Shortening the voyage. Middlewood v. Blakes. of putting into such port on the way to the original terminus, and with a purpose of ultimately carrying out the original adventure. In that case it would be a mere intention to deviate, not a change of voyage; and the assured would still be liable for all loss incurred before passing the dividing point. So, à fortiori, it is no change of voyage for a ship insured to two or more specified ports of discharge to take in goods, and clear out for only one of them.2 With regard to shortening the voyage, a ship, if insured to several successive ports, may terminate the voyage at one of the nearer of them without vitiating the policy; but it is otherwise if, being insured to a single port, she sail with a fixed purpose not to go beyond a port that is nearer, and not contemplated in the policy. Emerigon, in accordance with this view of the law, after stating it as a general principle, that a mere shortening of the voyage will not avoid the policy, adds, "provided that, at the outset, the voyage insured was not abandoned (rompu) by a change of destination." 3 The case of Middlewood v. Blakes, which has given rise to diversity of opinion, is supposed to be in close relation with the present discussion. In that case it appeared that usage in respect of the voyage insured, from London to Jamaica, left a captain, on arriving at a certain point, the choice of three tracks (one to the north, and two to the south of St. Domingo), all equally leading to the terminus ad quem. In the particular case the captain, under orders from his owners (not communicated to the underwriter), took the northernmost track, intending to touch at Cape Nicola Mole, a port in that track, yet out of the direct course from London to Jamaica; but while still pursuing the direct course to 1 Henkler. Royal Exch. Ass. Co., 2 Marsden v. Reid, 3 East, 571. Voyage entièrement rompu avant le départ. See also the very lucid commentary of M. Estrangin on Pothier, Appendix, c. v. s. 3, p. 471. 4 Middlewood v. Blakes, 7 T. R. 162. Jamaica, and before having turned off towards Cape Nicola On these facts the finding of the jury, that the concealment of the intention to go to St. Domingo had vitiated the policy, was sustained by the majority of the Court in banc, viz., Lord Kenyon, C. J., Ashurst, and Grose, JJ., whereas Lawrence, J., thinking this ground untenable, upheld the verdict on the ground that there was a deviation not merely intended but entered upon at the point where the northern track turns aside from the tracks to the south. Judge Duer,' after a learned discussion of the case, adopts the opinion of the majority of the Court, that "the effect of the concealment was to vitiate the policy," because it exposed the underwriter to a loss from a risk which he never meant to assume; he likewise thinks that the policy was void in its origin, because the master was bound by the orders of his owner to follow a voyage not described in it.2 deviation "to touch and stay." We resume the subject of Deviation, and proceed to Cases of examine in detail the various decided cases by which the irrespective doctrine has been illustrated in English jurisprudence; and of the clause in doing so, we will confine our attention, in the first place, to those instances of deviation depending entirely on the fact of a local divergence from the direct course of the voyage, and not in any degree on the construction of the clauses giving liberty "to touch, stay, or trade." In the absence of any usage or stipulation to the contrary, 12 Duer, 491-498. 2 When was the intention formed to send this ship to Cape Nicola Mole? If after the policy was effected, then I submit it was an intention to deviate, carried into effect probably at the dividing point of the three routes: it was not a substitution of a new voyage, because Jamaica was preserved as the terminus ad quem; Kewley . Ryan, 2 H. Bl. 343. If this intention had been definitely t. formed at the time of effecting the guage. Deviation in the absence of usage. Where there is a usage. the contract in the policy is held to be, that the ship should proceed from one terminus of the voyage insured to the other, in a direct course, with all due expedition, and without touching at any interjacent port, or pursuing any intermediate adventure. Anything that she does to the contrary of this, unjustified by any of the emergent causes that shall be considered hereafter, or without leave expressly given in the policy, however trifling in extent or duration, is a fatal deviation, although the ship afterwards return to her proper course nothing damaged in consequence of this departure from it.1 Where, however, by the usage of trade, it is customary, in the course of the voyage insured, to stop at interjacent ports, though out of the direct line, it is no deviation to stop there, though leave for that purpose is not expressly reserved; for upon the principles already developed, such stopping is deemed to be in the regular course of the voyage insured, and therefore to have been contemplated by the parties to the policy. But for this purpose the usage must be precise, clear, and established. Thus, to put an instance that did exist, when all ships sailing through the Sound stopped at Elsinore to pay the Sound dues, it was no deviation, though liberty to stop there was not reserved in the policy.2 But a stoppage at the Isle of Man, by a ship insured from Liverpool to the West Indies, was held not to be justified by proof that ships on that voyage had occasionally, but not customarily, stopped there before.3 So, in the United States two instances of stopping at an intermediate port, not named in the policy, by other ships engaged in the same trade, was held inadequate to prove a usage or justify a departure from the direct course.* 1 Fox v. Black, 2 Park, Ins. 620; 2 Cormack . Gladstone, 11 East, 3 Salisbury v. Townson, Millar, Ins. 418. 4 Martin v. Delaware Ins. Co., 2 Washington's R. 254; Condy's Marshall, 186, note. On the same ground of usage, in the East India and Newfoundland trades, it has repeatedly been held to be no deviation to engage in intermediate voyages, although no liberty be given in the policy so to do. In fact, where the termini only of the voyage insured are indicated by the policy, and the parties to the contract have done nothing else towards indicating its course, the sole guide in determining what that course should be, is mercantile usage; and nothing can be considered a deviation which follows only the course that usage has sanctioned. policy ex clude or bo Where, however, the policy itself, besides indicating the Unless the termini of the voyage, contains any directions as to the pressly excourse which the ship shall take in sailing between them, inconsistent such directions must be followed with the most scrupulous with the and literal exactness, and the slightest failure to comply with them will amount to a fatal deviation. Hence, where liberty is given in the policy to touch at any one specified intermediate port, it will be a deviation to put into any other than that named in the policy, though calling at such other port be sanctioned by usage apart from the policy, and neither the risk nor premium would have been increased had such port been substituted for that named in the clause. Expressio unius est exclusio alterius. usage. Wilson. It seems to have been usual for vessels sailing from Elliott v. Carron for Hull, in going down the Firth of Forth, to touch at different places for the purpose of taking in and delivering goods, particularly at Borrowstounness, Leith, and Morrison's Haven. A merchant, desirous of insuring goods from Carron to Hull, directed his broker to effect an insurance with liberty in the policy "to call as usual" (which would have enabled the ship to touch at all or any of the three places As to the East Indian trade, see Salvador v. Hopkins, 3 Burr. 1707; Gregory v. Christie, 3 Dougl. 419; 1 Park, Ins. 104; 1 Marshall, Ins. 273; Farquharson r. Hunter, 1 Park, Ins. 105; 1 Marshall, Ins. 274. As to the The geo- Clason v. above mentioned); instead of this the broker, contrary to the directions of the merchant, and without his knowledge, insured from "Carron to Hull, with liberty to call at Leith." The premium was the same as though the general liberty to call as usual had been inserted in the policy. The ship on her voyage did not call at Leith but put into Morrison's Haven, and afterwards without damage got safe again into the direct course of the voyage from Carron to Hull, and had been proceeding on such course for about a day, when she was overtaken by a storm and wrecked on the coast of Northumberland, with a total loss of the cargo. The Scotch Courts, upon this state of facts, decreed that the underwriters should pay the loss; but the House of Lords reversed their judgment, on the ground that putting into Morrison's Haven, under a policy which contained no liberty so to do, but, on the contrary, gave express permission to put into another named port, was a deviation discharging the underwriters from all further liability.1 Where a ship is insured on a voyage to "ports of discharge," which are not specifically named in the policy, the general principle is, that the ship must visit such ports in the geographical order of their distance from the terminus a quo, or port of departure. Thus, where a ship, insured on a voyage "from London to her ports of discharge within the Straits (of Gibraltar) as high as Messina," sailed on her voyage, with a freight for Marseilles, but with instructions to go also to Genoa, Leghorn, and Naples; and on arriving off Marseilles, her first port of discharge in geographical order, as she was prevented by contrary winds from putting in there, she proceeded first to Genoa and then to Leghorn, from which latter place she was making her way back to Marseilles, when she was captured: a special jury found this sailing back to Marseilles 1 Elliott. Wilson, 7 Brown's P. C. 459. |