doctrine of 376. In almost all voyages, as we have already seen, Of the general experience and usage have prescribed a certain course of deviation. navigation, as the safest, directest, and most expeditious mode of proceeding from one of the termini to the other. The course thus prescribed is the lawful course of the voyage insured: and, being a matter of general mercantile notoriety, is presumed to have been 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. condition of no deviation. In every contract of insurance by a voyage policy, the An implied meaning of the parties is, in law, taken to be that the assured the policy that shall enjoy the protection of the policy, only as long as he there shall be strictly pursues this regular course of the voyage insured, and carries it on to its termination with all safe, convenient, and practicable expedition (b). It is only upon this condition, (a) The subject of this chapter affects voyage policies only. In a case on a fire policy on a ship while in a dock, it was suggested by Blackburn, J., that a departure from the prescribed locality would only suspend the risk until the ship returned to the locality-not terminate it, as Sect. 376. never expressed, but universally implied, that the underwriter agrees to indemnify the assured; any failure, therefore, to comply with it, alters the nature of the risk which the underwriter has assumed, and frees him from liability for subsequent loss (c). Deviation defined. Deviation includes delay. This tacit understanding not to depart from the lawful course 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). This implied condition extends as well to the time in which the voyage insured ought to be completed, as to the track or course of navigation by which it ought to be pursued. The understanding implied in the contract 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). (c) 2 Emerigon, c. xiii. s. 16, p. 98. For the effect of a deviation on a fire policy on a ship, see n. (a), ante. "Le (d) 2 Emerigon, c. xiii. s. 15, of delay in the prosecution of the voyage, with the exception, perhaps, of Middlewood v. Blakes, as decided by Lawrence, J. See post, s. 389, and 1st ed. of this work, p. 362. Phillips, however, defines deviation in equally comprehensive terms, as "the enhancing or varying from the risks insured against." 1 Phillips, 8. 977. In the Marine Insurance Bill, 1899, s. 47, deviation is limited to departures from the usual or proper route. (e) Hartley v. Buggin (1781), 2 Park, Ins. 652; 3 Dougl. 39. As the word "deviation" in its proper sense implies the idea of space or locality, it is an unhappy use of the term to make it cover delay, which Hence, any unreasonable and unexcused delay either in Sect. 376. 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 (ƒ). clause. A clause by which the underwriter agrees to hold the Deviation assured covered in case of deviation, or of change of voyage, at an extra premium, is now commonly inserted in policies (g), and is one of the Institute Clauses (h). that risk should be increased. 377. It is not necessary to prove that the risk has been Not necessary 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 be not increased, the underwriter's liability ceases by the breach of the condition on which alone he engaged to be liable: 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 (i). The loss need nected with not be con On the same principle it is not necessary, in order to discharge the underwriter, that the subsequent loss should be shown to be in any, even the remotest, degree connected the deviation. with the prior deviation; the ship after the deviation may have returned in perfect safety to the direct course of the refers to time. The use of unnecessary figures of speech is not desirable, and there is no need, the editors submit, for the fiction that an unjustifiable delay amounts to a deviation. The use of the word in this sense is, however, well established. See, e. g., Company of African Merchants v. British and Foreign Mar. Ins. Co. (1873), L. R. 8 Ex. 154, where it was held that delay was covered by a plea of devia tion. (f) 3 Kent, Com. 315. (g) See Hyderabad (Deccan) Co. v. Willoughby, [1899] 2 Q. B. 530; Simon, Israel & Co. v. Sedgwick, [1893] 1 Q. B. 303, post, s. 380, n. (r), s. 387. (h) See Institute Voyage Clauses, Appendix. (i) Hartley v. Buggin (1781), 3 Dougl. 39, Lord Mansfield's judgment. Sect. 377. 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 (k). Deviation does not avoid the policy ab initio. Intention to deviate does 378. Deviation does not, however, like unseaworthiness, discharge the underwriter from 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 underwriter's liability on the policy; the implied condition not to deviate relates to the conduct of the ship in the course of the voyage, and cannot by relation be carried back, so as to exempt the underwriter from liabilities incurred prior to its being broken (7). There must be an actual deviation, in order to discharge not discharge the underwriter; a mere intention to deviate, never executed, is not sufficient (m). the underwriter. The deviation must be voluntary. Notice to underwriter of intended deviation. The departure from the usual course of the voyage must be voluntary, in order to make it a deviation; but it will be considered voluntary if it take place through the gross ignorance of the captain (n). 379. As the description of the voyage by its termini implies the condition that the regular course of the voyage will be pursued, it seems to follow that notice to the underwriter of an intention to depart from the usual course (no liberty to do so being given by the policy) will not prevent the underwriter from maintaining that such departure is a deviation from the voyage insured (o). (k) Elliott v. Wilson (1776), 4 Br. Pr. Cas. 470; Davis v. Garrett (1830), 6 Bing. 716. See the principle expounded by Lord Campbell, C. J., in Thompson v. Hopper (1856), 6 E. & B. 948; 26 L. J. Q. B. 22. (7) See Green v. Young (1702), 2 Salk, 444; Hare v. Travis (1827), 7 B. & Cr. 15. (m) Kewley v. Ryan (1794), 2 H. Bl. 343; Thellusson v. Fergusson (1780), 1 Dougl. 361. (n) Phyn v. Royal Exch. Ass. Co. (1798), 7 T. R. 505. (0) It has been held in the Court of Appeal that under a bill of lading It has even been held that if the underwriters insure a ship Sect. 379. for a voyage, after she has sailed on it, and after notice that No implied she has already deviated from its course, they will be dis- waiver of a charged by the deviation from any subsequent loss (p). tion. prior devia voyage. 380. The definition of what constitutes deviation seems to Distinction between a require that it should be distinguished from what is called deviation and abandonment or change of voyage. The great distinction change of between a deviation and a change or abandonment of voyage is, that in the former the original voyage, as described in the policy, is not given up or lost sight of, while in the latter it is. "A deviation," says Chancellor Kent, "is not a change of the voyage, but of the proper and usual course of performing it. The voyage insured is never lost sight of in cases of deviation, actual or intended. If, however, the original place of destination be abandoned, in order to go to another port of discharge, the voyage itself becomes changed, because one of the termini of the voyage is changed. The identity of the voyage is gone, and a new and distinct voyage is substituted" (q). contract it is a deviation to proceed to a port out of the regular course of the voyage, though notice of an intention to do so was given to the shipper of goods at the time when the bill of lading was given. Leduc v. Ward (1888), 20 Q. B. D. 475. Phillips considers that the underwriter ought not to be allowed to set up the defence of deviation, on the ground that it would be a palpable fraud on his part to subscribe and receive the premium, intending at the same time to avoid payment of a loss by alleging a deviation represented to be intended. 1 Phillips, s. 1041. (p) Redman v. Loudon (1814), 3 Camp. 503; S. C., 5 Taunt. 462; 1 Marshall, R. 136. The contrary has been ruled in the United States. See Coles v. Marine Ins. Co. (1812), 3 (9) In New York Firem. Ins. Co. |