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chasing, but cruising. Lord MANSFIELD left it, upon the evidence, to the jury, who found for the plaintiffs.
In Parr v. Anderson (1805), 6 East, 202, 2 Smith, 316, 8 R. R. 461, the ship Mercury was insured on a voyage expressly in the policy declared to be with or without letters of marque.” While sailing on her course the Mercury sighted a strange sail, which proved to be a Spaniard, a quarter of a point on her lee-bow. She altered her course a quarter of a point accordingly, and gave chase for a quarter of an hour, after which she abandoned the chase and resumed her course. Lord ELLENBOROUGH at the trial left it to the jury whether the deviation was for the purpose of hostile capture or defence; that if they were of opinion that it was for the purpose of hostile capture, this being an insurance upon a mere mercantile adventure, he thought that the liberty to carry a letter of marque without more would not justify such a deviation, nor give the assured a liberty of engrafting on a commercial adventure an adventure for hostile capture, and then they should find for the defendant. But if it were for the purpose of defence, e. g., by making a show of confidence in the face of the enemy with a view to deter them from an attack, they should find for the plaintiff. The jury found for the defendant. On argument on a rule for setting aside the verdict on the ground of misdirection, the case of Jolly v. Walker, supra (which had not been brought to Lord ELLENBOROUGH's notice at the trial), was referred to. Lord ELLENBOROUGH delivering the opinion of the Court distinguished the two cases, on the ground that in Jolly v. Walker, while there was no express permission in the policy to carry letters of marque, there was an express warranty that the ship should be armed, showing more strongly than the clause “ with or without letters of marqne," the intention that the ship should be used as a fighting ship. A new trial was however granted, on the ground that it might be material to ascertain, as a question of fact, in what manner the parties to contracts containing this form of words have acted upon them in former instances, by paying losses, &c., and whether such words have obtained in practice, as between insured and insurers, any definite import.
The sequel is described by Park (Insurance, vol. 2, p. 632), as follows: “ This case came on to be tried again before Lord ELLENBOROUGH and a special jury, at Guildhall. From my memory of what passed, having been one of the counsel in it, aided by a note which I have seen, his Lordship was strongly of opinion on the evidence, that this vessel had cruised, which of course, if the jury so thought, would put an end to the question. The jury found for the defendant; and I have no doubt upon that ground, from the evidence of the plaintiff's own witnesses."
In Jarratt v. Ward (1808), 1 Camp. 263, 10 R. R. 677, there was a policy on ship “from London to the Southern whale fishery and back again, with leave to carry letters of marque, and to cruise for, chase, capture, man, and see into port, any ship or ships of the enemy." Lord ELLENBOROUGH directed the jury that these words could not justify the ship, after seeing a prize into a port, in waiting there until the prize was repaired so as to be in a condition to be sent to England.
Hibbert v. Halliday (1810), 2 Taunt. 428, 11 R. R. 633, was an action upon a policy of insurance on ship Port au Prince, "at and from London to the Southern whale and seal fishery, during her stay there, and back to London, with leave to touch, stay, and trade at all ports and places whatsoever and wheresoever, backwards and forwards, as well on this as on the other side of Cape Horn and the Cape of Good Hope, . . . and with liberty to chase, capture, and man any prize or prizes, and to take and return with or send into port or ports any prize or prizes; also to cruise 31 days, either together or separate, anywhere and in any latitude, on the outward-bound passage on this side of Cape Horn and the Cape of Good Hope.” The ship was lost after leaving Port St. Blas at the other side of Cape Horn, and it appeared that after observing a Spanish ship (the Santa Anna) at anchorage off that port, the Port au Prince stood off for about 9 days employing her boats in watching the Santa Anna, which was then captured by means of one of the boats. It was held that this transaction was not within the liberty to chase, capture, or man, but was a cruising, and having taken place on the other side of Cape Horn, although within the limits of the fishing ground, was a deviation.
No. 10. - ELTON V. BROGDEN.
(K. B. 1747.)
DEVIATION is excused by unavoidable necessity.
A ship with letters of marque was bound from Bristol to Newfoundland and under orders if she took a prize to put some hands on board the prize and proceed on her voyage. Having taken a prize the crew forced the master to carry the prize back to Bristol, and in doing so the ship was taken. In an action against insurers who insisted that
No. 10. — Elton v. Brogden, 2 Strange, 1264. — Notes.
this was a deviation, held that it was within the excuse of necessity.
Elton v. Brogden.
2 Strange, 1264.
Insurance. — Deviation. Unavoidable Necessity. If the sailors force the master to go out of the course of the voyage,  it is not a deviation.
The ship Mediterranean went out in the merchants' service with a letter of marque, and bound from Bristol to Newfoundland, insured by the defendant. In her voyage she took a prize, and returned with it to Bristol, and received back a proportionable part of the premium. Then another policy was made, and the ship set out, with express orders from the owners that if they took another prize they should put some hands on board such prize, and send her to Bristol, but the ship in question should proceed with the merchants' goods. Another prize was taken in the due course of the voyage, and the captain gave orders to some of the crew to carry the prize to Bristol, and designed to go on to Newfoundland: but the crew opposed * him, and [* 1265] insisted he should go back, though he acquainted them with the orders; upon which he was forced to submit, and in his return his own ship was taken, but the prize got in safe.
And now, in an action against the insurers, it was insisted that this was such a deviation as discharged them. But the Court and jury held that this was excused by the force upon the master, which he could not resist; and therefore fell within the excuse of necessity, which had always been allowed. The plaintiff's counsel would have made barratry of it; but the CHIEF JUSTICE thought it did not amount to that as the ship was not run away with in order to defraud the owners. So the plaintiff had a verdict for the sum insured.
The principles on which the excuse for deviation on the ground of necessity rests are laid down by Lord MANSFIELD in the case of Lavabre v. Wilson (1779), 1 Dougl. 284. The insurance was on the ship Carnatic " at and from Port L'Orient to Pondicherry, Madras, and China, and at and from thence back to the ship's port or ports of
discharge in France, with liberty to touch in the outward or home. ward bound voyage, at the Isles of France and Bourbon, and at all or any other place or places whatsoever or wheresoever.” The Carnatic, on leaving Pondicherry, which she had reached after a voyage protracted by bad weather, instead of proceeding to China, sailed for Bengal where she passed the winter and underwent extensive repairs. Early in the following year she returned to Pondicherry where she took in a home. ward cargo and sailed for Port L'Orient, but was captured on the voyage thither. The case for the plaintiffs' excusing the voyage to Bengal was rested on the ground of necessity for the safety of the ship, which had suffered damage on the way out which could only be repaired in Bengal. It appeared however that, between Pondicherry and Bengal, the Carnatic touched or lay off several ports both on the way to Bengal and on the way back; and although the voyage from Pondicherry to Bengal is usually performed in six or seven days, she took six weeks in going from Pondicherry to Bengal, and about two months on the way back there. After two trials, both of which resulted in verdicts for the plaintiffs, the case came before the Court on a rule for a new trial. Lord MANSFIELD said: “If this application were upon the ground of impeaching the testimony of the plaintiff's witnesses, whatever my private sentiments might be, after two concurrent verdicts, I should not be inclined to interpose. But, without impeaching the evidence, I think there ought to be a new trial, or rather, that the case has been ill-decided. The question is, whether, without imputation on anybody, circumstances have not happened to take the voyage out of the policy. A deviation from necessity must be justified, both as to substance and manner. Nothing more must be done than what the necessity requires. The true objection to a deviation is not the increase of the risk. If that were so, it would only be necessary to give an additional premium. It is, that the party contracting has voluntarily substituted another voyage for that which has been insured. If the voyage to Bengal was unavoidable, where was the necessity to trade? All the ports touched at were out of the direct course, and six weeks and two months were consumed instead of six days."
Driscol v. Bovil (1798), 1 Bos. & P. 313, was an action upon insurance on ship Timandra, from Lisbon to Madeira, from Madeira to Saffi, and from Saffi to Lisbon, — the voyage being the same as that described in the case of Driscol v. Passmore, p. 382, supra. The ship having been obliged to return to Lisbon and having proceeded thence to Saffi under the circumstances before described, it was held that the deviation was justified by necessity.
In Scott v. Thompson (1805), 1 Bos. & P. (N. R.) 181, 8 R. R. 780, the insured ship, a neutral, was carried out of her course by a King's
No. 10. — Elton v. Brogden. — Notes.
ship, and, when released, proceeded on the voyage insured. The deviation was held excused by force which is the same thing as necessity.
But where an English merchantman moored at a port, in obedience to the order of the captain of an English man-of-war lying near him, went out to examine a strange sail in the offing, it was held that the deviation was not excused, as there was no necessity laid upon the captain of the merchantman to obey the order. Phelps v. Auldjo (1810), 2 Camp. 350, 11 R. R. 725. Lord ELLENBOROUGH at the same time observed that if a degree of force was exercised towards him which either physically he could not resist, or morally as a good subject he ought not to have resisted, the deviation would have been justified.
The endeavour to avoid capture has been held, in numerous cases, a justifying cause of deviation. Driscol v. Bovil, Driscol v. Passmore, supra ; O'Reilly v. Gonne (1815), 4 Camp. 249, 16 R. R. 788. So in the following cases upon charter-parties: The Teutonia (1872), L. R., 4 P. C. 171, 41 L. J. Adm. 57, 26 L. T. 48, 20 W. R. 421; The San Roman (1872), L. R., 3 Adm. 583, 41 L. J. Adm. 72, 26 L. T. 948 (affirmed L. R., 5 P. C. 301, 42 L. J. Adm. 46, 21 W. R. 393), The Express (1872), L. R., 3 Adm. 597, 41 L. J. Adm. 79, 26 L. T. 956.
So in time of war, a deviation in order to join convoy is justifiable. Bond v. Gonsales (1704), 2 Salk. 445; Gordon v. Morley (1747), 2 Str. 1265; Bond v. Nutt (1777), 2 Cowp. 601; Enderby v. Fletcher (1780), cited 2 Park Ingur. 646.
On the other hand in Blackenhagen v. London Assurance Co. (1808), 1 Camp. 454, 10 R. R. 729, where the captain of a ship bound from London to a Russian port in the Baltic, on approaching the port, received news of the Russian embargo, and after waiting sometime near the Danish ports, returned with convoy for England and was lost on the way there:– it was held that this was not a deviation but an abandonment of the voyage insured.
"If a ship be driven out of her voyage into any port, and being there, she does the best she can to get at her destination, she is not obliged to return back to the point from whence she was driven." Per Lord MANSFIELD in Delany v. Stoddart (1785), 1 T. R. 22, 1 R. R. 139. In this case a ship insured from St. Kitts to London, was driven by a storm off St. Kitts with only part of her cargo taken on board, and was obliged to run into St. Eustatia. She completed her lading there and then sailed for London. This was held no deviation. There was evidence that the ship had endeavoured unsuccessfully to get back to St. Kitts, and also that it is usual where a full cargo has not been taken in at St. Kitts to take in the rest at St. Eustatia. Lord MANSFIELD does not appear to have considered this part of the evidence