wrote on the 28th February, 1810, to the respondents in the following terms:-" In consequence of the unprecedented want of small craft, and the general confusion that has prevailed since the French appeared in this neighbourhood, the delivery of the Elizabeth's cargo has been delayed; and as it is likely the Henrietta will be detained from the causes, Captain Collins has, after consulting with Captain Fields, determined to return direct to St. John's with a cargo of salt, now to be had at double price." Eight days after the date of this letter, while the vessel was lying at Cadiz, she was driven on shore by a storm, and burnt by the French. The letter of the 28th February, and another letter conveying the intelligence of the loss were received by the respondents on the same day, viz., upon the 21st of April, 1810. In these circumstances the respondents did not communicate to the appellant or the other underwriters the letter which they had received from Lynch & Co. respecting the projected alteration of the voyage, and obtained payment from them for a total loss. The House of Lords, reversing the judgment of the Court below, decided that the correspondents at Cadiz were agents of the respondents; that the voyage insured was abandoned by their determination to send the ship on a different voyage, and therefore the underwriters were not liable for the loss. The consequence of which decision being that the owners were bound to refund the money, with interest, which had been paid by them before they were apprised of the facts. The Lord Chancellor, in giving his judgment ends in these words:" It is contended that there was nothing to alter the voyage but the intention, which might have been again varied, and as there was no progress made in unloading the cargo, nor any act done towards a change of the voyage; this is to be considered as a loss under the policy. Undoubtedly a mere meditated change does not affect the policy. But circumstances are to be taken as evidence of a determination, and what better evidence can we have than that those who were authorized had determined to change the voyage. In my opinion the voyage was abandoned, and I have the highest authority in Westminster Hall to confirm that opinion. Suppose they had gone upon the second voyage, and the ship had been lost after insurance for that voyage, on which of the policies could they have claimed or recovered? Certainly not on the first. Upon the letters of the agents and the captain it must clearly be considered an abandonment." The Lords found that the voyage ought to be considered as having been abandoned before the loss of the vessel, and the interlocutors were reversed (a). I now proceed to state some of the most material cases of the several and distinct descriptions, which, from early times, have been held to be deviations by the Courts of Law. Where a ship which she had puts into a port no liberty by the policy to enter, held to be a deviation 1. In a case of Fox v. Black (b), the plaintiff was a shipper of goods in a vessel bound from Dartmouth to Liverpool; the ship sailed from Dartmouth and put into Loo, a place she must of necessity pass by in the course of the insured voyage. But she had no liberty given her by the policy to go into Loo; and although no accident befell her going into or voyage. coming out of Loo (for she was lost after she had got out to sea again), yet Mr. J. Yates held that this was a deviation; and a verdict was accordingly found for the underwriter. In another early case before Lord Mansfield, of Townson v. Guyon (c), an action was brought on a policy "on goods and other merchandises," loaded on board the ship called the Charming Nancy, from "Dunkirk to Leghorn." The ship came to Dover, in her way, to procure a Mediterranean pass, and was afterwards lost. Lord Mansfield was of opinion that the calling at Dover was a deviation, and the plaintiff was nonsuited. 2. Mr. J. Park says (d), it was held by Lord Chief Justice Lee, that if the master put into a port not usual, or stay an unusual time, it is a deviation which discharges the underwriter. But, in the case of Smith v. Surridge (e), it was held that the (a) See the case of Driscoll v. Bovill, 1 B. & P. 313. (b) Exeter Ass. 1767, before Mr. J. Yates, Park Ins. 620. (c) Park Ins. 620. (e) 4 Esp. 25. Ante, p. 176. from the If the master put into a port which is not usual, or stay able time, it is an unreason a deviation. time which a ship is detained in the port for necessary repairs, the insurance being" at and from," shall not be taken to be unnecessary delay, so as to avoid the policy. Lord Kenyon said, that the policy attached on the ship while she was undergoing repairs; it was, in such a case, not necessary that she should be fit to proceed on the voyage at the time of the insurance. The underwriter took into his consideration the time she might necessarily be detained. And see what C. J. Tindal said, in the case of Mount v. Larkins (a), referred to in a previous part of this Treatise; and see also the recent case, which I have already mentioned, of Phillipps v. Irving (b); and see the case of Ougier v. Jennings (c), which has likewise been referred to in this Treatise. Mr. J. Park mentions two cases of Stitt v. Wardell (d) and Sheriff v. Potts (e), which cases were declared by Lord Ellenborough to have been overruled in a case I am about to mention. It was the case of Raine v. Bell (ƒ), which was an insurance at and from the ship's loading ports, on the coast of Spain to London, with liberty to touch and stay at any port or place whatsoever; the jury found expressly that the going into and staying at Gibraltar was of necessity, in order to procure a supply of provisions, and that the stay was not longer than the necessity required; and it was proved that while the vessel lay there, the captain received on board some chests of dollars. This fact, and this finding of the jury, raises the question of law, whether the taking in the additional cargo of dollars was a breaking of bulk in the course of the voyage, at a place where there was no liberty to trade given by the policy, so as to avoid it, as increasing or having a tendency to increase the risk. The point was very fully argued; and the counsel, who argued that this amounted to a deviation, relied on the two cases last quoted. But the Court were unanimous in deciding that, as the (a) 8 Bing. 122. Ante, p. 107. (b) 8 Scott's N. R. 3. Ante, p. 226. (c) Sit. in C. P. 1800. 1 Camp. 505, note (a), and ante, p. 205. (d) Sit. at Guildhall, Mich. 1797, Park Ins. 621. (e) Sit. after M. T. 1803. (f) 9 East, 195. See also Urquhart v. Barnard, 1 Taunt. 450. jury had found that the whole period of the ship's stay was. covered by the necessity which originally induced her to go into Gibraltar, there was no implied warranty in such a policy that the ship shall not trade, so as no delay be actually occasioned. And as to the temptation to deviate held out to the master, that must always be a question for the jury, as in other cases of fraud, whether the deviation or delay arose from the trading or from necessity; and an intention to deviate, not carried into effect, will not avoid a policy, still less can a temptation to deviate avoid it. Where a vessel was obliged to stay to pay sound dues at Elsineur, it was held that taking in provender there, but not thereby delaying the voyage was no avoidance of the policy. Taking in goods whilst Îying for con The above case was afterwards twice fully considered. First, in the case of Cormack v. Gladstone (a), where it was held that the vessel, being obliged to stop to pay the Sound dues, at Elsineur, taking in some provender for sheep, but not thereby delaying the voyage, was no avoidance of the policy. Secondly, in the case of Laroche v. Oswin (b), where taking in a few goods in a roadstead, where the ship was lying for convoy, and after the signal for sailing but before the signal to weigh, was held not to be a deviation, the jury having expressly found that taking in the goods occasioned no delay. The next case to be mentioned is, the case of Elliott tion, no delay and Others v. Wilson & Co. (c), which underwent a variety of discussion in the several Courts in Scotland; and in all of them judgment was given against the underwriters; but upon an appeal to the House of Lords, the various decrees of the Courts below were reversed, agreeably to those principles adduced in the beginning of this inquiry, and which have been uniformly admitted as sound law. The harbour of Carron, situated near the head of the Frith of Forth, is chiefly resorted to by ships in the service of the Carron Company, who have a great iron work and considerable collieries in the neighbourhood. From thence vessels, intended principally to convey the manufactures of the company, their coals, and such goods as may be offered them on (a) 11 East, 347. (b) 12 East, 131. See also Violett . Allnutt, 3 Taunt. 419, ante, p. 218; Barclay v. Stirling, 5 M. & S. ante, p. 218; and Hunter v. Leath- (c) 7 Bro. Parl. Cas. 459. voy, no devia being thereby occasioned. A ship, having liberty to put into one port, puts into another equally in her way: this voids the po licy, though neither the risk nor premium would have policy. freight, sail periodically for Hull and other places on the been greater, if eastern coast of England. This is a coasting or carrying allowed by the trade-the vessels, in going down the Frith, touching at different places to take in additional loading, or to discharge part of what they have received at places higher in the river. Particularly it is usual for these vessels to call at Borrowstowness, and Leith, and at Morrison's Haven, a port six miles farther down the Frith, and on the same side with Leith, in the bay of Prestonpans. In February, 1774, the respondents had occasion to ship fourteen hogsheads of tobacco on board one of these vessels for Hull; and, desiring to insure them, gave the following instructions in writing to Hamilton and Bogle, insurance-brokers in Glasgow-" Please to insure for our account by the Kingston, George Finlay, master, from Carron to Hull, with liberty to call as usual, fourteen hogsheads of tobacco;" and these instructions were entered in the broker's books, for the perusal of the underwriters, as is the practice at Glasgow. Upon the 9th of February, the appellants underwrote a policy of insurance, in these terms:"Beginning the adventure of the said tobacco at and from the loading thereof on board the said ship Kingston, at Carron wharf, and to continue and endure until said Kingston (being allowed a liberty to call at Leith) shall arrive at Hull, and there be safely delivered." The respondents were not privy to the allowance to call at Leith being thus substituted in the policy for the more general term as usual, mentioned in the instructions to the broker. The premium agreed on was 17. 5s. per cent.-a rate equal, at least, if not higher, than was usual to be given in the voyage, in cases where it was understood or expressed in the policy, that the vessel might touch at the customary ports. And, in particular, some of these appellants, in February, 1772, underwrote a policy upon this very vessel, and for the same voyage, with liberty to call at Leith and Morrison's Haven, at a premium of one per cent. only. The vessel thus insured had sailed from Carron five days before the date of the policy, that is, on the 4th of February, 1774; it did not call or touch at Leith, but put into |