Page:Federal Reporter, 1st Series, Volume 6.djvu/576

 564 FEDKBAL REPORTER. �because the law implied a warranty of seaworthiness, and the underwriter is presumed to rely upon the warranty, and the applicant for insurance need not proffer anydisclosures to the prejudice of the ship's seaworthiness, and ruled that the can- cellation of the outstanding insurance was a fact extrinsic to the risk. The correctness of this ruling is not contested on the present motion. The court also ruled that if, when the ship arrived at Yarmouth and was examined, it was found no repairs were needed, and no repairs were in fact neces- sary, but the vessel was in a seaworthy condition for her voyage, the defendant could not prevail upon the defence of a non-compliance with the representation; that the f air con- struction of the representation, assuming it not to have been the statement of an expectation, but a promissory repre- sentation, was that the vessel was to be put in a seaworthy condition at Yarmouth for her voyage before the commence- ment of the risk ; and if when she left Yarmouth she was in that condition, the representation was satisfied. To this ruling thete was an exception, whiek is now insisted on, �Tbere was no eonfiict oif testimony as td the temis of the represwitation, and no evidefaoe of usage respeoting the meaii- ing of the language used. It was therefore theduty of the court to decide as' a matter of legal construction what was the force and effect of the representation. Tho' Representa- tion was that the vessel "wasto be repaired," Vithoot speci- fying the charaoter or estent of the repairs. Nothing had been stated between the parties as to what repairs shouid be made. In the negotiations there had been nothing men- tioned regarding the condition of the ship except that she had pat into Shelburne in distress, and leaking. If the par- ticulars of her mishap had been further specified, this circum- stance might have qualified and characterized the meaning of the language used. The insurers were informed in sub- stance that the vessel was not in a seaworthy condition. This information having been given, the insurers could not rely upon the implied warranty of seaworthiness, and insisted on an assurance that she would be repaired at Yarmouth, where the risk was to commence. The plaintiffs were not ��� �