the jurisprudence of Christian communities, appears for some time to have prevailed both in this country and the United States, whether a departure from the direct course of the voyage for the purpose of saving the lives of men threatened with imminent danger of shipwreck or foundering, were or were not a deviation which would discharge the underwriters. It must, now, however, be taken as clear law, both on this and the other side of the Atlantic, that a deviation of this kind, sanctioned alike by the true interests of commerce and the clearest precepts of humanity, can in no instance be held to discharge the underwriters.1 This liberty, however, has been expressly confined, in the United States, to those cases only in which the object of the deviation is the preservation of human life; and it has been held not to extend to the case of saving property.2 I apprehend the law will be found the same in this country. Since the last edition of this Work, the general question has been raised and argued, before the Court of Appeal in England, upon an action by a goods owner against the shipowner and carrier, whose vessel and her cargo, including the plaintiff's goods, were lost whilst the ship was performing a salvage service for another vessel and her cargo, but not such a service as necessarily included salvage of human life. The Court held the deviation to be no defence to the action, and gave judgment for the plaintiff.3 After a review of the English authorities, the Court were obliged to regard the case as of the first impression in our Courts. Upon the American authorities, the Court formulated the following propositions, as containing the existing 1 In this country see the dictum of Lawrence, J., in Lawrence v. Sydebotham, 6 East, 54, and the judgments of Lord Stowell in The Beaver, 3 C. Rob. Ad. R. 292; and The Jane, 2 Hagg. Ad. Rep. 338, 345. In the United States, see the cases collected in 1 Phillips, Ins. no. 1027; 3 Kent's Com. 313. See especially the judgment of Story, J., in the Schooner Boston, 1 Sumner's R. 328. 2 See the cases referred to, 1 Phillips, Ins. no. 1028. 3 295. Scaramanga v. Stamp, 5 C. P. D. Irresistible force of perils not insured against. law of the United States on the question, and expressed their cordial concurrence with the law as thus laid down : "Deviation for the purpose of saving life is protected, and involves neither forfeiture of insurance nor liability to the goods owner in respect of loss which would otherwise be within the exception of perils of the seas. And, as a necessary consequence of the foregoing, deviation for the purpose of communicating with a ship in distress is allowable, inasmuch as the state of the vessel in distress may involve danger to life. On the other hand, deviation for the sole purpose of saving property is not thus privileged, but entails all the usual consequences of deviation. "If, therefore, the lives on board a disabled ship can be saved without saving the ship, as by taking them off, deviation for the purpose of saving the ship will carry with it all the consequences of an unauthorized deviation. "But where the preservation of life can only be effected through the concurrent saving of property, and the bonâ fide purpose of saving life forms part of the motive which leads to the deviation, the privilege will not be lost by reason of the purpose of saving property having formed a second motive for deviating." It is also now clearly established, that where the departure from the course of the voyage is the necessary effect of the immediate and irresistible operation of a peril not insured against, it will not be held to amount to a deviation, although the peril so operating be one not included among the ordinary risks, or be expressly excluded by the specific terms of the policy. Thus, where a neutral ship, insured expressly "against sea risks and fire only," was carried out of her course and detained six weeks by a British cruiser, this was held to be no deviation, though capture and seizure were perils not insured against; for the Court said, that in cases where the 1 See per Sprague, J., in Crocker v. Jackson, Sprague, R. 141. deviation was necessitated by superior force there was no ground for a distinction between a policy confined to particular risks, and a general policy embracing all risks.1 It has been held in the United States, that, if the voyage is given up, and another entirely distinct one undertaken, on account of a peril not insured against, the risk thereupon ceases. And from what fell from the Court in the case of Delaney v. Stoddart, it seems that those learned judges would have felt themselves constrained by the English law to come to a similar conclusion, had the facts warranted it. 1 Scott v. Thompson, 1 B. & P. N. R. 181. See also per Kent, C. J., in Robinson v. Marine Ins. Co., 2 Johnson, 89; 1 Phillips, Ins. no. 1025; 3 Kent's Com. 316. 2 Lee v. Gray, 7 Mass. Rep. 349, and cited 1 Phillips, Ins. no. 1025. 3 1 T. R. 22. The Judges were Lord Mansfield, Buller, Willes, and Ashurst, JJ. |