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Nos. 5, 6.
- Clason v. Simmonds ; Beatson v. Haworth.
been held necessary where two ports of discharge are named in a policy for the ship to go first to that which happens to be named first in the policy. Every underwriter must be taken to be cognizant of the nature of the voyage which he insures, and of the course of trade which prevails in it. He must be taken to know the relative situations of the several places from and to which the vessel is insured; therefore here the defendant must have known that Cockenzie lay between Gothenburgh and Leith, and that the vessel would naturally touch at Cockenzie first, there being no course of trade to regulate her voyage otherwise; that being the shortest and most convenient track. Where a particular track is intended to be chalked out by the underwriter, the usual form of describing it is from A. to B. and from B. to C.
The general mode of expression therefore adopted in his case, from A. to B. and C., shows that it was intended to leave it to the discretion of the captain; and this is confirmed by the circumstance of there being no particular usage, but sometimes the one and sometimes the other is the first port of delivery, according to the convenience
of the traders. [* 533] * The Court were of opinion that, as the intended voyage
was described in the policy, and as there was no regular and settled course, known to all the traders, different from that so described, the ship deviated by putting into Cockenzie first, and consequently that the plaintiff could not recover.
Marsden v. Reid (1803), 3 East, 572, 7 R. R. 516, was an action upon a policy on goods insured "at and from Liverpool to Palermo, Messina, Naples and (in an event which did not happen) Leghorn." The vessel took in goods and cleared for Naples only, and was lost before coming to the dividing point of the routes for the several places named in the policy. The plaintiff was held entitled to recover. Lord ELLENBOROUGH said: “I think that the voyage insured to Palermo, Messina, and Naples meant a voyage to all or any of the places named; with this reserve only, that if the ship went to more than one place she must visit them in the order described in the policy. ... Upon the true construction of such an insurance as this the assured is at liberty to drop any of the places named; but if he goes to more than one he must take them in the order named in the policy.”
Gairdner v. Senhouse (1810), 3 Taunt. 16, 12 R. R. 573, was an action on a policy “at and from London to Trinidad, and any port or
Nos. 5, 6. — Clason v. Simmonds; Beatson v. Haworth.
ports of discharge in the Spanish Main, all or either, with leave to call at all or any of the West India Islands or settlements, Jamaica and St. Domingo excepted, . . . liberty to touch and stay at any ports and places whatsoever. .” The ship proceeded under convoy to Demarara and then ran down the wind, and after touching at Martinique shaped her cause for St. Thomas and was there lost. It was stated in evidence that if the vessel intended to go to the Spanish Main or Trinidad it would be out of her course to run down to Martinique or St. Thomas as she would have to beat up against the wind afterwards. After a verdict for the plaintiff, it was held on a motion for a new trial that the liberty in the policy must be restricted to places to taken in the course of the voyage from London to Trinidad and the Spanish Main. So that if the ship in going to Martinique and St. Thomas was out of her course for Trinidad, it was a deviation. Lavabre v. Wilson (1779), 1 Doug. 284 (see notes to No. 10, p. 413, post), and Hogg v. Horner, 2 Park's Insur. were cited in the judgment, as well as Beatson v. Haworth, No. 6, and Marsden v. Reid (supra).
Where the terminus a quo and the terminus ad quem are given, and other ports within a certain sphere are mentioned generally as within the voyage, the words are not to be confined to such of the ports as lie in an ordinary course between the two termini. Bragg v. Anderson (1812), 4 Taunt. 229, 13 R. R. 584; Lambert v. Liddard (1814), 5 Taunt. 480, 1 Marsh. 149, 15 R. R. 557. Mellish v. Andrews was an action upon a Baltic policy in time of
It was several times tried, and the facts as found by special verdict at the last trial are stated in the report of the hearing on 6 Nov. 1813. 2 M. & S. 27. The insurance was "at and from London to the ship's discharging port or ports in the Baltic, with liberty to touch at any port or ports for orders or any other purpose.” The ship touched at Carlshamm to obtain orders. The orders were to proceed to Swinemunde, a port further on, and there to receive further orders. On arriving off Swinemunde the captain received orders, because it was unsafe to land, to return to Carlshamm and there obtain further orders. She did return to Carlshamm and, having received damage in the voyage, put in there for repairs, and before the repairs could be executed was seized by order of the Swedish government. The Court of King's Bench, on this special verdict gave judgment for the plaintiff. A writ of error was brought in the Exchequer Chamber, where it was argued on the part of the defendant, plaintiff in error, that where the adventure is limited by "spaces” it is a settled rule that the course of the voyage must not be retrograde, except in the single instance (which was not the case here) where express liberty is given to trade backwards and forwards; but that all the permissions and liberties given to the vessel
Nos. 5, 6.
Clason v. Simmonds; Beatson v. Haworth.
must be exercised at the several ports and places which occur on the voyage, only in the successive order in which those places occur. The Court, in a judgment delivered by GIBBS, C. J. affirmed the judgment of the King's Bench. In his judgment, after adverting to the argument of the counsel for the plaintiff in error, it was observed that in all the cases which had been decided on that principle, the ship's port or ports of discharge had been a fixed point; but in the present case it was important that the power of electing the port of discharge should be continued up to the latest hour of the voyage. The judgment concluded as follows: “We are of opinion that, under a policy worded as this is, the assured had a right to go backwards and forwards from port to port for orders as to his port of discharge, until his port of discharge was fixed; after his port of discharge was once fixed, then the principle laid down on behalf of the plaintiff in error would have applied. For these reasons we think the judgment of the Court of King's Bench must be affirmed.” Andrews v. Mellish (in error, 1814), 5 Taunt. 496.
The decision of the Exchequer Chamber in Mellish v. Andrews (Andrews v. Mellish), was followed and applied by the King's Bench in Hunter v. Leathley (1830), 10 B. & C. 858. They held that the latitude of intention to be inferred from the terms of the policy itself was sufficient to cover the alleged deviation as within the purpose of the voyage intended. This decision was affirmed in the Exchequer Chamber (reported s. n. Leathley v. Hunter, 1831, 5 Moo. & P. 457, 7 Bing. 517, 1 C. & J. 423, 1 Tyr. 355). The policy was on goods " in Java Packet at and from Sincapore, Penang, Malacca, and Batavia, all or any, to ship's port of discharge in Europe, with leave to touch, stay, and trade at all or any ports and places whatever and wheresoever in the East Indies, Persia, or elsewhere .. with liberty also in that voyage to proceed and sail to and touch and stay at any ports or places whatsoever and wheresoever in any direction, and for any purpose, necessary or otherwise, ... with leave to take on board, discharge, reload, or exchange goods or passengers without being deemed any deviation.” The ship after taking in goods at Batavia proceeded to Sourabaya, which is 400 miles to the eastward of Batavia, and out of the course from Batavia, and the other places mentioned to Europe, took goods on board at Sourabaya, returned to Batavia, and proceeded thence to Europe. By the judgment of the Court of Exchequer Chamber delivered by TINDAL, C. J., various expressions in this policy (amongst others the mention of Persia, which at that time was 1000 miles out of any course from Batavia and the other places mentioned to Europe) were observed upon as showing an intention to embrace a number of places not named as optional loading or discharging ports. “Upon the whole
Nos. 5, 6.
- Clason v. Simmonds ; Beatson v. Haworth.
we think the shipping part of the cargo at Batavia, and thence proceeding to Sourabaya, and shipping other parts of the cargo there, and thence sailing back to Batavia, and thence with the cargo to Antwerp, was a trading voyage to Antwerp, by the way of Sourabaya, within the intention of the parties as expressed in the policy, and the two several clauses of license contained therein.
If the sailing from Batavia to Sourabaya, and thence back to Batavia, and thence to Europe, is a voyage described in the policy, it follows immediately that it cannot be treated as a deviation." A somewhat similar case to this was Armet v. Innes (1820), 4 J. B. Moore, 150, 21 R. R. 737.
A ship was insured “at and from Liverpool to ports and places in China and Manilla, all or any, during the ship's stay there for any purposes, and from thence to her port of calling and discharge in the United Kingdom.” The ship sailed to China and discharged part of her outward cargo at a port there, then sailed to Manilla, where she discharged the residue. Finding freight low at Manilla she took in there only part of a cargo, aud sailed back to the Chinese port where she loaded the rest. The Court of Exchequer held this to be no devi. ation, for the words " from thence" in the policy applied not to Manilla only but to the ports or places in China all or any. Ashley v. Pratt (1847), 16 M. & W. 471, 17 L. J. Ex. 135. Affirmed (Es. Ch. 1847), Pratt v. Ashley, 1 Ex. 257.
In Harrower v. Hutchinson (Q. B. 1869, Ex. Ch. 1870), L. R., 4 Q. B. 523, 5 Q. B. 584, 38 L. J. Q. B. 185, 39 L. J. Q. B. 229, the insurance was on cargo " at and from Buenos Ayres and port or ports of loading in the Province of Buenos Ayres to port or ports of call in the United Kingdom.” The ship, after partially loading at Buenos Ayres, went to L. where there is no port other than a sheltered roadstead which is used for the purpose of loading bones, &c., and having only partly filled up at L., sailed again for Buenos Ayres intending there to complete her homeward cargo, but was wrecked on the way thither. It was held by the Queen's Bench that L. was a “port” within the meaning of the policy, and that sailing to L. and back for Buenos Ayres was no deviation. The case came afterwards to the Exchequer Chamber, where the Court agreed with the Court below that L. was a port; but, without expressly deciding the question of deviation, held that the policy was void for concealment of the intention to go to L. which had been really determined upon, and for which if it had been disclosed, a higher premium would have been demanded.
AMERICAN NOTES. Both principal cases are cited by Barber on Insurance, pp. 247, 248, without any analogous American cases, and their doctrine is adopted.
No. 7. — Hartley v. Buggin. — Rule.
In Arnold v. Pacific M. Ins. Co., 78 New York, 7, the policy was on a voyage from Santas to “ New York, Baltimore, or Boston, direct, or via Hampton Roads for orders.” Held, that the insured was not bound to choose the port of discharge until arrival at Hampton Roads.
Kent (3 Commentaries, *315) cites the Beatson case, adding: “This liberty to touch, stay, and trade is always construed to be subordinate to the voyage insured, and to the usual course of that voyage, and for purposes connected with it." : Deviation from the geographical or specified order is excused by necessity. Kane v Columbian Ins. Co., 2 Johnson (New York), 264.
In Houston v. New Eng. Ins. Co., 5 Pickering (Mass.), 89, a vessel insured from St. Johns to Kingston and a market in Jamaica, went to Port Maria instead of Kingston. Held, no deviation. The Court cited the Kane case, above, and Marsden v. Reid, 3 East, 572, as authority that “a vessel insured to several ports in succession may go to any one, without beginning the series, and may thence return to her port of discharge under the policy.” “ It would benefit neither that the vessel should be obliged to go to more ports than the purposes of the voyage make necessary."
in Marine Ins. Co. v. Stras, 1 Munford (Virginia), 408, however, it was held that a policy "at and from Norfolk to Curaçoa, with liberty of going to any other island in the West Indies, or any one port on the Spanish Main, and at and from thence back to Richmond,” necessitated going to Curaçoa first, and did not justify going to St. Thomas, without necessity, and back to Norfolk without going to Curaçoa. Stress was laid on " thence;” and also on the return to Norfolk instead of Richmond (citing Elliott v. Wilson). This case was disapproved in the case last before cited.
In Perkins v. Augusta, &c. Co., 10 Gray (Mass.), 312; 71 Am. Dec. 654, the voyage insured was “from New York to Gibraltar, and at and from thence to Tarragona, with liberty of using one port between Tarragona and Gibraltar, and at and thence to New York.” Four months later permission was indorsed " to stop at one other port between Tarragona and Gibraltar.” Held, that this permission was available on the homeward voyage, and conferred no right to stop at Gibraltar.
No 7. – HARTLEY v. BUGGIN.
(K. B. 1781.)
Delay for a purpose not having the voyage for its object, is equivalent to deviation ; and it is not material, to constitute a deviation, that the risk should be increased.
A ship was insured for a voyage “ at and from the coast of Africa to the West Indies with liberty to exchange goods and slaves.” The ship stayed at the coast of Africa