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Patrick v. Ludlow

a port in England was a deviation which put an end to the policy. (Tenet v. Phænix 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 thein 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., aster 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,

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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. Syde botham, h 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 Fast, 54. Lettle v. St. Louis Perpetual Marine Fire of 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 1. Marine Ins. Co. 2 Johns. 138.) Imminent danger of capture is a justifiable cause of delay. (Whitney v. Horen, 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 froin 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

Patrick v. Ludlow.

Port Baltic on the 22d of Nov. Being there informed that it would be impossible to reach Cronstadt on account of the ice, she sailed from Port Baltic on the 23d of Nov., intending to go to Ravel, and was lost while endeavoring to get into the bay. Held, that the going into Port Baltic, and afterwards attempting to get into Ravel, was justifiable and no deviation, the captain having acted bona fide, and according to his best judgment. (Graham v. Commercial Ins. Co. 11 Johns. 352.) And it is not a violation of this principle for a ship driven, by necessity, into a port not mentioned in the policy of insurance, to leave, or take cargo, if no delay or change of risk be occasioned thereby. (Chase v. Eagle Ins. Co. 5 Pick. 51. Guibert v. Readshaw, 1 Esp. N. P.92. Motteur v London Assurance Comp. 1 Atk 347. Harrington v. Halkeld, Park on Insurance, 455. Delaney v. Stoddart, 1 T. R. 22 Thomas v. Royal Exchange Assurance Comp. 1 Price, 195.) If, by sickness, or any other cause, so many of the officers or ship's company are disabled from performing their duty, as to render it impossible, or highly perilous, to proceed on the voyage, the ship may put into the nearest port where medical assistance, or other hands, can be procured ; and the deviation in such case will be juslified by the necessity. But to make out such a justification, it must clear. ly appear, that this necessity arose without any default of the master or owners; and that if a surgeon were necessary in the voyage insured, a surgeon of competent skill, and furnished with all necessary instruments and medicines was on board. (Per Lord Eldon C. J. in Wolfe v. Claggett, cit. Marshall on Insurance, 212.) If the captain be forced out of his course under the compulsion of a mutinous crew, such a deviation will be excused by the force put upon the captain.

To make a deviation criminal, and so discharge the underwriter, it must be done voluntarily; thus, in Elton v. Brogden, (Str. 1264) the vessel sailed from Bristol with a letter of marque, insured from Bristol to Newfoundland, and took a prize. The sailors mutinied and compelled the captain to leave bis course for Newfoundland and return to Bristol. In an action against the insurers, who set up a deviation in their defence, it was resolved, that it was excused by reason of the force used against the captain, which he could not resist and so fell within the case of necessity, which had been always admitted as an excuse. So where the crew being alarmed by reports of an enemy, insisted on the captain bearing away for another port, it was held to be no deviation. (1 Esp. N. P. 92.) So where she was carried sorcibly by a king's ship out of the course of the voyage. (Scott v. Thompson, 1 N. R. 118.) A policy was effected 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 ;-It was held, that the underwriters were liable for this loss. (Id.) But it is a deviation, if the master leave a port for a particular purpose, by the command of the captain of a king's ship lying there, without any remonstrance.

Planche v. Fletcher, (Doug. 250.,) is an illustration of a deviation in accordance with the usage of trade. (See also Bond v. Gonsales, 2 Salkeld 445.) But the danger which will justify a vessel in remaining in port a long time,

Coit v. Smith.

without discharging the underwiters, must be obvious, immediate, directly applied to the interruption of the voyage, and imminent; not distant, contingent, and indefinite. (Oliver v. Maryland Ins. Co. 7 Cranch, 487.) If the ship deviate for the purpose of repair, this, like every other voyage of necessity, must be pursued in the most expeditious manner; for if it appear to have been undertaken for any other object than repairs, it will not justify the deviation ; or if there be any unnecessary delay in getting the repairs done, this will be equivalent to a new deviation. (Lavabre v. Wilson, Doug. 284.) In fact, the deviation from necessity must be justified by the necessity, both as to the substance and manner of it, and nothing more must be done, than what the necessity requires.

*Cort and Woolsey against SMITH.

[*16]

Insurance on horses from Liverpool to New York, " against all risks, includ.

ing the risk of death, from any cause whatever, until they shall be safely lauded,” About three days before the arrival of the vessel at New York, she met with a violent gale of wind and heavy sea, which caused her to roll very much, by which means one of the horses was ihrown down and bruised, in consequence of which he refused to eat, and died in three days

after he was landed at New York. It was held that the horse received his death wound by the perils of the

sea, and that the plaintiff was entitled to recover the full value of the

horse. The only question is what was the condition of the cargo when landed. Per

Kent, J.

This was an action on a policy of insurance on horses, on board the ship Perseverance, from Liverpool to New York, “ against all risks, including the risk of death from any cause whatever; until the goods shall be safely landed." &c.

The value of the horses shipped on the voyage, was proved to be two thousand five hundred and forty-eight dollars. Three days before the arrival of the vessel at New York it came on 10 blow a violent gale, the ship rolling very much, and the sea running very high. During the gale, one of the horses was thrown off his legs, and was, with great difficulty, got up. Before the gale, the horse was in good Vol. UL

4

Coit v. Smith.

condition and more healthy than any other horse on board the ship; but by the fall, he was much injured, and refused to eat and continued to refuse to eat, after he was landed, and died in three or four days after he was landed, in New York.

After his death, a farrier opened him, and found that his death was occasioned by violent bruises in his breast; and the farrier, who saw the horse before he was landed, was of opinion that it was impossible for him to have recovered from the state in which he then appeared to be.

The declaration stated, that by the dangers and violence of the seas, &c. the horse was so wounded, bruised. &c. that he then and there became of no value to the plaintiffs, and that although he was afterwards landed, yet by reason of the wounds, &c. aforesaid, he continued sick, lame, and langnishing, until afterwards, &c. he died.

A verdict was found for the plaintiffs, subject to the opinion of the court on the above case, which was argued at the

last term. [*17] Hopkins, for the plaintiffs.

C. J. Bogert, contra. RadcliFF, J. The question is, whether the defendant is liable for the damage sustained by the injury suffered by means of this accident ? The injury is clearly within the risks expressed in the policy, and happened during the voyage insured. If the horse had been thus partially injured and continued to live, there could have been no doubt but the defendant would have been liable for the proportionate diminution of his value. His subsequent death cannot alter the case. It is not, as has been supposed, the gravamen alleged, but merely evidence of the extent of the injury; his death wound being received during the voyage. The cause of action existed before, and the allegation of his death might have been wholly omitted in the plaintiffs' declaration. As has been observed by the counsel for the plaintiffs, it is the common case of damaged goods, and the amount of the damages ascertained by subsequent evidence attending the subject.

The horse appearing to be wholly lost, I think the plain. tiffs are entitled to recover his value.

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