Deviation defined. Includes delay. Does it vary the risk? which the underwriter had assumed, and from that moment frees him from liability for subsequent loss.1 1 This tacit understanding not to depart from the lawful course of the voyage insured, is technically called an implied condition not to deviate; and a deviation, in the legal sense of that term, may be defined to be any unnecessary or unexcused departure from the usual course or general mode of proceeding towards the original terminus ad quem of the insured voyage, so that the risk is altered, although it be not aggravated, by such departure.2 This implied condition extends as well to the time in which the voyage insured ought to be accomplished, as to the track or course of navigation by which it ought to be pursued. The understanding implied in the contract between the parties is not only that the ship, in sailing between the termini of the voyage insured, shall follow the course which custom has prescribed, but also that she shall commence and complete the voyage with that reasonable expedition which the insurer has a right to expect.3 Hence, any unreasonable and unexcused delay either in commencing or prosecuting the voyage insured, no less absolves the underwriter from his liability to subsequent loss than a local departure from the usual course of the navigation.1 It is not necessary to prove that the peril has been enhanced by the delay or deviation. The underwriter only undertakes to indemnify the assured upon the implied condition, that the risk shall remain precisely the same as it appears to be on the face of the policy interpreted by usage. Immediately that this risk is, by the act of the assured or 1 Les lieux des risques une fois abandonnés par le déroutement volontaire ne se retrouvent point aux yeux de la loi; le contrat une fois dissous ne peut se renouveler que par le consentement respectif des parties; 2 Emerigon, c. xiii. s. 16, p. 18. 22 Emerigon, c. xiii. s. 15, p. 94; 2 Benecke, des Assecuranz, 234; 3 Kent, Com. 312. The language of Emerigon is marked with all his usual terseness and perspicuity. "Le navire change de route lorsqu', au lieu de suivre la voie usitée, il en prend une différente, sans perdre toutefois de vue l'endroit de sa destination: "-loc. cit. 3 Hartley v. Buggin, 2 Park, Ins. 652. 4 Kent, Com. 315. his agents, in any degree varied, although not aggravated, the underwriter's liability ceases by breach of the condition on which alone he engaged to become liable. The true proposition, therefore, is, that every voluntary and unnecessary departure from the prescribed course of the voyage, by which the risk is varied, is a deviation, whether the risk be thereby aggravated or not.1 not be con On the same principle it is not necessary, in order to The loss need discharge the underwriter, that the subsequent loss should nected with be shown to be in any, even the remotest degree, connected the deviation. with the prior deviation; the ship after the deviation may have returned in perfect safety to the proper course of the voyage, without having sustained the slightest injury in consequence of her departure from it; and yet on the ground that the risk passed through was thereby varied from the risk insured, the underwriter will be discharged from his liability for any loss subsequent to the deviation.2 does not avoid Deviation does not, however, like unseaworthiness, dis- Deviation charge the underwriter from liability on the policy, ab the policy ab initio; he still remains liable for losses incurred prior to initio. the deviation. This condition differs in this effect from that other relating to seaworthiness, only because this latter. respects the state of the ship the instant before the commencement of the risk, and consequently is a condition precedent to the policy attaching. The implied condition not to deviate relates to the conduct of the ship in the course of the voyage, and cannot by relation be carried back, so as to exempt the underwriter from liabilities incurred prior to its being broken.3 deviate is of There must be an actual deviation, in order to discharge Intention to the underwriter; a mere intention to deviate, never executed, no effect. is not sufficient.4 1 Hartley v. Buggin, 3 Dougl. 39, Lord Mansfield's judgment. 2 Elliott v. Wilson, 7 Brown's P. Cases, 459; Davis v. Garrett, 6 Bing. 716. See the principle expounded by Lord Campbell, C. J., in Thompson v. Hopper, 26 L. J. (Q. B.) 18, 22. Kewley v. Ryan, 2 H. Bl. 343; The deviation must be voluntary. There is no implied waiver of deviation. Distinguished of voyage. Moreover, it must be a voluntary departure from the usual course of the voyage in order to be a deviation; yet if it take place through the gross ignorance of the captain, it is none the less a deviation.1 A prior deviation is not impliedly waived, although known to the underwriter at the time he accepts the risk, in case the policy in the usual way so describe the voyage as that the deviation in question is a breach of the condition implied in such description.2 The definition of what constitutes deviation seems to require from change that it should be distinguished from what is called abandonment or change of voyage. The great distinction between a deviation and a change or abandonment of the voyage, lies in this, that in the former the original voyage, as described in the policy, is not given up or lost sight of, while in the latter it is. Distinction. "A deviation," says Chancellor Kent, "is not a change of the voyage, but of the proper and usual course of performing it. The voyage insured is never lost sight of in cases of deviation, actual or intended. If, however, the original place of destination be abandoned, in order to go to another port of discharge, the voyage itself becomes changed, because one of the termini of the voyage is changed. The identity of the voyage is gone, and a new and distinct voyage is substituted." 3 1 Phyn v. Royal Exch. Ass. Co., 7 T. R. 505. 2 Redman v. Loudon, 3 Camp. 503; S. C., 5 Taunt. 462; 1 Marshall, R. 136. The contrary has been ruled in the United States, Coles v. Marine Ins. Co., 3 Washington's Circ. Court Rep. 159. Mr. Phillips says (vol. 1, no. 1041), in support of "the equitableness" of that decision, that the insurer ought not to be heard to set up his own fraud in defence. But is it necessary for him to do so? By the admission of a deviation, in fact, the policy is gone, and with it the liability of the insurer. The only question then remaining, as the fact of deviation was known to both parties at the time of making the policy, is, whether the instrument as drawn expressed the intention of both parties. 3 In New York Firem. Ins. Co. v. Laurence, 14 Johnson's R. 46; 3 Kent, Com. 317. ral doctrine For the sake of convenience and illustration, as it can be Of the genedone without any great risk of confusion, we shall here of change of consider this subject of change of voyage, which, though voyage. broadly distinguished in principle, so closely upon the facts resembles deviation, that one as against the other is often argued upon the same facts. A change of voyage takes place when, either before or What it is. after sailing, the assured definitively abandons all thought of proceeding to the port of destination set down in the policy. The effect of this is to discharge the underwriter from all Its effect. liability on the policy from the moment the purpose of so changing the voyage is definitively formed. Hence, if the purpose of changing the voyage be fixed before the commencement of the risk, the policy is void ab initio, and the risk never attaches; if it be not formed till after the ship has sailed, the underwriter is discharged from all liability for losses which may accrue subsequently to its having been formed, although such loss may take place while the ship is still on the track common both to the voyage insured and to that which is substituted for it.1 An intention to deviate, on the other hand, may be defined Distinguished. to be a purpose to depart from the true course of the voyage, without giving up the design of ultimately proceeding to the terminus ad quem. However decisively such an intention Woolridge v. Thellusson v. Kewley v. may be formed, the underwriter remains liable for all loss incurred prior to its being actually carried into effect; i. e., as long as the vessel continues on the direct course of the voyage insured, and before she has reached the point of deviation.1 A ship, insured "from Maryland to Cadiz," cleared out for Falmouth in this country, gave bonds to land her cargo in Great Britain, and sailed with the intention of making Falmouth her port of destination; but was captured while on the course common both to Falmouth and Cadiz. It was contended that this was a mere case of intended deviation. The Court said it was a change of voyage; for that on which the vessel sailed was different from the voyage insured; and they accordingly held the underwriter not liable for the loss, though it had taken place before the ship passed the dividing point. Lord Mansfield thus distinguished the case from that of an intended deviation :-" In all cases of that sort the terminus a quo and ad quem are certain and the same; but in the present case the terminus ad quem has been altered, for there was no intention of going into Cadiz at all." On the other hand, when the master of a vessel insured for a voyage "from Guadaloupe to Havre," had, in pursuance of his instructions, formed the intention of sailing first to Brest, as the safest way, in time of war, of getting to Havre, which latter place still continued the port of the ship's ultimate destination; this was held to be a mere intention to deviate, leaving the underwriter liable for the loss of the ship before she had reached the dividing point at which the course to Brest diverges from that of Havre.3 So, where a vessel insured from "Granada to Liverpool" took out clearances for Cork, at which place the master was instructed and intended to put in, though bound ultimately 1 Woolridge v. Boydell, 1 Dougl. 16 a; Thellusson v. Fergusson, 1 Dougl. 361; Kewley v. Ryan, 2 H. Bl. 343. 2 Woolridge v. Boydell, 1 Dougl. 16 a. 3 Thellusson v. Fergusson, 1 Dougl. 361. |