USUALLY the risk which is undertaken by the insurer is defined by certain limits of time or certain points of locality.1 When the risk is limited by time, the policy is called a time policy; when by local termini, it is called a voyage policy. In voyage policies, which we shall consider first, the Voyage policy terminus a quo, or place at which the risk commences, is What it is. usually, in the common policies on ship, the port of departure;—in the common policies on goods, it is usually the port of loading, which frequently, but not necessarily, is the same place with the port of departure. The terminus ad quem, or point at which the risk ends, is the port of the ship's destination, or the port or ports of the cargo's discharge. That which is limited or described in the policy, by these termini, is the voyage insured (viaggium),—a technical term, which must be carefully distinguished from the actual voyage or course steered by the ship (iter navis). The distinction is important. The voyage insured (viaggium) is a transit at sea from the terminus a quo to the terminus ad quem in a prescribed course 1 2 Emerigon, c. xiii. 39; 2 Benecke, System des Assecuranz, c. viii. 203, ed. 1807. 2 Casaregis, Disc. 67, no. 31, as cited 2 Emerigon, c. xiii. s. 5, p. 60. The voyage of the ship. Deviation. Abandonment or change of voyage. Illustrations. The voyage insured-and of navigation (iter viaggii), which is never set out in any policy, but virtually forms part of all policies, and is as binding on the parties thereto equally as though it were minutely detailed. The voyage of the ship (iter navis) is the course of navigation on and in which the ship actually sails. If the ship, in fact, sails in the prescribed course from the terminus a quo to the terminus ad quem, the voyage of the ship and the voyage described in the policy are identical, and the underwriter has no defence upon this ground. If the ship, without entirely abandoning the prosecution of the voyage described in the policy (viaggium), yet voluntarily, and without justifying cause, depart from the prescribed course of that voyage (iter viaggii), this is a deviation, and the underwriter is not liable for any loss that occurs after the point (frequently called the dividing point) at which the ship first quits the prescribed course. If the ship either originally sail on a different voyage from that described in the policy, or if, after sailing, she entirely abandon all intention of prosecuting the voyage described in the policy, this is a change or abandonment of voyage, which avoids the policy from the moment the intention of so abandoning it is definitely formed; for it is an elementary principle in this branch of insurance law, that the underwriter cannot be liable for any loss which does not take place in the course of prosecuting the very voyage described in the policy.1 The following simple illustrations may serve to place these distinctions in a clearer point of view: 1. As to the voyage insured, and the voyage of the ship:the voyage of Suppose the ship to sail under a charter-party, on a voyage the ship. from London to Sydney and back; a merchant who expects goods to be sent by her on her homeward voyage from Sydney to London, effects a policy on them on board the ship for a voyage "at and from Sydney to London ;". in this case, the voyage of the ship is the round voyage 1 Roccus, no. 18, cited 2 Emerigon, c. xiii. p. 39. from London to Sydney and back, that is out and home; the voyage insured, or rather (for this is the more accurate mode of expression) the voyage on which the subject is insured, is only the home voyage at and from Sydney to London. and change 2. As to change of voyage and deviation:-A ship insured Deviation— on a voyage from London to Cadiz, sails from London with of voyage. the intention of proceeding, not to Cadiz, but to Jamaica: this is a change of voyage: and it is equally so if, after sailing some distance with an intention of proceeding to Cadiz, the assured changes that intention, and resolves to proceed to Jamaica. In either case, as the voyage insured ceases to exist directly the purpose of prosecuting it is finally abandoned, any loss accruing afterwards does not take place in the course of the voyage described in the policy, and, consequently, not under those conditions on which the underwriter agreed to be responsible; the policy, therefore, as to him, is a void contract from that time. Although, in the case supposed, the loss takes place while the ship is still in the course that leads indifferently to the original terminus ad quem (Cadiz), and the substituted port of destination (Jamaica), yet the underwriter is equally freed from liability, for the voyage insured is broken up, not by altering its course, but by altering its termini.2 Again, supposing the ship to have been insured (say from London to Jamaica), and the prescribed or customary course of such voyage to be to sail to the south of St. Domingo, instead of which the ship, without any clause in the policy 13 Boulay-Paty, Droit Mar. tit. x. 8. 9, p. 415. 2 Si avant le départ, la destination était changée, le voyage serait rompu et l'assurance serait nulle,-etiamsi intra limites itineris destinati navis se contineat, dit Casaregis, Disc. 67, no. 24, -Emerigon, c. xiii. s. 11, vol. ii. p. 82; confirmed by Woolridge v. Boydell, 1 Dougl. 16; Way v. Modi gliani, 2 T. R. 30. The citation here made from Emerigon is in a section devoted to the discussion of voyage rompu avant le départ. We shall see hereafter (c. x. post) that in a different section this learned French author discusses voyage changé, and that Arnould cites from both sections indifferently. permitting her to do so, or without any necessity, or justifying excuse, sails to the north of that island: this is a deviation. Here the course actually taken by the ship (iter navis) differs from the prescribed course of the voyage insured (iter viaggiï); the risk run is different from that which the underwriter agreed to take upon himself; and he is, therefore, liable for no loss that takes place after the ship has passed the dividing point at which the track to Jamaica by the south of St. Domingo branches off from that by the north.1 Description of the voyage The voyage insured must be accurately described in a insured in the voyage policy; that is, the local limits of the risk, the policy. terminus a quo, or port where the voyage is to commence; and the terminus ad quem, or port where it is to conclude, must be each of them specified in the policy, which would be vitiated by any material failure in this respect.2 If the terminus ad quem or port of ultimate destination be left in blank, though this were done for the purpose of deceiving the enemy, and private instructions given to the captain as to the port for which the ship was really destined, the policy is nevertheless void.3 By termini. Limits of terminus. Where there is any doubt as to the precise mercantile limits of any place named in the policy as one of the termini of the voyage, such doubt must be cleared up by the evidence of mercantile men. For instance, whether the Gulf of Finland is, by mercantile usage, deemed to be within the Baltic; or whether the Mauritius, although regarded by geographers as belonging to Africa, be yet, in 1 The whole subject of deviation and change of voyage remains to be considered more at length hereafter; meanwhile I cannot forbear directing the attention of the student to the thirteenth chapter of Emerigon's great work, an admirably arranged magazine of legal learning and accurate thought; Boulay-Paty, in his Droit Mar. vol. iii. tit. x. s. 9, has done little more than copy his distinguished predecessor. 2 Uhde v. Walters, 3 Camp. 16. 3 30 Vict. c. 23, s. 7; Molloy, book ii. c. 7, s. 14, cited 1 Marshall on Ins. 328. 4 Uhde v. Walters, 3 Camp. 16. the common acceptation of mercantile men, one of the East India Islands.1 This description of the voyage insured by its termini is all that is necessary in the policy. More is not requisite, or ever attempted; the track which the ship ought to take, being fixed by general usage, is received as familiar to all mercantile men, and is held as binding upon the parties to the policy as though it were therein fully described in detail. All the more need is there that the termini of the voyage insured be clearly specified in the policy. Beside the termini, however, of the proposed voyage, if it Ports of call. be desired that the ship should have the power of putting into intermediate ports or places, the permission to do so must be clearly expressed in the policy by a clause setting out the ports where and the purposes for which the ship is to have this power, together with the order in which they are to be visited. Of these clauses and their construction we shall treat at large elsewhere. from. As appears by the common printed form of policy, the Policy at and voyage insured is in this country generally made to commence, not simply "from," but "at and from" the terminus a quo. The reason for this is, that, under an insurance simply from the terminus a quo, the voyage insured, and consequently the risk, does not commence until the ship actually sails on her voyage from that port; whereas, under the mode of insurance commonly adopted, by virtue of the word at the ship is protected during the whole time that she is in the port or harbour of the terminus a quo preparing for the voyage insured.2 Ships are very frequently insured in one policy and at fixed premium, for the round voyage out and home. 1 Robertson v. Clarke, 1 Bing. 445; see note at the end of the report, p. 451, ibid. M. one One entire In voyage of 2 Motteux v. London Ass. Co., 1 Atkyns, 545; Forbes v. Wilson, 1 BB several |