No. 1.-Elliot v. Wilson, 4 Bro. P. C. 475. voyage is according to usage. But the appellants' argument went even farther than literal interpretation, for they would construe "liberty to call at Leith," as a direct prohibition to call anywhere else; though the just and more natural conclusion was, that had such prohibition been intended, it would have been expressed; and as it was not disputed, that vessels in the trade from Carron to Hull usually touch at Morrison's Haven, and that this consisted with the knowledge of the appellants, the Voyage, as made, was according to usage, and within the intent of the policy. The appellants were not at liberty to deviate from the respondents' instructions shown to them, but ought either to have kept to the precise terms of those instructions, or not have signed the policy at all; especially when they were told that the vessel had previously sailed. If their plea now was not affected, their conduct then was insidious and wrong; and as, by their silence, the respondent was led to believe himself secure in all events, they were in equity obliged to make good his loss. Like most other questions arising from insurance, the present fell to be judged upon equitable principles, resulting from the special circumstances of the case: and when all circumstances here were considered, the plea of the appellants must be deemed an attempt to evade payment, equally illiberal and ineffectual. An express allowance to call at one port being given, the vessel passed it and touched at another, only six miles farther down the river, and in the course of the voyage insured. The alleged deviation was singly the act of entering Morrison's Haven; for the vessel's sailing close by it never could have been so termed, so near was it to the direct course of the voyage; and nothing being more common than to tack from one shore to the other in going down the Frith; calling at Leith, or at Morrison's Haven, was but the difference of a name, for the time of staying at the port mentioned in the policy was not limited. The risk was not greater, as it is allowed by every person acquainted with the coast, that Morrison's Haven is even a safer and more accessible harbour than Leith; and, in fact, no damage was sustained by the deviation, the vessel having regained the direct course to Hull, and being wrecked after proceeding in it several leagues. But, further, the words in the policy, whatever the appellants now affected to understand by them, seemed to have been used as synonymous with those in the respondents' instructions to the broker. The appellants admitted having seen the instructions and asked the broker what was meant by calling as usual. The words inserted in their place could not be intended to limit the more general term, because the insured were neither masters of the vessel, nor had any direction or knowledge of the precise course of the voyage; and because it was understood by all the parties concerned, that the vessel had sailed from Carron three days at least before making the insurance, and consequently might be in some other port at that instant, as it actually was; a circumstance which it was not impossible for the underwriters to be acquainted with. It was evident, therefore, that the [* 476] broker could not possibly mean to make the policy void, in case the vessel had called, or might call, at the other usual places besides Leith; and if the appellants tacitly entertained such an idea, having the instructions before their eyes, being acquainted that the vessel had already sailed, knowing the usage, and taking the accustomed premium, they were guilty of a fraud, from which they could not be allowed to reap any advantage. But after hearing counsel on this appeal it was ordered and adjudged that the interlocutors complained of should be reversed; and it was declared that the respondents were entitled to a return of the premium paid by them to the appellants; and it was therefore ordered and adjudged that the appellants should pay or cause to be paid to the respondents the said premium. Lords' Journals, 25 Nov. 1776. Vol. XXXV., p. 25. Hare v. Travis. 7 Barn. & Cress. 14-18 (s. c. 9 Dowl. & Ry. 748). Insurance. Deviation. Intention not carried out. A policy, in the usual form, was effected on pearl ashes on a voyage at [14] and from Liverpool to London. The captain took in goods at Liverpool for Southampton as well as London, intending to go first to the former place. He accordingly went into Southampton, and delivered the goods shipped for that place, and afterwards proceeded to London. The termini of the voyage being the same as those described in the policy, it was held to be the same voyage until the vessel reached the dividing point, and that the policy attached although putting into Southampton was a deviation. The goods insured received considerable damage from sea-water. But they were not examined at Southampton, nor until they reached London, when the damage was found to amount to 60 per cent. Before the vessel reached the dividing point of the two voyages she had met with bad weather, and had made much water, and on one occasion, the water puinped up appeared to hold the pearl ashes in solution. On the voyage from Southampton to London there were no heavy seas, and the weather was tolerably fair. Under these circumstances, it was held, that it was a question for the jury, whether the pearl ashes had sustained damage to the limit stipulated by the policy, before the deviation; and they having found that they had sustained damage to that amount, the Court refused to disturb the verdict. This was an action on a policy of insurance on pearl ashes on board the ship Smyrna, on a voyage at, and from Liverpool to London. The policy contained the usual clause, that all goods were to be free from average under three per cent, unless general, or the ship were stranded. At the trial before Lord TENTERDEN, C. J., at the London sittings after last term, it appeared that the captain had taken in goods at Liverpool for Southampton as well as London; the vessel, on the 23d of September, sailed from Liverpool, having on board the pearl ashes, which were stowed in the lower tier; she was compelled by bad weather to put twice into Holyhead, and upon a survey had there, it appeared she made much water. On the 30th of October the Smyrna left Holyhead, and from that time the hold of the ship was never free from water; while she was in the Bristol Channel, the water pumped up took the colour out of the captain's clothes, which he attributed to its having the pearl ashes in solution. On the 1st of November the vessel arrived at Southampton, and the captain there delivered the goods shipped for that place, but the pearl ashes were not unloaded or examined there. The vessel left Southampton [*15] *on the 4th of November, and arrived in London on the 10th. On her voyage from Southampton there were no heavy seas. The weather was tolerably fair, but the ship made water, although not so much as she had previously done. The pearl ashes, on their arrival in London, appeared to have sustained so much damage by salt water as to be depreciated in value upwards of 60 per cent. They were in a state of solution, and it was proved by persons conversant with the article, that that could not have happened, from coming in contact with salt water, in less time than three or four weeks, certainly not in three or four days. Upon this evidence it was contended, that the plaintiff ought to be nonsuited, inasmuch as the vessel did not sail from Liverpool on the voyage insured, viz., a voyage to London, No. 2.-Hare v. Travis, 7 Barn. & Cress. 15-17. but on a voyage to Southampton. That was the first port of destination; for the captain, having taken in goods for Southampton, must have cleared out for that place. That was the voyage contemplated and performed. Secondly, assuming that the putting into Southampton was a mere deviation, there was no evidence of the amount of the damage caused by the perils of the sea before the deviation took place. Lord TENTERDEN, C. J., was of opinion that the vessel did sail on the voyage insured, the captain having an intention to deviate, which intention was afterwards executed by his going into Southampton, and that the underwriters, therefore, were not liable for any damage which occurred after that period: therefore, it was a question for the jury upon the evidence, whether, before the vessel put into Southampton, the assured had sustained damage to the amount of three per cent by a peril of the sea? *The jury found that the damage [* 16] done to the pearl ashes before the deviation exceeded three per cent. Campbell now moved to enter a nonsuit, on the ground that the vessel did not sail on the voyage insured, for the captain intended, in the first instance, to go to Southampton. In all the cases on the subject, a total loss has happened before the vessel reached the dividing point, and there is no case where underwriters have been held liable after a deviation. Secondly, the underwriters were clearly discharged from all responsibility after the deviation. The pearl ashes were not examined at Southampton, and all goods being warranted free from average under three per cent, it was incumbent on the plaintiff to show distinctly that before the vessel deviated by going into Southampton, the pearl ashes had been injured to that amount by a peril of the sea. But there having been no examination of the cargo at Southampton, that became impossible. Parkin v. Tunno, 11 East, 22, 2 Camp. 59 (10 R. R. 422), is an authority to show there must be distinct evidence. that the goods were damaged to that amount while they were protected by the policy, and that the evidence in this case was not sufficient for that purpose. From the 1st to the 10th of November the vessel was on her voyage from Southampton, and was frequently pumped. The damage may have occurred during that period. Lord TENTERDEN, C. J. It appeared at the trial that the captain took in goods for Southampton, and also for London. Having loaded his vessel with goods partly for one [*17] * No. 2. - Hare v. Travis, 7 Barn. & Cress. 17, 18. place and partly for the other, I thought it was to be inferred that he sailed on a voyage to both places, and that so long as the vessel continued in that course, which was common to a voyage either to Southampton or London, she was sailing on the voyage insured. But as the policy did not contain any clause giving liberty to the vessel to put into Southampton, I thought the putting into that port was a deviation, and that the underwriters were not responsible for any loss which accrued subsequently. It appeared, however, that the vessel met with very bad weather in the early part of her voyage; that she put into Holyhead, and that after she left Holyhead, and before her arrival at the dividing point of the voyage, when the water was pumped up, it changed the colour of the captain's clothes; and it appeared further, that in the voyage from Southampton to London the weather was fair. When she arrived in London it was found that the pearl ashes had sustained damage to the amount of two-thirds of their value. Under these circumstances, I left it to the jury to say, whether, before the vessel came to the dividing point, Southampton, the assured had sustained a loss by the perils of the sea amounting to three per cent? The jury found that they had; and I think there was evidence to support that finding. BAYLEY, J. Where the insurance is on a voyage to a given place, and the captain when he sails does not mean to go to that place at all, he never sails on the voyage insured. But where the ultimate termini of the intended voyage are the same as those described in the policy, although an intermediate voyage be [*18] contemplated, the voyage is to be considered the same * until the vessel arrives at the dividing point of the two voyages. The departure from the course of the voyage insured then becomes a deviation; but before the arrival at the dividing point, there is no more than an intention to deviate, which, if not carried into effect, will not vitiate the policy. In Kewley v. Ryan, 2 H. Bl. 343 (3 R. R. 408), the policy was at and from Grenada to Liverpool. The ship sailed for Liverpool; but the captain, before the commencement of the voyage, had formed a design to touch at Cork on her way. She was totally lost before she arrived at the dividing point; but the termini of the intended voyage being really the same as those described in the policy, the Court held that it must be considered the same voyage; and that a design to deviate, not effected, would not determine the policy; and they |