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 judgment of the Privy Council pronounced by Lord Penzance in Quebec Mar. Ins. Co. v. Commercial Bank of Canada, L. R., 3 P. C. 234, 244. And also post, Part II. Chap. IV., WARRANTY OF SEAWORTHINESS. 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 procure 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 vessel were fitted out. It must be carefully borne in mind, however, that going Secus, if out of the course for such purposes can only be justified when originally 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 Stress of weather. Harrington v. Delaney v. men engaged for the whole voyage, sailed with two of her number engaged for part only of the voyage, and put into a port out of the limits of the policy in order to supply that deficiency, this was held a deviation. Upon the same principle, the fact of a ship, insufficiently provisioned at the outset for the voyage going off the course to procure provisions will, as a general rule, discharge the underwriter on the ground of deviation. It would be otherwise were such lack of provisions wholly due to exhaustion during unavoidable delay, through contrary winds or the like.3 3. Stress of weather.—It is no deviation, if a ship be driven out of her course by stress of weather; or if the captain puts into a port out of his course, or delays his sailing, to take refuge from a tempest, or to wait for a wind, provided that in so acting the captain did what a prudent man, in the exercise of sound judgment, would have done under the circumstances with a view to the benefit of all concerned. Consequently, a ship driven out of her course is under protection of the policy though lost before she can get back into her course; and a ship so driven by stress of weather from her course is not obliged to sail back to that point whence the storm drove her; she is to make the best of her way to her port of destination from the point where she finds herself. 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., 1 Price, 195. Harrington v. Halkeld, 2 Park, Ins. 639. after many unsuccessful efforts to get back to St. Kitts, she gave up the attempt, and completed her lading at St. Eustatius, whence she sailed for London; Lord Mansfield held this no deviation, and said, "If a storm drive a ship into any port out of the course of her voyage, and, being there, she do the best she can to return to her port of destination, she is not obliged to return back to the port whence she is driven." Upon the same principle, it has been suggested by Lord Ellenborough, in this country, and held in the United States, that if a ship find her port of destination blocked up by ice, or otherwise rendered physically inaccessible, she may make the nearest practicable port, with a view of staying there till her own is open, without its being deemed a deviation.3 Where a captain being delayed by adverse winds and dangerous weather puts into a roadstead for safety, it has been decided to be no deviation to send ashore for provisions, if requisite.1 4. Endeavour to avoid Capture.-The endeavour to avoid To avoid capture. the imminent peril of capture, either by lying in the port of loading, or putting into a port out of the course of the voyage, or by departing from the track of the voyage insured, has always been held to justify a deviation, provided the danger was real and immediate, or the apprehension were founded on reasonable grounds.5 So a ship, insured "against capture in her port of loading," may hurry out of such port to avoid the imminent peril of capture, though only half loaded and totally unprepared for her voyage; and putting into a port afterwards out of the course of her voyage, in order to repair damage occasioned 1 Delaney v. Stoddart, 1 T. R. 22. 2 Blackenhagen v. London Ass. Co., 1 Camp. 453. 3 Graham v. Commercial Ins. Co., 11 Johnson's Rep. 352, cited 1 Phillips, Ins., no. 1023. • Thomas v. Royal Exch. Ass. Co., 1 Price, 195. 5 Driscol v. Bovil, 1 B. & P. 313; Driscol v. Pasmore, ibid. 209; Blackenhagen v. London Ass. Co., 1 Camp. 454; O'Reilly v. Gonne, 4 Camp. 249. To join convoy. Succouring distress. by such hasty escape from her port of loading, will not amount to a deviation.1 In the United States several cases have been decided upon this principle; and, in all, the main point of inquiry seems to have been, whether the danger was so real and immediate as to justify the deviation.2 5. Endeavour to join Convoy.-It is no deviation for a ship, whether warranted to sail with convoy or not,3 to depart from the direct course of the voyage in order to seek convoy either at the usual place of rendezvous or elsewhere, provided such subsequent necessity do not arise out of her own prior default or delay; the only question in such case is whether the circumstances show to the satisfaction of the jury, that the captain, in so departing from the direct course of the voyage, acted fairly and bonâ fide according to the best of his judgment, and with no other view or motive but to meet with convoy, and thereby be enabled to reach the terminus of the voyage by the safest way.+ It is not a deviation for a ship, warranted or not to sail with convoy, if she has once sailed therewith and is afterwards driven back to port, to sail the second time without convoy.5 If it clearly appears that, in the common course of the voyage insured, the ship might have obtained convoy at a nearer port, and she is obliged by her instructions to call for it at a more distant port, this may amount to a deviation, as varying the risk.6 6. Succouring the Distressed.-A doubt, dishonourable to 1 O'Reilly v. Gonne, 4 Camp. 249. 2 Olivier v. Maryland Ins. Co., 7 Cranch's S. C. Rep. 493; Whitney v. Haven, 13 Mass. Rep. 172; Reade v. Comm. Ins. Co., 3 Johnson's Rep. 352. 3 D'Aguilar v. Tobin, Holt's N. P. 185. So held also in the United States; Patrick v. Ludlow, 3 Johnson's Cases, 10; 1 Phillips, Ins. no. 4 Bond v. Gonzales, 2 Salk. 445 ; Gordon v. Morley, 2 Str. 1265; Campbell v. Bordieu, ibid. 1265; Bond v. Nutt, 2 Cowp. 601; Enderby v. Fletcher, 2 Park, Ins. 646; D'Aguilar v. Tobin, Holt's N. P. 185; S. C., 2 Marshall's Rep. 265. 5 Laing v. Glover, 5 Taunt. 49. 6 Heselton v. Allnutt, 1 M. & Sel. 45. |