CHAPTER XIV. THE VOYAGE INSURED. The Voyage insured distinguished from the Voyage of the Ship 369. USUALLY the risk undertaken by the underwriter is of the voyage defined by certain limits of time or certain points of locality the voyage of insured, and specified in the policy as the limits or termini of the the ship. risk (a). When the risk is limited by time, the policy is between time called a time policy; when by local termini, it is called a and voyage voyage policy. In voyage policies, of which we are now treating, the terminus a quo, or place at which the risk commences, is usually, in the common policies on ship, the port of departure; in the common policies on goods, the port of loading, 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. Difference policies. Termini of a voyage policy. insured. That which is limited or described in the policy, by these The voyage termini, is the voyage insured (viaggium); a technical term, which must be carefully distinguished from the actual voyage of the ship (iter navis) (b). The distinction is important. The voyage insured (riaggium) is a transit at sea from the terminus a quo to the terminus ad quem in a prescribed course of navigation (iter viaggi), which is never set out in any (a) 2 Emerigon, c. xiii. p. 39; 2 Benecke, System des Assecuranz, c. viii. p. 203, ed. 1807. (b) Casaregis, Disc. 67, No. 31, as cited 2 Emerigon, c. xiii. s. 5, p. 60. Sect. 369. policy, but virtually forms part of all policies, and is as binding on the parties thereto as though it were minutely detailed. The voyage of the ship. Deviation. Abandonment, or change of voyage. Illustrations of the distinctions between 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. If the ship, in fact, sails in the prescribed course from the terminus a quo to the terminus ad quem, the voyage of the ship and the voyage described in the policy are identical. 370. 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 viaggii), 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 the voyage described in the policy, this is a change or abandonment of voyage, which avoids the policy from the moment the intention of so abandoning it is definitely formed; for it is an elementary principle in this branch of insurance law that the underwriter cannot be liable for a loss which does not take place in the course of prosecuting the very voyage described in the policy (c). 371. 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 her 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 (c) Roccus, No. 18, cited 2 Emerigon, c. xiii. p. 39. London to Sydney, out and home: the voyage insured, or Sect. 371. 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. Between a deviation and A ship insured on a voyage from London to Cadiz, sails change of from London with the intention of proceeding, not to Cadiz, voyage. but to Jamaica. This is a change of voyage, and it is equally so if, after sailing some distance with an intention of proceeding 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, any loss which may accrue afterwards does not take place in the course of prosecuting the voyage described in the policy; that is, not under those conditions on which the underwriter agreed to be responsible: the assured, therefore, ceased to be protected by the policy 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). Again, supposing the ship to have been insured (say from 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 (d) 3 Boulay-Paty, Droit Mar. tit. x. s. 9, p. 415. (e) Si avant le départ, la destination était changé, le voyage sera rompu et l'assurance sera nulle, etiamsi intra limites itineris destinati navis se contineat. Casaregis, Disc. 67, No. 24; 2 Emerigon, c. iii. s. 11, Sect. 371. 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 takes place after the ship has passed the dividing point at which the track to Jamaica by the south of St. Domingo branches off from that by the north (f). Description of the voyage 372. The voyage insured must be accurately described in a insured in the Voyage policy; that is, the local limits of the risk, the policy. 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 by any material failure in this respect (g). 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). How the limits of the Where there is any doubt as to the precise mercantile limits termini must of any place named in the policy, as one of the termini of the voyage, such doubt, as we have already seen, must be cleared up by the evidence of mercantile men (i). be ascertained. Thus, such evidence has been admitted to prove that the Gulf of Finland is, in the mercantile world, considered to be within the Baltic (4), and that the Mauritius, although regarded by geographers as belonging to Africa, yet, in the (f) The whole subject of deviation and change of voyage will be considered more at length in the next chapter; meanwhile the attention of the student may be directed to the thirteenth chapter of Emerigon's great work, an admirably arranged magazine of legal learning and accurate thought. Boulay-Paty, in his Cours de Droit Mar. vol. iii. tit. x. s. 9, has done little more than copy his distinguished predecessor. (g) A terminus may, however, be described in general terms, as "at and from her port of loading" within a specified area, or "to any port in the Baltic," as in Uhde v. Walters (1811), 3 Camp. 16. (h) Stamp Act, 1891, s. 93; Molloy, book ii. c. 7, s. 14, cited 1 Marshall on Ins. 328. (i) Ante, Chap. III., on the construction of the policy. (k) Uhde v. Walters (1811), 3 Camp. 16. common acceptation of mercantile men, is to be considered one Sect. 372. of the East Indian Islands (1). course of the 373. This description of the voyage insured by its termini The proper is all that is necessary in the policy; it is not requisite, and ship need not in practice is never attempted to describe the track which the be described. ship ought to take, for this, 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. termini must Moreover, if it be desired that the ship should have the Leave to touch at any place power of putting into any intermediate ports or places, the between the permission to do so must be clearly expressed in the policy be specially by a clause in which the ports where, and the purposes for given. which, it is desired that the ship should have this power, must be accurately set forth. Of these clauses and their construction we shall treat at large elsewhere, and will here notice merely the more ordinary modes of describing the termini of the voyage insured. between insuring and terminus a quo. 374. As appears by the common printed form of policy, Distinction the voyage insured is in this country generally made to "from" the commence, not simply "from," but "at and from "at and terminus a quo. The reason for this is, that, under an from" the 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 the harbour of the terminus a quo preparing for the voyage insured (m). 1 (1) Robertson v. Clarke (1824), Bing. 445. See note at the end of the report, p. 451, ibid. VOL. I. (m) Motteux v. London Ass. Co. (1739), 2 Atkyns, 545; Forbes v. Wilson (1800), 1 Marshall, Ins. 148; 1 Park, 472. G G |