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 *only. Where a ship insured at and from Lisbon, had liberty *1196 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."

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 Policy on to see prizes into port, does not authorise to remain in port till a fishing a prize receives necessary repairs, which she could not other- voyage. wise have had; and at most extends to seeing the prize moored safely, and giving necessary orders for her final desti

Gairdner v. Senhouse, 3 Taunt. 16. Bragg v. Anderson, 4 Taunt. 229. b Hogg v. Horner, Park. 444. Marsh. 184. Ranken v. Reeve, Park, 445. • Williams v. Shee, 3 Camp. 469.

a Bottomly v. Bovill, 7 D. & R. 702. 5 B & C. 210. (11 Eng. C. L. 204.) VOL. II.-26

When a

trade in

the course

age.

nation. Liberty given in a policy on a fishing voyage, to chase, capture, and man prizes, does not authorise 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.b

It is not an implied condition in a common marine policy on ship may ship and freight, that the ship shall not trade in the course of her voyage, if that may be done without deviation or delay, of her voy- 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.

A devia

tion may be justi

fied by ne

cessity.
*1198

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," or to avoid capture or detention, or through the mutiny of the crew, or *on account of the sickness of the master or mariners, it will not determine the contract; provided the captain in departing from the usual course, act bona 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.1 Where a policy of insurance contains no warranty against

Urquhart v. Barnard, 1 Taunt. 450. 'Delany v. Stoddart, 4 T. R. 22.

Motteux v. London Assurance Company, 1 Atk.

Campbell v. Bordieu, 2 Stra. 1265.

h D'Aguilar v. Tobin, Holt, 185. Blackenhagen v. London Assurance Company, 1 Camp. 454. Driscol v. Bovil, 1 B. & P. 313.

Elton v. Brogden, 2 Stra. 1264.

* When sickness of the master or crew is set up as an excuse for deviation, it is incumbent on the plaintiff to show 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.

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.b 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.

for a spe

A policy of insurance from Bristol to Monte Video, or other Where port in the river Plate, where the ship, after arriving off Mal- there is a donado, at the mouth of the Plate, was immediately ordered contract off by the British commander there, (the enemy having before cific voygotten possession of every other port in the river,) will not age, a decover a loss which happened to the goods insured by a peril of viation the sea after the ship's departure from thence, in her way to Rio Janeiro, which was the nearest friendly port, and to which she was under a necessity of going for water and repairs; for the policy containing a contract for a specific voyage, could not be extended by implication, however necessary it might be that the voyage should be altered.f

If the captain of a ship, on hearing that there is an embargo laid on ships at the port of destination, waits at some place near thereto till the embargo be removed, he will be protected by the policy; but if he might put into a friendly port in the neighborhood, and instead of doing so sails back to the port of outfit and is lost, he will be considered as having abandoned the voyage insured, and the underwriters will be discharged.s

a

* O'Reilly v. Gonne, 4 Camp. 249.

O'Reilly v. Royal Exchange Assurance Company, 4 Camp. 246.

e Still v. Wardell, 2 Esp. 610.

Phelps v. Auldjo, 2 Camp. 350.

cannot be

*1199

Scott v. Thompson, 1 N. R. 181.

Parkin v. Tunno, 11 East, 22. 2 Camp. 59. Nielson v. De la Cour, 2 Esp. 619. Blackenhagen v. London Assurance Company, 1 Camp. 454.

An insur

on a voy

of this

SECTION XVII.

ILLEGAL VOYAGE.

Ir may be laid down as a general rule that no insurance can ance can be legally effected upon a voyage undertaken contrary to the not be ef- laws of this kingdom or those of its dependencies, or to the law fected up of nations. Therefore, if the voyage or the traffic in which age or traf- the ship is engaged be illegal, an insurance effected thereupon fic in con- is void, and cannot be enforced; and it is immaterial whether travention the insurer was apprised of the illegality of the voyage, or not." of the laws If there be anything illegal in the transaction during any part kingdom. of the time that the policy attached, the policy is void; as if a ship be insured "at and from A. to B., and there be any illegality in the traffic during her stay at A., the assured cannot recover on the policy for a loss happening between A. and B. *1200 But in order to render the insurance illegal, the illegality should exist during the course of the voyage insured; therefore an insurance on a ship for a particular voyage may be legal, though she may have done some act in a former voyage for which she was liable to seizure; and goods may be insured though purchased with the proceeds of a former illegal cargo. But if there be any illegality in the commencement of an integral voyage, and an insurance be effected on the latter part of the voyage, which taken by itself would be legal, still the assured cannot recover on the policy.d

Trade car

The stat. 47 Geo. III, c. 2, legalized, from September 17, 1806, the trading to any place which then was, or should thereafter be, under the dominion of his majesty. Buenos Ayres was taken by his majesty's troops in the preceding year, and retaken on the 12th of August, 1806; held, that an adventure to Buneos Ayres, commencing in the first week of September, 1806, was illegal, and the policy on it void.e

Trade carried on in violation of a blockade or embargo, of ried on in the provisions of a treaty, or of a royal proclamation, is illegal, violation and a policy effected on the ships, goods, or freight is void. of a block- If a ship, without notice of a blockade, proceeds to a port

ade, is il

legal.

which is blockaded, and be captured, the policy is not thereby vitiated; and a notification of the blockade in the gazette is not conclusive of the knowledge of the insured of that fact, "although," said Lord Tenterden, C. J., "the blockading nation may, by the law of nations, be allowed to consider its notifica

See ante, 1132.

Bird v. Appleton, 8 T. R. 562.

b Marsh. 191.

& Marryatt v. Wilson, 8 T. R. 31. 1 B. & P. 430. Bird v. Pigou, S. N. P. 981. Toulmin v. Anderson, 1 Taunt. 227.

f Delmada v. Motteux, Park, 357. 1 T. R. 85. The Hurtige, 3 Rob. Adm. Rep. 324. Jones v. Tobias, 1 Id. 329.

tion of a blockade as a notice thereof to all the subjects of the nation to which the notification has been made, yet such rule cannot be applied to the case of insurance; knowledge, like other matters, must become a question of fact for the decision and judgment of a jury." Therefore, when a ship sailed for a foreign port, and notice afterwards appeared in the gazette that such port was blockaded; the ship having been captured, it *was held to be a question of fact for the jury, in an action on *1201 the policy, whether the captain knew of the blockade or not. If after notice of a blockade a policy is effected to the port that is blockaded, and the ship sails for the purpose of enquiring whether the blockade is continued, and is captured, the policy is not thereby vitiated, for the voyage is not illegal in its inception.

The Navigation Act, 6 Geo. IV, c. 109, requires that certain Foreign ships shall be navigated by a crew of which three parts are crew. British; an exemption is given if a due proportion of such seamen cannot be procured in any foreign port; or if the proportion be destroyed during the voyage by any unavoidable circumstance, and the master bring a certificate of the facts from a British consul, or prove the facts to the satisfaction of the comptroller of the customs in a British port; held, that a ship which lost her proportion of British seamen, by death, at Sierra Leone, and could not replace them except by foreigners, was within the exemption, and the vessel having been lost on her voyage home with an over proportion of foreign hands, the insured was not precluded from recovering from the underwriters, though he had not the certificate required by the act, the circumstances of excuse having been satisfactorily proved to a jury at the trial."

without a

By the common law, no British subject can legally trade Trading with the enemy's country, and the property engaged is subject with an to confiscation in a court of prize. Every contract of insu- enemy rance, therefore, effected on the property of an enemy, or on license is goods purchased even by a British subject in an enemy's coun- illegal. try, is void. But a license from the crown will legalise a trading with the enemy, and protect the exportation of goods which is prohibited by proclamation; and an insurance may be legally effected on commerce which is protected by such license.

Licenses to trade with an enemy are to be construed liberally, *and not, like grants of property from the crown, strictly; and *1202 therefore, although the agent, in obtaining the license, did not Construc

Per Lord Tenterden, C. J., in Harratt v. Wise, 9 B. & C. 717.

(17 Eng. C. L.

(17 Eng. C. L. 480.) Dalgleish v. Hodgson, 5 M. & P. 407.

(20 Eng. C. L. 384.)