4 Barnewall & Alderson, 72, Hammond Reid; 5 & Barnewall & As where a vessel, licensed "to call at all or any of "the windward or leeward islands on her passage to "New York," went to St. Bartholomew and St. Thomas, for a purpose wholly unconnected with the voyage in question, it was held that the policy was thereby vitiated. The calling must be for some purpose connected with the adventure, as the taking on board part of the cargo, &c. 4 Taunton, 511, Langhorn e. Allnatt. 3 Taunton, 419, Violett v. Allnutt; 5 Maule & Selwyn, 6, Barclay v. Stirling. 6 East, 45, Lawrence . Sydebotham. If a ship carry letters of marque, she may chase an enemy, but she is neither at liberty to cruise nor to convoy. Thus, under a liberty to "chase, capture, and "man," the slackening sail for the purpose of convoying a prize was adjudged to vacate the policy, for the licence could not be extended beyond such acts as were necessary towards the performance of the capture. And if the captor remain in port until the prize have received sufficient repair, the underwriters will be discharged, for the voyage might never terminate under such circumstances. Cruizing also will vitiate the policy; and where a vessel lay by nine days off a port waiting for a prize, when she ought to have been completing her cargo, she was held to have deviated, although, being on a fishing voyage, she was within the limits of her fishing ground, 2 Taunton, 428, and although she had liberty to chase, capture, and man 1 Campb. 263, Jarratt r. Ward. 6 Fast, 202, Parr v. Ander Hibbert v. Hal liday. Douglas, 527, Park, p. 468, Hartley v. Buggin; See Id. p. 470 prizes. And even where there is a liberty of cruizing, as "to "cruize six weeks, and then proceed to Antigua :" the six weeks must be taken together, and not at so many different cruizes. Again, if parties on a trading voyage do not use reasonable expedition, a deviation will be the result; as where a ship staid some months beyond the usual stay of ships in her trade; and the reasonableness of the delay is a question for the jury. And even if the underwriter be cognizant of the breach of contract, yet both parties are bound by the description of the voyage they have insured, and a previous deviation will be fatal, for the adventure will have erred from the statement in the policy (s). 5 Taunton, 462, Redman v.Lowdon. 1 Taunton, 450, Cormack v. 12 East, 131, Oswin; 4Moore, 150, Armet v. Innes. However, the courts will assist the plaintiff in a policy of insurance.where they are able consistently to do so, and the following cases will prove that there is a limit to the strictness of construction in favour of the underwriter. General liberty was given to touch at a port, the contract not mentioning for what purpose, and the leave was construed to be for the purpose of trade, and it was held, that the taking in merchandize within a reasonable time was no deviation. If the contract permit the assured to call at any port or ports for the purpose of procuring a cargo, he may go out of the direct course of the voyage, and so a policy at and from Martinique and all or any of the West India islands warrants 4 Taunton, 229, a course from Martinique out of the direct homeward voyage. So where the policy enabled the captain to touch at all or any of the West India islands, Jamaica included, it was adjudged, that the voyage need not be in the direct course, and that the contract obviously contemplated, that the islands might be taken out of their geographical order. 5 Taunton, 480, Lambert v. Lid dard. derson; see 3 Bragg . An- Marsden v. ville v St. Barbe. 4 Campb. 123, Metcalfe v. It is clear that business connected with the voyage will protect the assured from the charge of deviation, though if there be any delay in delivering the cargo, the 3 Campb. 437, underwriter may be excused. Inglis v. Vaux. But where due diligence is used, and the captain is acting in the fulfilment of his duty, as in delivering his freight, such a proceeding is so interwoven with the voyage as to continue the underwriter's liability. If the assured take out a letter of marque for the pur (s) See also on this subject of Deviation, 1 Bligh, 87, Tasker v. Cunninghame. 4 Barnewall & Cresswell, 538, Warre v. pose of inducing seamen to enter, and without any intention of cruizing, though without the knowledge of the Moss . Byrom. underwriter, the policy will not thereby be avoided. Park, p. 451, 9 East, 195, Elton v. Brog den. 1 New Rep. Forster v. Chris- The cases above cited are those in which the act itself complained of by the underwriter was no act of deviation; we will proceed to cite authorities where the deviation has been holden justifiable or excusable. A ship went into a port for the purpose of taking in a stock of provisions she could not obtain elsewhere, and although she took in some bullion there also on freight, the policy was held unimpeached, it appearing, that the newly received freight had not occasioned any delay. Force will operate as an excuse. As where the crew obliged the master to go out of his voyage, or where the merchant vessel is carried out of her course by a King's ship, although she be afterwards released, for this deviation is caused by force, and so by necessity, for necessity is force. Bosanquet & Puller, 200, Driscol v. Passmore. 1 Atkins, 545, Motteux v.Lon Want of reparation is a justifiable deviation, since it don Assurance; is for the benefit of the underwriters as well as the assured that the ship should be taken care of. Park, p. 454, Guibert v. Park, p. 455, Stress of weather will justify the departure of a ship from her regular course. As where a vessel was separated from her convoy by a storm, and in endeavouring to reach her port of destination was taken, the plaintiff had a verdict upon his policy. So where a ship put into 1 Price, 195, port from stress of weather, and was soon afterwards Thomas v.Royal Ex. Assurance. burnt by accident, the plaintiff recovered. 1 Term Rep. 22, Delany v. Stoddart. For the act of God shall not prejudice any man, and so where a ship was driven out of her port, and obliged to make another, where she completed her lading, it was held, that she need not have returned back to the point whence she was driven, but that her endeavour to reach the end of the voyage was right, and no deviation. And so it is where a ship endeavours to meet with convoy, But the Enderby v. Flet cher, Per Gibbs, C.J. Holt's Cases, 186. there being no other motive than to come the safest way Park, p. 463, home. “A vessel when insured may always do whatever "it would be expedient to do if uninsured." ship ought to be in an efficient state, and there must be good proof given of the necessity for deviation; for where a ship put into Plymouth on the ground of the officers being ill, and the defence was deviation, but the plaintiff called no medical men to show the sickness of the captain and mate, and it appeared, besides, that there. had been no proper provision of medicines and necessaries-Lord Eldon directed a nonsuit. And upon the ship being compelled to change her track from necessity, it becomes incumbent on the master to sail straight for the port of her destination, for if there be any delay or lingering, the underwriters, notwithstanding the original change of voyage from necessity, will yet be dis- Douglas, 284, charged. If a deviation may be justified by the usage of trade, it should be remembered, that an established custom will alone furnish the excuse; a few instances, for example, of Liverpool ships putting into the Isle of Man will not warrant such a proceeding in a voyage from Liverpool to Jamaica. A mere intention to deviate will not destroy the policy if the accident happen before the ship reaches her dividing point, but this position may be qualified by the circumstance, that the insurer never intended originally to sail upon the voyage proposed. If it appears that the port of destination is quite different from that intended, the underwriter will not be liable though the ship be lost before she attain the dividing point. Though, again, if the termini of the voyage be the same, though the ship be designed to deviate, the assured may still recover. 3 Espinasse, 257, Woolf v. Claggett. Lavabre v. Wil son. Park, p. 464, Salisbury . Townson. 1 Maule & Selwyn, 46, Heselton v. Allnutt; 7 Barnewall & Cresswell, 14, Hase v. Travis. A ship insured from London to Jamaica sailed to 7 Term Rep. St. Domingo contrary to the policy; previous to her 162, Middle wood n. Blakes. 2 Lord Ray. mond, 840, Green v. Young. 15 East, 324. Taylor v. Wil son. 9. Value. 2 Burrow,1167, arriving there she passed a point whence there are three tracks to Jamaica, and the captain was to use his judgment respecting them; but he took that which lay most convenient for St. Domingo, and was captured before he had actually turned out of the course to Jamaica, but after he had passed the subdividing point of the three tracks; held that the underwriters were discharged, because they expected that the captain would have used his discretion as to the voyage, wherein, in fact, his orders to make St. Domingo prevented him from exercising any judgment upon the subject. However, for any accident happening previous to the deviation, the assured may certainly recover, and it has been so determined. It may be remarked, that an insurance on freight may be made for a part of a voyage, though the ultimate destination of the ship be not communicated to the underwriters. "The said ship, &c. goods and merchandizes, &c. "for so much as concerns the assured by agreement, &c. are and shall be valued at £..” In the case of a valued policy, the plaintiff need only Lewis v. Rucker. prove some interest, although he will not be permitted by having an interest to a cable's amount to insure for 2 Burrow,1171, a large sum of money, such an act being an evasion of by Lord Mans- the statute against wagering. field. See the cases in Park, p. 403411. Policies have been held good upon "commissions," "profits to arise, and be made, from the sale and dis 66 posal of the said cargo of goods," "profits;" on prizes" (t), upon "profits valued at 1,000l. with"out any other voucher than the policy." But, as we (t) Upon the expectation that the Crown would give up a prize, according to usage, a good interest. 10 Ves. jun. 157, Nicol v. Goodall. |
