Sect. 434. the following propositions, as containing the existing law of the United States on the question, and expressed their cordial concurrence with the law as thus laid down :: Endeavouring to avoid a peril not insured against. Irresistible force of a peril not insured against. "Deviation for the purpose of saving life is protected, and involves neither forfeiture of insurance nor liability to the goods owner in respect of loss which would otherwise be within the exception of perils of the seas. And, as a necessary consequence of the foregoing, deviation for the purpose of communicating with a ship in distress is allowable, inasmuch as the state of the vessel in distress may involve danger to life. On the other hand, deviation for the sole purpose of saving property is not thus privileged, but entails all the usual consequences of deviation. "If, therefore, the lives on board a disabled ship can be saved without saving the ship, as by taking them off, deviation for the purpose of saving the ship will carry with it all the consequences of an unauthorized deviation. "But where the preservation of life can only be effected through the concurrent saving of property, and the bonâ fide purpose of saving life forms part of the motive which leads to the deviation, the privilege will not be lost by reason of the purpose of saving property having formed a second motive for deviating” (0). 435. The preceding cases plainly show:-1. That if a ship be forced out of her course by the violent or constraining force of a peril insured against in the policy, this is no deviation (p). 2. That it is no deviation to depart from the course of the voyage in order to avoid a peril insured against, as sea risks, capture, seizure, and the like (q). It is also now clearly established that where the departure from the course of the voyage is necessitated by the immediate and irresistible operation of a peril not insured against, it (0) See per Sprague, J., in Crocker v. Jackson, Sprague, R. 141. (p) Vallejo v. Wheeler (1774), 1 Cowp. 143; Harrington v. Halkeld (1778), 2 Park, 639; Delaney v. Stoddart (1785), 1 T. R. 22; Dris col v. Bovil (1798), 1 B. & P. 313. (2) O'Reilly v. Gonne (1815), 4 Camp. 249. will not be held to amount to a deviation, whether the peril Sect. 435. be one not included among the ordinary risks or expressly excluded by the specific terms of the policy (r). Thus, where a neutral ship, insured expressly "against sea risks and fire only," was carried out of her course and detained six weeks by a British cruiser, this was held to be no deviation, though capture and seizure were perils not insured against; for the Court said that in cases where the deviation was necessitated by superior force there was no ground for a distinction between a policy confined to particular risks and a general policy embracing all risks (s). not insured It appears, however, to have been held at Nisi Prius that a Avoiding peril departure from the course in order to avoid, or in consequence against. of endeavouring to avoid, a peril not insured against is a deviation, though it would not have been so had it taken place in order to avoid a peril insured against. In the case O'Reilly v. alluded to, the policy was on goods "at and from La Guayra," change Co. ,, Royal Exwith the clause "warranted free of capture and seizure, and the consequences thereof, in the port of La Guayra." To avoid seizure the ship ran to sea before she was properly loaded, and was in consequence obliged to put into a port out of the course of the voyage insured and was there lost. Gibbs, C. J., told the jury that, upon these facts, the ship had been guilty of a deviation which discharged the underwriters, because it was the consequence of endeavouring to avoid a risk for which the underwriters had stipulated by the policy not to be liable (t). And this was the sole ground of his decision, for in a policy on the freight of the same ship, in which there was no such exception of capture and seizure in port, the Chief Justice held upon precisely the same state of facts that the ship was guilty of no deviation (u). (r) As a deviation, to avoid the policy, must, according to all the authorities, be voluntary, this rule seems obvious. (s) Scott v. Thompson (1805), 1 B. & P. N. R. 181. See also per Kent, C. J., in Robinson v. Marine Ins. Co. (1806), 2 Johnson, 89, (t) O'Reilly v. Royal Exch. Ass. (u) O'Reilly v. Gonne (1815), 4 Camp. 249. Sect. 435. In order to support this decision, if it can be supported, it is necessary, as Phillips admits, to introduce a distinction between the effect of an unavoidable departure from the course by the operation of a peril not insured against and of a voluntary, though reasonable, departure in order to escape such a peril. Such a distinction was accordingly suggested in the first edition as the result of the case. "On further consideration," said Arnould in the second edition (x), "I think it very doubtful whether the case itself can be sustained as an authority, and have therefore omitted the distinction referred to" (y). It has been held in the United States that if the voyage is given up, and another entirely distinct one undertaken on account of a peril not insured against, the risk thereupon ceases (z). (x) Vol. i. p. 461. (y) See 1 Phillips, s. 1025. The editors point out that there is no analogy between an unavoidable and a voluntary departure from the course of the voyage. All the authorities agree that a departure, in order to avoid the policy, must be voluntary. Therefore, if the ship be delayed, or forced out of her course, by the immediate operation of a peril not insured against, this cannot have the effect of a deviation. Whether the legal effect of a voluntary departure to escape a peril not insured against is to avoid the policy depends on different considerations. Phillips' arguments and conclusion seem to them, as they did to Arnould, to have great weight. It cannot but be known, as Phillips points out, to the parties to a policy against one or some only of the ordinary sea perils, that the vessel is to be subject to the other perils usually included in policies, and the fair inference is that they do not contemplate the forfeiture of the insurance by a reasonable departure from the course to avoid one of these risks. For an analogous principle, see The Teutonia (1872), L. R. 4 P. C. 171, 180, where, the master having justifiably deviated for the safety of the ship, Mellish, L. J., said: "It cannot be contended that the master is deprived of the right of taking reasonable and prudent steps for the preservation of his ship because, from the accident of the cargo not belonging to his own nation, the cargo is not exposed to the same danger as the ship." The Marine Insurance Bill, 1899, s. 50 (1) (d), sanctions a deviation to escape a peril not insured against. (z) Lee v. Gray (1811), 7 Mass. R. 349, and cited 1 Phillips, s. 1025. CHAPTER XVI. NATURE AND DURATION OF THE RISK IN TIME POLICIES. 519 is one in 436. THE inconvenience or impossibility, when a ship was A time policy employed in such adventures as cruising, coasting or fishing which the voyages, of designating the risk by local termini led to the risk is limited by practice of limiting the risk to a certain fixed term or period time alone. of time specified in the policy, which is then called a time policy (a). The use of time policies is now very extensive. In fact, they are now used much more than voyage policies for the insurance of steamships, and very largely for that of freight and disbursements. They are not in general suitable for the insurance of goods, which the assured usually wishes to protect during transit from one place to another (b). There is one kind of insurance of goods, viz., by floating policies, which, in a sense, is an insurance on time when it covers shipments of goods, made within a certain period of time fixed by the policy, as declared by the assured; but these floating policies are in reality insurances of goods for a series of voyages (c). (a) 2 Emerigon, c. xiii. s. 1, p. 41; 2 Benecke, System des Assecuranz, c. viii. s. 3, p. 442. (b) See Gow, 228-234, for an account of the practice of insuring by time policies. (c) Where a policy covered shipments of goods "from the loading thereof. . . . shipments held covered Sect. 436. Duration of the risk. In time policies the risk insured is entirely independent of the voyage of the ship (iter navis) (d), and the policy covers any voyage whatever which the ship may make, and any sea loss or damage sustained within the space of time limited in the policy (e). It is now, however, very common for the policy to except certain geographical limits, either entirely or for certain seasons of the year, as, e.g., "Warranted no St. Lawrence between the 1st of October and the 1st of April." In that case a loss within the excepted limits of time and space is, of course, not covered by the policy (ƒ). There is no implied warranty of seaworthiness in time policies (g). 437. The two extremes of the time are the termini of the risk, and the adventure begins and ends with the term wherever the ship may then happen to be, and whether the object of the voyage be then accomplished or not (h). The risk necessarily ceases when the time limited in the policy comes to an end (). From the instant that the policy attaches, the insurer's right to the full premium is complete, as is the right of the assured to a full indemnification in case of loss (j). Thenceforth there is no suspension of the risk whether the ship be at sea or in port; it continues to run until the expiration of the period insured (). (d) Ist von der Reise des Schiff's (e) 3 Kent, Com. 307, n. (a). (g) Dudgeon v. Pembroke (1877), (h) Casaregis, Disc. lxvii. No. 31, cited 2 Emerigon, c. xiii. s. 1, p. 42. Lapso tempore extincta est materia obligationis et consequenter obligatio, quia post tempus, jam alia est materia, alia res. Dumoulin, tom. iii. p. 283, cited 4 Boulay-Paty, Droit Mar. 170. (i) Il suffit que le risque ait com mencé pour qu'il finisse au tems préscrit. 2 Emerigon, c. xiii. s. 1, p. 41. (j) Tyrie v. Fletcher (1777), 2 Cowp. 666; Lorraine v. Thomlinson (1781), 2 Dougl. 585. (k) 2 Emerigon, c. xiii. s. 1, p. 41. See, to the same effect, Syers v. Bridge (1780), 2 Dougl. 527. A clause is usually inserted in time policies (see, e. g., Institute Time Clauses, App.) making the risk attach "in port and at sea, in docks and graving docks, and on ways, gridirons and pontoons at all times, in all places, and on all occasions, services and trades whatsoever and wheresoever, &c." |