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ing that the purpose was to take in salt, and held that by doing so the vessel did not avoid the policy.
And on a policy “at and from Antigua to England with liberty to touch at all or any of the West India Islands,” GIBBS, C. J., inferred the main object of the voyage to be that the vessel was to go about seeking cargo; and so held that a stay at one of the islands to take in cargo was not a deviation. Metcalfe v. Parry (1814), 4 Camp. 123, 15 R. R. 734; Urquhart v. Bernard, supra. See also Ashley v. Pratt, Pratt v. Ashley (1847), 16 M. & W. 471, and (Ex. Ch.), 1 Ex. 257 cited in notes to Clason v. Simmonds, and Beatson v. Haworth, Nos. 5 & 6, p. 389, post.
In Inglis v. Vaux (1813), 3 Camp. 437, 14 R. R. 778, a ship was insured “at and from Liverpool to Martinique and all or any of the Windward and Leeward Islands, with liberty to touch at any ports or places whatsoever, to take on board and land goods, stores, &c." She sailed from Liverpool on the 13th March, 1811, and arrived at Martinique about the 20th of May following. There the captain disposed of his outward cargo, except a small quantity of lime and bricks. With these he sailed for Antigua, where he arrived on the 31st of May. Here the ship stayed until 8th of July, when she was wrecked in a hurricane, with the lime and bricks still on board. The captain, being examined as a witness, stated that he stopped at Antigua, partly to dispose of the outward cargo, and partly to procure a homeward cargo.
Lord ELLENBOROUGH said: “The captain had no right to mix up together the two objects, of disposing of the remnant of the outward cargo, and procuring a homeward cargo, at the risk of the underwriters on the outward voyage. When the disposal of the outward cargo ceased to be the sole reason for his stay at Antigua, these underwriters were discharged.” A verdict was accordingly found for the defendant.
In Williams v. Shee (1813), 3 Camp. 469, 14 R. R. 811, goods were insured by ship S. “ at and from London to Berbice with liberty to touch and stay at any ports and places whatsoever and wheresoever, and for all purposes whatsoever, particularly to land, load, and exchange goods, without being deemed a deviation.” The ship arrived with convoy off Madeira on Saturday, 17th of October, 1812, and pursuant to orders the captain began to land goods intending to take in wines. Not being able to do this on the Sunday, he waited until the Monday by which time the convoy with most of the fleet had sailed. Garrow, A. G., contended that the underwriters were discharged, (inter alia) on the ground that the ship by putting into Madeira and staying behind there when the rest of the fleet had sailed had been guilty of a deviation, Parke, for the plaintiff insisted that the plaintiff bad
Nos. 3, 4. — Raine v. Bell; Hammond v. Reid. — Notes.
a right to put into Madeira, and to stop there in the manner he had done, under the liberty given by the policy to touch and stay at all ports and places to land, load, and exchange goods. Lord ELLENBOROUGH, C. J., held that the underwriters were discharged and nonsuited the plaintiff. He said: “The liberty in the policy must be construed with reference to the main scope of the voyage insured. Upon well-established principles the ship was guilty of a deviation by putting into Madeira and voluntarily staying behind there for the purposes of trade, when the rest of the fleet had sailed away in the prosecution of the voyage."
The latter branch of the rule is again illustrated in the case of Solly v. Whitmore (1821), 5 B. & Ald. 45, 24 R. R. 274.
The insurance was " at and from Hull to ports of loading in the Baltic” with liberty “in the said voyage to proceed and sail to, and touch and stay at any ports or places whatsoever for all purposes, particularly at Elsinore, without being deemed a deviation.” The ship at Hull took on board sundry packages for Elsinore and Dantzic, and delivered them at those places before proceeding to Pillau which was her intended port of loading. She was lost on the way from Dantzic to Pillau. It was held that as she went to Elsinore and Dantzic only to deliver goods, which was a purpose wholly unconnected with the purpose of the voyage, it was a deviation.
In Warre v. Miller (Ex. Ch. 1825), 4 B. & C. 538, the action was on an insurance on freight on the ship A. “at and from Grenada to London.” The ship had discharged part of her outward cargo at three different bays in Grenada, and was proceeding to a fourth (Grenville Bay), to discharge the residue of her outward cargo and to take in part of her homeward cargo; when she was lost by perils of the sea. proved that there was only one custom-house for the island, and that freight had been engaged by several persons for homeward cargo; and it appeared that according to the common course of proceeding at all the West India Islands the outward cargo is discharged and homeward cargo taken in at convenient places on the coast near the different estates. It was urged that the unloading at Grenville Bay was a purpose unconnected with the purposes of the voyage insured, and that the employment for that purpose was a deviation. On the contrary it was argued that as Grenada has only one custom-house, and is in law all one port, the going from bay to bay for the purposes of delivering the outward cargo was the same as going from quay to quay, in one large harbour; that the policy attached upon her arrival at the first bay; that had she proceeded to discharge the whole cargo there and been lost while that process was going on, she would clearly have been protected, and it can make no difference that she delivered her cargo at
various places or bays in that port. The Court held that there was no deviation. ABBOTT, C. J., said: “I think that Grenada must be considered as all one place, as was properly contended in argument; and as the outward cargo must be delivered before the homeward can be taken in, that is a necessary preparation for the homeward voyage. The employment in which the ship was engaged at the time of the loss was connected with the homeward voyage, and was consequently a part of the risk which the underwriter had taken upon himself.”
Upon a policy "at and from London to New South Wales and at and from thence to all ports and places in the East Indies or South America, with liberty ... in that voyage . . . to touch and stay at any ports or places whatsoever, ... particularly to trade and sail backwards and forwards, and forwards and backwards”:- The captain had orders (unless he should receive contrary directions from the owner) to go to New Zealand and take in spars there and proceed to South America. After arriving in New South Wales the captain received instructions from the owner to proceed to the East Indies instead of South America. In the meantime he had entered into a contract to take passengers to New Zealand (which is on the way from New South Wales to South America, but not on the way from New South Wales to the East Indies), and in spite of the instructions he determined to take the ship to New Zealand, intending to return to New South Wales and proceed thence to the East Indies. The ship accordingly went to New Zealand and was lost on coming out of port there on her return to New South Wales. The jury having found that the act of the master was in good faith and not barratrous (so that there was not a loss by barratry which would have been within the policy), the LORD CHIEF JUSTICE directed a nonsuit on the ground that at the time of the loss the ship was not sailing on either of the voyages contemplated by the policy. This ruling was maintained by the Court (ABBOTT, C. J., BAILEY, J., HOLROYD, J., and LITTLEDALE, J.), ABBOTT, C. J., observed: “Large as the words of the liberty are, they must receive that construction which has been given to similar words in other cases; and giving them that construction, we must hold that by this policy the ship would be protected by the policy so long only as she was sailing on an intermediate voyage, undertaken with a view to the accomplishment of one or other of the voyages pointed out by the policy as the principal object in contemplation of the parties, viz., a voyage either to South America or the East Indies. ... In this case at the time of the loss she was on a distinct voyage not subordinate to or connected with either of the voyages contemplated by the parties as the principal objects of the contract. That being so, she was not at that time on the voyage insured, and, consequently the plaintiff is not
entitled to recover.' BAILEY, J., said: “In order to be within the protection of the policy the ship must be either on the way to South America, South America being the ultimate object, or to the East Indies, the East Indies being the ultimate object of the voyage. But here the vessel sailed on an intermediate voyage to New Zealand and back, and although New Zealand is on the way from New South Wales to South America, yet that voyage was commenced without having for its ultimate object the voyage to South America, and New Zealand was not on the way to the East Indies. The ship, therefore, at the time of the loss, was not on a voyage contemplated by the policy, and therefore, the underwriters are not liable." Bottomley v. Bovill (1826), 5 B. & C. 210.
The cases of Cruickshank v. Janson (supra), and Warre v. Miller (supra), were distinguished by the King's Bench in Brown v. Tayleur (1835), 4 Adol. & Ell. 241. The insurance was “at and from her port of lading in North America to Liverpool.” She took in part of her cargo at Cocagne and sailed from there to Buktouche to complete her loading. Then she returned to Cocagne to take in provisions and get ready for sea. She afterwards sailed for England and was lost on the voyage home. Cocagne and Buktouche are situated on different creeks of the same bay, and the distance between them is variously stated at 5 to 7 miles. Neither of these places had a custom house, but there were officers of customs at both places. Buktouche is not in the line of voyage from Cocagne to Liverpool. The Court held that the sailing to Buktouche was a deviation, and that the underwriters were discharged. Lord DENMAN, C. J., said: “There was no technical meaning to be attached to the words port of lading.' If it could have been shown that the two places were in reality one, the plaintiffs should have produced evidence to that effect." PATTESON, J., said (4 Adol. & Ell. 247): “ We cannot construe the words at and from her port of lading,' as if they were 'at and from her ports; ' the expression used points out one single place. Nor can we adopt the technical meaning which may be ascribed to "port,' as signifying all that is subject to one custom-house, or one port jurisdiction; the result of which would be that a ship, under such a policy as this, might sail to every part of a district so situated. The cases which explain the meaning of the word 'port,' as here used, are not many. There is one (The Sea Insurance Company of Scotland v. Gavin, 4 Bligh, N. S. 578, s. c. 2 Dow. & Clark, 125), where a brigantine was insured to Barcelona, and at and from thence, and two other ports in Spain, to a port in Great Britain; and she put into a place situate in the recess of a bay, having a custom-house and port captain, and having also warehouses, and a jetty, with accommodation for small ves
sels only, there being, however, convenient anchorage for large ones in the roadstead; and, the ship having been lost in the roadstead, this was held to be a port within the meaning of the policy. Here I think that “port' means the same as place, and that the vessel's place of loading must be one place. When she had once begun to take her cargo at Cocagne, that was her place of lading, and her removal afterwards to Buktouche was a deviation. The cases of insurance at and from Jamaica, and Grenada, do not apply. There the words used would comprehend all places in the island. If the policies in those cases had said “at and from her port of lading in Jamaica' or Grenada, the commencement of the voyage would have been restricted to one particular place. That the two places here are within the jurisdiction of a single custom-house, makes no difference. If that entitled the ship to go from one to the other, she might also have gone to St. John. In construing the word 'port' as the place of lading, I do not mean to say that, if a ship were at a particular quay on a river, as at Liverpool, and merely removed to another quay a mile or two off, that would be a deviation, because the vessel there would be all the time in one port and place; but it is a deviation if she removes to a different town, a different place of habitation, and a point which might itself be her place of lading.” WILLIAMS, J., said: “The words used in the policy is 'port' of lading, in the singular number: we cannot construe that as ports. And the moment the taking in of the cargo was begun at Cocagne, that was to be considered as the port of lading designated. Had evidence been given that, for purposes of this kind, Cocagne and Buktouche formed in fact only one place, the case would have been different. But if, by means of the construction attempted, places at a distance from each other can be included under the term “port of lading,' what rule of restriction can be laid down ? May the places be fifty, or a hundred miles apa rt? • Jamaica and Grenada,' in the cases which have been referred to, signified the whole of these islands. It would have been a violence there to limit the meaning of the policy to a single port. Here nothing warrants the extension insisted upon.”
The distinction between an intention to deviate not carried out, and sailing on a different voyage although without arriving at the dividing point, was clearly laid down in the case of Woolbridge v. Boydell (1778), 1 Dougl. 16, where it was decided that, if a ship insured for one voyage sails upon another, although she is taken before the dividing point of the two voyages, the policy is discharged. The insurance in that case was “at and from Maryland to Cadiz.” The ship was taken in Chesapeak Bay; and the evidence showed that she was destined for Falmouth and not for Cadiz. The underwriters were held to be discharged. Lord MANSFIELD said: “A deviation merely intended but