order. (1) This liberty to touch, stay and trade, is always construed to be subordinate to the voyage insured, and to the usual course of that voyage, and for purposes connected with it. It does not extend to ports and places opposite to or wide of the usual course, or wholly unconnected with the voyage insured. The principle is as old as the law of insurance, and has accompanied it in every stage of its progress.b

The law requires the voyage, so far as concerns the underwriter, to be performed with reasonable diligence; and every unnecessary delay, in or out of port, or in commencing the voyage insured against, will amount to a deviation.c Deviation is always understood to be an after thought, arising subsequent to the commencement of the voyage, and produced by the perception of some new interest, or the influence of some strong temptation. A premeditated intention to deviate, amounts to nothing, unless it be actually carried into execution; and this rule is adopted in England and in the courts of the United States. If the ship quits, from necessity, the course described in the policy, she must pursue such new voyage of necessity, in the direct course and in the shortest time, or it will amount to a deviation. This

Beatson v. Haworth, 6 Term Rep. 531. Marsden v. Reid, 3 East's Rep. 572. Clason v. Simmonds, cited in 6 Term Rep. 533. Kane v. Col. Ins. Company, 2 Johns. Rep. 264. Metcalfe v. Parry, 4 Campb. N. P. Rep. 123. Houston v. New England Ins. Company, 5 Pickering's Rep. 89.

Valin, tome ii.

Straccha, Gloss. 14. Casaregis, Disc. 67. n. 23, and Disc. 134. 77, 78. Emerigon, tome ii. c. 13, sec. 6 and 8, passim. Clason v. Simmonds, 6 Term Rep. 533. note. Gardiner v. Senhouse, 3 Taunt. Rep. 16. Langhorn v. Allnutt, 4 ibid. 511. Hammond v. Reid, 4 Barnw. & Ald. 72. Lolly v. Whitmore, 5 ibid. 45. Bottomly v. Bovill, 5 Barnw. & Cress. 210. Rankin v. Reave, Park. on Insurance, 7th edit. 445. Rucker v. Allnutt, 15 East's Rep. 278.

• Jarratt v. Ward, 1 Campb. N. P. Rep. 263. Smith v. Surridge, 4 Esp. N. P. Rep. 25. Oliver v. Maryland Ins. Company, 7 Cranch's Rep. 487. 9 Mass. Rep. 447. Earl v. Shaw, 1 Johns. Cas. 317. Mount v. Larkins, 8 Bingham, 108. Fremen v. Taylor, ibid. 124. Grant v. King, 4 Esp. N. P. Rep. 175. Seamans v. Loring, 1 Mason, 127.

d Foster v. Wilmer, Str. Rep. 1249. Lord Mansfield, in Doug. Rep. 18. 365. 3 Cranch's Rep. 357. 7 Mass. Rep. 352.

(1) It seems it would be such a case where the liberty was to touch at all, or any ports generally. Ashley v. Pratt, 16 M. & Wels. R. 482.

*was the doctrine as declared by Lord Mansfield in *316 the case of Lavabie v. Wilson, and that case is re

a

ported at large in Emerigon,b with a liberal and exalted eulogy (pronounced in the midst of war between the two countries) on the wisdom and probity of the English administration of justice: tanta vis probitatis est, ut eam in hoste etiam diligamus. All permissions given by the policy out of the ordinary course and incidents of the voyage, are to be construed strictly. If the vessel have liberty to carry letters of marque, she may deviate for the purpose of defence, but not for the purpose of capture. In Haven v. Holland,d an enlarged discretion, and one carried to the very verge of the law, was confided to the captain as to the best mode of defence, and it was held, that the letter of marque might chase and capture hostile vessels in sight, in the course of the voyage, without its being a deviation; and if he captures the vessel, the master may make the victory effectual, and man out the prize, and the delay for those purposes is not a deviation. If liberty be given her to chase and capture, that will not enable her to convoy her prize into port,e though she may do it if she be not thereby led out of the way; and to cruise for six weeks, means six consecutive weeks, and not at different times.g

The object of the deviation must be considered, in order to determine its effect upon the policy. It must be commensurate only with the necessity that produces it, and that necessity will justify a deviation on account of a peril not insured against.h And when the deviation is gov

erned by that *necessity, as a deviation from stress of *317 weather, or to procure necessary repairs, or to join convoy, or to avoid capture or detention, it works no injury. to the policy.i

Doug. Rep. 284.

• Parr v. Anderson, 6 East's Rep. 202.

d 2 Mason's Rep. 230.

• Lawrence v. Sidebotham, 6 East's Rep. 45.

Ward v. Wood, 13 Mass. Rep. 539.

Syers v. Bridge, Doug. Rep. 509.

b Traité des Ass. tome ii. 62.

Scott v. Thompson, 4 Bos. & Pull. 181. Robinson v. Marine Ins. Company, 2 Johns. Rep. 89.

i Condy's Marshall, 202. b. to 213. Phillips on Insurance, vol. i. 2d edit. 480

There has been considerable discussion in the books relative to the identity of the voyage described in the policy, and the voyage actually begun. If the vessel sails on a different voyage, the policy never attaches; but if she be lost before she comes to the dividing point, between the course of the voyage in the policy and the course of the new voyage, the change of the voyage often becomes a contested question as to the intention of the party. If the ship really sailed on another voyage, the policy never attached, though the vessel be lost before she came to the dividing point; but if the termini of the voyage described in the policy be the same as those upon which the vessel sailed, it is the same voyage, and a mere intention, afterwards formed, to deviate, is of no consequence, if the vessel be lost before she came to the dividing point. The distinction between an alteration of the voyage, and a mere deviation in the course of it, is very reasonable and solid. The one is adopted previous to the commencement of the risk, and shows that the party had receded from his agreement, but the other takes place after the risk had commenced, and relates only to the execution of the original plan. It has, however, been held,

a

in one case, after much discussion,b and suggested in *318 another, in opposition to the established *rule, that the identity of the voyage does not always consist in the identity of the termini; and that though the terminus ad quem be dropped, and another substituted in the course of the voyage, it may be still the same voyage; and if the vessel be lost before she comes to the dividing point between the course to the original, and to the substituted port of destination, it is an intention to deviate, and nothing more.d

-576. The latter work has collected and digested all the English and American cases on this very diffusive head of deviation, and to which I must refer for a more particular knowledge of the distinctions and exceptions with which the books abound.

a

Woolbridge v. Boydell, Doug. Rep. 16. 343. Middlewood v. Blakes, 7 Term Rep. 162.

Kewley v. Ryan, 2 H. Blacks. Rep.
Silva v. Low, 1 Johns. Cas. 184.

Henshaw v. Marine Ins. Company, 2 Caines' Rep. 273. Marine Ins. Company v. Tucker, 5 Cranch's Rep. 357. Boulay Paty, tome iv. 56, 57.

Lawrence v. Ocean Ins. Company, 11 Johns. Rep. 241. S. C. 14 Ibid. 46.

• Johnson, J., in 3 Cranch's Rep. 385.

• The foreign jurists distinguish between the voyage insured, and the voyage of

III. Of the rights and duties of the insured in cases of loss. (1.) Of abandonment.

A total loss within the meaning of the policy may arise either by the total destruction of the thing insured, or, if it specifically remains, by such damage to it as renders it of little or no value. A loss is said to be total if the voyage be entirely lost or defeated, or not worth pursuing, and the projected adventure frustrated. It is a constructive total loss if the thing insured, though existing in fact, is lost for any beneficial purpose to the owner. In such cases the insured may abandon all his interest in the subject insured, and all his hopes of recovery, to the insurer, and call upon him to pay as for a total loss. The object of the provision is to enable the insured to be promptly reinstated in his capital, and be thereby enabled to engage in some new mercantile adventure. Long interruption to a voyage, and uncertain hopes of recovery, would often be ruinous to the business of the merchant; and, therefore, if the object of the voyage be lost, or not worth pursuing, by reason of the peril insured against, or if the cargo be so damaged as to be of little or no value, or *where the salvage is very high, and further *319 expense be necessary, and the insurer will not engage

to bear it, or if what is saved be of less value than the freight, or where the damage exceeds one half the value of the goods insured, or where the property is captured, or arrested, or even detained by an indefinite embargo; in these and other cases of a like nature, the insured may disentangle himself, and abandon the subject to the underwriter, and call upon him to pay a total loss. (1) In such cases, the insurer stands in the place of the insured, and takes the subject to himself with all the chances of recovery and indemnity. A valid abandonment has a retrospective effect, and does of itself, and without any deed of cession, and prior to the

the ship. Independenter se habet assecuratio a viaggio navis. If a ship sails on a voyage from Saint Malo to Toulon, and is insured from Saint Malo to Cadiz, the latter is the voyage insured, but the former is the voyage of the ship, and the voyage insured is known by its two extremes, or the terminus a quo and the terminus ad quem. Casaregis, Disc. 67. n. 5. 31. Boulay Paty, tome iii. 416,

417.

(1) Reimer v. Ringrose, 4 Eng. L. & E. R. 888.

actual payment of the loss, transfer the right of property to the insurer to the extent of the insurance; and if after an abandonment, duly made and accepted, the ship should be recovered, and proceed and make a prosperous voyage, the insurer, as owner, would reap the profits.a

These considerations have introduced the right of abandonment into the insurance law of every country, and yet the text writers have generally condemned the privilege as inconsistent with just notions concerning the nature of the contract of insurance, which is a contract of indemnity. But it has now become an ingredient so interwoven with the whole system of insurance, that it cannot be abolished, though the late English cases, says Mr. Benecke, show a stronger inclination in the courts to restrict than to enlarge the right. The laws of Hamburg distinguish themselves from all *320 others, *by restricting the right of abandonment to the only case of a missing ship.b

As soon as the insured is informed of the loss, he ought (after being allowed a reasonable time to inspect the cargo, and for no other purpose,) to determine promptly whether he will or will not abandon, and he cannot lie by and speculate on events. If he elects to abandon, he must do it in a rea

■ Guidon, c. 7. sec. 1. Goss v. Withers, 2 Burr. Rep. 683. Hamilton v. Mendes, ibid. 1198. Mills v. Fletcher, Doug. Rep. 231. Manning v. Newnham, Park on Insurance, 221. Cazalet v. St. Barbe, 1 Term Rep. 187. Queen v. Union Ins. Company, 2 Wash. Cir. Rep. 331. The abandonment carries with it to the insurer, not only the title to the subject insured, but its proceeds, if recovered, and any compensation awarded by way of indemnity. The benefit of the spes recuperandi passes, and all that may be collateral or incidental to the ownership. Bleauwpot v. Da Costa, 1 Eden, 130. Randell v. Cochran, 1 Ves. sen. 98. Comegys v. Vasse, 1 Peters' U. S. Rep. 193. Atlantic Ins. Company v. Storrow, 1 Edw. Ch. Rep. 621. Rogers v. Hosack's Executors, 18 Wendell, 319. Matthews, J., in Mellon v. Bucks, 5 Martin's Louis. Rep. N. S. 371. Mr. Benecke justly observes, that the principles in some of the above cases, before Lord Mansfield, were too generally expressed to serve as a basis of the law of abandonment, and that it was from actual decisions, and not from such general observations, that the law must be collected. Benecke on Indemnity, 348.

Ord. of Hamburg, tit. 11. The insurance companies of Philadelphia, in 1807, agreed that their policies should provide against abandonment in cases of capture or detention, until sixty days after advice received of the act, unless the property be sooner condemned; and in cases of embargo, until after four calendar months; and against any abandonment on account of seizure or detention in port under French decrees, or on account of the port of detention being blockaded.