Page:Federal Reporter, 1st Series, Volume 6.djvu/578

 560 PEDEBAL REPORTER. �the risk, such non-eompliatice ■will not diBcharge the under- ?s^^iter'8 contract." : Arnould ou Ins. 523. If it were repre- seittted :that a vessel should sail with convoy, or a certain armament, and peace be proclaimed before the voyage com- menoed, it, would be manifestly unreasonable to exact the performance of this representation as a condition of the underwriter's liability. Duer on Eepresentations, 89. �In Duer on Ins. T02, (Lecture 14, § 36,) it is stated: "There exista, however, iu regard to representations, this necessary exception : When they cease to be material before the risk commences, by an entire alteration in the state of things that led to their being made, and from which alone they derived their value, a complianee with their terms is no longer requisite." In the present case it is to be assumed the jury found that after an, examination at Yarmouth it'was evident no repairs were needed, and the vessel was in a fit condition to proceed upo» her voyage. This being so, it would seem too plain to doubt that neitber the interests of the insurers nor the f air purport of the promise required that to be donc by the plaintiffs which would have been superflu- Qus and -futile, �It is also contended that the court erred in instructing the jury that the burden of proof was upon the defendant to eatablish the unseaworthineBS of the vessel. If this instruc- tion had been limited to that branch of the defence which was predicated upon a breach of the implied warranty of scaworthinesB, I should be disposed to adhere to it now as correct. It is everywhere conceded that in every policy of insurance on a vessel there is an implied warranty that the vessel is seawortuy, but many of the authorities declare that this warranty is a condition ; precedent to the obligation of insurance; and as the general rule is undoubted that the performa,nce of a condition precedent must be pleaded and proved whenever it enters intp the cause of action, the appli- cation 0^ that, rule to actions for marine insurance seems consistent, and has theref ore been enf orced. On the other hand, it would seem to be Uxe reasonable presumption of fact that a ship is seaworthy, in the absence of any circumstancea ��� �