would be most mischievous to the interests of trade to dis- Change of risk courage men from making a gallant defence, from the know- by cruising, &c. ledge that in no event could they reap a reward for their victory. (p) In the last edition of his Commentaries, Chancellor Kent speaks of this case, as having confided to the captain a pretty enlarged discretion as to the best mode of defence, and one carried to the very verge of the law (q); but the decision. seems conformable to the spirit of the maritime law, if not to the very letter of the earlier authorities. § 150. The cases hitherto considered have been principally those in which the policy has contained no clauses empowering the ship" to cruise," "to carry letters of marque," &c. *The general rule of construction with regard to all such permissions is, that they should be construed strictly, and cannot be extended beyond the plain meaning of the words as applied to the subject matter, so as to give them an expansion beyond what the parties can be supposed to have contemplated. (r) Thus, where a ship was insured "with a liberty to cruise Syers v. Bridge, six weeks," this was held to mean six weeks successively from Dougl. 527. the commencement of the cruise. "The meaning of the clause," said Lord Mansfield, "is, I will excuse a deviation for six weeks." (s) the clause out letters of marque." trading ship A ship, insured on a slaving voyage, "with or without Construction of letters of marque," while pursuing her voyage, saw a sail which afterwards proved to be an enemy, about a quarter of a point on her lee bow. The ship, on this, altered her course about a quarter of a point, and gave chase for about a quarter of an hour, when she abandoned it, and returned into the direct course of the voyage insured. Lord Ellenborough, at the trial, and afterwards in banc, was strongly inclined to think that this was a deviation, and he expressed it as his opinion," that under such a liberty of carrying a letter of marque, no deviation from what would otherwise be the natural and ordinary course of the voyage, for the purpose of pursuing (in quest, and for the chance of a prize,) vessels (p) ↑ Haven v. Holland, 2 Mason, Rep. 230. (9) 3 Kent (5th ed.) 316. (r) Per Lord Ellenborough in Lawrence v. Sydebotham, 6 East, 51. (s) Syers v. Bridge, Dougl. 527. alter her course strange sail? to chase a under such Change of risk which at the time of instituting such pursuit, were not even by cruising, &e. known to belong to the enemy, was warranted." (t) In the doubt, however, as to the real meaning attached in the mercantile world as to this liberty to carry letters of marque, his It is clear that lordship directed a new trial. (u) The case, as Mr. Park informs us, accordingly came on for a new trial, but was decided on a different point, for, upon the evidence at the second trial, it appeared that the ship had clearly been engaged in cruising, which, of course, discharged the underwriters, and put an end to all questions as to the construction of the clause. (v) clause cruising would be a deviation. 396* When such clauses contain *When such clauses contain an express permission to do certain specified things named in the policy, the principle an express per- expressio unius est exclusio alterius applies, and the permission cannot be extended to any object not mentioned in the Inission to do certain specified things, the principle, expressio unius est exclusio ulterius, applies, and the per mission cannot be extended to any object not mentioned in the policy. Lawrence v. Sydbotham, 6 East, 44. A liberty "to chase, capture, and man" prizes, gives no authority to convoy them to port. Unless such port be in the course of the voyage. policy. Thus, where a ship was insured on a slaving and trading adventure," with or without letters of marque, with leave to chase, capture, and man prizes," Lord Ellenborough held, that this permission did not authorize the captain, after having taken a prize, to shorten sail and lie to, in order to keep company with the prize while convoying her to port, although the port to which he was so convoying her was within the limits of the voyage insured. (w) "On the short point of the case," says Lord Ellenborough, "my opinion is, that a liberty to chase, capture, and man, cannot be extended beyond what is necessary for the performance of those acts, and that the convoying the prize afterwards does not neces sarily arise out of such liberty." (x) In a similar case, however, in the United States, it has been held, and apparently on good grounds, that the mere act of convoying a prize to port under such liberty, is not per se a deviation, and will only be held so when it involves delay, or departure from the direct course of the voyage. (y) Where a ship was insured for the Southern whale fishery, with leave to carry letters of marque, and "to cruise for, her sepabound So, where a ship, also insured for the Southern whale fishery, with liberty "to chase, capture, and man prizes, &c., and also to cruise thirty-one days, either together or *rate, anywhere and in any latitude on the outward passage, on this side of Cape Horn," lay to for nine days, for the purpose of capturing a prize, off a port within the limits of her fishing ground, but on the other side of Cape Horn, the court held: 1st. That such lying to was not within the liberty to chase, capture, or man, but was a cruising; 2d. That, as such, it came within the clause giving liberty to cruise for thirty-one days on this side Cape Horn, and, therefore, that having taken place on the other side of Cape Horn, it was a deviation. (a) Change of risk by cruising, &c. So a liberty to "capture, man, and see into port," prizes, does not authorthe port ull the prize is repaired. Jarratt v. ize delaying in Ward, 1 a deviation. Hibbert v. Halliday, 2 Taunt. * 397 428. An act which apparently may increase the discharge the though it may materially have risk will not underwriter, contributed to the loss, unless it can be shown from the gross negligence or From the above cases it has sufficiently appeared that the real ground of the underwriter's discharge is change of risk; any change of risk accordingly, though not arising from any of the causes hitherto considered, will be a good defence to the action, if the underwriter can show it to have arisen from the fault or with the knowledge of the assured, but not otherwise. Thus, where it appeared that three Spanish to have arisen prisoners of war, who had been taken on board on parole, without the knowledge of the underwriters, had, together culpable inatwith the crew, mutinously ran the ship ashore, and the insured on the goods brought an action for loss by barratry, Lord Ellenborough held, that, though the taking these men on board might slightly have increased the risk, yet, as there was no culpable intention in taking them on board, in the first instance, nor, any gross negligence in watching them afterwards, the underwriters could not defend themselves on the ground that the risk had been thereby varied. (b) (2) Jarratt v. Ward, 1 Camp. 264, (b) Toulmin v. Inglis, 1 Camp. 421. See post, Part III. Chap. I. Loss by Barratry. assured. Toulmin v. In glis, 1 Campb. 421. Cases that justify a departure from the usual SECT. VII. Cases that justify a Departure from the usual ART. 1. What Degree of Constraint excuses Deviation. § 151. As we have seen, by the definition already given, it is only a voluntary and unexcused departure from the *course of the voyage which will amount to a deviation, so as It is only a vol to discharge the underwriter from all subsequent loss. course of the voyage. untary and un excused devia charges the un derwriter. 398* A deviation is not excused by the gross ignorance of the captain. If produced, however, by the ignorance of the captain, tion which dis- however gross, it will not be the less considered a voluntary act on the part of the assured, for it was their fault not to have appointed a competent captain.2 Hence, where a ship, insured on a voyage "from London to Jamaica," with directions to proceed direct to the latter place, was driven Out of her course by strong currents and other circumstances, to a point between the Grand Canary and Teneriffe, from which point the direct course to Jamaica was south-west, instead of taking which the captain ignorantly bore up for Santa Cruz, which lies thirty miles to the north-west; this was held to be a deviation. (c) Phyn v. Royal Exchange (c) Phyn v. Royal Exch. Ass. Comp. 7 T. Rep. 505. 1 Mere purposes of convenience will not excuse a deviation, nor will any thing but actual necessity. Kettell v. Wiggin, 13 Mass. 68, 72; Stocker v. Harris, 3 Mass. 409. 2 In Brazier v. Clap, 5 Mass. 1, 9, Mr. Justice Sedgwick said, "I believe that in all instances, where a captain of ordinary skill and discretion forms the best judgment that he can, under the existing circumstances, for the interest of all concerned, the contract of insurance remains unimpaired by his pursuing that judgment." Applying this to a question of deviation, he remarked, "The most skilful, discreet, and prudent master may, and probably in almost all long voyages does, commit mistakes, by which his ship may be taken out of the most direct and shortest course. Such is not a deviation that will discharge the underwriters." See to the same effect Turner v. Protection Ins. Co. 25 Maine, 515; 1 Phil. Ins. 513, 514. "On the other hand," said Mr. Justice Sedgwick, in the above case of Brazier v. Clap, "if the deviation happened, either from the want of skill, or the gross ignorance of the captain, that would doubtless defeat the claim of the plaintiffs [the insured] to recover. For among other things which the law, from the nature of the contract of insurance, imposes as obligations on the insured, is the duty to provide a master of competent skill, prudence, and discretion to navigate the vessel; and if any loss takes place which may be justly supposed to have happened from a master of that character not having been provided, the underwriters are not responsible for it. If the captain honestly exercised the best judgment he had, and did really believe that the two routes were indifferent, and therefore the deviation is imputable to mistake, it would, in my judgment, when compared with the facts which are established, be such It is, however, only when it is voluntary or unexcused that a departure from the course of the voyage will have the effect of discharging the underwriter; if necessiated either by moral or physical force, or excused by a justifying cause, it will never have that effect. Si iter mutaverit magister ex aliquâ justâ et necessariâ causâ, puta ex causâ refectionis navis, vel ad evitandam maris tempestatem, vel ne inciderit in hostibus, in istis casibus, mutato itinere, tenetur assecurator. (d) "There is not, probably, any exception to be met with," says Chancellor Kent, "to the application of the general rule, that if the vessel departs from the usual course of the voyage from necessity, and departs no further than that necessity requires, the voyage will still be protected by the policy." (e) 1 The delay, or departure indeed, must be strictly commensurate with the necessity that justifies it; 2 there must be no waste of time, nor any needless divergence from the course of the voyage. (f) *Upon these principles there is no doubt: the only difficulty is in ascertaining I. What degree of force or constraint will amount to such an unavoidable necessity as, on that ground, to justify a departure from the course of the voyage. II. What circumstances, short of such unavoidable necessity, evidence of gross want of skill, or of gross ignorance, or of both, as to afford no When the safety of life and property requires an instant and entire departure from the course of the contemplated voyage, it is the duty of the master to seek the nearest land, which he can hope to reach, if the peril be so great as to outweigh all other considerations; and he should proceed directly on his new course without delay or deviation, unless prevented by some unforeseen obstacle. But if the state of the weather be such that, in the judgment of the master, it would be more safe to seek another port it would then become his duty to attempt to reach it. Turner v. Protection Ins. Co. 25 Maine, 515. 2 Maryland Ins. Co. v. Le Roy, 7 Cranch, 30; Stocker v. Harris, 3 Mass. 409, 418; Oliver v. Maryland Ins. Co. 7 Cranch, 490. |