Marine Insurance Co. v. Tucker.

destination. Every circumstance relating to the voyage must be stated with the greatest regard to truth. When, therefore, it is intended, that the vessel shall touch at an intermediate port or ports, it must be stated in the policy. Marshall on Insurance, 227. This minuteness of description must have for its object the protection of underwriters from those frauds to which they are exposed by their unfavorable situation for obtaining correct information. But this object will be defeated, if the insured are not bound to commence and prosecute the voyage described in the policy.

The voyage insured was from Kingston to Alexandria. The vessel was bound to sail directly to Alexandria, as her only port of destination, with all convenient dispatch, in the regular and usual course from the one place to the other. If she sailed, with a determination to go first to Baltimore, and there deliver a cargo of thirty hogsheads of sugar, and afterwards, to come from Baltimore to Alexandria, she did not commence, *and *370] was not lost in the prosecution of, the voyage described in the policy. If the voyage commenced was not, in every respect, the same with that insured, the underwriters are not liable. The voyage commenced was not a voyage from Kingston to Alexandria, but a voyage from Kingston to Baltimore, and from Baltimore to Alexandria.

It is an uncontroverted principle of marine law, that if the voyage is changed, or not performed in the manner described in the policy, the policy does not attach. This principle is established by the case of Wooldridge v. Boydell, Doug. 16.

This is not a case of deviation, but of non-inception. In cases of deviation, the termini are the same. But it is immaterial, whether the termination of the voyage commenced is the same with that insured, when the vessel, in fact and in truth, sails directly for a port not mentioned in the policy, nor contemplated by the parties at the time the insurance was made. If the vessel, in this case, had commenced a voyage for Baltimore, but with an intention to touch at Alexandria, in her way to Baltimore, it would not have been the voyage insured. So, if the master was under an engagement, when he sailed from Jamaica, to go to Baltimore at all events, before he came to Alexandria. The termination of the voyage commenced was Baltimore and Alexandria. The vessel was obliged to come to both places. The termini of the voyage were not those described in the policy.

The necessity of commencing and performing the precise voyage described in the policy, is further proved by the opinion given in the case of Beatson v. Haworth, 6 T. R. 531, where it is decided, that if a vessel is insured to several ports, she must pursue the order in which the places are named in the policy. In the case of Way v. Modigliani, 2 T. R. 30, the question was, whether the policy ever attached; and if it did, whether it *371] was not discharged by the vessel's *not sailing upon the precise voyage insured. The case was this: a ship was insured "at and from the 20th of October 1786, from any ports in Newfoundland to Falmouth, or her ports of discharge in the channel." On the 1st of October, the ship left Newfoundland, and went to the Banks, fished there until the 7th, and then sailed from the Banks to England; and on the 30th of November, while in the direct track from Newfoundland to England she was lost. She left Newfoundland for the Banks, long before the policy attached, and although, on the 20th of October, she was in the direct course from Newfoundland to

Marine Insurance Co. v. Tucker.

England, and so continued, until she was lost, yet, because she sailed from Newfoundland, with an intention of going to the Banks, and from thence to England, and actually carried that intention partially into effect, it was determined, that the policy did not attach, and that the voyage insured was not commenced. The partial execution of the intent cannot vary the principle, and was not relied upon in that case. BULLER, J., said, "The first is the substantial ground, namely, that the policy never attached at all. Where a policy is made in such terms as the present, to insure a vessel from one port to another, she must have sailed on the voyage insured, and not on any other. The voyage insured is from a port in Newfoundland to England, whereas, the vessel sailed to the Banks, which was a different voyage. This point has been already decided by the case of Wooldridge v. Boydell, where it was held, that if a ship, insured for one voyage, sail upon another, although in the same track, part of the way, and she be taken, before the dividing point between the two voyages, the policy is discharged. That was a stronger case than the present, for there the very intention of sailing upon a voyage different from that insured, vacated the policy."

The actual sailing to a port is only one mode of proving the sailing with an intention of going to that port. If the intention is proved, it is not material by what means. Marshall 406 (note). If the voyage is changed, the policy is vacated. *A voyage may be changed, by taking on board a [*372 consignment to a different port; and the consignment will be evidence of the change. Or it may be changed, by varying the plan of the adventure, before the commencement of the risk; but a deviation takes place in the execution of the original plan. Therefore, an intention to alter the voyage will destroy the contract. Millar 431. To vary in the smallest particular from the original plan of the voyage, constitutes an alteration. Ibid. 392.

In the present case, the plan of the voyage was fixed by the policy, and on the 10th of August, the vessel had actually cleared out, with an intent to pursue it; after which, she discharged her ballast, and took in thirty hogsheads of sugar, to be delivered in Baltimore. This not only altered the original plan of the voyage, but increased the risk of capture, by increasing the value of the prize. The case of Stot v. Vaughan, cited in Marshall 232, 4 Williams' Abr. 296, determined by Lord KENYON, is in favor of the underwriters upon this point.

The case of Kewley v. Ryan, 2 H. Bl. 343, is the only one which has the appearance of opposition. But that case will be found to be unlike the present in the following particulars: 1. In Kewley v. Ryan, the vessel sailed from Grenada for Liverpool, which was the voyage insured, but with an intention to touch at Cork, which was in the usual course from Grenada to Liverpool. But in the present case, the vessel sailed for Baltimore, with an intention to come round to Alexandria from Baltimore, which is not in the course from Kingston to Alexandria. 2. In Kewley v. Ryan the vessel intended only to touch at Cork; but in the case at bar, the vessel sailed on a trading voyage for Baltimore. Stitt v. Wardell, 2 Esp. Rep. 610. *3. [*373 The Eliza altered the plan of the original adventure, by taking in sugar for Baltimore; but in Kewley v. Ryan it does not appear that the original plan was changed. 4. The risk was increased by taking the cargo for Baltimore, but the intention of touching at Cork did not increase the risk. Independent of these differences between the two cases, it is very ques

Marine Insurance Co. v. Tucker.

tionable whether the determination in Kewley v. Ryan is correct, upon prin ciple. It establishes a doctrine which enables the insured to defraud underwriters, by making the evidence of intention to vary the voyage depend upon the single testimony of the master, which is apt to bend to the interest of his employers. It too often happens, that insurance cases depend upon the same kind of testimony. The case of Kewley v. Ryan is also, in principle, contradicted by that of Middlewood v. Blakes, 7 T. R. 162; Marshall 406, note b.

2d. The 2d point is, that if the plaintiffs are entitled to recover anything, they can recover only for a partial loss; for if an actual total loss has happened, it has arisen from the negligence and misconduct of the plaintiffs, or their agents, in not doing the best in their power for all concerned. The consideration of this question will involve that of the right of the plaintiffs to abandon, at the time they offered to abandon: which is the third point in the cause.

In many instances, the practice of abandoning has been extended too far. The insured should, in no case, be permitted to abandon, where the effects insured, or the greater part of them, still exist, and are in the power of the insured. The general rule is, that the insured may abandon, in all cases, where, by means of any of the perils insured against, the voyage is totally lost, or not worth pursuing, or where the thing insured is so damaged as to be *of little or no value to the owner, or where the salvage is very *374] high, or where what is saved is of less value than the freight, or where further expense is necessary, and the insurer will not undertake, at all events, to pay that expense. These principles are declared in the following cases: Goss v. Withers, 2 Burr. 683; Hamilton v. Mendes, Ibid. 1198; Aguilar v. Rodgers, 7 T. R. 421; Story v. Strettell, 1 Dall. 11; Park 165; 4 Williams' Abr. 373, 376.

The capture or arrest of a vessel, or any detention, is prima facie a total loss, and immediately upon the capture, or at any time while the capture continues, the insured may abandon, and give notice, and thereby entitle himself to claim as for a total loss. But this must be done, while the insured knows of the continuance of the capture, and not after he has information of the recovery or safety of the vessel. McMaster v. Shoolbred, 1 Esp. Rep. 237; Marshall 494, 501. On the other hand, the re-capture does not necessarily deprive the insured of the right to abandon. For if, in consequence of the capture, the voyage is lost, or not worth pursuing, if the salvage be very high, or if further expense be necessary, and the insurer will not undertake to pay that expense, the insured may abandon. Therefore, the rule is, that if the thing insured be recovered, before any loss is paid, the insured is entitled to claim as for a total or partial loss, according to the situation of the case, at the time when he makes his claim. For there is no vested right to a total loss, until the insured elects to abandon.

There are two cases which will be cited for the defendants in error. Pringle v. Hartley, 3 Atk. 195, and Goss v. Withers, 2 Burr. 683, neither of which is like the present. In the case of Pringle v. Hartley, the salvage amounted to a moiety of the value of the vessel insured; and there was no *375] person present to give security, or answer for that moiety. *The case of Goss v. Withers was an insurance on the ship and goods. Onefourth of the goods were thrown overboard to preserve the vessel, and the

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residue of the cargo. After this, the vessel was captured by the French. The master, mate and all the sailors, except an apprentice boy and a landsman, were taken out and sent to France. The ship remained eight days in the hands of the French, and was re-taken by a British privateer, and on the 18th of January, was carried into port for adjudication. Immediate notice was given, and an offer to abandon. But before her capture, the ship, in a storm, was separated from her convoy, and disabled for proceeding on her voyage, without going into port to refit. The residue of her cargo was spoiled, while she was refitting, after the offer to abandon, and before she could be refitted. The salvage was a moiety; the master and mariners were prisoners; the charter-party dissolved; the freight, except for the goods saved, was lost, and the voyage was not worth pursuing.

But the situation of the Eliza was very different. She sailed from Jamaica on the 17th of August, was captured on the 22d, re-captured in less than three days, and on the 26th, was brought into Kingston, the very port from which she had sailed, only nine days before, and where the agents of the insured were. The salvage was only one-eighth, and the coffee on board. belonging to the plaintiffs, would have been more than sufficient in value to pay the whole salvage, and all the charges and costs, which did not exceed $909, even when attended with the costs of the libel, sale and commissions If they had rated the vessel at $3800, the sum insured, yet the salvage would have been only $475.

The point decided in Goss v. Withers was, that a title to restitution cannot take away a vested right to abandon, if the vessel be unfit to perform the voyage. There is nothing in the record which shows that at the time of the re-capture, the Eliza was unfit to perform the voyage.

The abandonment of a vessel is an extreme remedy, which the insured has in his power, but which he ought not to be permitted to use, when [*376 he has another remedy which will completely indemnify him for the injury he has actually sustained. This case, we contend, ought to be decided upon the principles which governed that of Hamilton v. Mendes, 2 Burr. 1198. There, the ship was captured on the 6th of May, by a French privateer, and all her hands, excepting two, were taken out. On the 23d, she was recaptured by a British ship of war, and sent into a British port, where she arrived on the 6th of June. As soon as the insured heard of the capture, he wrote and offered to abandon to the underwriters. They refused to receive the abandonment, but offered to pay the salvage, and all the losses and charges which the insured had sustained by the capture. The question was,. whether, on the 26th June, the insured had a right to abandon and recover as for a total loss. The court decided, that he had no right to abandon, and. that he could recover as for a partial loss only. The principle of that case is, that if the voyage be only temporarily interrupted, the property, upon the recapture, returns to the owner, pledged to the re-captor for the amount of salvage. This doctrine is also stated in the case of Mills v. Fletcher, Doug. 210, and Thellusson v. Fletcher, 1 Esp. Rep. 73.

The actual loss which the insured sustained, was not a total loss, until rendered so, by their own negligence or misconduct, or that of their agents. It only amounted to $909, including salvage. Even if the vessel had been valued at the price insured, viz., $3800, the salvage (which by statute 33 Geo. III., c. 66, cannot exceed one-eighth) would have amounted only to 3 CRANCH-15

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$475, which, added to the other expenses, would not have exceeded $1000. This sum ought to have been paid by the agents of the insured, who had in their possession funds of their principal, out of which it might have been paid. But it does not appear, that they made any effort or offer to pay it, or to prevent the sale; or any proposition to ascertain the value of the vessel, otherwise than by a sale. They did not do the best in their power for all concerned, but calmly stood by, and saw the vessel sacrificed, when they had the power of preventing it. *The insured, therefore, cannot, by abandonment, turn a partial into a total loss. 1 Esp. Rep. 73.

*377] It appears upon the record, that the insured were anxious to sell the vessel, and this may account for the want of exertion on the part of their agents to prevent a sale, which would charge the underwriters with the full value of $3800.

4th. The loss of the register was not equivalent to the loss of the vessel, and was not an event against which the insurance was made. But the loss of the register might have been supplied by another document, such as a consular certificate, stating the circumstances attending the loss, which would have enabled the vessel to perform the voyage insured. The Betty Cathcart, 1 Rob. 184; Christie v. Secretan, 1 T. R. 198. The want of a register would not have occasioned a forfeiture of the vessel, but would only have subjected her to the inconvenience of being considered and treated as a foreign bottom.

5th. The not communicating to the underwriters the intention of going to Baltimore, vacated the policy, as the risk was thereby increased. Marsh. 347; Carter v. Boehm, 3 Burr. 1909; s. c. 1 W. Bl. 594; Millar 450.

Simms and Swann, contrà, contended-1. That the voyage commenced, was the voyage insured; 2. That the insured had a right to abandon and recover as for a total loss.

1. A policy of insurance, like every other written agreement, is to be construed according to the intention of the parties. The understanding in this case was, that the underwriter should take all the risk of a voyage from Jamaica to Alexandria; and consequently, they took the risk of the voyage from Jamaica to the Chesapeake Bay, through which a vessel must pass to arrive at Alexandria.

*We admit the intention to deviate, after entering the Chesapeake, *378] but we insist, that the voyage and risk insured had commenced; and that the vessel was in the actual prosecution of that voyage, when the loss happened. In such a case, although there was an intention to deviate, the insured had a right to abandon. Park 314; Foster v. Wilmer, 2 Str. 1249; Burns on Insurance 107; Kewley v. Ryan, 2 H. Black. 343; Henshaw v. Marine Insurance Company, 2 Caines 274.

In the case of Wooldridge v. Boydell, there was no intention of going at all to the place mentioned in the policy. The only point in the case of Stitt v. Wardell, 2 Esp. Rep. 610, is the difference between touching and trading at a port. In that case, there was an actual trading, but here was only an intention to trade. In Beatson v. Haworth, 6 T. R. 531, the decision was merely that if the voyage described be to B. and C., the vessel deviates by going to C. first, and afterwards to B., although C. be the nearest port. In Way v. Modigliani, 2 T. R. 30, the real ground of the opinion of