had not on board a passport, which was required by the treaty between France and America; it was holden, that the assured could not recover, inasmuch as the warranty had not been complied with; for that required that the ship should be entitled to all the privileges of the American flag, and in order to he entitled to these privileges, she should have had a passport (49).

But it is not necessary?, in order to satisfy a warranty of neutrality, that the vessel should be navigated in conformity to an ex parte ordinance made by one of the belligerent states, and to which the neutral state is not a party.

A neutral ship may carry enemy's property from its own to the enemy's country, without being guilty of a breach of neutrality; provided that neither the voyage or commerce be of a hostile description, nor otherwise expressly or impliedly forbidden by the law of this country; although such ship, in consequence of carrying enemy's property, be liable to detention or being carried into British ports, for the purpose of search.

The evidence usually adduced to falsify this warranty, or to prove a breach of forfeiture of neutrality, which amounts to a breach or forfeiture of the warranty, is the judgment or sentence of a court of admiralty, or other court having jurisdiction in questions of prize, by which the ship or goods insured, and warranted neutral property, have been con demned as prize.

Since the judgment of the House of Lords in Lothian v. Henderson', it may be assumed as the settled doctrine of a court of English law, that all sentences of foreign courts, of competent jurisdiction to decide questions of prize, are to be received here as conclusive evidence in actions upon policies of insurance, upon every subject immediately and.

p Mayne v. Walter, Park, 363. Pollard v. Bell, s T. R. 434. Bird v. Ap pleton, 8 T. R. 562. Price v. Bell, 1 East, 663.

q Barker v. Blakes, 9 East, 293. r Marsh. 238.

$ 3 Bos. & Pul. 499, per Ellenborough C. J. delivering the opinion of the court in Bolton v. Gladstone, 5 East, 155. and per Sir J. Mausfield C. J. in Siftken v. Lee, 2 N. R. 489.

(49) In the case of an insurance upon goods, in a certain ship, which ship is not represented as a neutral, at the time when the insurance is effected, although she be in fact a neutral, it is not necessary that she should be documented as such. Dawson v. Atty, 7 East, 367. See Bell v. Carstairs, 14 East, 393.

properly within the jurisdiction of such foreign courts, and upon which they have professed to decide judicially.

Consequently, where such sentences are given in evi dence, and it appears that they proceed on a ground which falsifies the warranty of neutrality, the assured will thereby be prevented from recovering. In one case', indeed, where a ship was condemned as lawful prize in a foreign court of admiralty, and it was not stated in the sentence upon what ground the condemnation proceeded, it was holden, that it should be presumed that it proceeded on the ground of the ship being the property of enemies, and that the sentence was conclusive evidence to falsify the warranty.

In Baring v. Clagett, 3 Bos. & Pul. 201. the court being of opinion, that the sentence of condemnation proceeded either on the ground of the ship not being neutral property, or on the ground that she was not properly documented, so as to entitle herself to the privileges of a neutral, adjudged the sentence to be conclusive evidence against a warranty of neutrality.

Whether the foreign sentence profess distinctly and directly to condemn the ship, on the ground of its being ene mies' property, or whether it can be collected only from other parts of the proceedings, that such was the ground of decision, our courts are equally bound by the sentence; and this rule holds, although it appears on the face of the sentence, that the prize-court arrived at the conclusion through the medium of rules of evidence and rules of pre sumption established only by the particular ordinances of their own country, and not admissible on general prin ciples.

In short, wherever the foreign courts adjudge the vessel to be good prize, upon a ground within their jurisdiction, and such ground falsifies the warranty, our courts will, by the comity of nations, which has always prevailed among civilized states, give credit to and consider themselves as bound by their adjudication, without examining the reasons by which the foreign courts have arrived at their conclusion (50).

t Saloucci v. Woodmass, Park, 362. x Bolton v. Gladstone, 2 Taunt. 85. u Bolton v. Gladstone, 5 East, 155.

(50) "A warranty of neutrality must, I conceive, now be understood, as containing in itself (among other things) a stipulation that the contract of assurance shall be void, if the subject matter

Hence, as foreign courts of admiralty may decide on the construction of treaties, if they expressly adjudge a ship to be good and lawful prize for a breach of treaty, such sentence is conclusive in our courts against a warranty of neutrality, although, in the sentence, the foreign court may have referred to ex parte ordinances, and drawn inferences from such ordinances, in order to shew an infraction of treaty.

The sentence is equally to be regarded, as evidence of the facts inducing the condemnation, and upon which the condemnation proceeds, as of the judicial act of condemnation.

In the case of an insurance upon ship, goods, and freight, all belonging to nearly the same American proprietors, which, as it appeared by the sentence, had been condemned on account of the common default of all the proprietors in their joint character of ship owners in not having a regular passport on board, as required by the treaty of their own state with France; it was holden, that the assured could not claim from the underwriter an indemnity for a loss thus occasioned by themselves; although the ship was not warranted or represented to be an American; for the ship owner is bound to have such documents as are required by treaties with particular nations on board, to evince his neutrality in respect to such nations.

By the sentence of a French court of admiralty it ap peared, that the ship insured," warranted American,' had been condemned as enemy's property, for want of having on board a role d'equipage, or list of the crew, such as is required by a marine ordinance of France, and adjudged by the court there to be requisite within the meaning of the treaty of commerce between France and America, it was holden to be conclusive evidence against the warranty of neutrality, though, in fact, the ship was American.

So where the sentence states, that the ship was con

y Baring v. Royal Exch. Ass. Comp. 5 East, 99.

z Bell v. Carstairs, 14 East, 374.
a Geyer v. Aguilar, 7 T. R. 681.

warranted neutral be condemned as enemies' property; and, if a warranty of neutrality contains this stipulation, the sentence of a court of competent jurisdiction condemning a ship on account of its want of neutrality, is the proper evidence, according to every principle and rule of our law, to determine that fact." Per Law rence J. in Lothian v. Henderson, 3 Bos. & Pul. 524.

demned on the ground of having violated her neutrality, and acted contrary to the law of nations and the faith of treaties, such sentence is conclusive evidence against the warranty of neutrality. But where the grounds of confiscation are stated obscurely, and the court cannot collect what the precise ground was, or where the sentence adjudges the ship to be lawful prize, not because it is enemies' property, but for reasons which lead to a contrary conclusion; or if it appear, that the condemnation proceeded solely on the ground of the ship having violated an ex parte ordinance, to which the neutral country had not assented; in such cases the sentence, is not conclusive evidence against the warranty of neutrality.

A vessel, warranted Dantzic, was captured by a French privateerf, and condemned as prize by a French court of admiralty. This sentence of condemnation was afterwards reversed by a court of appeal, which court, however, refused to give the appellants their costs and damages, because the muster-roll did not express the place of nativity of the crew, which was required by French regulations. The ship was proved to be a Dantzic ship, and to have had on board, at the time of the capture, all the papers ever carried by Dantzic ships. The French regulations were not shewn to have been within the knowledge of the people of Dantzic. In an action on the policy it was contended, that the underwriters were not liable, because the sentence of restitution had refused damages and costs to the assured; but the court were of a contrary opinion, Sir J. Mansfield observing, that no question had ever arisen as yet with respect to the refusal of a prize court to allow damages and costs, as discharging the underwriters from their liability; and, indeed, it would be very strange if such a refusal could discharge them. It was a matter of mere discretion in the court. In this case the refusal to allow them was founded on two private ordinances of France, not shewn to be within the knowledge of the people of Dantzic, and, therefore, the refusal of the French court could afford no ground for holding the underwriters released from their engagement to pay. The C. J. added, that he saw no reason for extending the doctrine of the conclusiveness of sentences of courts_ of admiralty.

It is to be observed also, that the sentence of a foreign

b Garrels v. Kensington, 8 T. R. 230. c Bernardi v. Motteux, Doug. 574. Fisher v. Ogle, 1 Camp. N. P. C. 418. Calvert v. Bovil, 7 T. R. 523.

eBird v. Appleton, 8 T. R. 562.
f Siffken v. Lec, 2 N. R. 484.

court, where it is conclusive, is conclusive only as to the grounds of the sentence, and not as to the premises which led to the conclusions.

The preceding remarks, as to foreign sentences of condemnation, being conclusive evidence against the warranty of neutrality, must be confined to legal sentences, that is, sentences of a prize court, acting and exercising functions either in the belligerent country, or in the country of a co-belligerent or ally in the war; for sentences of condemnation, pronounced by the authority of the capturing power, within the dominions of a neutral country, to which the prize may have been taken, are illegal', and, consequently, inadmissible. And that is to be considered as a neutral country for this purpose, in which the forms of an independent neutral government are preserved, although a belligerent may have such a body of troops stationed there, as in reality to possess the sovereign authority.

Implied Warranty. 1. Not to deviate. Another condition implied in the contract of insurance is, that the ship shall not deviate. Hence, arises another ground of defence on which the underwriter may insist, viz. that there has been a deviation, by which term is to be understood a wilful and unnecessary departure from the due course of the voyage insured, either with or without the consent of the assured, for any, even the shortest, space of time.

The effect of a deviation is not to avoid the contract ab initio, but only to determine it from the time of the deviation, and to discharge the insurer from all subsequent responsibility. Hence, damage sustained before the actual deviation must be made good by the underwriters'. From the moment of deviation, however, the contract is at an end, and it is immaterial from what cause the subsequent loss arises.

If two ports of discharge are named in the policy, and the ship intends going to both, she must take them in the order named in the policy. Hence, where a ship insured for A. and B., meaning to go to both, went first to B. in her way to A.; it was holden to be a deviation from the voyage insured, not being in the order named in the policy.