to touch and Cases of devia- specifically named in the policy, then, upon the principle tion irrespective of the clauses already stated, it will be a deviation if the ship does not visit giving a liberty such ports in the precise order in which their names occur in the policy, whether that be the geographical order or not, unless, indeed, long and uniform usage have established a different course. stay. successive ports of discharge are specifically named in the policy, the ship · must visit them in the specified order: at all events, where there is no regular and fixed usage of trade to the contrary. Beatson v. A ship, however, thus in Thus: a ship was insured on a voyage "at and from Fisherow to Gottenburgh, and back to Leith and Cockenzie ;" after having performed her outward passage to Gottenburgh, she sailed thence on her homeward passage, having goods on board both for Leith and Cockenzie. (u) In the geographical order, Cockenzie lies nearer to Gottenburgh than Leith does, and is about a mile and a half out of the direct course between these two ports; it is a much less convenient harbour than Leith, but there did not appear to be any settled course of trade regulating the order of calling at the two places on such a voyage as that insured in the policy. The ship, without going first to Leith, put into Cockenzie, in coming out of which harbour she was stranded and lost. Upon these facts the court held that, as the termini of the intended voyage were in terms described in the policy, and as there was no regular and settled course known to all traders different from that so described, the ship was guilty of a deviation, by putting first into Cockenzie, and the underwriter was discharged from his liability. (v) It is not, however, necessary that a ship thus insured to sured to several several successive named ports of discharge, should sail to all named ports of the ports so named. She may omit any without its being deemed a deviation, or may only sail to one: the only limita discharge, need not visit all of them, but, if she visits more than one, must take them in order. tion is, that if she visits more than one, she must take them in the order in which their names occur in the policy. Thus, their specified where a ship was insured "from Liverpool to Palermo, Messina, and Naples," Lord Ellenborough held the true construction of the insurance to be that the assured might drop any Marsden . Reid, 3 East, 572. (u) See Lord Ellenborough's remarks on this case in Marsden v. Reid, 3 East, 577. (v) Beatson v. Haworth, 6 T. Rep. 581. See also Marsden v. Reid, S East, 571. tion irrespective of the clauses giving a liberty to touch and stay. and long-esta of the places named, but that if he went to more than one he Cases of deviamust take them in the order named in the policy. (w) Generally speaking, therefore, where there are several ports of discharge, the ship must take them either in the order in which they are named in the policy, or, if not named, then If there be a in the geographical order of their distance from the port of clear, settled, departure. If, however, long and uniform usage have established usage of blished a particular order in which such ports should be visited, different from the geographical order, there can be little doubt that the latter would be disregarded, and the former observed. It has been even intimated (though this appears more doubtful) that the order of succession, as fixed by such usage of trade, shall overrule that specified in the policy. (x) In all cases the ports must be visited in the direct course of the voyage insured; and, generally speaking, it will be a deviation, after having once touched at one of such ports, to revisit it, or to sail backwards and forwards from one to the other, unless express liberty for that purpose be inserted in the policy (y), or unless it be apparent, from the very terms of the policy itself, that the purposes of the voyage insured, as therein described, require such a liberty for duly carrying them into effect. (z) Thus, it has been decided in the United States, and apparently on good grounds, that where a ship is insured on a West India voyage to any one of the islands, "and a market," this justifies the ship in seeking a market at the different islands, without regard to their geographical order, and even confers a liberty of touching at the same port once and again, if done with the bonâ fide intention of finding a market. (a) trade, to take the ports of discharge in a fixed succes sion, this shall overrule the mere geographical order of where they are their succession, not named in they are named, must be visited in the direct course of the voyage, and cannot be reexpress liberty visited without to that effect, or clear evidence on the po face of the licy, that it is contemplated so to do. Cases of deviation irrespective of the clauses to touch and stay. Where a ship is insured "at and from" some one named port of departure, and "other port or ports" to a fixed tergiving a liberty minus, it will depend entirely on the language of the clause and the true construction of the policy, whether it will or Where a ship is will not be a deviation for the ship to depart from the direct course between the first-named port of departure, and the named terminus terminus ad quem, for a purpose connected with the main object of the voyage insured. insured from some one a quo, and "other port or ports" not named in the policy, to a fixed terminus ad quem, her departure from the direct Thus, where a ship was insured on a homeward voyage “at and from Martinique and all or any of the other West India Islands to London," and the ship sailed to take in her cargo at St. Domingo, a place very wide of the direct course of a voyage from Martinique to London, this was yet held to be no devianot be a devia- tion: "For in order to make it so," said Sir J. Mansfield, you must read the insurance to be, not at and from Martinique and all or any other of the West India islands, but course between the termini, will tion, if it be within the scope of the policy, and connected with the main ob jects of the ad venture. Even though the port she sails to lies in at and from Martinique and such of the West India islands as lie between Martinique and London.'" (b) So, where a ship was insured "at and from Pernambuco or any other port or ports in the Brazils, to London," it was held no deviation for the ship, after touching at Pernambuco, metrically op- and finding she could procure no cargo there, to sail to St. a direction dia posite to the direct course between the named terminus a quo and the terminus ad quem. Lambert v. Liddard, 5 Taunt. 480. If a ship insured from Salvador, another port in the Brazils, in order to obtain one, although St. Salvador lies 500 miles to the southward of Pernambuco, and therefore in a direction diametrically opposite to the direct course of the voyage from Pernambuco to London. Chief J. Gibbs said that if the insurance had been at and from Pernambuco or any cther port in the Brazils, there might have been something in the objection, as it might then have been contended that, by electing Pernambuco as the port of loading, the assured could not go to another without a deviation; but that the alternative being, any other port or ports, there must have been an intention of sending her to more than one. (c) Every thing, in fact, in these cases, depends upon the real (b) Bragg v. Anderson, 4 Taunt. 929. (c) Lambert v. Liddard, 5 Taunt. 1 Marshall's Rep. 149. 480. meaning of the parties, as ascertainable, first from the terms of the policy, and, if these leave the matter still doubtful, then upon extrinsic evidence. Cases of deviation irrespective of the clauses giving a liberty to touch and stay. "her port of loading," after beginning to load her cargo proceeds to at one town, another, in or der to complete her lading, this is a deviation, unless indeed it can be shown Thus, where a ship was insured "at and from her port of loading in North America to Liverpool," it was held a deviation for the ship, after having taken in part of her loading at a place situated in one creek of a bay, to go afterwards to another place, lying eight miles off, on another creek of the same bay, to take in the rest; for the terms of the policy clearly showed that the underwriter did not mean to run the risk of loading the ship at two such distant places, and there was no evidence to show that the two places were considered by the mercantile world as forming parts of the same port. (d) If, indeed, the ship were on a particular quay on a river, as at Liverpool, and merely removed to another quay, a mile or two off, that would not be a deviation, for there the ship would be all the time at one port or place; but it is a devia- bour-town. tion if she removes to a different town, or different place of leur, 4 Ad. & habitation, which might itself be a port of loading. (e) on that the two towns are members of the same port. Aliter, if she only moves from one quay the same har to another in Brown ". Tay Ell. 241. What amounts to a deviation in a ship insured for a round voyage A from her termi nus quo of of In voyages out and home it is very usual to insure the ship to one or more ports of discharge, and "thence" back again to the terminus a quo. The following case turned the construction of the word "thence" in such a policy. ship was insured "from Liverpool to any port or ports discharge in China or Manilla, and thence back to Liverpool." After putting into a port in China, and failing to find freight there, she sailed to a port in Manilla, where she took on board part of a cargo, and was proceeding thence a second time to another port in China, in order to complete her lading, and thence sail to England, when she was lost. It was contended that her thus going a second time to China, instead of proceeding direct from Manilla to England, was a deviation; but the Court of Exchequer held it not to be so, for the word "thence" was general in its application, and not confined to Manilla. (f) (d) Brown v. Tayleur, 4 Ad. & Ell. 241. (e) Per Patteson, J., ibid. 249. (f) Ashby v. Pratt, in the Court of Exchequer, Feb. 2d. 1847 (not reported). several ports discharge, and "thence back again" to the terminus a quo. Cases of deviation irrespective of the clauses One of the courts in the United States has come to an opposite decision as to the construction and effect of the word giving a liberty thence " in such a policy (g); but Mr. Phillips, who reports the decision, seems to consider it as unsatisfactory. (h) to touch and stay. Any departure from the usual mode of carry ing on the voy age will dis charge the underwriter, if it varies the risk. If the course of the voyage in sured is for the master to be at liberty to take either one of three distinct tracks to the terminus ad quem, it is a change of risk to limit him, by his instruc The following curious case shows that not only a local divergence from the prescribed course of the voyage will discharge the underwriter, but that any departure from the usual mode of carrying it on, by which the risk is varied from that which the underwriter meant to assure, will produce the same effect: The voyage from London to Jamaica, after arriving at a certain point, may be pursued by either one of three tracks: one to the north, and two to the south of the island of St. Domingo; and the customary course of the voyage is to leave the captain at liberty, on arriving at the dividing point where the three tracks separate, to take whichever of the three he, in his discretion, may then think best. A ship was insured "from London to Jamaica," and the captain was instructed tions, to taking to call on his way at Cape Niccola Mole, a port in St. Domingo, situate in the northernmost of the three tracks already mentioned. The captain, in obedience to his instructions, on arriving at the dividing point, took the northward track, and the court held that in so doing he had been guilty of a deviation from the moment he passed the dividing point, at which the three tracks separated; because, by his instructions he had been limited to take only one of the three, whereas, by the common course of the voyage insured, as it must have Middlewood v. been understood by the underwriter when he effected the only one of such tracks; and it is a deviation directly the ship has turned off the course common to all three tracks, and begun sailing on that which the captain was so instructed to take. Blakes, 7 T. policy, he ought to have been left to his discretion to choose which of the three he might then think best. Accordingly, they decided that the underwriter was discharged from his liability, although the ship was lost in the northward passage while she was still pursuing a direct course to Jamaica, and before she had turned off to Cape Niccola Mole. (¿) (9) † Marine Ins. Comp. v. Strauss, 1 Mumford's Rep. 408. (h) Phillips on Ins., vol. i. pp. 497, (i) Middlewood v. Blakes, 7 T. Rep. 164. |