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observed that the ship was bound for Liverpool, although she had also clearances for Cork. That case, therefore, is an authority to show, that until the captain in this case departed from his course towards London, the voyage may be considered as a voyage to London. Upon the other point, I agree with my Lord, that under the peculiar circumstances of this case there was evidence to go to the jury that a loss to the amount of 3 per cent had been sustained before the deviation, and that no fault is to be found with their verdict. HOLROYD and LITTLEDALE, JJ., concurred.
Rule refused. ENGLISH NOTES. The former of the principal cases is a decision of the highest authority on the pure point of law, or, as it was put in the proceedings for review mentioned on p. 354, supra, on the abstract question, whether the vessel touching at Morrison's Haven, when not allowed by the policy, discharged the underwriters.” And the decision is clearly independent of any suggestion that the risk was materially enhanced. The report does not make it clear why the premium was ordered to be returned. Probably it was on the ground that the policy was effected (on the 9th Feby.) by the insured in good faith and in ignorance of the fact of the deviation which had then already determined the risk. This would be consistent with Oom v. Bruce (1810), 12 East, 225, 11 R. R. 367, and not inconsistent with Tait v. Levi (1811), 14 East, 481, 13 R. R. 289, where the deviation appears to have been subsequent. It is to be remembered that deviation only discharges a policy from the time of deviation (Green v. Young, 1701, Salk. 444), so that according to the terms of the contract the risk has attached and the premium is earned, unless there is some equity to set aside the contract altogether.
The case of Clason v. Simmonds, No. 5, p. 384, post, is an illustration of the former branch of the rule.
It is of no consequence how short the deviation is. An armed vessel bound with convoy from Cork to Jamaica cruised for a night in concert with two other armed merchant vessels in hopes of meeting with a prize. This was held by a special jury of merchants under directions of Lord CAMDEN to discharge the underwriters. Townson, C. B., cited in Park on Insurance, Vol. 2, p. 630.
Two other early cases stated in Park on Insurance, Vol. 2, p. 620, may be here quoted: In Fox v. Black (Exeter Assizes, 1767, before Mr. Justice YATES), the plaintiff was a shipper of goods in a vessel bound from Dartmouth to Liverpool; the ship sailed from Dartmouth and put into Lov, a place she must of necessity pass by in the course of the
Cock v. Nos. 1, 2. — Elliot v. Wilson ; Hare v. Travis. — Notes.
insured voyage. But as she had no liberty given her by the policy to go into Loo, and although no accident befel her going into or coming out of Loo (for she was lost after she got out to sea again), yet Mr. Justice Yates held that this was a deviation, and a verdict was accordingly found for the underwriter. In Townson v. Guyon before Lord MANSFIELD, an action was brought on a policy on goods loaded on board the Charming Nancy from Dunkirk to Leghorn. The ship came to Dover on her way to procure a Mediterranean pass and was afterwards lost. Lord MANSFIELD was of opinion that the calling at Dover was a deviation, and the plaintiff was nonsuited.
“ It is not material, to constitute a deviation, that the risk should be increased.” Per Lord MANSFIELD, in Hartley v. Buggin, No. 7, p. 391, post (3 Douglas, 39).
Nor is it less a wilful deviation, if the captain has deviated through ignorance, or some motive not fraudulent, and therefore not coming within the definition of barratry which is one of the risks insured against in the common form of policy. Phyn v. Royal Exchange Assurance Co. (1798), 7 T. R. 505, 4 R. R. 508.
In Redman v. London (or Lowdon), 1813, 1814, 3 Camp. 503, 5 Taunt. 462, 1 Marsh. 136, it was held that a deviation from the voyage described in the policy was fatal to any claim on it, although the deviation took place before the policy was entered into, and at the time of effecting the policy the underwriter was shown a letter from the captain of the ship at sea which showed that the deviation had taken place. Gibbs, C. J., said (5 Taunt. 464): “Since the parties have made the policy in its present form of an insurance on a voyage at and from London to Berbice, the legal requisites of a voyage at and from London to Berbice must be performed in this case, as in any other. It is a sad objection, and the Court would help the plaintiff if they possibly could.”
It does not appear whether the premium was returned, but it may be assumed that it was or might have been, since, having regard to the facts known to the parties, the contract, according to the construction given to it by the Court, was impossible or insensible.
On the latter branch of the rule, an earlier express authority is Thellusson v. Fergusson (1780), 1 Dougl. 360. An insured ship bound for Havre was captured when steering towards Brest. In an action on the policy a verdict was found for the plaintiff. There was some evidence of an intention to go to Brest, but the captain swore that the course in which he was taken was the safest way, in time of war, of getting to Havre, which still continued to be the place of the ship's destination. The Court refused a new trial. Lord MANSFIELD said: “ The voyage to Brest was, at most, an intended deviation not carried
into effect." The other Judges, WILLES, J., AsHHURST, J., and BulLER, J., concurred.
Another example is the case of Heselton v. Allnutt (1813), 1 M. & S. 46. A ship insured on a voyage to Memel, with liberty to touch, &c., sailed for Gottenburgh (which is on the route to Memel) with orders to inquire there whether to proceed to Memel or to Anholt. She was captured on the way to Gottenburgh. Lord ELLENBOROUGH, C. J., said: “I think there was an inception of the voyage insured. The preponderating intent of the assured was to go to Memel, although that intent was liable to be changed according to circumstances. ..I think that there may be a good inception of the voyage under a fluctuating purpose."
See also per Lord MANSFIELD, in Woolbridge v. Boydell, and Kewley v. Ryan, both cited in notes to Nos. 3 & 4, pp. 380, 381, post.
Any voluntary deviation is a change of the risk; it forms a departure from the contract, and an attempt to substitute another. It is not necessary that the risk should thereby be increased; it is sufficient that it be changed. Its effect is to discharge the underwriters. Natchez Ins. Co. v. Stanton, 2 Smedes & Marshall (Mississippi), 340; 41 Am. Dec. 592. To the same effect: Maryland Ins. Co. v. LeRoy, 7 Cranch (U. S. Supr. Ct.), 30; Gazzam v. Ohio Ins. Co., 1 Wright (Ohio), 202; Coffin v. Newburyport M. Ins. Co., 9 Massachusetts, 449 ; Stewart v. Tennessee, &c. Ins. Co., 1 Humphreys (Tennessee), 242; Schieffelin v. New York Ins. Co., 9 Johnson (New York), 21 ; Riggin v. Patapsco Ins. Co., 7 Harris & Johnson (Maryland), 279; 16 Am. Dec. 302; Hood v. Nesbit, 2 Dallas (Penn.), 137 ; 1 Am. Dec. 265; Burgess v. Equitable M. Ins. Co., 126 Massachusetts, 70; 30 Am. Rep. 654; Fernandez v. Great W. Ins. Co., 48 New York, 571; 8 Am. Rep. 571 (trial trip); Hearne v. Marine Ins. Co., 20 Wallace (U. S. Supr. Ct.), 488; California Nav. Co. v. State Investment, &c. Ins. Co., 70 California, 586; A udenreid v. Mercantile M. Ins. Co., 60 New York, 482; 19 Am. Rep. 204 (deviation to repair a defect known at sailing); Snyder v. Atlantic M. Ins. Co., 95 New York, 196; 47 Am. Rep. 29; Burgess v. Equit. M. Ins. Co., 126 Massachusetts, 70; 30 Am. Rep. 654 (fishing boat putting in for bait).
In the Snyder case, above, the insurance was “at and from Bermuda to New York,” to sail in July. On July 2, the vessel left her berth and steamed twenty miles to Hamilton, took a schooner in tow to St. Georges, thence to sea five miles, then returned to her berth; on July 3, receiving clearance papers, she towed another schooner to sea, thence sailed to Hamilton, took on coal and a life-boat, and thence sailed, July 4th, for New York, and was lost on the route. Held, a fatal deviation. Citing Brown v. Tayleur, 4 Ad. & Ell. 241 ; Kettell v. Wiggin, 13 Massachusetts, 68. “ It seems to us that when the Ackerman left St. Georges her · voyage risk'clearly commenced, and her subsequent employment in towing the Hound to sea not only increased
Nos. 1, 2. — Elliot v. Wilson ; Hare v. Travis. — Notes.
the perils, but subjected the insurers to liabilities which they had not contracted for.”
In Wilkins v. Tobacco Ins. Co., 30 Ohio State, 317; 27 Am. Rep. 455, the policy permitted navigation of the Ohio and Mississippi Rivers below Cairo, and contained no prohibition of other navigation; the boat made a trip outside those waters and returned safely, but was afterwards destroyed by fire not caused nor contributed to by that departure. Held, that the only effect of the deviation was to relieve the insurer from liability for any loss happening outside the permitted waters, and that after a temporary departure and return in safety to the permitted waters, the insurers are liable for a subsequent loss not caused nor contributed to by such deviation. In Greenleaf v. St. Louis Ins. Co., 37 Missouri, 25, there was a like decision, where there was a time policy, permitting navigation of certain waters and excepting others, and there was a trip on excepted waters and a safe return and a subsequent loss by fire.
In Wheeler v. New York M. Ins. Co., 35 New York Superior, 247, the policy contained a warranty “not to use foreign ports and places in the Gulf of Mexico.” The vessel cleared for a port in the Gulf of Mexico, and went aground on the coast of Cuba, seven hundred miles distant. Held, not a breach of the warranty ; that the mere intention to use did not constitute a
This was founded on Snow v. Columbian Ins. Co., 48 New York, 624; 8 Am. Rep. 578, holding that a warranty not to use a certain port means not to go into it, and that a mere intention to use a prohibited port does not violate the policy. The Court said: “ It is the act or fact by which the result is determined. A man may determine to violate his contract or to defraud his neighbour a thousand times and in a thousand ways, and yet not place himself within the reach of the law. He may perform his contract when he intends to violate it. If his acts are right, a secret intent cannot injure him ; nor if his acts are wrong can a good intent save him.”
The same was adjudged by the United States Supreme Court, in Marine Ins. Co. v. Tucker, 3 Cranch, 357, a case of capture before reaching the dividing point. “An intent to do an act can never amount to the commission of the act itself. That an intended deviation will not vitiate a policy, and that the vessel remains covered by her insurance until she reaches the point of divergency, and actually turns off from the due course of the voyage insured, is a doctrine well understood among mercantile men, and has uniformly governed the decisions of the British Courts from the case of Foster & Wilmer to the present time."
The same doctrine is also explicitly declared in Henshaw v. Marine Ins. Co., 2 Caines' Rep. (New York) 274; Hobart v. Norton, 8 Pickering (Mass.), 159; Winter v. Delaware M. Ins. Co., 30 Pennsylvania State, 334, and may be pronounced as uniformly held in this country.
WHERE a ship insured with liberty to call and stay at an intermediate port, calls and stays there for a necessary purpose of the voyage ; and, while there, an act is done unconnected with the purpose of the voyage, but without prolonging the stay at this port or varying the risk, that is not a deviation determining the policy.
But where a ship, insured on a voyage from A. to B. with liberty to discharge and take on board cargo at C., having shipped a full cargo for B. calls at C. for a purpose wholly unconnected with the voyage, it is a deviation.
Raine v. Bell.
9 East, 195-203 (9 R. R. 533).
Insurance. Deviation. — Liberty to call and stay. It is not an implied condition in a common marine policy on ship and  freight that the ship shall not trade in the course of her voyage, if that may be done without deviation or delay or otherwise increasing the risk of the insurers, and therefore where a ship was compelled in the course of her voyage to enter a port for the purpose of obtaining a necessary stock of provisions, which she could not obtain before in the usual course by reason of a scarcity at her lading ports, and, during her justifiable stay in the port so entered for that purpose, she took on board bullion there on freight which the jury found did not occasion any delay in the voyage; it was held not to avoid the policy.
This was an action on a policy of insurance“ on the ship Rio Nova, and freight, from her loading port or ports on the coast of Spain to London, with liberty to touch and stay at any port or place whatever, without being deemed a deviation." The plaintiff declared on a loss by the perils of the sea. It appeared in evidence at the trial at Guildhall, that by the long continuance of the voyage from port to port in Spain, and the difficulty of obtain