tify a departure tected by the policy; nor is she obliged to sail back to that Cases that juspoint of her course whence the storm first drove her, but from the usual may make the best of her way to her port of destination, course of the from the point whither she has been driven. voyage. Halkeld, Park Delaney v. Stoddart, 1 T. Thus, where a ship, insured "from London to St. Kitts," Harrington v. was separated from her convoy by a storm, and afterwards on Ins. 639. captured, before she could return again into the direct course from London to St. Kitts, but while the captain was taking the best course he could to St. Kitts, and was doing all he could to gain that island, or fall in with the convoy; Lord Mansfield held this was no deviation. (v) So, where a ship, insured from St. Kitts to London, was driven by a storm out of the port of St. Kitts, and obliged to run into that of St. Eustatia, and, after many unsuccessful efforts to get back to St. Kitts, finally gave up the attempt, and completed her lading at St. Eustatia, whence she sailed for London: Lord Mansfield held this no deviation, and said, "If a storm drive a ship into any port, out of the course of her voyage, and, being there, she do the best she can to return to her port of destination, she is not obliged to return back to the port, whence she is driven." (w) Rep. 22. the nearest practicable port till the port of desti nation is open, Upon the same principle, it has been suggested by Lord Putting into Ellenborough, in this country (2), and decided in the United States, that if a ship find her port of destination blocked up by ice, or otherwise rendered inaccessible, she may make the nearest practicable port, with a view of staying there till her own is open, without its being deemed a deviation. (y) and Where a captain being delayed by adverse winds dangerous weather puts into a roadstead for safety, it has been decided to be no deviation to send ashore for provisions, with the view of then prosecuting the voyage thither, is not a deviation. A captain driven into a roadstead by stress of weather may, with. out deviation, send ashore for provisions. Cases that justify a departure from the usual course of the voyage. Delay or deviation for the purpose of avoiding the imminent danger of cap ture has al ways been held justifiable. O'Reilly v. Gonne, 4. Endeavour to avoid capture. The endeavour to avoid the imminent peril of capture, either by lying to in the port of loading, or putting into a port out of the course of the voyage, or by departing from the track of the voyage insured, has always been held to justify a deviation, provided the danger was real and immediate, and the apprehension founded on reasonable evidence. (a) So a ship, insured "against capture in her port of loading,” may hurry out of such port in order to avoid the imminent peril of capture, even though only half loaded and totally 4 Campb. 249. unprepared for her voyage; and her afterwards putting into a port out of the course of her voyage, in order to repair damage occasioned by such hasty escape from her port of loading, will not amount to a deviation. (b) The question of deviation or not turns on the immediate urgency of the danger. It is no deviation for a ship, whether warranted to sail with convoy or not, to leave the direct course of the voyage in quest of convoy. In the United States several cases have been decided upon this principle; and, in all, the main point of inquiry seems to have been, whether the danger was so real and immediate as to justify the deviation. (c) In one of these cases, where a ship, insured from "New York to Bourdeaux,” instead of going through the Narrows, which is the most usual and convenient course, sailed through Long Island Sound, in order to avoid some British ships of war which were then lying off Sandy Hook, in the other passage, this was held to be no deviation. (d) 5. Endeavour to join convoy. It is no deviation for a ship, whether warranted to sail with convoy or not (e), to depart from the direct course of the voyage in order to seek it either at the usual place of rendezvous or elsewhere; the only question in such cases is, whether the circumstances show to the satisfaction of the jury, It is not a deviation for a ship, not warranted to sail with convoy, if she has once sailed therewith, and is afterwards. driven back to port, to sail the second time without convoy. (g) If it clearly appears that, in the common course of the voyage insured, the ship might have obtained convoy at a nearer port, her being limited by her instructions, to call for it at a more distant port, may amount to a deviation, as varying the risk. (h) 6. Succouring the distressed. A doubt, dishonouring to the jurisprudence of christian communities, appears for some time to have prevailed both in this country and the United States, whether a departure from the direct course of the voyage, for the purpose of saving the lives of men threatened with an imminent danger of shipwreck or foundering, was or was not a deviation which would discharge the underwriters; it must now, however, be taken as clear law, both on this and the other side the Atlantic, that a deviation of this kind, sanctioned alike by the true interests of commerce and the clearest precepts of humanity, can in no instance be held to discharge the underwriters. (i) This liberty, however, has been expressly confined, in the United States, to those cases only in which the object of the deviation is the preservation of human life; and it has been (f) Bond v. Gonzales, 2 Salk. 445. Gordon v. Morley, 2 Str. 1265. Campbell v. Bordieu, ibid. Bond v. Nutt, Cowp. 601. Enderby v. Fletcher, Park, 646. 8th ed. D'Aguilar v. Tobin, Holt's N. P. 185. S. C. 2 Marshall's Rep. 265. (9) Laing v. Glover, 5 Taunt. 89. (h) Heselton v. Allnutt, 1 Maule & Sel. 45. (i) In this country see the dictum of Lawrence, J., in Lawrence v. Syde- Cases that justify a departure from the usual course of the voyage. Departure from the course of the voyage, if necessitated by overbearing held not to extend to the case of saving property. (j) I apprehend the law would be the same in this country. ART. 3. Endeavouring to avoid a Peril not insured against does not justify a Deviation, but being forced out of the Course by such a Peril does. § 153. 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. (4) 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. (1) 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 will force, though of not be held to amount to a deviation, whether the peril be one not included among the ordinary risks, or expressly excluded by the specific terms of the policy. a kind not in sured against, excuses devia tion. If, however, a particular peril 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. (m) It appears, however, at all events in this country, and be excepted in apparently in the United States (n), that, although a de the policy, a departure from the direct course of the voyage, in order to avoid such peril, or to repair the consequences of it, will be a deviation. (j)† Schooner Boston, 1 Sumner, (k) Vallejo v. Wheeler, Cowp. 143. (1) O'Reilly v. Gonne, 4 Camp. 249. (m) Scott v. Thompson, 1 Bos, & Pull. N. R. 81. See also per Kent, C.J., in Robinson v. Marine Ins. Comp., 2 Johnson, 89., cited 1 Phillips, 553., and see generally the cases there collected from pp. 548-555., and see Kent's Comm., vol. iii. p. 316. ed. 1844. (n) Where, however, the cases seem fluctuating; and Mr. Phillips seems case: parture from the course, if unavoidably necessitated by the immediate agency of a peril not insured against, is not a deviation; yet a departure from the course, in order to avoid, or in consequence of endeavouring to avoid, a peril not insured against, is held to be so. This appears by the following Insurance was effected on goods "at and from La Guayra," (the chief port of the Caraccas, now Venezuela,) "to the ship's port of discharge in the Baltic Seas," with the clause, “warranted free of capture and seizure, or the consequences thereof, in the port of La Guayra." This clause was inserted in consequence of the danger to which all vessels in the port of La Guayra were then exposed from the revolutionary war which was at that time (1810) raging between the patriots, who had possession of the port, and the Spanish Royalists, who were in occupation of the surrounding country. When the ship had half completed her loading, the Royalists advanced on the place; the magistrates forced her to take on board a number of patriots, who would all have been massacred had they fallen into the Royalist's hands; and the ship, in order to effect her escape, cut her cable and put to sea. She sailed for St. Thomas, but being too light, soon fell to leeward, and could not beat up to that island; in endeavouring to do so she had lost the hook of her rudder, and wishing to repair the damage thus sustained, and also to complete her loading, she put into Jacmel, in St. Domingo, which, though considerably out of the direct course for the Baltic, was the most convenient port for making the repairs and completing her cargo. Chief J. Gibbs 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. (0) And this was the sole ground of his decision, for in a policy on the freight of the same ship, in which there was justified in drawing the inference "that (0) O'Reilly v. Royal Exch. Comp., going off the course from a just fear of 4 Camp. 246. a peril not insured against, is not ne cessarily a deviation." Vol. i. p. 551. |