CHAP. XII. OF THE VOYAGE INSURED. SECT. I. Of the Voyage Insured, and the Voyage of the Ship. voyage of the ship. Difference be § 132. In order to charge the underwriter, it is not enough Of the voyage that the loss should have happened at sea: it must also have insured, and the taken place in the course of a navigation comprised within some given period of time, or between two local points specified in the policy as the limits or termini of the risk. (a) When the risk is limited by time, the policy is called a time policy; when by local termini, it is called a voyage policy. In voyage policies, of which we are here treating, the terminus a quo, or place at which the risk commences, is, in policies on ship, the port of departure; in policies on goods, the port of landing, which frequently, but not necessarily, is the same place. The terminus ad quem, or point at which the risk ends, is the port of the ship's destination, or the port or ports of the cargo's discharge. tween time and voyage policies. Of the voyage tinet from the insured, as dis That which is limited or described in the policy, by these termini, is the voyage insured (viaggium); a technical term, which must be carefully distinguished from the actual voyage vo of the ship (iter navis). (b) voyage ship. sured. of the The distinction is important. The voyage insured (viaggium) is a transit at sea from the The voyage interminus a quo to the terminus ad quem in a prescribed cause of navigation (iter viaggi), which is never set out in any policy, but virtually forms part of all policies, and is as binding on the parties thereto as though it were minutely detailed. (a) Emerigon, chap. xiii. vol. ii. p. 39. ed. 1827. Berecké, System des Assecuranz, chap. viii. vol. 1. p. 203. ed. 1807. (b) Casaregis, disc. 67. no. 31., as cited by Emerigon, chap. xiii, sect. 5. vol. ii. p. 60. ed. 1827. Of the voyage insured, and the voyage of the ship. The voyage of the ship (iter navis) is the course of navigation on and in which the ship actually sails. The voyage of terminus a quo to the terminus ad quem, the ship. Deviation. Abandonment, or change of voyage. Illustrations of the distinctions between The voyage insured and the voyage of the ship. Between a deviation and change of voy age. If the ship, in fact, sails in the prescribed course from the the voyage of the ship and the voyage described in the policy are identical: and the underwriter has no defence upon this ground. If the ship, without entirely abandoning the prosecution of the voyage described in the policy (viaggium), yet voluntarily, and without justifying cause, departs from the prescribed course of that voyage (iter viaggi), this is a deviation, and the underwriter is liable for no loss occurring after the point (frequently called the dividing point) at which the ship first quits the prescribed course. If the ship either originally sail on a different voyage from that described in the policy, or if, after sailing, she entirely abandons all intention of prosecuting it, this is a change or abandonment of voyage, which avoids the policy from the moment the intention of so abandoning it is definitively formed; for it is an elementary principle in this branch of insurance law that the underwriter can be liable for no loss which does not take place in the course of prosecuting the very voyage described in the policy. (c) The following simple illustrations may serve to place these distinctions in a clearer point of view. 1. As to the voyage insured, and the voyage of the ship. Suppose the ship to sail under a charter party, on a voyage from London to Sydney and back: a merchant who expects goods to be sent by her on the homeward voyage from Sydney to London, effects a policy on them on board the ship for a voyage "at and from Sydney to London:" in this case, the voyage of the ship is the round voyage from London to Sydney, out and home: the voyage insured, or rather (for this is the more accurate mode of expression) the voyage on which the subject is insured, is only the home voyage from Sydney to London. 2. As to deviation and change of voyage. (e) Roccus, no. 18., cited by Emerigon, chap. xiii. vol. ii. p. 39. ed. 1827. Of the voyage voyage of the insured, and the ship. A ship insured on a voyage from London to Cadiz, sails from London with the intention of proceeding, not to Cadiz, but to Jamaica: this is a change of voyage: and it is equally so if, after sailing some distance with an intention of proceed- Change of ing to Cadiz, the assured changes that intention, and resolves to proceed to Jamaica. In either case, as the voyage insured ceases to exist directly the purpose of prosecuting it is finally abandoned, it is clear that any loss which may accrue after the resolution so to abandon it has been formed, does not take place in the course of prosecuting the voyage described in the policy; that is, does not take place under those conditions on which alone the underwriter agreed to be responsible; the policy therefore is, as to him, a void contract, from that time. (d) Even though, in the case supposed, the loss may take place while the ship is still sailing on the common course which leads indifferently either to the original terminus ad quem (Cadiz), or the substituted port of destination (Jamaica), yet the underwriter is equally freed from liability, for the voyage insured is broken up, not by altering its course, but by altering its termini. (e) voyage. Again, supposing the ship to have been insured (say from Deviation. London to Jamaica), and the prescribed or customary course of such voyage to be to sail to the south of St. Domingo, instead of which the ship, without any clause in the policy permitting her so to do, or without any necessity, or justifying excuse, sails to the north of that island: this is a deviation. Here the course actually taken by the ship (iter navis) differs from the prescribed course of the voyage insured (iter viaggii): the risk run is different from that which the underwriter agreed to take upon himself; and he is, therefore, liable for no loss that may take place after the ship has passed the (d) Boulay-Paty, Cours de Droit Mar., tit. x. sect. 9. tom. iii. p. 415. (e) Si avant le depart, la destination était changé, le voyage sera rompu et l'assurance sera nulle, etiamsi intra limites itineris destinati navis se conti neat. Casaregis, disc. 67. no. 24., as Of the voyage dividing point at which the track to Jamaica by the south of St. Domingo branches off from that by the north. (ƒ) insured, and the voyage of the ship. Description of the voyage sured in the policy. in SECT. II. Description of the Voyage insured in the Policy. § 133. The voyage insured must be accurately described in a voyage policy; that is, the local limits of the risk, the terminus a quo, or port where the voyage is to commence; and the terminus ad quem, or port where it is to conclude, must be each of them specified in the policy, which will be vitiated in the policy. by any material failure in this respect. (g) What is meant by a description of the voyage insured The mercantile limits of the termini a quo, and ad quem, Thus, if the terminus ad quem or port of ultimate destination be left in blank, even though this were done for the purpose of deceiving the enemy, and private instructions were given to the captain as to the port for which the ship was really destined, the policy is nevertheless void. (h) Where there is any doubt as to the precise mercantile limits of any place named in the policy, as one of the termini of the voyage, such doubt, as we have already seen in condoubt, be ascer- sidering the construction of the policy, must be cleared up by the evidence of mercantile men. must, in case of tained by mer cantile evi dence. The proper course of the ship between Thus, such evidence has been admitted to prove, that the Gulf of Finland is, in the mercantile world, considered to be within the Baltic (i), and that the Mauritius, although regarded by geographers as belonging to Africa, yet, in the common acceptation of mercantile men, is to be considered one of the East Indian islands. (j) This description of the voyage insured by its termini is (f) The whole subject of deviation and change of voyage will be considered more at length in the next chapter; meanwhile I cannot forbear directing the attention of the student to the thirteenth chapter of Emerigon's great work, an admirably arranged magazine of legal learning and accurate thought has done little more than copy his distinguished predecessor. (g) Uhde v. Walters, 3 Camp. 16. (h) Molloy, book ii. c. 7. § 14., cited by Marshall on Ins. 328. (i) Uhde v. Walters, 3 Camp. 16. (j) Robertson v. Clarke, 1 Bingh. See note at the end of the reBoulay- Paty, in his Cours port, p. 451. ibid. de Droit, Mar., vol. iii. tit. x. sect. 9., 445. the voyage insured in the policy. the termini is all that is necessary in the policy; it is not requisite, and in Description of practice is never attempted, to describe the track which the ship ought to take through the waters in accomplishing her navigation from one terminus to another, for this, as we have seen, being fixed by general mercantile usage, is considered to be familiar to all mercantile men, and is as binding upon the parties to the policy as though it were inserted therein. The termini of the voyage insured must, however, be so clearly specified in the policy, that by means thereof, aided by a knowledge of the course of navigation prescribed by mercantile usage, both parties may know clearly when the subject of insurance will be within the protection of the policy. Not only, therefore, must the termini, or extreme limits of the proposed voyage be clearly and accurately inserted in the policy, but if it be desired that the ship should have the power of putting into any intermediate port or place between one terminus and the other, the permission to do so must be clearly expressed by a separate clause in the policy, in which the ports where, and the purposes for which, it is desired that the ship should have this power, must be accurately set forth, together with the order in which the ship is to visit them, and the extent in which she is to be permitted thus to deviate from the direct and legal course of navigation from the terminus a quo to the terminus ad quem. Of these clauses and their construction we shall treat at large elsewhere, and will here notice merely the more ordinary and usual modes of describing the termini of the voyage insured. As appears by the common printed form of policy, the voyage insured is in this country generally made to commence, not simply "from," but "at and from" the terminus a quo. The reason for this is, that, under an insurance simply from the terminus a quo, the voyage insured, and consequently the risk, does not commence until the ship actually sails on her voyage from that port: whereas, under the mode of insurance commonly adopted, by virtue of the word "at” the ship is protected during the whole time that she is in never in terms set forth in the binds the parpolicy; but ties just as though it were. If it be desired should touch at any place lying that the ship between the termini, leave must be spe cially given in the policy for that purpose. Ordinary scribing the voyage insured by its termini. Distinction between insuring modes of de simply "from the terminus a quo and "at and from." |