Page:Federal Reporter, 1st Series, Volume 4.djvu/168

 154 rEDSF.AIj EEPOETEn. �marine insùranee, a warranty is implied that the sliip is sea- worthy. " �Section 2683 : "When the insurance is made for a speci- fied length of time, the implied warranty is not complied with unless the ship be seaworthy at the commencement of every voyage she may undertake during that time." �The policy in this case contains the following clause : " Thir- teenth. It is hereby further agreed by and between the assured and insurers that the provisions of the Civil Code of Califor- nia shall be conolusive and binding as regarding the warranty of seaworthiness, liability of insurers in case of prior, subse- quent, or simultaneous insurance, and such other questions as are therein legislated upon and not otherwise provided for in this policy." The provisions of the Code thus became doubly obligatory upon the parties. In the great case of Gihson v. Small, i House of Lords Cases, 353, it was finally settled, by the law of England, that on a time policy effected on a vessel then at sea there is no implied condition that the ship should be seaworthy on the day when the policy attached. �Whether, in a time policy, there is not an implied warranty of seaworthiness at the commencement of the risk, so far as it is in the owner's power to effect it, and whether, where several voyages are contemplated, the owner is not bound to exercise reasonable care and pains to repair any damages the vessel may have sustained, and to put her in a seaworthy condition before commencing a new voyage, was not decided. �Even if it be considered that in such cases there is no tech- nical warranty of seaworthiness, yet, if the ship should come into a port in a damaged condition before or after the commencement of the risk, and the owner or his agents neg- lect to make reasonable and practioable repairs, and the ves- sel be lost in consequence, it would seem that policy, liu- manity, and due regard for the rights of shippers should forbid a recovery by the owner from the insurers for a los-i attributable to the insufficiency of the ship. See opinion of Lord St. Leonards in Gibson v. Small, ubi supra; opinion ci Lord Campbell, contra. Also opinion of Mr. Justice Grier in ����