After advisement, the following opinion was delivered :—-
By the Chancellor.The objections to the charge of the judge as to the seaworthiness of the vessel, and as to the alleged misrepresentation as to its character or capacity to sustain the ordinary perils of the sea, were very properly abandoned by the counsel for the defendants in error as wholly untenable. The only question for consideration, therefore, is whether there was such a misrepresentation by the assured in relation to the character of his vessel as a temperance ship, as to deprive him of the benefit of his insurance; or rather whether the judge who tried the cause erred in the instructions which he gave to the jury on that subject. Upon this question I think the learned judge who delivered the opinion of the supreme court has, in the discharge off the arduous duties which are imposed upon the members of that court, entirely misapprehended a part of the testimony in the case, if he has not overlooked the distinction which exists between a representation and a warranty.
The representation was, that the master of the vessel was a careful and steady man, and that he had good officers and a good crew, and that no spirits were allowed on board. This, in the absence of any suspicion that the master or crew were so intemperate that they would be tempted to broach casks of liquor which were on board the ship, without any intention of having them used, is a simple representation that the vessel is intended to sustain the character of a temperance ship. In other words, that no ardent spirits were allowed on board for the use of the officers or crew during the voyage, or while laying in the port of lading or of discharge ; that is, during the risk which the underwriters were asked to assume ; and I doubt whether a more extended meaning should be given to these words, even in *387a technical warranty. See Whitehead v. Price, 1 Gale’s R. 151. 2 Cr. Mees. & Rosc. 447, S. C. But if the learned judge was right in supposing that previous to the underwriting of this policy, a strong suspicion existed on the part of the underwriters, that the master of the vessel was an intemperate man, so that he would be likely to get intoxicated if any ardent spirits were placed within his reach or under his control; and that to guard against the risk of such an occurrence they required from the owner of the vessel an assurance that no ardent spirits would be allowed to be carried in the vessel during the voyage, a very different case would have been presented ; especially if the two kegs of liquor were taken on board by the master with the knowledge or assent of the assured, or, if the representation had been put in the form of a warranty. In such a case, proof that the liquor was merely transported in the ship from one port to the other, for the purpose of securing the benefit of the draw back as a perquisite of the master of the vessel, and that they were placed under the king’s seal for that purpose, would not excuse the assured, or enable him to recover on his policy.
Upon a careful examination of the testimony, however, it will be seen that no suspicion existed as to the intemperance of the master until long after the loss of the ship ; and the certificates, which were called for by the defendants counsel, if they are evidence of any thing, show that no foundation for such a suspicion existed at the time they were given, for the purpose of enabling the assured to obtain payment of his loss from the underwriters. The representation was therefore true in the sense in which both parties must have understood it at the time it was made. The conclusion at which I have arrived is,- that there was no error in the charge of the judge who tried this cause in the superior court of the city of New York; and that no legal reason existed'for reversing the judgment which that court rendered in favor of the present plaintiff in error.
The judgment of the supreme court should therefore be reversed, and the original judgment should be affirmed with costs to Irvin the plaintiff, in this court, and also upon the *388writ of error in the supreme court; together with interest on his original judgment by way of damages for the delay caused by that writ of error.
On the question being put, Shall this judgment be reversed ? all the members of the court present, who bad heard the argument, answered unanimously in the affirmative. Whereupon the judgment of the supreme court was reversed, and the judgment of the superior court of the city of New York affirmed,