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Description of the voyage insured in the policy.

The form "at

and from" is generally

cially where

the risk is

the harbour of the terminus a quo preparing for the voyage insured. (k)

This form of insurance is generally adopted, and ought always to be so in the case of policies effected on ships, then abroad, for the homeward voyage; for in such case the high adopted, espe- probability is, that the ship on arriving at the port where the homeward voyage is to commence under the policy may, particularly where the outward voyage has been protracted or tempestuous, require considerable repairs in port, during which it is, of course, desirable for the shipowner to protect her from all loss.

meant to com

mence on the ship from her

arrival at some

out port.

Insurances for

Ships are very frequently insured in one policy and at one the round voy fixed premium, for the round voyage out and home.

age "out and

home."

In such cases the voyage insured is one

and entire,

In such cases, although the modes of describing the voyage insured of course vary with every voyage, yet, for the reasons just given, and with a view to protecting the ship while she lies in the outward port, the form generally adopted is to insure "at and from" the home port of loading "to" the out port of discharge, "and at and from" such out port (naming it), or "and at and from thence," back again to the home port or any other port of discharge which the parties may agree to name.

When the ship is thus insured for a voyage out and home, although she makes two separate passages (itinera) from the though the ship home to the out port and then back again, yet the voyage insured (viaggium) is one and indivisible, and the under(plura itinera). writer is responsible for any loss that may happen in the whole course of its duration.

may make

many passages

The voyage insured is one, though the passages made by the ship are several.

This principle, which is incontestably established in the law of marine insurance, is thus expressed by Casaregis: Falsum est omnino in casu nostro quod itus et reditus considerari debent pro diversis viagiis, sed pro unicâ tantum navigatione vel viaggio. Quia VIAGGIUM vel navigatio, cum

(h) Motteux. London Ass. Comp., 2 Atkyns, 545. Forbes v. Wilson, Marshall on Ins. 148.

sit nomen juris ac universale, potest complecti PLURA ITI- Description of NERA. (1)

However complicated the voyage of the ship (iter navis) may be rendered by the most extensive liberty given to touch and stay at intermediate ports, or by being broken up into a variety of successive stages, yet the voyage insured (viag gium), if comprised between two specified termini or extreme points, and insured for one entire premium, is one and indivisible, however numerous may be the successive passages of the ship. (m) Thus, where a ship was insured "at and from Honfleur to the coast of Angola, during her stay and trade there, at and from thence to her port or ports of discharge in St. Domingo, and at and from St. Domingo back again to Honfleur, at a premium of eleven per cent., Lord Mansfield and the Court of King's Bench determined, on great consideration, that as the premium here was entire and indivisible, so it was one voyage and one entire risk. (n)

(1) Disc. 67. no. 28., cited by Emerigon, chap. xiii. sect. 3. vol. ii. p. 52. ed. 1827. For an illustration of this in our own jurisprudence, see Bermon v. Woodbridge, Dougl. 781.

(m) En matière d'assurance toute navigation assurée, quelque compliquée

qu'elle soit, constitue un voyage simple:
on considére moins le voyage du na-
vire que celui qui est déterminé par la
police. Emerigon, chap. xiii. sect. 3.
vol. ii. p. 52.

(n) Bermon v. Woodbridge, Dougl.

781.

the voyage insured in the policy.

And so it is, intermediate ports the ship

however many

may have leave to stop at.

CHAP. XIII.

Of deviation

OF DEVIATION AND CHANGE OF RISK.

In order to discuss with some approach to a due degree of and change of precision the important subject of this chapter, we will treat

risk.

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in order,

Sect. 1. Of the general doctrine of deviation.

Sect. 2. Abandonment of voyage, and intention to deviate. Sect. 3. Cases of deviation irrespective of clauses, giving a liberty to touch and stay, &c.

Sect. 4. Cases of deviation depending on the construction of clauses, giving a liberty to touch and stay, &c.

Sect. 5. Change of risk by delay.

Sect. 6. Change of risk by cruising, &c.

Sect. 7. Cases which justify a deviation.

SECT. I. Of the General Doctrine of Deviation. (a)

§ 134. In almost all voyages, as we have already seen, custom and long usage have prescribed a certain course of navigation, as the safest, directest, and most expeditious mode of proceeding from one of the termini to the other: the course thus prescribed by usage is the lawful course of the voyage insured: and, being a matter of general mercantile notoriety, is presumed to have been foreseen and contemplated by the parties to the policy at the time of entering into their contract, and is, therefore, considered as much to form part of the policy, as though it were in express terms set forth therein.

(a) The student is recommended to confine his attention to this and the

next section without entangling him

self with the cases cited in those that follow.

doctrine of de

prescribed and usual course that the assured the protection of the policy.

is entitled to

Now, in every contract of insurance, the meaning of the Of the general parties is, in law, taken to be, that the assured shall only viation. enjoy the protection of the policy, as long as he strictly It is only while pursues this regular and customary course of the voyage pursuing this insured, and carries it on to its termination with all safe, convenient, and practicable expedition (b): it is only upon this condition, never expressed, but universally implied, that the underwriter agrees to indemnify the assured; any failure, therefore, to comply with such condition alters the nature of departure the risk which the underwriter assumes, and consequently, the nature of the from the moment of such failure, frees him from his liability. (c)

Because any

therefrom alter

risk.

fined.

This tacit understanding not to depart from the lawful Deviation decourse of the voyage insured is technically called an implied condition not to deviate; and a deviation, in the legal sense of that term, may be defined to be any unnecessary or unexcused departure from the usual course or general mode of carrying on the voyage insured, by which the risk is altered, though the original terminus ad quem of the voyage insured is still kept in view. (d)

the

The implied condition extends as well to the time in which Voyage insured ought to be carried out and completed, as to the track or course of navigation by which it ought to be pursued; the understanding between the parties is not only that the ship in sailing between the termini of the voyage insured, shall follow the course which custom has prescribed; but also that she shall commence and complete the voyage with that reasonable expedition which the underwriter has a right to expect. (e)

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System des Assecuranz, chap. viii.
sect. 2. vol. ii. p. 234. ed. 1807. Kent's
Comm., vol. iii. p. 311. ed. 1844. The
language of Emerigon is marked with
all his usual terseness and perspicuity.
"Le navire change de route lorsqu', au
lieu de suivre la voie usitée, il en prend
une différente, sans perdre toutefois de
vue l'endroit de sa destination," loc.
cit.

(e) Hartley v. Buggin, Park, 652.
8th ed.

An unnecessary

or unexcused

delay is regarded as a dealters the risk.

viation, for it

Of the general doctrine of deviation.

The principle

is, that every thing which

alters the risk, whether it increases it or

not, is a deviation.

The loss need not have been

whatever con

nected with the deviation.

Hence, any unreasonable and unexcused delay either in commencing or prosecuting the voyage insured, no less absolves the underwriter from his liability to subsequent loss, than a local departure from the usual course of the navigation. (f)

It is not necessary to prove that the risk has been enhanced by the delay, or deviation. The underwriter only undertakes to indemnify the assured upon the implied condition, that the risk shall remain precisely the same, as it appears to be on the face of the policy, as interpreted by usage; directly, by the act of the assured or his agents, this risk is in any degree varied, even though it may not be increased, the liability of the underwriter comes to an end by the breach of the condition on which alone he engaged to be liable at all: the true proposition, therefore, is that every voluntary and unnecessitated departure from the prescribed course of the voyage, by which the risk is varied, is a deviation, whether the risk be thereby increased or not. (g)

On the same principle it is not necessary, in order to disin any degree charge the underwriter, that the subsequent loss should be shown to be in any, even the remotest degree, connected with the prior deviation; the ship after the deviation may have returned in perfect safety to the direct course of the voyage, without having sustained the slightest injury in consequence of her departure from it, and yet on the ground that the risk incurred was thereby varied from the risk insured, the underwriter will be discharged from his liability for any loss subsequent to the deviation. (h)

Deviation, however, does not avoid the

policy ab initio, but only discharges the un

derwriter from

the moment it takes place, leaving him

liable for prior losses.

Deviation does not, however, like unseaworthiness, discharge the underwriter from all liability on the policy, ab initio ; he still remains liable for all loss incurred prior to the deviation. The reason is, that the implied condition of seaworthiness relates to the state of the ship at the commencement of the risk, and is a condition precedent to the under

(f) Kent's Comm., vol. iii. p. 315. ed. 1844.

(g) Hartley v. Buggin, 3 Dougl. 39. Lord Mansfield's judgment.

(h) Elliott v. Wilson, 7 Br. Pr. Cases, 459.

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