will not warrant a stay in the port until the prize shall have undergone repair.1

3

It was intimated that to defeat the insurance the deviation must be wilful. If it be the effect of an overruling force, or be required by the exigency of the voyage, it is in such case excused. Thus, if a ship be driven out of her course by stress of weather, and put into the nearest port, she is not bound to return to her port of lading, but may proceed directly by the shortest route from the place in which she then is to her port of destination. Again, where the vessel was carried out of her course by a king's ship, and when released proceeded on her voyage, this was held to be no deviation; and on the same obvious principle, where the captain was compelled by a mutinous crew to depart from the course of the voyage, the deviation was excused. Nor is the excuse less valid where the necessity is a moral rather than a physical one; as where it proceeds from the judgment of the master acting with a sound discretion for the best. Thus a deviation, by putting into a port for repair, or water, or additional hands, or on account of the sickness of the crew, will not discharge the insurer; provided, first, that the necessity be real and urgent; secondly, that it be not attributable to the act or fault of the owner or master; thirdly, that the port selected for the purpose be the nearest and most convenient; fourthly, that in going and returning to and from such port the proper course be observed; and fifthly, that the stay there be not longer than is absolutely required. On a like principle, a ship may deviate for the purpose of proceeding to the appointed rendezvous for

Jarratt v. Ward, 1 Campb. 263. And see Shepherd v. Chewter, 1 Campb. 274, and Syers v. Briggs, Doug. 509.

* The most extensive liberty that can be stipulated is, that the vessel shall have power to act as a private ship of war or privateer. 6 East, 207, per Lord Ellenborough.

3 Delaney v. Stoddart, 1 T. R. 22; Smith v. M'Neil, 2 Dow. P. C. 538.

Scott v. Thompson, 1 New Rep. 181. The compulsion, however, must be a real one; not a mere pressure which might be resisted. Phelps v. Auldjo, 2 Campb. 350,

5 Elton v. Brogden, 2 Str. 1264. And see Driscol v. Pasmore, 1 B. & P. 200, and Driscol v. Bovil, 1 B. & P. 303.

6 Mathews v. London Assurance Company, 1 Atk. 545; Guibert v. Redshaw, Park, 454; Lavabré v. Wilson, Doug. 284: Forshaw v. Chabert, 3 B. & B. 158; Weir v. Aberdeen, 2 B. & A. 320; Woolf v. Claggett, 3 Esp. N. P. C. 258.

3

convoy,1 or to avoid capture or seizure, or to succour a vessel in distress; and in short the master may lawfully do, without prejudice to the insurance, whatever it would be his duty to do if no insurance existed.

An actual deviation is fatal to the policy whether the loss be attributable to it or not, and even, as has been seen, though the vessel regain her track in safety; but a mere intention to deviate, not carried into effect, works no prejudice ; and if the loss occur before the vessel has reached the spot at which the deviation would commence, or, as it is technically expressed, the dividing point, the underwriter will be liable notwithstanding such intention. It is in this respect that a deviation differs materially from the sailing on a different voyage. A deviation implies that the termini of the voyage remain the same, being a departure from the line lying between those limits; until, therefore, that departure takes place, there is no substitution of a new risk; whereas in the other case, by the alteration of the termini, the voyage insured is given up, and a new and different one substituted in its place.1

But besides these two cases, there is yet a third which may equally operate to defeat the insurance. A vessel may sail on the voyage insured up to a certain point, and at that point a destination may be given to it different from that which is specified in the policy. This, it is evident, is not a deviation, but a substitution of an entirely different voyage. The objection, therefore, cannot, as in the case of a deviation, be removed by showing a necessity or justifiable occasion of the change; and, on the other hand, it differs from the case of a non-inception of the voyage, inasmuch as the liability of the underwriters did attach, and continued down to the actual abandonment of the adventure insured. But as the abandonment of a voyage once begun is a point of some nicety and importance, it will be proper to illustrate it by one or two instances.

Goods were insured by the Laurel at and from Bristol to Monte Video, and any other port or ports in the river Plate

1 Bond v.

Gonsales, 2 Salk. 445; 2 Str. 1265; Cowp. 601; 4 Campb. 62. 2 D'Aguilar v. Tobin, Holt, N. P. C. 135.

3 Per Lawrence, J., 6 East, 54.

4 Kewley v. Ryan, 2 H. Bl. 343; Foster v. Wilson, 2 Str. 1249; Carter v. Royal Exchange, there cited Heselton v, Allnutt, 1 M. & S, 46.

in possession of the English. The ship sailed on her voyage, and finding all the other ports in the Plate in possession of the enemy, proceeded to Maldonado, but was immediately ordered away by the British commander on account of the urgency of affairs. The captain thereupon, acting for the best, sailed for Rio Janeiro as the nearest friendly port, for the purpose of repair and watering; and the goods having been damaged in consequence of bad weather encountered in the passage from Maldonado to Rio an action was brought on the policy, which was resisted on the ground that, on quitting Maldonado, the vessel had abandoned the voyage insured, and consequently that the liability of the underwriters was then determined. At the trial Lord Ellenborough so decided, and the Court afterwards confirmed his direction, observing, that "as the policy contained a contract for a specific voyage, it could not be extended by implication to cover the ship in her voyage to Rio Janeiro, notwithstanding the circumstances which had occurred to induce the necessity."1

When a temporary obstacle, as a blockade or embargo, or obstruction from ice, is interposed to the entry of the vessel into her harbour of destination, she may without prejudice to the insurance put in and stay at a neighbouring port, until by the removal of the impediment the voyage can be prosecuted to a completion. There might even be circumstances which would justify her in returning to her port of outfit if no nearer -or more convenient place presented itself, and if it were done with a bonâ fide view of prosecuting the adventure when the obstacle should cease to exist. The case would then be one of deviation for a justifiable cause; but unless such intention be clearly proved, the inference from the return of the vessel will be, that the adventure has been abandoned, and the underwriters will be discharged. The following is an example of this: A vessel insured from London to Revel received information on her voyage that an embargo had been laid on English shipping in the ports of Russia. She lay in consequence

t Parkin v. Tunno, 11 East, 22; 2 Campb. 61.

2 Case cited by Lord Ellenborough in Blackenhagen v. London Assurance Company, 1 Campb. 454, where the ship being prevented by the ice from reaching her place of destination, took shelter for the winter in a place as near to it as she could safely go, and prosecuted her voyage the ensuing season.

for some days off Gottenburgh, a friendly port which she might have entered, and, the embargo being continued, finally returned with convoy to England. Under these circumstances, it was decided that the policy was at an end from the moment when the vessel turned back. "If," said Lord Ellenborough, "being unable to get to Revel, the ship had lingered in that quarter, or had necessarily returned with an intention of ultimately completing the voyage, a question of some nicety might have arisen, but by sailing back for England in the manner she did, the original voyage was abandoned."1

As in the case of deviation, so in that of abandonment of the voyage, a mere intention formed, but not executed when the loss takes place, will not affect the contract; and this, for the same plain reason, viz. that no alteration of the risk has in fact taken place. A case, somewhat peculiar in its facts, will illustrate this position, and will at the same time throw additional light on the three heads of non-inception, deviation, and abandonment, which we have been here considering.

Goods were insured from Heligoland to Memel, with liberty to touch at any port, and to seek, join, and exchange convoy, warranted free from capture in the port of Memel. The ship sailed from Heligoland with orders to the captain to go to Gottenburgh, and there ascertain whether he should proceed to Anholt or Memel, and if he found convoy at Gottenburgh to join it. She was captured on her way to Gottenburgh in the track from Heligoland to that place, and to Anholt and Memel equally, Gottenburgh being the dividing point. Two exceptions were taken : first, that there had been no inception of the voyage insured; and secondly, that the peremptory order to seek convoy at Gottenburgh was a restraint on the judgment of the captain, which prejudiced the insurance.2 The Court, however, held the underwriters liable. "I think," said Lord Ellenborough, "there was an inception of the

1 Blackenhagen v. London Assurance Company, 1 Campb. 454; 12 East, 285. 2 This second objection rested on the authority of Middlewood v. Blakes, 7 T. R. 162, in which it had been held, that where there are several courses to the port of destination, each of which may, under circumstances, be the more eligible, the restriction of the discretion of the captain, by positive orders, to proceed by one of these, discharged the underwriters, the course so taken being in the nature of a deviation. Qu. whether it should not rather have been considered, if rightly decided at all, as a case of non-inception of the voyage insured.

voyage insured. The way in which it strikes my mind is this, viz. that the preponderating intent of the assured was to go to Memel, although that intent was liable to be changed according to circumstances. But I am not aware that it is laid down in any book, if the terminus be once fixed, that because it is made subject to alteration dependant upon circumstances, it shall on that account be less a voyage to that place, to which the party originally contemplated to go. I think that there may be a good inception of the voyage under a fluctuating purpose. Here, as I have said, the preponderating purpose was to go to Memel; which appears by the warranty free from capture in the port of Memel.' As to the other question, whether under a liberty to seek, join, and exchange convoy, the policy may not be affected by fettering the discretion of the captain, we are not called upon to decide that point; because it does not appear that the captain had an opportunity of exercising any discretion as to joining convoy before the capture; and as he never reached Gottenburgh, the utmost than can be made of the orders will only be this, that they amount to a contemplated deviation. It may be observed, however, that this liberty is not introduced into the policy by way of stipulation on the part of the assured, that they will seek and join convoy, but is granted to them for their benefit, and for the purpose of obviating any doubt as to its being a deviation, in case they should go out of their way in seeking convoy but I am not aware that the restraining this liberty would vary the rights of the parties. Considering then the case on the question of non-inception, I think there was a good inception of the voyage from Heligoland to Memel, subject to be changed according as circumstances might require and I do not know that such a contingent purpose will defeat a bonâ fide inception. On the other point, if the vessel had gone to Gottenburgh, and been delayed there by waiting for orders, that would have been a deviation; but as the case is now presented to us, it is merely an unexecuted intention to deviate, which will not vitiate the policy."1

To the observations thus clearly and accurately made, it should be added, that if on reaching Gottenburgh, orders had been given to the captain fixing the destination at Anholt,

1 Heselton v. Allnutt, 1 M. & S, 46.