Patrick v. Ludlow.

I am of opinion, therefore, that judgment ought to be given for the plaintiff, for the damages assessed.

LEWIS, Ch. J. was of the same opinion.

Judgment for the plaintiff (a)(b)(c)

Pothier des Assur. n.

(a) [Old note.] See Reeve v. Commercial Insurance Company, 8 Johns. Rep. 252. 2 Emerigon, 58, 59. 60. Roccus, de Assec. 52. 93. 51. Marshall, b. 1. c. 6. s. 3. p. 211.

(b) In Motteux v. The London Assurance Company, (1 Atkyns, 545, 548,) Lord Hardwicke held that the words "at and from Bengal to England" included the first arrival of the ship at Bengal. And in the subsequent case of Chitty v. Selwyn, (2 Atkyns, 358,) the same doctrine is approved. The decision upon this point in the principal case proceeds upon this construction of the words "at and from" a place. In the case of Garrynes v. Cox, (1 Binney, 592,) however under the words "at and from Cape St. Francois," in a policy on a ship, the risk was held to commence "after she had been moored safely twenty four hours at that port." (See Merchants Ins. Co. v. Clapp, 11 Pickering, 56. Taylor v. Lowell, 3 Mass. 331. Dickey v. Baltimore Ins. Co. 7 Cranch, 327.)

(c) The contract of insurance is one which requires the highest good faith between the parties. The policy is to be strictly followed in its terms, and any variation of the risk is held to discharge the underwriter upon the principle that the parties contemplate that the voyage shall be pursued in that course which is safest and most direct. (Himely v. South Car. Ins. Co. 1 Rep. Con. Ct. 1521. 1 Phillips on Ins. 2d ed. 480.)

It is not however to be supposed, that the parties contemplate that the voyage shall be performed out of the usual mode. In some voyages it is cus. tomary to prolong the risk by touching at intermediate ports, as in Indian voyages, or by delay in the discharge of the cargo, as in voyages to Labrador and Africa, and the contract is to be construed in reference to the custom of the particular voyage. (Philips on Ins. 2d ed 481. Per Porter, J. in Byren v. Louisiana State Ins. Co. 7 Martin, N. S. 128. Garyan v. Ohio Ins. Co. Wright, 202. Jolly v. The Same id. 539.)

A deviation therefore is to be considered as an unnecessary delay; (Chitty v. Selwin, 2 Atk. 359; Valance v. Dewar, 1 Camp. 505; Ougier v. Jennings, ibid. n; Mount v. Larkins, 8 Bing. 108. recog. in Freeman v. Taylor, ibid. 139; Palmer v. Marshall, ibid. 317., sed vide Palmer v. Fenning, 9 ibid. 460 ;) or as it is expressed by Mr. Philips (1 Insurance 481,) "It is not merely going out of the direct or usual course of the voyage, but it comprehends unusual and unnecessary delay, or any other act of the assured or his agents, which, without necessary or just cause, increases or changes the risks inclued in the policy." The principle upon which a deviation avoids a policy is that the risk is changed, for when more time is taken up in completing the voyage, than the underwriter contemplated, his risk is protracted. Hence, where a vessel insured from Whitehaven to St. Michael's was forced into Dublin, where she broke bulk and discharged part of her cargo, it was

Patrick v. Ludlow.

ruled by Lord Kenyon, that the underwriter was discharged. (Stitt v. Wardell, 2 Esp. N. P. C. 610.) And where a policy was made on a ship bound from Dartmouth to Liverpool, which sailed from Dartmouth, but afterwards put into Looe, a place she must of necessity have passed by on the course of her voyage, yet not mentioned in the policy; though it was proved that no accident whatever happened in going in or coming out of Looe, and that she was lost after she had cleared it, and got to sea, still Mr. Justice Yates ruled, this to be a deviation, and to avoid the policy. (Fox v. Black, Exeter Sum. Ass. 1767, cit. 1 Esp. N. P. 90. Townson v. Guyon, cit. Marshall on Insurance, 179.) Upon the same principle if a ship, having liberty to put into one port, puts into another equally in her way, this is fatal, though neither the risk nor the premium would have been greater, if this had been permitted by the policy. (Elliot v. Wilson, 7 Bro. P. C. 459. 1 Phillips on Insurance, 484.) And a departure from the usual course of a voyage, for the purpose of assisting another vessel in saving property, is a deviation which discharges the insurer. (Little v. St. Louis Perpetual Marine Fire and Life Ins. Co. 7 Mis. 379.) So pursuing a vessel that has been piratically taken by its crew, is a deviation and will discharge the insurers. (Hood v. Nesbitt, 1 Yeates, 114.) So if a vessel remains in a port, to which she has been carried by captors, for the purposes of trading, for a longer time than is necessary to prepare for her voyage, it is a deviation. (Kingston v. Girard, 4 Dall 274.)

A ship's cargo and freight were insured "from Boston to the Canaries, and from thence to any port or ports of Spanish America, and at and from thence to her port of discharge in the United States, under whatever papers she may sail." She went safely to the Canaries, and from thence, under Spanish colors and papers, to Vera Cruz, where the outward cargo was landed, and afterwards seized as an illegal importation. The master, after spending five months in exertions to recover his cargo, without success, took a cargo to Havana, where was one of the Spanish house concerned in the adventure, in order to change his papers to return to the United States. On her passage to Havana the ship was captured and condemned. The captain's delay at Vera Cruz was not, and the voyage to Havana was, a deviation. (Stocker v. Harris, 3 Mass. 409.) In Mey v. S. Carolina Ins. Co. (Const. Rep. 339,). the defendants refused to insure a vessel on a voyage at and from Amsterdam to Charleston, but afterwards did insure "from Amsterdam only." The vessel, partly laden, sailed from Amsterdam, and in five days arrived in the Texel roads, where she took the rest of her cargo out of lighters from Amsterdam. A vessel of her size could not take a full cargo over the shoals between Amsterdam and the Texel. Being delayed at the Texel by adverse winds, she met with a general average loss, for which a jury gave a verdict for the insured, and the court refused to allow a new trial, either on the ground that the vessel had not proceeded on her voyage from Amsterdam, or that the facts in evidence substantiated a deviation which vacated the policy. In Vos v. Robinson, (9 Johns 192,) a vessel was insured at and from Port Plata to New York; and in going from Port Plata to Susua, which is in the district bearing the name of Port Plata, and about 18 miles east of the port, to take in a cargo of mahogany, she was driven into the road or bay of Isabella, in

Patrick v. Ludlow.

the same district, and there lost. She had a permit from the custom-house at Port Plata to go to Susua, to obtain her cargo, and would have been obliged to return to Port Plata, to pay the duties, and get a clearance, such being the usual course of trade there. The custom-house and port of entry are confined to the particular place called Port Plata; and the district for the purposes of revenue, which bears that name, extends nearly a hundred miles along the coast. Port Plata is a safe harbor; but Susua and Isabella are open roads, and dangerous while particular winds prevail. Held, that Port Plata proper, and the district of Port Plata, were different objects, and the perils distinct; that the going from Port Plata to Susua was a deviation; and that nothing but a clear, well-settled, and well understood usage of trade would be sufficient to include both objects under the name "Port Plata." In Robertson v. The Columbian Ins. Co. (8 Johns. 491,) a vessel was insured from New York to Teneriffe, and, for an additional premium, permission was given to proceed to the Isles of May and Bonavista, from Teneriffe, and thence to New York. The vessel was refused permission to enter or land any part of her cargo at Teneriffe, without performing a quarantine of 40 days, which the master not choosing to do, went to Maderia, the nearest port where he could enter and land his cargo, and there sold and landed his cargo, and proceeded to the Isle of May. It was held, that the going to Maderia was a deviation.

Where Insurance was made on the freight of the Venus, from Philadelphia to the Isle of France. On the voyage insured, the ship was stopped by a British ship of war, on the 16th January, 1808, detained for a short time, and discharged, the register being indorsed "warned not to proceed to any port in the possession of his majesty's enemies." The Venus returned to Philadelphia on the 23d of February, 1808, and the assured claimed for a total loss. The Isle of France was not blockaded by an actual force until after the 1st of February, 1808; but the captain of the British ship informed the master and owner of the Venus that the Isle of France was blockaded, and that she would be prize, which caused the Venus to return to Philadelphia. It was held, that the voyage was improperly broken up, and that the insurers on the freight of the Venus were not liable. (King v. Delaware Ins. Co. 2 Wash. C. C. 300.) And where a vessel was insured from New York to Bremen, with liberty to enter a Dutch port, if informed it could be done with safety ; and on the coast of Holland, it was learned that Amsterdam was not blockaded, and that she might go there safe from British cruisers; and she was captured by a French cruiser, while standing in for Texel, 10 miles from the entrance of the roads, and carried into Amsterdam. It was held, that the information did not warrant the vessel's being taken to Texel, and a departure from the route to Bremen was therefore a deviation that discharged the insurers. (Duerhagen v. U. States Ins. Co. 2 S. & R. 309.) And where insurance was made from New York to Bourdeaux, "the insured not to abandon, if refused admittance or turned away but may proceed to another near open port." The ship was turned away from Bourdeaux, by a British vessel. Held, that, under the Berlin decree, the French ports were open, as to the ship insured, and that an attempt of the master to proceed to

Patrick v. Ludlow

a port in England was a deviation which put an end to the policy. (Tenet v. Phonix Ins. Co. 7 Johns. 363.)

If a vessel remains in a port, to which she has been carried by captors, for the purposes of trading, for a longer time than is necessary to prepare for her voyage, it is a deviation. (Kingston v. Girard, 4 Dall. 274.)

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, unless some usage or particular necessity intervene to vary the general rule. (Gairdner v. Senhouse, 3 Taunt. 16, et vide Bragg v. Anderson, 4 ibid. 229; Kane v. Columbian Ins. Co. 2 Johns. 264) Beatson v. Haworth, 6 T. R. 531. Marsden v. Reid, 3 East, 572.) And if the ship's ports of discharge are only mentioned generally, but not specifically named in the policy, the ship must go to them in the geographical order in which they occur; and taking them out of that order, unless this be warranted by usage or by necessity, will be a deviation. (Glason v. Simmonds, cit. 6 T. R. 533.) 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 had 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. (Andrews v. Mellish, (in error), 5 Taunt. 496. 2 M. & S. 27. 16 East, 312., et vide Driscol v. Bovil, 1 B. & P. 313.) But after she has selected her port of discharge, she must touch at ports only in their successive order. (Ibid.)

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;-It was held, that the permission must be restrained to the northward ports on her way to England, and that she had deviated by going southward. (Hogg v. Horner, Park on Insurance, 444. Marshall on Insurance, 184. Ranken v. Reeve, Park on Insurance, 445., vide etiam Hunter v. Leathley, 10 B. & C. 858; S. C. (in error) confirmed Leathley v. Hunter, 5 M. & P. 457. 7 Bing 517. 1 C. & J. 423. 1 Tyrw. 355.)

And where an insurance was effected on a ship "at and from her port of lading in North America to Liverpool;" she took in part of her cargo at K. in New Brunswick, and then sailed from thence to B. in the same province, seven miles distant, on the same bay of the sea. She there completed her cargo, and then returned to K to receive provisions, &c., after which, she sailed for England, and was lost on the voyage. B. was not in the way from K. to Liverpool. B. and K. were situate on creeks opening into the bay, and were spoken of by some persons as ports, but neither of them had a customhouse. They had custom-house officers, and were under the jurisdiction of the custom-house of St. John. New Brunswick ;-It was held, that, after the ship had begun to load at K., that was her port of lading; that the term of "port of lading" in the policy, did not allow of her afterwards going to B.; and that her doing so, was a deviation. (Brown v. Tayleur, 4 A & E. 241,

Patrick v. Ludlow.

vide etiam as to the definition of "port," Kingston-upon-Hull Dock Comp. v. Browne, 2 B. & Ad. 58.)

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. Nor will a liberty given in a letter of marque "to chase, capture, and man prizes" enable her toconvoy a prize taken by her into port. (Lawrence v. Sydebotham, 6 East, 45.)

We have seen that deviation is an unnecessary delay beyond the usual and accustomed mode of prosecuting the voyage. If therefore the delay be necessary, there is no deviation. As to procure necessary repairs; (Molleux v. London Ass. Co. 1 Atk. 347;) or to save lives which are in jeopardy. (The Boston, 1 Sumner, 328. The Henry Ewbank, ib. 400. Lawrence v. Sydebotham, 6 East, 54. Lettle v. St. Louis Perpetual Marine Fire & Life Insurance Company, 7 Missouri, 379.) Hence if a vessel is obliged, by necessity, to put into a port, and part of her cargo is necessarily taken out, in order to repair the vessel, and such part of the cargo, being damaged, is sold, without occasioning delay to the vessel, it will not avoid the policy. (Kane v. Columbian Ins. Co. 2 Johns. 264.) Under a policy to trade at one or two ports in Cuba, then to Barracoa, it was held to be no deviation that the vessel staid four months at B., where she was robbed by pirates, and then went to New Providence, where the voyage was broken up. (Gilfert v. Hallet, 2 Johns. Cas. 296.) Where a vessel was insured from New York to Bourdeaux, and had French passengers on board, and the owners instructed the master to go through the Sound, in order to avoid the risk of detention by British cruisers, then off the Hook; and the master went through the Sound, instead of going through the Narrows to the Hook, which is the most usual and least dangerous route. Held, that it was not a deviation. (Reade v. Commercial Ins. Co. 3 Johns. 352.) If a vessel be driven into a port of necessity, and a pestilence break out, that prevents her from pursuing her voyage, it is not a deviation. (Williams v. Smith, 2 Caines, 1.) So putting into a port whilst obliged to wait for a favorable wind, in order to avoid a probable danger of capture, is justifiable. (Suydam v. Marine Ins. Co. 2 Johns. 138.) Imminent danger of capture is a justifiable cause of delay. (Whitney v. Haven, 13 Mass. 172.) A deviation, to avoid enemy's cruisers, is excusable. (Goyon v. Pleasants, 3 Wash. C. C. 241.) Where a vessel, insured against sea risks only, was turned away from a port by a ship of war, on account of a blockade, and in her passage to another port was lost, the deviation is excused by the necessity, and does not avoid the policy. (Robinson v. Marine Ins. Co. 2 Johns. 89.) So a storm compelling a vessel insured to bear away for a port, justifies what would otherwise be a deviation. (Campbell v. Williamson, 2 Bay, 237.) Where a cargo was insured," at and from Carlsham to St. Petersburgh." The vessel sailed from Carlsham, Nov. 9th, 1810, and meeting with adverse winds, attempted to get into Ravel, as a place of safety; but finding it impracticable, she put into