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never carried into effect is as no deviation. In all the cases of that sort the terminus a quo and ad quem were certain and the same. Here, was the voyage ever intended for Cadiz ? Some of the papers say 'to Falmouth and a market,' some 'to Falmouth' only. None mentions Cadiz, nor was there any person in the ship who ever heard of any intention to go to that port. . . . In short, that was never the voyage intended, and consequently is not what the underwriters meant to insure."

The distinction between an intention to deviate, and sailing on a different voyage, is sometimes very fine. And since, where the dividing point has been passed, the intention becomes immaterial, both classes of cases are frequently treated under the common name of deviation. In Kewley v. Ryan (1794), 2 H. Bl. 343, 3 R. R. 408, the distinction came directly into question. The insurance was " at and from Grenada to Liverpool.” The ship was in fact bound for Liverpool, had also obtained clearances for Cork, where she intended to touch. She was lost before reaching the dividing point. The Court of Common Pleas held that the underwriters were not discharged. They observed: “In Woolbridge v. Boydell (supra), it appeared there was no intention that the ship should go to Cadiz at all, which was mentioned in the policy as her port of delivery, and in Way v. Modigliani (1787, 2 T. R. 30, 1 R. R. 412), there was an actual deviation by the ship going to fish on the banks of Newfoundland; those cases therefore were wholly different from the present, for here the ship was really bound for Liverpool, though there were also clearances for Cork."

In this connection may be mentioned the case of Middlewood v. Blakes (1797), 7 T. R. 162, 4 R. R. 405. Goods were insured on ship from London to Jamaica. She sailed with instructions (pursuant to charter-party), to touch at a certain port in St. Domingo which would have been a deviation. From a certain point on the voyage from London to Jamaica there are three tracks any one of which a ship may take. The northernmost of these goes near the port in question. The ship had past the dividing point of the three tracks, and sailed on the northernmost one, but was taken before arriving at the subdividing point where she would have turned into the port. A verdict for the defendant was upheld, by Lord KENYON, C. J., ASHHURST, J., and GROSE, J., on the ground that the concealment of the destination under charter-party to go to the port at St. Domingo vitiated the policy; by LAWRENCE, J., on the ground that the actual taking of the northern course by the captain on passing the dividing point, not because it was the best to Jamaica but in order to go to St. Domingo, was a deviation.

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In Driscol v. Passmore (1798), 1 Bos. & P. 200, 4 R. R. 782, freight was insured on board ship Timandra from Saffi to Lisbon, and at the time of making the assurance it was stated that the ship was at Madeira and about to sail thence to Saffi; from whence she was to sail back to Lisbon, with a cargo of wheat. Owing to an alarm of Moorish cruisers the captain was compelled, instead of going to Saffi, to take the ship back to Lisbon. He sailed from thence in ballast to Saffi, and was returning with a cargo of wheat when the ship was captured. The policy was construed as on a voyage from Saffi to Lisbon only. The representation of the intention to proceed from Madeira to Saffi, was true at the time, and as it was frustrated by circumstances, and the voyage from Saffi to Lisbon never abandoned, but actually entered on, the insured were held entitled to recover.

In a Scotch case Tasker v. Cunninghame (1819), 1 Bligh, 87, 20 R. R. 33, the House of Lords, reversing all the judgments of the Courts in Scotland, decided that a determination made by the agents duly authorized and acknowledged by the owners, not to sail upon the voyage insured but on a different voyage, discharges the underwriters. The agents at Cadiz of shipowners in England advised the ship-owners that they were about to despatch their ship to Liverpool, upon which the owners insured her accordingly “at and from Cadiz to Great Britain.” Soon after the despatch of the former advice, the agents wrote to the owners that, owing to a change of circumstances, and with the advice and concurrence of the captain, they have determined to send the ship direct to Newfoundland. Eight days after this new determination, the ship was stranded in the Bay of Cadiz and burnt by the French. The letter advising the change of determination and one reporting the loss of the ship, reached the owners by the same post. Lord ELDON (Lord Chancellor) said: “Undoubtedly a mere meditated change does not affect a policy. But circumstances are to be taken as evidence of a determination, and what better evidence can we have, than that those who were authorised had determined to change the voyage? In my opinion the voyage was abandoned; and I have the highest authority in Westminster Hall to confirm that opinion.”

or to

AMERICAN NOTES. The better opinion now is, that if liberty is granted to “touch “to touch and stay” at an intermediate port, the insured may trade there when consistent with the object and the furtherance of the adventure, by breaking bulk or by discharging or taking on cargo, if it neither produces unreasonable delay nor enhances nor varies the risk. 3 Kent's Commentaries, *314; Chase v. Eagle Ins. Co., 5 Pickering (Mass.), 50; Thorndike v. Bordman, 4 ibid. 471. This doctrine was established by Chief Justice MarSHALL, in Hughes v. Union Ins. Co, 3 Wheaton (U. S. Supr, Ct.), 159. The

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policy permitted a stop at Matanzas, on representation that the stop was to bo made to ascertain if there were any men of war off the Havanna. At Matanzas the ship unloaded her cargo in obedience to the Spanish authorities. “It produced no delay, no increase of risk, and did not alter the voyage. The vessel pursued precisely the course marked out for her in the policy. In reason nothing can be found in this transaction which ought to discharge the underwriters." Citing Kingston v. Gerard, 4 Dallas (Penn.), 274. Distinguishing Maryland Ins. Co. v. Le Roy, 7 Cranch (U. S. Supr. Ct.), 26, where the policy permitted a certain touching to buy “stock, such as hogs, goats, and poultry, and take in water.” There was a delay of seventeen days, a fortnight in excess of the usual delay for the permitted purposes for the purpose of taking in jackasses. The Court held that the jackass business avoided the policy. (This was the famous case in which Pinkney, the celebrated attorney-general, being informed that ladies were in Court to hear him, made a great effort at eloquence, but was handicapped by the nature of his theme." He tore all to tatters,” said Story, but it was admitted that he made a comparative failure.)

No. 5. – CLASON V. SIMMONDS.

(CORAM LEE, CH. J., 1741.)

No 6. — BEATSON V. HAWORTH.

(1796.)

RULE.

WHERE a ship is insured on a voyage to “ports of discharge” which are not specifically named in the policy, the general principle is that the ship must visit such ports in the geographical order of their distance from the terminus a quo, or point of departure. (Arnold, Insur. 5th ed.

p. 460).

But if the several ports of discharge are specifically named in the policy, then, unless there is a settled usage to the contrary, the ports must be visited in the order in which their names occur in the policy, whether that be the geographical order or not; otherwise it is a deviation.

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Insurance. - Deriation. Order of Ports. Where a voyage is described in a policy as one“ to ports of discharge," it is a deviation to go back to a port out of the geographical order.

[533] An insurance was made upon goods in the Gothic Lion

at and from London to her ports of discharge in the Streights as high as Messina; with power in the voyage to stop or stay at any ports or places whatsoever. She was freighted with lead of the plaintiff's from London to Marseilles, and went into Falmouth, where she staid three weeks, and took in a freight of tin for Marseilles. Before she went from London the plaintiff, who was an owner of the ship, declared she was to go directly to Genoa, Leghorn, and Naples, and there was no talk of Marseilles. When the ship was off Marseilles the wind was against her, and she could not then get in, but being driven towards Corsica, went to Genoa, and from thence to Leghorn; and in coming back again to Marseilles, being attacked by a Spanish privateer, she was blown up and the lead lost. In the action upon the policy, it was proved by several captains of ships, and so held by the Chief Justice, 1st, That the going into Falmouth and staying there was a deviation. If she had been obliged to put in by necessity, or if it were in the usual course of the voyage, though perhaps not in the direct road, it would be no deviation to put in there. But she stayed at Falmouth three weeks, and took in a freight for Marseilles, which seems to be strong evidence of having wilfully gone out of the way; and against the declaration of the plaintiff made previous to her going that voyage. 2dly, That as she did not stop at Marseilles, this was acting contrary to the terms of the policy; for by her ports of discharge must be understood such ports at which it was intended goods should be delivered, and the first of those was Marseilles. 3dly, It was sworn by several captains to be their opinion (but the Ch. J. did not say anything to this point) that the going no further in the Streights than Leghorn,

and then returning back again, was a determination of the [* 534] insurance at Leghorn, and the insurers discharged * from

the loss that happened afterwards. And upon this there was a verdict for the defendant. PER CURIAM.

Rule absolute.

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Insurance. Deviation. Order of Ports. If the voyage described in a policy be “from A. to B. and C.” and the [531] ship go to C. before B. (though C. be nearer to A. than B. is), it is a deviation, and the plaintiff cannot recover for any subsequent loss, if it be not the regular and settled course of the voyage to go to C. first. And Qu. whether such a regular and settled course of voyage will control such a policy?

season.

This was an action on a policy on the ship Bazil“ at and from Fisherrow to Gothenburgh, and back to Leith and Cockenzie; valued at £500 without further account to be given. At the trial before Lord KENYON at Guildhall it appeared that the ship performed her voyage outward to Gothenburgh, and having taken in goods both for Leith and Cockenzie, in her return home in the spring of 1787, without going to Leith first, put into Cockenzie, where she was stranded and lost. It was given in evidence that Leith was a very safe and commodious harbour, and Cockenzie a very small and * insecure one, especially in the winter [* 532]

That the two places are about ten miles apart from each other; but Cockenzie lies nearer to Gothenburgh than Leith, and it is about a mile and a half out of the way to put into Cockenzie in going from Gothenburgh to Leith. There did not appear to be any settled course of trade to regulate the track of the voyage in this respect; though the weight of the evidence was in favour of going first to Leith in point of prudence, owing to the insecurity of the harbour of Cockenzie in general; for by discharging the lading for Leith there in the first instance, the risk of going into the harbour of Cockenzie was thereby much lessened. Two objections were made at the trial on the part of the defendant: 1st, That as the ship went into Cockenzie before she went to Leith, it was a deviation from the voyage described in the policy, which was to Leith and Cockenzie; 2dly, That this was a gaming policy within the statute 19 Geo. II. c. 37, being without proof of interest. Both points were reserved; but the decision went wholly on the first. A verdict was agreed to be taken for the plaintiff, without prejudice to the defendant, subject to the opinion of the Court upon the points of law; with liberty to the defendant to move to enter a nonsuit. A rule to that effect having been obtained,

Gibbs now showed cause against it; saying, that it had never

VOL. IX. —

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