NOTE.-As to the attachment of a policy in ordinary form under SECT. 43. "from" and "at and from " risks, see further, Rules 2 and 3 in Sched., post, p. 122.

ment of

§ 44.-Where the assured abandons the adventure Abandoninsured, the contract of marine insurance is determined.1 adventure by delay,

NOTE. The abandonment of the adventure by not commencing the voyage within a reasonable time appears to be distinct from the implied condition that the risk shall not be altered by delay or otherwise. As to frustration of adventure, see § 61.

etc.

voyage.

§ 45.-(1.) Where the destination of the ship is Change of changed from the destination contemplated by the policy, there is said to be a change of voyage. The destination of the ship is deemed to be changed as soon as the determination to change it is made.2

(2.) Unless the policy otherwise provides, where there is a change of voyage the insurer may avoid the contract as from the time of change, that is to say, as soon as the determination to change it is made; and it is immaterial that the ship may not in fact have left the course of voyage contemplated by the policy when the loss occurs.3

Illustration.

Policy on ship at and from Cadiz to Liverpool. Afterwards, without the assent of the insurer, the destination of the ship is changed to

1 Grant v. King (1802), 4 Esp. 175 (delay of six months, policy not avoided); Palmer v. Fenning (1833), 9 Bing. 460 (delay of four months in case of a yacht, policy avoided); cf. Parkin v. Tunno (1809), 11 East, 22 (abandonment of voyage in consequence of war perils); Nickells v. London and Prov. Mar. Ins. Co. (1900), Times, November 17 (abandonment of voyage under apprehension of hostilities); Owen's Declaration of War, p. 39.

2 Arnould, Ed. 6, pp. 453, 458; McArthur, Ed. 2, p. 84; Woolridge v. Boydell (1778), Dougl. 16; Tudor, Mar. Cas. Ed. 3, p. 125; Bottomley v. Bovill (1826), 5 B. & C. 210; Simon Israel and Co. v. Sedgwick (1893), 1 Q. B. 303, C. A.

3 Ibid.;

R. R. 33.

and Tasker v. Cunningham (1819), 1 Bligh H. L. 87; 20

SECT. 45. Newfoundland. The ship is stranded and burnt in the bay of Cadiz. The insurer is discharged from liability.1

Departure

NOTE. Three different states of fact must be distinguished. First, the ship may sail on a voyage not contemplated by the policy. In that case the risk does not attach. Thus, if a ship be insured from the Mersey to any port or ports west of Gibraltar, and she sails from Liverpool for Carthagena, which is east of Gibraltar, the policy does not attach, and a clause authorizing change of voyage cannot therefore come into operation.2 Secondly, a ship may start on the voyage insured, but afterwards change her destination. In that case the risk attaches, but may afterwards be avoided. Thirdly, a ship may proceed from the terminus a quo to the terminus ad quem, but sail thither by an improper track. In that case there is a deviation.3

§ 46. Where the place of departure is specified by on voyage. the policy, and the ship does not sail from that place, the adventure is abandoned.4

NOTE.-By usage, it is said, an intermediate voyage may be interposed, but the evidence of such a usage would have to be clear.5 Suppose a ship is insured from London to New York. If she starts from Liverpool it is a wholly different risk. Unless the ship starts from the terminus a quo, it is clear that the risk cannot attach. See further, post, p. 122, as to attachment of risk.

Deviation. § 47.-(1.) Where a ship, without lawful excuse or

justification, deviates from the voyage contemplated by the policy, the insurer may avoid the contract as from the time of deviation, and it is immaterial that the ship may have regained her route before any loss occurs."

(2.) There is a deviation from the voyage contemplated by the policy:

:

1 Tasker v. Cunningham (1819), 1 Bligh H. L. 87, 102.

2 Simon Israel and Co. v. Sedgwick (1893), 1 Q. B. 303, C. A.

3 As to distinction between deviation and change of voyage, see

further, Arnould, Ed. 6, p. 452.

+ Arnould, Ed. 6, p. 452; Way v. Modigliani (1787), 2 T. R. 30.

5 Arnould, Ed. 6, p. 409.

6 Arnould, Ed. 6, pp. 451, 462; McArthur, Ed. 2, pp. 18, 84.

(a.) Where the course of the voyage is specifically SECT. 47.

designated by the policy, and that course is

(b.) Where the course of the voyage is not specifically designated by the policy, but the usual and customary course is departed from ; 2

(c.) Where the course of the voyage is not prescribed by the policy or by custom, but the course which would be taken by a prudent master, navigating the ship in a seamanlike manner, is departed from [with the privity of the assured].3

(3.) The intention to deviate is immaterial; there must be a deviation in fact to enable the insurer to avoid the contract.4

Illustrations.

one

1. Policy on ship from L. to J. There are two tracks to J., going north and the other south of the island of D. Sometimes one track and sometimes the other is the best, and the master ought to exercise his own discretion in each case. The owners direct him to call at a port in the north of the island of D. He therefore takes the northern course, and his ship is captured. This is a deviation.5

2. Time policy against fire on ship "lying in the Victoria Docks with liberty to go into dry dock and light the boiler once or twice during the currency of the policy." The ship goes up to the dry dock, and, after leaving it, delays in the river to replace her paddle wheels. It is usual and also cheaper to put on the paddle wheels in the river. This is a deviation.6

1 Arnould, Ed. 6, p. 463.

2 Davis v. Garrett (1830), 6 Bing. 716; Arnould, Ed. 6, p. 462.

3 Middlewood v. Blakes (1797), 7 T. R. 162, which seems to involve the proposition stated; cf. Arnould, Ed. 6, p. 461.

Arnould, Ed. 6, pp. 453, 455; cf. Middlewood v. Blakes (1797), 7 T. R. at p. 168; 4 R. R. 409.

5 Middlewood v. Blakes (1797), 7 T. R. 162.

6 Pearson v. Commercial Union Ass. Co. (1876), 1 App. Cas. 498.

SECT. 47.

Several

ports of

3. Insurance on salvage pumps from A. to the ss. Alexandra ashore in the neighbourhood of D., “and while there engaged at the wreck and until again returned to A." The pumps are lost on the wreck while it is being towed to N., a port of safety. This is a deviation.1

NOTE. It is immaterial that the insurer may not be prejudiced by the deviation, see Arnould, Ed. 6, p. 450. As to usage to call at intermediate ports, see Arnould, Ed. 6, p. 462. Clauses (b) and (c) apply to cases where only the termini are specified by the policy. As to causes which justify deviation, see § 50, post. As to change of voyage, see § 45, ante.

§ 48.-(1.) Where several ports of discharge are discharge. specified by the policy, the ship may proceed to all or any of them, and the omission to proceed to one or more of the ports so specified is not a deviation.2

(2.) Where several ports of discharge are specified by the policy the ship must, in the absence of any usage or sufficient cause to the contrary, proceed to them, or to such of them as she elects to go, in the order designated by the policy. If she does not, there is a deviation.3

(3.) Where the policy is to "ports of discharge," within a given area, which are not named, the ship must, in the absence of any usage or sufficient cause to the contrary, proceed to them, or such of them as she elects to go to, in their geographical order. If she does not there is a deviation.1

NOTE. In a case where three ports of discharge were specified in the policy, Lord Ellenborough says, "I think that the voyage insured

1 Wingate v. Foster (1878), 3 Q. B. D. 582; followed Difiori v. Adams (1884), 53 L. J. Q. B. 437.

2 Arnould, Ed. 6, p. 460; McArthur, Ed. 2, p. 85; Lowndes, Ed. 2, p. 48. As to the meaning of "port" in a policy, see McArthur, Ed. 2, p. 486, and Hunter v. Northern Mar. Ins. Co. (1888), 12 App. Cas. 726.

3 Arnould, Ed. 6, pp. 464, 466.

4 Arnould, Ed. 6, p. 466; McArthur, Ed. 2, p. 85; cf. Metcalfe v. Parry (1814), 4 Camp. 123.

to Palermo, Messina, and Naples meant a voyage to all or any of the SECT. 48. places named; with this reserve only, that if the ship went to more

than one place she must visit them in the order described in the policy."1

§ 49. In the case of a voyage policy, the adventure Delay in insured must be prosecuted throughout its course, with voyage. reasonable despatch, and if without lawful excuse or justification it is not so prosecuted, the insurer may avoid the contract as from the time when the delay became unreasonable.2

66

Illustration.

A ship is insured from England to the coast of West Africa, and during her stay and trade there," and back to England. After completing her cargo for homeward voyage, she delays sailing for a month to salve the cargo of another ship which has been wrecked. On the voyage home she is lost. The assured cannot recover.3

NOTE.-Unjustifiable delay in prosecuting the voyage is usually classed under the heading of deviation; but it seems clearer to draw a distinction between time and locality. Compare Rule 5 in the Sched., post, p. 123, as to the termination of risk on goods.

§ 50.—(1.) Deviation or delay in prosecuting the voyage Excuses for contemplated by the policy is excused or justified:

(a.) Where authorised by license or other special term in the policy; 1

4

(b.) Where caused by circumstances beyond the control of the master and his employer; 5

1 Marsden v. Reid (1803), 4 East, at p. 576.

2 Arnould, Ed. 6, pp. 462, 486–493; Company of African Merchants v. British Ins. Co. (1873), L. R. 8 Ex. 154, Ex. Ch.

3 lbid.; and cf. Pearson v. Commercial Union Ins. Co. (1876), 1 App. Cas. 498.

Arnould, Ed. 6, p. 486; Puller v. Glover (1810), 12 East, 124; Naylor v. Taylor (1829), 9 B. & C. 718; Hyderabad Co. v. Willoughby (1899), 2 Q. B. 530.

5 Arnould, Ed. 6, p. 499; Elton v. Brogden (1740), 2 Stra. 1264 (master forced out of his course by crew); Delany v. Stoddart (1776), 1 T. R. 22 (stress of weather).

deviation or delay.