*There are usually dis- *310

tinues during their passage to the shore, and until all the goods. are landed. Policies of insurance are construed according to the usages of trade; and, therefore, if it be the ordinary course of the trade for the owner to employ a common public lighter to remove the goods from the ship to the shore, the policy covers them; though if he was to employ his own lighter, or take the goods under his own charge, the insurer would be discharged. tinct policies on the outward and on the homeward voyage; and if the ship perishes in the harbour abroad, after having discharged part of her outward, and received part of her homeward cargo, there may arise questions as between the different policies on the cargo. It is stated in the French law, that the policy on the outward cargo does not end but by the total, or almost total discharge of the outward cargo; and I should presume the risk on the homeward cargo attaches as fast as it is received on board, and that the case may happen in which there was aliment sufficient to sustain both policies concurrently in point of time. If the policy be on the voyage out and home, on cargo to such a value, or on a trading voyage, the policy will attach on every successive cargo taken on board in the course of the voyage, and the amount of property on board to the sum mentioned, remains covered, without regard to the fact, that part of the original cargo was landed at the intermediate port, and the cargo on board at the time of the loss was the proceeds of the outward cargo. The policy attaches on goods taken in exchange, or substituted, in the course of a trading voyage, as often as the goods may be changed. But if the policy be on goods outward, and upon their proceeds home, and the same goods are brought back in the same vessel, without having been changed or landed at the port of destination, they are not covered by the

• Tiernay v. Etherington, cited in 1 Burr. Rep. 348. Gardiner v. Smith, 1 Johns. Cas. 141.

Rucker v. London Assurance Company, cited 2 Bos. & Pull. 432, in notis. Hurry v. Royal Exchange Assurance Company, ibid. 430. Matthie v. Potts, 3 ibid. 23. Strong v. Natally, 4 ibid. 16. Coggeshall v. American Ins. Company, 3 Wendell, 283. See supra, 260, as to usage.

• Mansfield, Ch. J., in Grant v. Paxton, 1 Taunton, 474. Columbia Ins. Company v. Catlett, 12 Wheat. 383. Coggeshall v. American Ins. Company, 3 Wendell, 283.

policy on the homeward voyage. The policy had reference to a change of cargo at the port of destination, and meant *311 a substituted *cargo for the one carried out, and not the cargo itself. The homeward cargo, procured by money or credit advanced on the outward cargo, may, and has been deemed, by a reasonable construction, as the proceeds of the outward cargo;a but it would be too extravagant a departure from the terms of a written contract, to make the issues and profits of a cargo stand in this case for the original cargo.b

In insurances on freight, the risk usually begins from the time the goods are sent on board, and not before. But if the ship, sailing under a contract, be lost on her way to the port of lading, or at the port of lading to which she had arrived in ballast, before any goods are put on board, or when part of the cargo is on board, and preparations are making to receive passengers, the insurer on freight and passage money is liable; because an inchoate right to freight, which is an insurable interest, had commenced, and there was an inception of the risk, which attaches on the whole freight for the voyage.d

If the policy be an open one, the recovery is limited to the actual amount of freight which would have been earned; and it is necessary to prove that goods were on board from which freight was to arise, or that there was some contract, under which the ship-owner would have been entitled to freight, if the peril had not occurred. In a valued policy, if the insured has done something towards earning the freight, and there

was nothing to prevent earning it but the occurrence *312 *of the peril, his interest in the whole freight has

commenced and been put at risk; and the weight of authority is, that he is entitled to recover the amount of the valuation, though only part of the cargo be on board.

In

Haven v. Gray, 12 Mass. Rep. 71. Whitney v. The American Ins. Company, 3 Cowen, 210.

Thompson v. Taylor, 6 Term Rep. 478. Mackenzie v. Shedden, 2 Campb. N. P. Rep. 431. Horncastle v. Stewart, 7 East's Rep. 400. Truscott v. Christie, 2 Brod. & Bing. 320. Riley v. Hartford Ins. Company, 2 Conn. Rep. 373. Hart v. Delaware Ins. Company, Condy's Marshall, 281, note.

• Montgomery v. Eggington, 3 Term Rep. 362. Davidson v. Willasey, 1 Maule

a

the case of De Longuemere v. Fire Insurance Company, the court did not question the decision in Forbes v. Aspinall,b where a valued policy on freight was opened, and a recovery allowed only as to the portion of the cargo on board when the peril occurred; and they rather concurred in it, on the ground that the residue of the cargo, which was to be the aliment for the freight, was not in that case ready to be shipped, and the vessel was, in fact, a mere seeking ship, and for aught that appeared, the residue of the cargo might never have been obtained.

(2.) Of deviation.

The policy relates only to the voyage described in it, and to the route proper for the voyage insured; and if the vessel departs voluntarily, and without necessity, from the usual course of the voyage, the insurer is discharged, for it is a variation of the risk, and the substitution of a new voyage. The meaning of the contract of insurance for the voyage is, that the voyage shall be performed with all safe, convenient and practicable expedition, and in the regular and customary track. In the case of an unjustifiable deviation, the insurer is discharged; not indeed from loss occurring previous to the deviation, but from all subsequent losses. These are elementary principles in the law of insurance, and pervade the institutions of every country on the subject.c

*The shortness of the time, or of the distance of a *313 deviation, makes no difference as to its effect on the contract; if voluntary and without necessity, it is the substitution of another risk, and determines the contract. (1) So

& Selw. 313. Livingston v. Columbian Ins. Company, 3 Johns. Rep. 49. De Lon· guemere v. Phoenix Ins. Company, 10 Johns. Rep. 127. Same v. Fire Ins. Company, ibid. 201.

10 Johns. Rep. 201.

b13 East's Rep. 323.

• Roccus, de Ass. n. 20. 52. Emerigon, tome ii. 28. 59, 60. 9 Mass. Rep. 447. Condy's Marshall, 184, 185. 1 Phillips on Insurance, 181, 1st edit.

d Fox v. Black, and Townson v. Guyon, cited in Beawes, vol. i. 306. 9 Mass. Rep. 449. Martin v. Delaware Ins. Company, 2 Wash. Cir. Rep. 254. 1 Doug. 291. 7 Cranch, 30.

(1) Child v. Sun. Mut. Ins. Co. 3 Sandf. S. C. R. 26.

strictly has this doctrine been maintained, that where a vessel, having liberty in sailing down the Frith of Forth to touch at Leith, touched at another port in its stead, equally in her way, it was held to be a fatal deviation, though neither risk nor premium would have been increased if it had been permitted.a

The great cause of litigation in the courts, on this subject of deviation, is as to the facts and circumstances which will be sufficient to justify it on the ground of usage or necessity, or of the true construction of the policy; and these are mostly questions of law for the determination of the court.

Stopping, or going out of the way to relieve a vessel in distress, or to save lives or goods, may, perhaps, under certain circumstances, not be considered as a deviation which discharges the insurer. Mr. Justice Lawrence intimates, in one case, that it might be justifiable; but Judge Peters observed, that such deviations were justified to the heart on principles of humanity, but not to the law. If, however, the object of the deviation was to save life, Judge Washington afterwards observed, that he would not be the first judge to exclude such a case from the exception to the general rule, though he could not extend the exception to the case of saving property. The chief justice observed, in the *314 case of Mason *v. Ship Blaireau,d that the Supreme

Elliott v. Wilson, 7 Bro. P. C. 459.

6 East's Rep. 54.

• 1 Peters' Adm. Rep. 40. 64. 2 Ibid. 378. Bond v. The Brig Cora, 2 Wash. Cir. Rep. 80. This distinction was sustained by Mr. Justice Story in the case of Foster v. Gardner, Am. Jurist, No. 21, and in the case of The Henry Ewbank, 1 Sumner, 400; and he agreed that any stoppage on the high seas, except for the purpose of saving life, would be a deviation, and discharge the underwriter. The Schooner Boston and Cargo, 1 Sumner, 328. S. P. But in Williams v. Box of Bullion, U. S. District Court in Mass. 1843, it was held not to be an injurious delay to deviate so as to speak at sea to a vessel with a signal of distress, or to delay three hours to take in shipwrecked mariners. 6 Law Reporter, 363. (1)

2 Cranch's Rep. 257, note.

(1) The same doctrine has been held in other cases. Walsh v. Homer, 10 Mis. R. 6. Turner v. Protection Ins. Co. 25 Maine R. 515. The language of the court, in the latter case, sustains a more extended right of deviation when made in good faith, and with a view to advance the voyage. See American Ins. Co. v. Francia, 9 Barr's R. 390.

Court of the United States had great doubts whether stopping to relieve a vessel in distress was an unjustifiable deviation in regard to the policy.

The courts are exceedingly strict in requiring a prompt and steady adherence to the performance of the precise voyage insured; and, considering the particular state of facts upon which calculations of the value of risks are made, and the uncertainty and danger of abuse that relaxations of the doctrine would introduce, the severity of the rule is founded in sound policy.a

If there be liberty granted by the policy to touch, or to touch and stay at an intermediate port on the passage, the better opinion now is, that the insured may trade there, when consistent with the object and the furtherance of the adventure, by breaking bulk, or by discharging and taking in cargo, provided it produces no unnecessary delay, nor enhances nor varies the risk. And if there be several ports of discharge mentioned in the policy, and the insured goes to more than one, he must go to them in the order in which they are named in the policy; or if they be not specifically named, he must generally go to them in the geographical order in which they occur, though there may be *315 cases in which he need not follow the geographical

* If a steamboat be lost in an attempt to take a vessel in tow, and there be no clause in the policy allowing it, and no acquiescence of the insurers in such a usage, they are not liable. Hermann v. Western Marine and Fire Ins. Company, 15 Louis. Rep. 516. Taking a vessel or boat in tow on the Mississippi, held to be a deviation and a discharge of the insurers on the steamboat. Stewart v. Tennessee M. & F. Ins. Co. 1 Humph. 242. Natchez Ins. Co. v. Stanton, 2 Smedes & Marshall Miss. R. 340.

Raine v. Bell, 9 East's Rep. 195. Cormack v. Gladstone, 11 ibid. 347. Laroche v. Oswin, 12 ibid. 131. Urquhart v. Barnard, 1 Taunt. Rep. 450. Kane v. Columbian Ins. Co. 2 Johns. Rep. 264. Hughes v. Union Ins. Company, 3 Wheaton's Rep. 159. Thorndike v. Boardman, 4 Pickering's Rep. 471. Chase v. Eagle Insurance Company, 5 ibid. 51. This liberal construction is also given to the liberty to touch and make port freely, contained in the French policies; and if new goods be taken in at such stopping port, the policy on cargo attaches on them as a substitute for the others. If the policy be on cargo to such an amount, and the ship discharges part of her cargo at the stopping port, but reserves sufficient on board as an aliment for the policy, and pursues the voyage, the policy attaches on the residuum of the cargo. Emerigon, tome ii. c. 13. sec. 8. Boulay Paty, Cours de Droit Com. tome iv. 140-147.