cause. captain ignorantly bore up for Santa Cruz, thirty miles to the north-west, this was held to be a deviation.1 Moral or But if it be necessitated either by moral or physical force, physical force, or other or excused by a justifying cause, it is not such a deviation as justifying discharges the underwriter. Si iter mutaverit magister ex aliquâ justâ et necessarià causâ, puta ex causâ refectionis navis, vel ad evitandam maris tempestatem, vel ne inciderit in hostibus, in istis casibus, mutato itinere, tenetur assecurator.2 "There is not, probably, any exception to be met with," says Chancellor Kent, "to the application of the general rule, that if the vessel departs from the usual course of the voyage from necessity, and departs no further than that necessity requires, the voyage will still be protected by the policy."3 The deviation must be no more than commensurate with the necessity. What is unavoidable necessity. Violence of mutinous crew. The delay, or departure indeed, must be strictly commensurate with the necessity that justifies it; there must be no waste of time, nor any needless divergence from the course of the voyage. On this there is no doubt; the only difficulty is in ascertaining-(a). What degree of force or constraint will amount to such an unavoidable necessity as, on that ground, to justify a departure from the course of the voyage; (b). What circumstances, short of such unavoidable necessity, will excuse the ship in departing from, or delaying, the usual course of the voyage. (a). With regard to what amounts to an unavoidable necessity, we have the following decisions in this country: Where the crew of a letter of marque mutinously insisted on their captain's returning home with a prize he had taken, instead of proceeding on the voyage, and, on his remonstrating, forced him to submit; this compulsory return was held not to be such a deviation as to discharge the underwriters. So, where a crew, dreading the attacks of pirates 1 Phyn v. Royal Exch. Ass. Co., 7 T. R. 505. 2 Roccus, not. 52, 53, cited 2 Emerigon, c. xiii. s. 15, p. 94. See also 2 Benecke, des Assecuranz, c. viii. s. 2. 3 In Robinson v. Marine Ins. Co., 2 Johnson's R. 89. 4 Lavabre v. Wilson, 1 Dougl. 284. 5 Elton v. Brogden, 2 Strange, 1264. if they pursued the voyage, all left the ship and refused to return to her, unless the captain would promise immediately to sail back to the home port; his returning thither in pursuance of such promise was held no deviation.1 war. Not mere orders by a Where a neutral ship was carried out of her course by a A ship of British cruiser, and detained in a port far out of the limits of the policy for about six weeks, this was held to be no deviation, having been caused by overruling necessity.2 On the other hand, where the master of a merchant ship, while he lay at a port in Iceland taking in his loading, was ordered by the captain of a king's ship to go out to sea and examine a strange sail in the offing bearing enemy's colours, which he did, without any remonstrance on his part, or any threat of force on the other, his so doing was held to amount to a deviation.3 king's ship. On the whole, therefore, it appears that when a deviation Result. is sought to be justified on the ground of unavoidable necessity, it must be shown that a degree of force was exercised towards the captain, which either physically he could not resist, or morally, as a good subject, he ought not to resist.1 The principle illustrated in these decisions has been followed and maintained in the decisions of the Courts of the United States.5 of constraint tion. (b). Where departure from the course has not been caused Causes short by force or constraint, moral or physical, it may be laid which yet down as a general rule that it cannot be excused, unless the justify deviastate of circumstances be such as to leave the master no alternative, as a reasonable and prudent man, exercising a sound judgment, and acting for the best interests of all 1 Driscol v. Bovil, 1 B. & P. 313. 2 Scott v. Thompson, 1 B. & P. N. R. 181. 3 Phelps v. Auldjo, 2 Camp. 350. • Per Lord Ellenborough, 2 Camp. 351. 5 Winthrop v. Union Ins. Co., 2 Washington's Circ. C. R. 7; Lee v. Making a port to refit. concerned, but to depart from, or delay the usual course of the voyage. Those circumstances that are short of actual constraint and force, and are yet generally held to excuse a deviation, may be thus enumerated:-1. Making a port to refit; 2. or to recruit the crew when generally disabled by sickness, &c.; 3. Stress of weather; 4. Endeavouring to avoid capture; 5. or to join convoy; 6. or to succour ships in distress. 1. Making a port to refit.—The going into a port out of the usual course for necessary repairs and staying till they are completed, is never held to be a deviation, provided it plainly appear that such repairs under the circumstances and at such port were reasonably necessary, and the delay not longer than was requisite for repairs to enable the ship to proceed on her voyage. Thus, in one case, where a captain, finding he had too little ballast to steady his ship, at the importunity of the crew, and to save his and their lives, put into a port out of the course of the voyage, where he took in 500 rolls of tobacco as ballast; and in another case, where an overladen ship, shortly after sailing, put back into a port out of the course of her voyage, to unload part of her cargo;this was held no deviation. It must be added that both the cases here cited in illustration of a well-established rule of insurance law are cases of unseaworthiness at sailing; that this objection seems not to have been taken in the first of them, and that the same objection in the second was prevented by express licence indorsed on the policy by the insurers to go into Ramsgate and discharge part of her lading.1 1 Motteux v. London Ass. Co., 1 Atkyns, 545. 2 Guibert v. Readshaw, 2 Park, Ins. 637. 3 Weir v. Aberdein, 2 B. & Ald. 320. See this misreported and universally misunderstood case of Weir v. Aberdein, cleared up in the judg And, of course, if the ship does not find in the first port she enters what is indispensable to refit her, she may seek it in a second, without being deemed to have deviated.1 fresh hands. 2. To recruit a disabled crew, or procure fresh hands.-There To procuro appears to be little doubt that if a ship, which was originally sufficiently manned and equipped for the voyage, were in the course of it to lose so great a proportion of her officers or crew by sickness or other cause, that it became impossible to continue the voyage without procuring more, and no more could be procured except by making a port out of the direct course of the voyage, the putting into such port for that purpose would not be held a deviation. Thus, at Nisi Prius Lord Eldon admitted, "That if by the visitation of God so many of the crew, who were otherwise sufficient, became so afflicted with sickness as to be incapable of managing the ship, such an illness of the crew was a necessity which might justify a deviation.”2 So, it has been held in the United States, and apparently on good grounds, that the death of all the superior officers of an East India ship justified the crew in putting into the Isle of France, though out of the course of the voyage.3 Secus, if vessel were originally fitted out. It must be carefully borne in mind, however, that going out of the course for such purposes can only be justified when the ship was adequately manned, equipped, and stored in the inadequately first instance; if the ship when she sailed was deficient in any of the elements of seaworthiness, the going into port to supply such deficiency, however necessary it may be, will be deemed a deviation. Thus, where a ship put into a port, out of her course, in order to procure medicines and medical assistance, with which she ought to have been adequately provided when she sailed; this was held to amount to a deviation. So, where a ship, which ought to have sailed with a full complement of 1 Hall v. Franklin Ins. Co., 9 Pickering's Mass. Rep. 466; 1 Phillips, Ins. no. 1020. 2 In Woolf v. Claggett, 3 Esp. 257. 3 Winthrop v. Union Ins. Co., 2 Washington's Circ. C. Rep. 7. 4 Woolf v. Claggett, 3 Esp. 256. Stress of weather. Harrington v. Delaney v. men engaged for the whole voyage, sailed with two of her 3. Stress of weather.-It is no deviation, if a ship be driven Thus, a ship, insured "from London to St. Kitts," was separated from her convoy by a storm, and was afterwards captured while still out of her course, but taking the best course for St. Kitts or the convoy; Lord Mansfield held this was no deviation.1 So, where a ship, insured from St. Kitts to London, was driven by a storm off St. Kitts with only part of her cargo got on board, and was obliged to run to St. Eustatius, and 1 Forshaw v. Chabert, 3 B. & B. 158; S. C., 6 J. B. Moore, 369. 2 See the American case of Kettell v. Wiggin, 13 Mass. Rep. 68. 3 See Raine v. Bell, 9 East, 195; and Thomas v. Royal Exch. Ass. Co., 4 Harrington v. Halkeld, 2 Park, 1 |