• “(1) A warranty … means a promissory warranty, that is to say, a warranty by which the assured undertakes that some particular thing shall or shall not be done, or that some condition shall be fulfilled, or whereby he affirms or negatives the existence of a particular state of facts.”

Warranties involve a promise by the assured that a particular thing will be done or that a particular state of facts exists. These “promissory warranties” are to be distinguished from the use of the traditional phrase “warranted free of” which introduces an exclusion or limitation on the scope of marine insurance cover. Thus the words “warranted free of capture seizure arrest restraint or detainment” constitute an agreement that such war-related risks are excluded from the cover and do not act as warranties within the terms set out in sections 33 to 41 of the Marine Insurance Act 1906.1 Similarly, in the FPA (Free of Particular Average) Clauses the phrase “warranted free of particular average” did not constitute a warranty but excluded partial losses with different legal consequences particularly in terms of burden of proof and causation.2