No. 8. Phillips v. Irving. —Notes.

justify remaining in port a long time must be obvious, immediate, directly applied to the interruption of the voyage, and imminent, not distant, contingent and indefinite; and that if usage warrants the vessel in going from port to port to collect her cargo, and she exhausts all the customary time at one port, she cannot go to another without being guilty of such a deviation as will vitiate the policy. This decision was cited by STORY, J., in Columbian Ins. Co. v. Catlett, 12 Wheaton (U. S. Supr. Ct.), 389, where it was held that a delay from March 21 to May 30, to sell cargo, was not in the circumstances unreasonable; that much depends upon the usages of trade at the port; and that where different ports are to be visited for that purpose, the owner may limit the selling price to a reasonable extent, and delay caused thereby in good faith does not constitute a deviation. "The parties, in entering into the contract of insurance, are always supposed to be governed in the premium by the ordinary length of the voyage and the course of the trade. That delay therefore which is necessary to accomplish the objects of the voyage according to the course of the trade, if bonâ fide made, cannot be admitted to avoid the insurance." "It may be a very justifiable delay to wait in port and sell by retail, if that be the course of the business," &c. This decision was cited in Arnold v. Pacific M. Ins. Co., 78 New York, 16, 17, where the Court said: "It is only however an unreasonable or unexcused delay, that is, a voluntary and unnecessary waste of time, that will amount to a deviation; if justified by necessity or incurred bonâ fide, with a view to the purposes of the voyage insured, the underwriter will not be discharged by the delay, although its absolute duration may be very considerable." Citing Grant v. King, 4 Esp. 175. "Delay not expressly prohibited by the policy, for a reasonable time, for the purposes of the adventure, must always in such cases be allowed; and whether the delay be reasonable or not, must be determined, not by any positive or arbitrary rule, but by the state of things existing at the time." Something to the same purport is Augusta Ins., &c. Co. v. Abbott, 12 Maryland, 348, where delay in starting on the voyage from Nov. 19 to Dec. 22 was held fatal unless excused. Kent says (3 Com., * 315), that the voyage must "be performed with reasonable diligence," and "every unnecessary delay, in or out of port, or in commencing the voyage insured against, will amount to a deviation."

In Earl v. Shaw, 1 Johnson Cases (New York), 314; 1 Am. Dec. 117, a delay for six months in port, not shown to have been fraudulent or varying the risk, was held not a deviation, the voyage insured being to India.

PERMISSIONS involving leave to deviate must be construed strictly so as not to extend their force beyond the plain meaning of the words in relation to the subject-matter and the intention of the parties as collected from the whole of the document.

A policy of insurance on a voyage "with or without letters of marque," and with leave "to chase, capture, and man prizes," does not authorise the assured after a capture to shorten sail in order to let the captured vessel keep up with him, and to convey her into port for condemnation.

[45]

A policy of insurance on a ship on a certain commercial voyage, with or without letters of marque, giving leave to the assured to chase, capture, and man prizes, however it may warrant him in weighing anchor while waiting at a place in the course of the commercial voyage insured, for the purpose of chasing an enemy who had before anchored at the same place in sight of him, and was then endeavouring to escape, will not warrant him after the capture, and in the course of the further prosecution of the voyage, in shortening sail and lying-to, in order to let the prize keep up with him for the purpose of protecting her as a convoy into port, in order to have her condemned, though such port were within the voyage insured.

This was an action on a policy of insurance on the ship Tamer, with or without letters of marque, valued at £6000, and on slaves and goods as interest might appear, "at and from Liverpool to the coast of Africa, during her stay and trade there; and at and from thence to her port or ports of sale, discharge, and final destination in the British and foreign West Indies and America, with leave to chase, capture, and man prizes." The plaintiff declared upon a loss by the perils of the seas; to which the general issue was pleaded. The cause was tried before GRAHAM, B., at the last

Lancaster assizes; and the material question now was, Whether the policy were avoided by a deviation in the course of the voyage? As to which it appeared in evidence that the ship sailed from Liverpool upon the voyage insured, and arrived on the 14th of August, 1803, off the entrance of the Congo River, on the coast of Africa, where she found La Braave, a French trading vessel, with a brig and tender, and anchored within six miles distance of them. The next morning the Tamer got under weigh, and came within three miles of the French vessel; which soon after stood out to sea, and was pursued for about 30 miles, and engaged and captured by the Tamer, which carried 18 guns. After this the Tamer returned to the coast of Africa, with her prize, and finished her trading there, and proceeded, on the 15th of October, with her cargo and the prize in company, on her voyage to the West Indies, in the course of which she leaked very considerably, and after making more and more water from time to time, she finally foundered at sea; and the crew were saved by the [* 46] prize, La Braave, which kept her company all the voyage till she sunk. On this point the captain deposed at the trial that he received instructions from his owners before the voyage to take any ship he might capture under his protection; in consequence of which he continued with his prize, and not with a view of receiving from her any protection against the risk of the leak of his own. ship. That several times during the voyage he shortened sail and lay to, in order to give the prize time to come up, and in order to keep company with her; and particularly on one occasion, when the prize had carried away her fore-topmast. It was objected by the defendant's counsel that the ship had deviated from the voyage insured, in two respects; 1st, In weighing anchor off the mouth of the Congo River, for the sole purpose of pursuing and taking the prize; 2dly, In shortening sail during the voyage to the West Indies, for the purpose of convoying the prize; neither of which, it was contended, was warranted by the liberty given in the policy "to carry letters of marque," and "to chase, capture, and man prizes." But the learned Judge's opinion inclining in favour of the plaintiff upon the construction of the policy in both respects, he directed the jury accordingly; and they found a verdict for the plaintiffs.

The letters of marque recite an order by the King in Council, "That all ships that shall be commissioned by letters of marque

:

*

and general reprisals, &c., shall and may lawfully seize and take the ships, vessels, and goods belonging to the French Republic, &c., and bring the same to judgment in the High Court of Admiralty, within the King's dominions, for proceedings [* 47] and adjudication and condemnation to be thereupon had," &c. and then reciting that the captain of the Tamer had given sufficient bail, with sureties, to the King in the High Court of Admiralty, according to instructions made the 17th of May, 1803, a copy of which was given to " the captain, it proceeds to authorize the captain to set forth the ship Tamer in a warlike manner, to seize and take the ships, &c., of the French republic, &c., and to bring the same to such port as shall be most convenient, in order to have them legally adjudged in the High Court of Admiralty of England, or before the judges of such other Admiralty Court as shall be lawfully authorized within the King's dominions which ships, &c., being finally condemned, it shall be lawful for the captain to dispose of them," &c.

The instructions therein referred to contain clauses of the same import for seizing and taking the enemy's ships, and for bringing them into such port of England or some other port of the King's dominions as shall be most convenient for the captors, in order to have the same legally adjudged. And article 3 directs, "That after such ships, &c., shall be taken and brought into any port, the taker, or one of the chief officers, or some other person present at the capture, shall be obliged to bring or send, as soon as possibly may be, three or four of the principal of the company (whereof the master and mate, or supercargo, to be always two) of every ship so brought into port before the Judge of the Admiralty, &c., to be examined upon interrogatories concerning the interest and property of such ship," &c. Art. 5 directs, "That if any ship, &c., of the King or his subjects shall be found in distress, or taken by the enemy, &c., the commanders, &c., of such merchant

ships as shall have letters of marque and reprisals, shall [48] use their best endeavours to succour and free the* same,

&c.; and by art. 11 and 14, " If any commander of a ship, having a letter of marque and reprisals, shall act contrary to these instructions, he shall forfeit his commission, and, together with his bail, be proceeded against according to law, and be condemned in costs and damages, and be severely punished," &c.; and by art. 15, Security and bail are to be taken in £1500 for a vessel of this description.

No. 9. Lawrence v. Sydebotham, 6 East, 48, 49.

In Michaelmas Term last an application was made, and rule nisi granted, for setting aside the verdict, and granting a new trial, on the ground of the two deviations insisted upon at the trial. Against which

Park, Topping, and Wood now showed cause. This case is distinguishable from Parr v. Anderson, now in judgment,1 for here there is not only permission given to carry letters of marque, but an express liberty to "chase, capture, and man prizes. This necessarily includes a liberty to deviate for those purposes when in sight at least of an enemy or a vessel supposed to be such. 1. A liberty to chase must include every act necessary for chasing, such as the weighing anchor was, in this case, where both the captor and her prize were previously lying at anchor near to each other. The anchor was not weighed, nor the ship carried out to sea upon a cruise to look for prizes, but the whole was done in the actual chase of a prize before in sight, and endeavouring to escape. Then, 2dly, The captor was warranted by the directions of his letters of marque and instructions, to accompany his prize to a port where she might be condemned; for that is necessary, in order to perfect the capture which he was at [* 49] liberty to make. Such a liberty includes every act necessary or proper to give it effect, which either the general marine law or the laws of the captor's country enable him to do. When letters of marque are taken out, it is no longer optional to capture enemy's property or not which is within the belligerent's power to do; the master binds himself under a penalty to capture or destroy the enemy's ships whenever he can; and in case of capture, he is directed to take his prize into port, in order to have it legally adjudged. Then when liberty is given to carry letters of marque, the underwriter virtually consents to incorporate in the policy all the directions contained in them and in the accompanying official instructions. The captor cannot insure the possession of his prize so well as by keeping her company on the voyage; and he thereby also adds to the security of his own ship. The act done is for the benefit of the underwriter as well as of all other parties concerned in the safety of the ships and crews. The shortening sail was, therefore, no more than a necessary act for insuring the safety of the prize, and ultimately of the captors

1 Judgment was delivered in this case on a subsequent day of the Term, 6 East, 202 (8 R. R. 461), when a new trial was awarded.