Liberty to touch, stay, &c. At and from. policy was effected on goods from Liverpool to London, and the captain took in goods at Liverpool for Southampton as well as for London, intending to go first to Southampton, the termini of the voyage being the same as those described in the policy; it was held to be the same voyage until the vessel reached the dividing point; and that the policy attached so far, though putting into Southampton was a deviation a. If where there are several courses or modes of performing a voyage, the master select a particular track for a purpose foreign to the voyage, instead of adopting that which is the safest, considered merely with reference to the voyage insured, it is a deviation which will avoid the policy ". A clause is frequently introduced into policies giving liberty to the insured to touch, stay, trade, &c., at any port or places; a liberty to touch "at any port or place whatsoever, for all purposes," must be taken to mean for some purpose connected with the voyage; therefore if the insured touch at any port or place, for a purpose unconnected with the object of the voyage, it will avoid the policy. Where a vessel insured on freight at and from London to Grenada arrived in safety, and proceeded to deliver her outward cargo in different bays of the island, (when there was but one custom-house,) and was lost in entering a bay to which she was going, for the double purpose of delivering the remainder of her outward, and taking in a homeward cargo; held, that this was not a deviation, and that the underwriters were liable for the loss of the homeward freight; for the employment in which the ship was engaged at the time of the loss was necessarily connected with the homeward voyage. But where a vessel was insured "at and from her port of loading in North America, to her port of discharge in England," and she took in part of her cargo at Cockaigne, in New Brunswick, and then • Id. When the vessel arrived Middlewood v. Blakes, 7 T. R. 162. Rucker v. Alnutt, 15 East, 278. Langhorn v. Alnutt, 4 Taunt. 519. Hammond v. Reid, 4 B. & A. 73. Solly v. Whitmore, 5 B. & A. 46. d Warre r. Miller, 7 D. & R. I. 4 B. & C. 538. sailed further up to Bucktush, a place within seven miles of Cockaigne, higher up in the same bay, and within the general jurisdiction of the same custom-house at St. John's, but having a custom-house officer, equally with Cockaigne, entitled to grant clearances. At Bucktush she took in a further part of her cargo, and returning to Cockaigne, there completed her cargo; held, in an action for a loss which occurred after the vessel had sailed on her voyage, that the going to Bucktush after she had commenced taking in her cargo, was a deviation which vitiated the policy; for the expression, "from her port Port of loading of loading," meant one single place; therefore when the ship means one once began loading at Cockaigne, it ought to have finished single there; going to any other place was a deviation 2. Under a policy from London to the ship's discharging port or ports in the Baltic, with liberty to touch at any port or ports for orders, or any other purpose; the ship in touching for orders before she has selected her port of discharge, is not confined to take the ports in the successive order in which they lie in the course of the voyage, but may return to a port she has quitted, for orders as to her port of discharge. But after she has selected her port of discharge, she must touch at ports only in their successive order. If ports of call are named in a policy in a successive order, the ship must take them in the same succession in which they are named. Upon a policy from London to Trinidad, or the Spanish Main, with liberty to call at all or any of the West India islands or settlements, and with liberty to touch and stay at any ports or places whatsoever and wheresoever, the assured must take all the ports at which he touches, in the same succession in which they occur in the course of the voyage insured. But if he is lost in steering for an island not in the outward course of his voyage to Trinidad, it is a question for the jury to consider, whether he had not abandoned the intention of going to Trinidad, and restricted himself to the residue of the voyage 3 Brown v. Tayleure, 1 Harr. & Woll. 578. 5 N. & M. 472. Andrews v. Mellish, (in error,) 5 Taunt. 496. 2 M. & S. 27. 16 East, с See Hunter v. Leathly, 10 B. & & P. 316. place. of the order in which ports must be touched at. Policy on a fishing voyage. only. Where a ship insured at and from Lisbon, had liberty to call at any one port in Portugal for any purpose whatsoever, and after leaving Lisbon sailed to complete her cargo to Faro, a port to the southward; held, that the permission must be restrained to the northward ports on her way to England, and that she had deviated by going southward b. Where a ship was insured from London to Berbice, with an extensive liberty of touching and trading at all places; held, that by putting into Madeira, and staying there after the convoy with which she sailed had proceeded on the voyage, she was guilty of a deviation, which discharged the underwriters . Policy on a ship "from London to New South Wales, and from thence to all parts and places in the East Indies, or South America, with liberty to take in and land goods and passengers, and to trade backwards and forwards and forwards and backwards;" held, that after the arrival of the ship at New South Wales, she was protected by the policy so long only as she was sailing on a voyage either to South America or to the East Indies, or on some intermediate voyage, having for its ultimate object the accomplishment of a voyage either to South America or to the East Indies. But on arriving at New South Wales, the captain being ordered by his owners to proceed on a trading voyage to New Zealand, and from thence direct to South America; proceeded to New Zealand with passengers, and was returning from thence to New South Wales, when the ship was totally lost; held, that the sailing from New South Wales to New Zealand, and back, was a deviation from the voyage insured, by which the insurers were discharged; for at the time of the loss, the ship was on a distinct voyage, not connected with either of the voyages contemplated by the parties as the principal objects of the contract d. Leave granted in a policy of insurance on a fishing voyage to see prizes into port, does not authorize to remain in port till a prize receives necessary repairs, which she could not other a Gairdner v. Senhouse, 3 Taunt. 16. Bragg v. Anderson, 4 Taunt. 229. b Hogg v. Horner, Park, 444. Marsh. 184. Ranken r. Reeve, Park, 445. с Williams v. Shee, 3 Camp. 469. d Bottomly v. Bovill, 7 D. & R. 702. 5 B. & C. 210. wise have had; and at most extends to seeing the prize moored safely, and giving necessary orders for her final destination a. Liberty given in a policy on a fishing voyage, to chase, capture, and man prizes, does not authorize the ship to lie by nine days off a port, waiting for an enemy's ship to come out when she should have completed her cargo, although she lay in wait during that time within the limits of her fishing ground. It is not an implied condition in a common marine policy on ship and freight, that the ship shall not trade in the course of her voyage, if that may be done without deviation or delay, or otherwise increasing the risk of the insurers; therefore where a ship was compelled in the course of her voyage to enter a port for the purpose of obtaining a necessary stock of provisions, which she could not obtain before in the usual course, by reason of a scarcity at her lading ports; and during her justifiable stay in the port so entered for that purpose, she took on board bullion there on freight, which the jury found did not occasion any delay in the voyage; it was held, not to avoid the policy. If a ship has liberty to touch at a port, it is no deviation to take in merchandize during her allowed stay there, if she does not by means thereof exceed the period allowed for her remaining there. It is equivalent to a deviation if a ship insured on a trading voyage on the coast of Africa stay there beyond the usual time as a receiving ship e. If a deviation be justified by necessity, it will not avoid the contract, or discharge the insurer; as if the ship be obliged to depart from the direct or usual course by stress of weather; or for necessary repairs, or to join a convoy h, or to avoid capture or detention, or through the mutiny of the crewk, or Where there is a contract for on account of the sickness of the master or mariners a, it will not determine the contract; provided the captain in departing from the usual course, act boná fide and according to the best of his judgment, for the benefit of all parties. If a ship is driven out of her course by a storm, she is not obliged to return back to the point from whence she was driven, but may make the best of her way to the port of destination b. Where a policy of insurance contains no warranty against seizure in port, if the ship to avoid such seizure runs to sea before she is properly loaded, and is in consequence obliged to go to a port out of the direct course of the voyage insured; the underwriters are liable for a subsequent loss. Otherwise where the policy contains a warranty against seizure in port d. If she is forced by stress of weather into any port under that clause, she is not protected in breaking bulk while at such port; if she does, it avoids the policy. Policy on goods on board a particular ship from A. to B. "against sea-risk and fire only;" in the course of the voyage from A. to B. the ship was carried out of the course of the voyage by a king's ship; but being afterwards released, she proceeded on the voyage insured, and while so proceeding, the goods insured sustained sea-damage; held, that the underwriters were liable for this loss: for the ship was carried out of the course of her voyage by force; and deviation occasioned by force, is the same as that occasioned by necessity'. But it is a deviation if the master leaves a port for a particular purpose, by the command of the captain of a king's ship lying there, without any remonstrance 8. A policy of insurance from Bristol to Monte Video, or other port in the river Plate, where the ship, after arriving off Mal a When sickness of the master or crew is set up as an excuse for deviation, it is incumbent on the plaintiff to shew that proper medicines and necessaries for the voyage were on board, in a case where the nature of the voyage requires that there should be a surgeon on board. Per Lord Eldon, C. J., in Woolf v. Claggett, 3 Esp. 257. ⚫ Harrington v. Halkeld, Park, 455. 249. O'Reilly v. Gonne, 4 Camp. O'Reilly v. Royal Exchange Assurance Company, 4 Camp. 246. Still v. Wardell, 2 Esp. 610. f Scott v. Thompson, 1 N. R. 181. Phelps v. Auldjo, 2 Camp, 350. |