or detention' clause in marine policy or policies" must be construed as referring to marine policies generally, and not merely other marine policies in

suring the vessel for the same voyage. Northwestern S. S. Co. v. Maritime Ins. Co. (1908) 161 Fed. 166.

Where an insurer against war risks expressly stipulates in the policy that the assured shall be "at liberty to run blockades," he will be taken to have consented to whatever acts are usually done in such undertakings, including the carrying by the vessel of false clearance papers. Maritime Ins. Co. v. M. S. Dollar S. S. Co. (1910) 100 C. C. A. 547, 177 Fed. 127.

IV. Matters as to which a duty of disclosure exists.

As to the duty of disclosing to the insurer that the vessel insured is engaged in carrying contraband of war, or that the goods insured are contraband, see note to Yangtsze Ins. Asso. v. Indemnity Mut. M. Assur. Co. post, 53.

It has been held that there is no obligation to disclose the nationality of a vessel, there being no representation or warranty required respecting it by the policy.. West v. Seaman (1885) Cassel's Dig. (Can.) 388; and see also cases cited under heading, "War riskswhen covered," supra, to the effect that in the absence of a warranty or representation of neutral ownership, a general policy of insurance covers belligerent as well as neutral property. These cases appear to impose the duty of inquiry upon the insurer; while the following impose the duty of volunteering information upon the assured:

Thus, it has been held that nondisclosure to the insurer that the property insured belongs to persons established and carrying on trade in a belligerent country is so obviously material to the risk as to avoid the policy (Bauduy v. Union Ins. Co. (1809) 2 Wash. C. C. 391, Fed. Cas. No. 1,112); and that it is the duty of the insured to disclose to the insurer the origin of the cargo, where it is such as to expose it to capture (Kohne v. Insurance Co. of N. A. (1814) 6 Binn. 219). So, in Union Ins. Co. v. Stoney (1824) Harp. L. 235, it was held that an omission to disclose to an insurer of a vessel "at and from Charleston to Marseilles," and on cargo "from the loading thereof at Charleston," the fact that the vessel had been laden at Havana and had touched at Charleston without landing the goods, and the fact that the manifest showed that they were shipped in the names of Spaniards, was, where the fact that the cargo was Spanish property exposed it to the risk of capture and detention, a circumstance vitiating the policy.

Where the insurance is of the freight only of the neutral vessel, it is not a necessary inference, nor is there any implied engagement, that the cargo carried in her shall be neutral, for a neutral vessel may be lawfully employed in carrying a cargo which is the property of a belligerent. But when the insured has had intelligence which shows the risk to be under circumstances the most unfavorable to

underwriters, and at the time the policy is effected it is known to the insured that his vessel is employed in carrying a cargo which is not neutral property, and especially if it is not known that the master or supercargo in charge of the vessel has undertaken to disguise the national character of the cargo by false papers, intelligence of this nature certainly ought to be disclosed. Stocker v. Merrimack M. & F. Ins. Co. (1810) 6 Mass. 220.

If a vessel take on board papers which increase the risk of capture, and if it be not the regular usage of the trade insured to take such papers, the nondisclosure of the fact that they would be on board will vacate the policy. Livingston v. Maryland Ins. Co. (1810) 6 Cranch, 274, 3 L. ed. 222, s. c. on subsequent appeal, 7 Cranch, 506, 3 L. ed. 421.

Where a policy of marine insurance is broad enough to cover war risks of all kinds, a false clearance is immaterial and need not be disclosed. Barnewall v. Church (1803) 1 Caines, 217, 2 Am. Dec. 180.

The presence on board a vessel of a false certificate of origin of the cargo need not be disclosed to the insurer, where it is found by the jury that such a certificate was the usual and customary document on board of American vessels bound for certain foreign ports, and one required by the decrees of those countries to insure an entry. Le Roy v. United Ins. Co. (1807) 7 Johns. 343.

The insured is not bound to disclose an apprehension of capture unless it is so certain as to be likely to increase the risk. Marsh v. Muir (1802) 1 Brev. (S. C.) 134, 2 Am. Dec. 648.

If according to long-established adjudications of the belligerent courts, generally known, certain circumstances become grounds of condemnation, though in opposition to the law of nations, those circumstances, if known to the insured, should be disclosed. Marshall V. Union Ins. Co. (1809) 2 Wash. C. C. 357, Fed. Cas. No. 9,133.

V. Liability of insurer as affected by warranties.

As to the effect of a warranty against contraband or illicit trade, see note to Yangtsze Ins. Asso. v. Indemnity Mut. M. Assur. Co. post,

53.

a. Of seaworthiness,

It has been held that a neutral vessel is not seaworthy unless she is provided with documents to prove her neutrality (Steel v. Lacy (1810) 3 Taunt. 285, 12 Revised Rep. 658); but in Elting v. Scott (1807) 2 Johns. 157, Kent, Ch. J., expressed a doubt whether it is a part of the implied warranty of seaworthiness that a vessel shall have her proper documents on board, and said that these docu

ments are only material when the national character of the vessel is warranted or represented.

b. Of nationality or neutrality.

Since, as above pointed out, the preponderance of opinion is to the effect that an insurer is, in the absence of any qualification of his liability, deemed to have assumed the risks arising from ownership of the insured property by a subject of a belligerent nation, it is customary, in time of war, at least, to introduce into the policy a warranty of neutrality, or, what amounts to the same thing where the assured is of a neutral nation, a warranty of nationality.

A warranty of nationality or neutrality is not equivalent to a mere exception of the risk of capture, but is a warranty in the proper sense of the term, so that its falsity will vitiate the contract, though the loss happens in a mode not affected by that falsity. Woolmer v. Muilman (1764) 1 W. Bl. 427, 3 Burr. 1419; Rich v. Parker (1798) 7 T. R. 705, 4 Revised Rep. 552, 14 Eng. Rul. Cas. 149.

The description of a vessel as being of a certain nationality is an implied warranty thereof where nationality is material to the risk (Goix v. Low (1800) 1 Johns. Cas. 341, reversed on another point in 2 Johns. Cas. 480; Murray v. United Ins. Co. [1801] 2 Johns. Cas. 168; Higgins v. Livermore [1817] 14 Mass. 106; Atherton v. Brown [1817] 14 Mass. 152; Lewis v. Thatcher [1819] 15 Mass. 431; Barker v. Phænix Ins. Co. [1811] 8 Johns. 307, 5 Am. Dec. 339); and the insured may not show that the underwriters were informed at the time of their subscription, of the true nationality of the vessel, and that the ostensible nationality was assumed to avoid capture (Atherton v. Brown, supra). So, a representation in the body of the policy stating the goods insured to belong to American citizens amounts to an express warranty that the goods are neutral property at the time of the contract. Walton v. Bethune (1811) 2 Brev. 453, 4 Am. Dec. 597. But insuring a ship by an English name does not amount to a warranty or a representation that she is an English ship. If the premium is governed by the ship's nationality, the underwriters must ask for information, and not trust to the name. Clapham v. Cologan (1813) 3 Campb. 382.

An indorsement on the order of insurance that "although our advices gives us no reason to believe there will be any articles contraband of war on board the ship Budget, still, as we wish to be covered against all possible risk, we request your reconsideration of the written application including articles contraband of war,” is not equivalent to a warranty of neutrality. Maryland & P. Ins. Co. v. Bathurst (1833) 5 Gill & J. 159.

A warranty of neutrality in strict construction only imports that

the property belongs to a neutral person, but has been extended so as to require that the vessel shall be furnished with all those documents which are the proof of neutrality (Wilcocks v. Union Ins. Co. [1809] 2 Binn. 574, 4 Am. Dec. 480; Blagge v. New York Ins. Co. [1804] 1 Caines, 549; Schwartz v. Insurance Co. of N. A. [1811] 3 Wash. C. C. 117, Fed. Cas. No. 12,504; Smith v. Delaware Ins. Co. [1811] 3 Wash. C. C. 127, Fed. Cas. No. 13,035, reversed upon other grounds in 7 Cranch, 434, 3 L. ed. 396; Ludlow v. Union Ins. Co. [1815] 2 Serg. & R. 119); and that no act will be done on the part of the assured to forfeit the neutral character (Wilcocks v. Union Ins. Co. [1809] 2 Binn. 574, 4 Am. Dec. 480; Schwartz v. Insurance Co. of N. A. [1811] 3 Wash. C. C. 117, Fed. Cas. No. 12,504; Smith v. Delaware Ins. Co. [1811] 3 Wash. C. C. 127, Fed. Cas. No. 13,035). Antineutral conduct forfeits a warranty that the vessel is neutral. Maryland Ins. Co. v. Woods [1810] 6 Cranch, 29, 3 L. ed. 143. Where a ship is warranted neutral, the insured, in order to comply with his warranty, must not only maintain the property to be neutral, but so conduct himself towards the belligerent parties as not to forfeit his neutrality. He must pursue the conduct and preserve the character of a neutral; and for that purpose must furnish himself and keep in his possession the ordinary evidence of his neutrality unless deprived of it by some inevitable misfortune. Cleveland v. Union Ins. Co. (1811) 8 Mass. 308.

Likewise, a warranty that the property insured is of a certain nationality means that it is not only so in fact, but that it shall be clothed with the requisite evidence of its national character for the purpose of protection, and in reference to the law of nations, under the sanction of which the voyage in question is to be conducted. Barker v. Phonix Ins. Co. [1811] 8 Johns. 307, 5 Am. Dec. 339. If a ship be warranted American she must not only belong to an American, but must in every respect be so documented as to entitle herself during the whole of her voyage to the privileges of the American flag. Baring v. Clagett [1802] 3 Bos. & P. 215, 5 East, 398, 14 Eng. Rul. Cas. 155; Coolidge v. New York Firemen Ins. Co. [1817] 14 Johns. 308. By a warranty of American property it is understood not only that the ship belongs to an American citizen at the time of the insurance, but that it shall continue so during the voyage, and that the captain and agents of the owners will conduct themselves conformably to the laws to which neutrals are subject. Schwartz v. Insurance Co. of N. A. [1814] 6 Binn. 378. A warranty that a cargo is American property implies that it shall not lose that character during the voyage insured by any act or omission of the assured or of his agents, and that it shall be accompanied by all the necessary documents to establish its neutrality, if questioned, which are required by treaties or by the law of nations. Calbreath v. Gracy (1805) 1 Wash. C. C. 219, Fed. Cas. No. 2,296.