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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. Motteux 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 justified by the necessity. But to make out such a justification, must clearly 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 his 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 forcibly 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.

*Corr and WOOLSEY against SMITH.

[*16]

Insurance on horses from Liverpool to New York, "against all risks, including 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 thrown 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.
Kent, J.

Per

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 to 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. IIL

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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 languishing, 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.

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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.

Coit v. Smith.

KENT, J. I fully agree in the doctrine laid down in the case of Lockyer and others v. Offley, (1 Term Rep. 252,) that the insurer is not liable for losses happening after the term prescribed in the policy, although the subsequent loss be a consequence of a peril in the policy. What was the condition of the cargo when it was landed, is the only question. In this case, one of the horses received a death wound during the voyage, and by reason of the perils specified in the policy. Surely the damages so received, as they existed at the termination of the voyage, are a proper subject of retribution. The subsequent death of the horse is to be put wholly out of view. How much was he injured by the bruises, and how much damage *ought to have been assessed, at [*18] the time he was landed, are the proper subjects of inquiry. The subsequent death of the horse ought not to put the plaintiffs in a worse situation than if he had survived the bruises. It ought not to go to the destruction of the plaintiffs' right of action. If the plaintiffs would have had a right of action for an injury to the horse, by which his value was lessened, had the horse survived, they, surely must have that right of action, notwithstanding the subsequent increase of loss. We must say, that the present policy was merely upon the existence of the lives of the horses, for the voyage, or the plaintiffs must recover an average loss. There is no alternative.

I am of opinion they are entitled to recover, and to the full amount of the horse, for he was so disabled by the fall, as that he could not eat before he landed, and died three or four days after. It was a total loss of the horse.

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

Judgment for the plaintiffs.(a)

(a) In the case of Morelony v. Dunlope, cited by Willes, J. in Lockyer v. Offley, (1 Term. R. 260,) where an insurance on a ship was made for six months and three days before the expiration of the time she received her death wound, but by pumping was kept afloat until three days after the time. it was held, that the insured could not recover. The case was also put by Willes, J. of an insurance on a man's life for a year, who some short time after the expiration of the term, received a mortal wound, of which he died after the year, who thought the assurer would not be liable.

Coit v. Smith.

Lockyer v. Offley decided, that where a ship insured for a voyage arrived and remained safely in port for twenty-four hours, the assurer was not liable for a seizure made afterwards in consequence of an act of smuggling committed by the master during the voyage. The question mainly considered by the court was whether the actual property in the vessel was altered till the act of seizure, and this was decided in the negative.

A similar decision has been made in Louisiana. A policy was effected on "the Spanish brig Palmero de Mahon, against barratry and other risks, from Havana to New Orleans, until she should be moored twenty-four hours in good safety." Within the twenty-four hours from the time of mooring at New Orleans, an attempt was made by the master and mariners to smuggle some rum and cigars, in consequence of which, after she had been moored more than twenty-fours, she was seized, and and subsequently condemned. The Supreme Court of Louisiana was of opinion that the underwriters were not liable, the ground of the decision being, that she was not seized until after the expiration of the twenty-four hours. (Mariatigui Knight & Co. v. Louisiana Ins. Co. 8 Louisiana R. 65. decided on the authority of Lockyer v. Ofley 1 T. R. 252) But in case of the seizure of a ship during the risk, and its condemnation after the termination of the risk, the insurers were held to be liable for a total loss, for the seizure in itself constituted such a loss. The subsequent release of the ship might have taken away the right of abandonment, but as the ship was not released, it was held that the right to abandon subsisted after the risk had ceased. (Dorr v. N. E. Mar. Ins. Co. 11 Mass. Rep. 1.) A British vessel insured from Bilboa to Rouen, till she had been there moored twenty-four hours in safety, arrived at Rouen, where a hostile embargo had been laid upon British vessels. It seems that she was not actually taken possession of under the embargo, until after the expiration of the twenty-four hours, but she had been in the power of the officers of the French government from the time of her arrival. Lord Kenyon instructed the jury, that the loss happened immediately on the vessel's arriving within the operation of the embargo, and so before the expiration of the risk. (Minette v. Anderson, Park, 55. Peake, 211.)

These cases are however readily distinguishable from the principal case. (See 1 Phillips on Ins. 708; 3 Steph. N. P. 2069; and also from Stagg & Snell v. The United Ins. Co., infra. p. 34, in which the ship arrived at Curacoa in such a state that she was not worth repairing)

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