sailed from Lisbon to Faro to complete her loading, Faro being a port in Portugal, to the southward of Lisbon, and therefore quite out of the course of the voyage to England. Lord Kenyon held that the liberty given by the policy to call at any one port of Portugal must be restrained to a permission to call at some port to the north of Lisbon, in the course of the voyage to England, and that going to the southward was a deviation.1 Similarly in Labinovitch v. Pacific Fire and Marine, 1887,2 Mr. Justice Smith held that a policy covering iron on the voyage Antwerp to Odessa, did not cover iron from Antwerp to Constantinople, and thence viâ Batoum and Nicolaieff to Odessa. This case is somewhat complicated by the words in the policy "all liberties as per bills of lading," which it was decided must be taken as referring to the bills of lading for the particular goods insured by the policy.3

Further, the liberty to touch and stay is limited by its close application to the main object of the voyage; it cannot be availed of except for matters essentially connected with the voyage; in other words, the option cannot be exercised outside the limits of the venture described in the policy. The master is free to turn off this prescribed course of his voyage in case of extraordinary emergency, or to avoid threatened disaster or capture or other peril insured against, all without prejudice to the insurance. To use the language of Lord Mansfield in Pelly v. Royal Exchange, 1787:4 “Is this like a deviation? No: 'tis ex justa causa which always excuses." In the same judgment the following exposition of the liberty to touch and stay, granted by the custom of certain trades, occurs: "The insurer. must have under his consideration the nature of the voyage to be performed,

1 It would be difficult to know how to apply Lord Kenyon's test in the following case of a steamer's actual voyage: "At and from Kotka (Finland) and/or Snarven (Xiania) to Bushire and/or Bussorah; with leave to call at Barrow-in-Furness, and/or Manchester and/or any other ports or places en route (including Jeddah) for any purpose whatsoever." 2 Queen's Bench, 28 Feb. 1887.

3 See Laing v. Union Marine, Q.B.D. 1895, 11 Times L. R. 359. I Burr. 341.

4

Everything

and the usual course and manner of doing it. done in the usual course must have been foreseen, and in contemplation at the time he engaged, he took the risk upon a supposition that what was usual or necessary should be done. In general, what is usually done by such a ship, with such a cargo, in such a voyage, is understood to be referred to by every policy, and to make a part of it, as much as if it were expressed. The usage being foreseen, is rather allowed to be done, than what is left to the master's discretion, upon unforseen events, yet if the master ex justa causa go out of the way, the insurance continues." No doubt the saving of life would be held to justify touching and staying out of the customary course, and certainly putting in in consequence of, or for the repair of, damage arising from peril insured against. On the other hand, a ship insured from London to Berbice was held to have deviated when she put in to Madeira to unload goods and take in wine (Williams v. Shee, 1813, before Lord Ellenborough). Also a vessel insured from Parà to New York, with leave not only to call but to discharge, exchange, and embark cargo at all or any of the Windward or Leeward Islands, was held to deviate when after sailing from Parà on her passage to New York she put in to St. Thomas and St. Bartholomew's in order to obtain information for the owner of the state of the markets there, in order to enable him to decide about another proposed venture in another vessel of his and that one sailing from New York (Hammond v. Reed, 1820).2 In neither of these cases was the touching and staying accomplished for an object connected with the venture on which the insurance was effected.

1

Still less is the assured covered by this clause if, instead of going on the voyage named in the policy, the vessel undertakes an absolutely different voyage. For instance, goods insured from Liverpool to Melbourne loaded on board a vessel sailing from Liverpool to Sydney are never at any moment of the passage covered; and a loss even on this side of the Cape at a point within that part of the passage common to both voyages cannot be recovered under the 1 3 Camp. 469. 2 4 B. & Ald. 72.

policy.

In the eye of the law the voyages are absolutely and entirely different.

To prevent hardship to cargo-owners who may have their policies invalidated through deviation or change of voyage over which they have no control, there has been added to the policy on goods a clause to the following effect:

In the event of the vessel making any deviation or change of voyage, it is mutually agreed that such deviation or change shall be held covered at a premium to be arranged, provided due notice be given by the assured on receipt of advice of such deviation or change of voyage.

The clause has in some cases been added to ship policies also, with less necessity, but not unfairly perhaps as regards insurances from a foreign port. Even on outward voyages the shipowner may have some claim for protection against his policies being rendered valueless by a whim of the captain or by a piece of ignorance on his part which does not take effect until after he has passed from the immediate control of the owner. But here again the whole contract is controlled by the primary condition of perfect good faith between assured and underwriter.

The effect of the "change of voyage" clause on floating policies on cargo has lately been determined in the case of Simon Israel and Company v. Sedgwick and others (before Mr. Justice Wright in Q.B.D., 23rd July 1892; confirmed in Court of Appeal by Lords Justices Lindley, Bowen, and A. L. Smith, on 9th November 1892).1 The action was brought on a policy of insurance on merchandise, "as interest may appear or be hereinafter declared: at and from the Mersey or London to any port in Portugal or Spain this side of Gibraltar, and thence by any inland conveyances to any place in the interior of Spain or Portugal, including all risks whatever from the time of leaving the warehouse in the United Kingdom, and all risks of every kind until safely delivered at the warehouses of the consignee, with liberty to touch and stay at any ports or places whatsoever for any purpose necessary or otherwise." There was a

marginal note in these terms. "Deviation and/or change of voyage and/or transhipment not included in the policy to be held covered at a premium to be arranged." The goods in question were on or before 2nd March 1892 despatched from Leeds to Madrid. On former occasions goods of the same shipper for Madrid were shipped at Liverpool for Seville and carried thence by land to Madrid. On 3rd March the shipper declared these goods on his policy: on 7th March he learnt that the goods would go by the Lope de Vega,: on 10th March he caused that vessel's name to be inserted in the declaration, and intending the same course to be observed with those goods as with former shipments to Madrid, he instructed the insurance broker that the voyage was to Seville. The vessel had left Liverpool on 6th March and was lost on that part of the voyage, common to vessels bound for the Atlantic ports of Spain and those for the Mediterranean ports. It was then discovered that the Lope de Vega, was not going to Seville at all, but only to Carril and Huelva on the west coast of Spain, and to Carthagena and other ports on the east coast; and that the bill of lading for these goods had been made out for Carthagena. The shipper informed the underwriter of his mistake, tendered the customary extra premium for Carthagena, which was refused, solely on the ground that the voyage to Carthagena was not covered by the policy. Without the deviation or change of voyage clause there could have been no question on this point; but the assured, relying on that clause in their policy, contended that when the goods left the warehouse, being intended by the shippers to proceed by a route covered by the policy, the declaration was rightly made and the policy attached; and further, that the assured were entitled to change the voyage in terms of the clause, and on paying a proper extra premium for Carthagena, the amount of which was not in dispute. The underwriters contended that the words "change of voyage" in the clause apply only to a change after the policy has once attached by the commencement of a voyage of such a kind that, if not changed, it would have been within

the policy, that a shipment of goods and an initial declaration of insurance on any other voyage is outside the policy, and that therefore the " change of voyage" never takes effect at all in such a case. Mr. Justice Wright's decision

in favour of the underwriters was confirmed by the Court of Appeal. The law therefore now stands (in absence of reverse of the Court of Appeal's judgment by the House of Lords, to which as far as is known this case is not intended to proceed) that the deviation or change of voyage clause in a floating policy on merchandise is restricted to apply only when the policy has attached by the commencement of a voyage which, if not changed, would be within the policy.

There does not appear to be anything in the decision limiting the application of the principle to open policies only; it seems to bear the wider general application that the words "a changed voyage" are not equivalent to the words a "different voyage"; the former did at one period attach to the policy, while the latter did not at any period attach.