show that the mere fact of taking out and selling part of the cargo, or the taking in other goods in the course of the voyage, will avoid the policy; but those were decisions at Nisi Prius, which were never brought before the Court, and might have turned on the particular circumstances of those cases. But now the question is fairly raised and brought before the Court, we must decide it according to the principle by which marine policies of insurance are governed in respect of implied conditions. It is said, that because liberty is sometimes expressly reserved for a ship to touch, stay, and trade in the course of the voyage, it is impliedly excluded. in every policy in which it is not so reserved; but the reason of the express reservation is in order to justify the delay in trading; the staying at a place for the very purpose of trading there but if a ship touch at a port which is allowed, and stay there for any reason which is allowable within the intent and meaning of the policy, and no additional risk to the underwriters be incurred by her trading there during such her stay for an allowed or justifiable cause, I can see no reason why such a trading should in itself avoid the policy. It is said, however, that the giving liberty to trade at all will be a temptation to the master to deviate from and to delay the voyage with that view, and [* 203] that it will be difficult for the underwriters to detect it: but that must necessarily be a question for the jury to decide, as in other cases of fraud, whether the deviation or delay arose from necessity or from the trading; and wherever the case was doubtful upon the evidence, it would generally turn the verdict against the assured, who would have to account for the delay or deviation. But where it is found that no delay was occasioned by the trading, I see no reason why we should imply a condition which the parties themselves have not made, in order to avoid the policy as for a breach of it. Neither do I think it would be generally convenient to increase the number of small circumstances unconnected with the occasion of the loss, which will relieve the underwriters. from their engagement to indemnify the assured, by the introduction of new implied conditions which the parties do not express in the policy. Rule discharged.

[72] Policy of insurance from Para to New York, with leave to call at any of the Windward and Leeward islands on the passage, and to discharge, exchange, and take on board the whole or any part of any cargo at any ports or places, particularly at all or any of the Windward and Leeward islands, without being deemed any deviation: Held, on this policy, the ship having proceeded to two of the Leeward islands for a purpose wholly unconnected with the voyage, that it was a deviation, and vitiated the insurance.

Action on a policy of insurance on the ship Arabella, on a voyage at and from Para to New York, during her stay there, and at and from thence to Para, with leave to call at all or any of the Windward and Leeward islands and colonies on her passage to New York, with leave to discharge, exchange, and take on board

the whole or any part of any cargo or cargoes at any ports [* 73] or places she might call at or proceed to, particularly *at all or any of the Windward and Leeward islands, without being deemed any deviation from and without prejudice to the insurance. The declaration stated the sailing of the vessel on the voyage insured, and a loss by perils of the seas. Plea general

issue. At the trial, at the Lancaster Summer assizes, 1819, before BAYLEY, J., a verdict was found for the plaintiff subject to the opinion of the Court on a case, which stated that the ship sailed from Para on the voyage insured with a cargo on board, bound for New York; but with orders from the plaintiff, her owner, to proceed in the first instance to Barbadoes, where the captain was directed to sell the cargo and receive other goods on board in exchange for it, and proceed from thence to New York, after calling at the islands of St. Bartholomew and St. Thomas, two of the Leeward islands, for the purposes after stated. When the vessel sailed from Para the plaintiff was there, and intended to proceed from thence in another vessel direct to New York, where he expected to meet a vessel, also belonging to himself, called the Alice, from Liverpool, which last-mentioned vessel he then proposed to load at New York with goods for the said islands of St. Bartholomew and St. Thomas, and directed the captain of the Arabella, after finishing his trading at Barbadoes, to proceed to St. Bartholomew and St. Thomas, for the purpose of obtaining

information in regard to the state of the market, and on other subjects at those islands, with the views of forming his opinion upon the speculation he proposed to enter into by the said ship Alice from New York to those islands. The Arabella arrived at Barbadoes on the 5th March, 1817, where she discharged her cargo, and received on board a quantity of sugar, with which she sailed for * New York on the 4th of April fol- [* 74] lowing, intending to call at St. Bartholomew's and St. Thomas's, two of the Leeward islands, in her way to New York. In the course of this voyage, after having passed the islands of St. Bartholomew and St. Thomas, she was lost off Savannah. When

the ship sailed from Barbadoes, on the 4th of April, her objects of trade were at an end until she should arrive at New York, and she proceeded to the islands of St. Bartholomew and St. Thomas only to obtain information for the purpose before stated.

Littledale, for the plaintiff, contended, that the going to the islands of St. Bartholomew and St. Thomas was no deviation. Here is an express leave given to touch at all or any of the Windward or Leeward islands. Under that liberty the vessel had a right to go to the islands in question. And, besides, the intelligence obtained there might probably have some effect on her ultimate destination.

F. POLLOCK, contra, after citing Rucker v. Allnutt, 15 East, 278 (13 R. R. 465), and Langhorn v. Allnutt, 4 Taunt. 519 (13 R. R. 663), was stopped by the Court.

ABBOTT, C. J. This calling at the islands of St. Bartholomew and St. Thomas was for a purpose wholly unconnected with the voyage in question. If, as it was said, the intelligence to be obtained there would be likely to have altered the destination of the ship the question would be different. But the contrary is expressly stated in the case; for it is stated that it had reference to some new adventure to be subsequently * undertaken [* 75] in another vessel. I think, therefore, that this, being a calling for a purpose entirely unconnected with the voyage, was, notwithstanding the words in the policy, a deviation, and that the plaintiff is not entitled to recover.

PER CURIAM,

Judgment for the defendant.

ENGLISH NOTES.

In an action on a policy taken out by the captain of an East Indiaman upon his effects for a voyage at and from London to Madras and

Nos. 3, 4. Raine v. Bell; Hammond v. Reid. - Notes.

China, with liberty to touch and stay and trade at any ports or places whatsoever, it was held that the ship, arriving at Madras too late to proceed to China, might make an intermediate voyage from Madras to Bengal, - that being the usage of the trade in the case of ships employed by the East India Company, and that the intermediate voyage was within the policy. Gregory v. Christie (1784), 3 Dougl. 419.

Cruickshank v. Janson (1810), 2 Taunt. 301, 11 R. R. 584, was an action upon a policy of insurance "at and from Jamaica to London." The ship, having taken in cargo at Port Maria, which is considered a hazardous station, sailed for Port Antonio, an accustomed rendezvous in the same island, intending to wait there for convoy. In going thither the ship was lost. It was held that this was no devia

tion.

The rule in Raine v. Bell was followed and confirmed in Cormack v. Gladstone (1809), 11 East, 347, 10 R. R. 518; and in Laroche v. Oswin (1810), 12 East, 131, 11 R. R. 337.

In Rucker v. Allnutt (1812), 15 East, 278, 13 R. R. 465, a somewhat wide construction was, having regard to the indefinite objects of the voyage, given to the liberty "to touch and stay." The insurance was "at and from London to any port or ports, place or places in the Baltic, backwards and forwards, with leave to seek, . . . touch, and stay at any ports or places for all purposes whatsoever, take in and discharge goods wheresoever the ship might touch at; . . . particularly with leave to wait for information off any ports or places, take in and land passengers." The defence was that the ship had deviated by a stay at Carlshamm which was prolonged by waiting for information as to the safety of various ports. At the trial, Lord ELLENBOROUGH had taken the view that, if the stay was longer than was necessary for the general purposes of the ship exclusive of the mere purpose of obtaining information as to some convenient and safe place of destination, it was not within the liberty of the policy; and on his ruling to that effect a verdict had been found for the defendant. After argument on a motion for a new trial, Lord ELLENBOROUGH said: "Where the destination of a ship is certain, and the objects of the voyage previously ascertained, I should have no doubt in construing the words of leave to touch and stay at any ports and places for all purposes whatsoever,' to mean merely for the purposes of the voyage so ascertained, and not as giving leave to stay at a port for the purpose of speculating, as in a coffee-house, upon the political state of Europe; but only to touch and stay there for the purposes of that voyage, or to avoid some impending peril. . . . Considering that this adventure had no one definite object at the time, but that the ship had to seek her ports of discharge in the Baltic according to the information to be collected there, we must look at the general

words of leave to touch and stay at any port for all purposes whatsoever, not as we should read them in an ordinary policy upon a definite voyage- which would not authorize the ship to stay at a port in the voyage merely for the purpose of procuring information as to her ulterior destination, nor in general for any purpose not connected with the port wherein the stay was made but with reference to the peculiar nature of this adventure. The general words written, giving leave to touch and stay at any ports for all purposes whatsoever, are certainly words of enlargement beyond the common printed form; and with reference to this adventure, in which the assured had to seek information in the Baltic as to the ship's port or ports of discharge, would certainly include a liberty to stay at any port there for information on that subject: and the only doubt has arisen upon the subsequent special words introduced, giving leave to wait for information off any ports; which seemed to me at first to imply an exclusion of waiting for that purpose in any port. But upon further consideration, it now appears to me that the latter words do not necessarily restrain the former, because they provide for something which was not provided for before. There are other purposes for which the ship might wait off a port, besides the obtaining of information, for which special leave is given; such as for taking in and landing passengers; which under the general words would have been a deviation: there was therefore an object in introducing the special words which was not before provided for. In the case then of this new species of adventure, where the obtaining of information as to the ports of discharge of the ship was so material an object of the insurance in the convulsed state of the Baltic shores; but without saying that the ship might thus wait at a port for any length of time, or that the assured must not execute the purpose promptly; I am now less inclined than I was before to think that the assured were precluded from going into and waiting at Carlshamm for information: at least I should not be satisfied without giving them an opportunity of having the case further considered."

The other Judges concurred in directing a new trial.

In some cases the liberty "to touch" has been held to authorise trading at a port, where such trading appeared to be within the scope of the purpose of the voyage.

In a policy on goods "at and from Plymouth to Malta, with liberty to touch at Penzance," it was held that the landing of the goods insured might be completed at Penzance. Violett v. Allnutt (1811), 3 Taunt. 419, 12 R. R. 676. In Urquhart v. Bernard (1809), 1 Taunt. 450, 10 R. R. 574, where there was liberty "to touch without anything to explain the purpose for which it was to be allowed, Sir J. MANSFIELD admitted a letter communicated to the underwriter show