mile from the city, whence they were usually transported to the (1) Gracie v. city in lighters at the risk and expense of the consignees; it was held that this was the landing contemplated in the policy.(1) Mar. Ins. Co. 8 Cranch. 75. See also until twenty Goods being insured, with a provision that the risk should con- Brown r. Cartinue twenty-four hours after they were landed;' a part of them stairs, 3 had been landed more than twenty-four hours, when both the Camp. 161. goods landed, and those remaining on board, were seized as illicit, The risk on and confiscated. The risk of illicit trade being one of those insured against, the court held that the insurers were liable for the loss. Mr. Justice Lansing, giving the opinion of the court, said, 'The insurance being entire, we are of opinion that the risk continued on the entire goods until twenty-four hours after all of them were landed.'(2) goods insured four hours after they are landed, conafter they are tinues till all landed. The risk to cargo is taken Insurance was made on a ship and the cargo, 'to terminate when she might receive on board a cargo or effects, with the in- continue till tention of proceeding to the United States.' The risk was held the homeward not to terminate on the ship's having received on board, from other on board. ships, a part only of her cargo intended to be brought to the United States.(3) risk. v. Wood, 13 zie v. Shed Lord Ellenborough says, 'Although I have never hitherto met Interruption with a policy by which the responsibility of the underwriters and suspenwas suspended and the risk divided into discontinuous halves, sion of the such a policy may doubtless be framed.'(4) And Chancellor Lansing says, that a risk once commenced cannot be apportion- . Smith, 1 (2) Gardiner ed.'(5) This has been frequently said, but it must be under- Johns. Cas. stood to have reference to an apportionment of the premium, 141. since the policy may certainly be suspended and again revive. (3) Ward v. Thus where a policy was on the cargo of the schooner Cath Mass. Rep. arine, from Marblehead, to one or more ports in the West Indies, 539. and at and from thence to Marblehead,' while the vessel lay at (4) MackenCape St. François, a part of the proceeds of the outward cargo den, 2 Camp. was lost on shore, in the possession of the consignee. The court 431. held that this loss was not within the risks of the policy which (5) 2 Caines' were confined to perils of the seas, and also that the property when lost was not of the description insured, namely, the cargo of the schooner Catharine.(6) But there can be no doubt that if (6) Martin v. the same property had been taken on board, and become cargo, Sal. M. Ins. it would have been within the risks of the policy. Though there was one premium, and one entire risk, that risk was suspended and divided into two discontinuous portions. It is the same in every case of insurance for the outward and return voyage against marine risks only, where one entire risk is described and one premium only given. The risk is interrupted and suspended, in like manner, where liberty is given to touch and trade during the voyage, if in using this liberty, the goods sold or purchased are on land, at any time in the course of such trade, while they are the property of the assured. While the goods are not exposed to the perils assumed by the insurers, either by not answering the description of the subject in the policy, or because they are not in a situation liable to such perils, the risk is suspended and ceases for the time, but recommences on the goods coming within the description in Cas. 72. Co. 2 Mass. (1) Bondrett Roy. Ex. Ass. Co. 1 Burr. 341. (3) Col. Ins. 11 Johns. 240. Co. v. Lynch, The risk on goods is sus intermediate port, only while they the policy, and being again liable to the perils insured against. But the risk is not so interrupted in case of the goods being landed in consequence of the perils insured against in the policy,(1) or where the tackle of the ship is on shore while the ship is repairing, or for any other necessary and usual purpose, in the course of the voyage.(2) That the risk cannot be apportioned without some express provision,(3) accordingly means, that what is described as one risk in the policy, or in other words, that for which an entire premium is given, cannot be divided, and the different portions of it estimated at certain proportional parts of the premium. This subject is considered under the head of return of premium. Insurance was made, upon specie and merchandise out, and pended, at an merchandise home, at and from Boston to ports in the islands of Sumatra and Java, for the purpose of disposing of the outward and procuring a return cargo, and thence to the port of discharge are on shore. in the United States, with liberty to touch at the usual places, and trade thereat.' At Labouaga in the island of Sumatra, the captain contracted with Dato Bassow, the chief magistrate there, to exchange a chest of opium, being a part of the goods insured, for a certain quantity of pepper and for dollars. When pepper, of a value equal to that of two thirds of the opium, had been delivered on board, Dato requested that the opium should be landed and weighed, and said he would pay the balance in dollars. The opium was accordingly landed. While they were occupied in weighing it, Dato demanded new terms of agreement, upon which the captain proposed to take the opium on board, and pay in dollars for the pepper which he had received. Dato consented to this proposition, but just as the opium had been put on board of the boat to be carried back to the ship, and while it rested on the gunwale of the boat, his men, in obedience to his orders, seized it by violence, the captain not having a sufficient force to resist them. Dato gave the orders, in pursuance of a previous design to plunder or cheat the captain. It was insisted in behalf of the insurers that the risk on the opium had ended, as soon as it was put into the scales to be weighed. Mr. Justice Sedgwick, in giving the opinion of the court, said, 'The underwriters were discharged whenever the property was landed in good safety, whether at the termination of the voyage or at any intermediate port. The insurers, knowing the nature of the voyage, insured the plaintiff against the restraint and detention of princes, for the purpose of disposing of the outward and procuring a return cargo; and while executing this purpose, the property was violently seized, while resting on the gunwale of the boat, at that time in possession of the crew. It may well be said that the property was never safely landed, and consequently, when it was lost, the loss was occasioned by a risk insured against. During the voyage the goods were as (4) Parsons . much protected by the policy, in the boats, while they were employed as auxiliary to the legitimate purposes of the voyage, as they were on board the ship. For all the purposes of the voyage, boats so employed are very reasonably considered as a part of the ship.'(4) Mass. F. & M. Ins. Co. 6 179. CHAPTER XII. DEVIATION AND CHANGE OF THE RISK. A DEVIATION is the increasing or varying the risks insured against, without necessity or reasonable cause. presumed to sued in the Where the insurance is described to be on a particular voyage, In a policy the meaning of this description, as well as of the language used upon a voyage by the parties in other parts of the policy, must be ascertained the parties are by its general acceptation and the common usage. By a voyage intend that is generally understood the sailing from one port to another with the voyage all practicable, safe, and convenient expedition; this being the shall be purusual way in which a voyage is performed. In some voyages, usual manner. however, it is customary to prolong the risk by touching at intermediate ports, as in India voyages, or others of great length, or by delaying to discharge the cargo immediately after arrival, as in voyages to the coast of Labrador, or of Africa; and the parties are supposed to be acquainted with such custom, and have it in contemplation when they make their contract. meaning of the parties is therefore presumed to be, that the voyage is to be pursued in the most direct and safe course, and the adventure conducted, in general, in the most expeditious manner, as far as is consistent with safety; and if there be any departure from such course, or mode of conducting the adventure, whereby the risks insured against are varied or increased, it behoves the assured to justify such departure by showing either a usage in that respect, or a reasonable necessity for it. This he must do if the risks insured against are thereby increased or altered; for what the assured or his agents may do is of no concern to the underwriters, any further than the risks they have taken upon themselves are affected. The A deviation is therefore not merely a going out of the direct or usual course of the voyage, but it comprehends unusual and unnecessary delay, or any other act of the assured or his agents, which, without necessity or just cause, increases or changes the risks included in the policy. But the assured may expose his property to any unusual or additional risks, provided the risks in the policy are not thereby increased or altered, or if it appears that a loss by those perils could not have been occasioned, in any degree, by such extraordinary peril. Thus where insurance is made on the cargo for the outward and homeward voyage, and the insurers are not liable for the risk of the goods on shore, at the port of destination; however great the risk may be to which the assured may expose the goods while they are on shore, it cannot concern the underwriter, or affect the contract, as long as the perils insured against are not changed. The goods are in this case, for a short time, put out of the condition (1) Pelly v. Roy. Ex. Ass. Co. 1 Burr. 344. A risk unne- in which the policy supposes them to be; but when they come again within the conditions of the policy, the risk revives. So if the vessel has liberty to touch at sundry ports on the voyage, it is not a deviation to pass some of those ports without touching. In the first of these instances the goods insured are withdrawn for a time from all the risks in the policy, in the last, a part of the voyage insured is omitted; in one case the risk ceases for a certain time, in the other, that of performing a part of the voyage is not incurred. The risks insured against, to which the property is in fact exposed, are not increased or changed, and accordingly there is no deviation. It has been said, that' where the risk is for one entire voyage the contract cannot be suspended and revive again; if it be suspended at all, it is determined.'(1) But this doctrine seems to admit of exceptions. If the assured puts the property for a time into a situation in which the insurers are not liable for a loss upon it, and afterwards it is brought within the conditions of the policy, and in such a manner that the risks insured against cannot possibly be changed, there seems to be no reason why the liability of the insurers should not revive. The assured relieves them of the risk for a time, that is, he discharges them from a part of the risk against which they agreed to indemnify him, but this appears to afford no ground for holding that they are thereby discharged from all subsequent liability. The insurers are not in general liable for the risk on goods carried upon deck. Suppose that a package of goods insured, should be carried on deck for a part of the voyage, but in such a manner as not in the least to embarrass the navigation of the ship, and should afterwards be stowed in the hold, so as to be within the conditions of the risk; although the insurers might not be liable for a loss upon the goods while they remained on deck, it seems to be a very strict construction to say that the risk would not attach on the goods when they were properly stowed. But there does not appear to be any decision to this effect; the incidental remarks of judges, on the contrary, seem rather to tend to the opposite doctrine. The preceding observations must therefore be received rather as the suggestion of a query, than the statement of any established principle. That the risk may cease for a time and then revive again, cannot be doubted, as in the case of one entire risk for the outward and homeward voyage; but whether there may be any other instances of the interruption of an entire risk, and what instances of this sort there may be, if any, is a matter of some doubt. A new risk, not within the policy, may be incurred and run at the same time that the risks insured against continue, and it is not necessary, in order to prevent a deviation in such case, that the goods should, during the continuance of such extraordinary risk, be withdrawn from the risks in the policy. The master of risks insured a neutral ship left the ship's register and sea-letter at the Isle of against. France, and so exposed the ship to the risk of detention by the belligerents, for want of documents to show her neutrality, and it was held not to be a change or increase of the risk in the na ture of a deviation. But as these documents were left behind through the fault of the master, the insurers were not liable for any loss occasioned by the want of them.(1) In this instance (1) Cleveland the assured incurred an extraordinary and unnecessary risk, . Un. Ins. Co. which was not considered to be a deviation. The same doctrine 8 Mass. Rep. has been adopted in other cases.(2) 308. See also Richard 102. tions of devi Roc. n. 52; But the enumeration of the risks, in the common form of the son v. Maine policy, is so comprehensive, that it is not easy to expose the Ins. Co. 6 Mass. Rep. property to any risks not insured against, without increasing or changing those that are included in the policy. Under the com- (2) V. Supr. mon form of the policy, therefore, it will generally be true, that 124. exposing the property to any other than the usual risks on the same voyage or adventure, will in fact be altering or increasing the risks which the underwriter takes upon himself. But this is not always the case, and therefore it is necessary to keep in view (3) For definithat a deviation is a change or enhancement of the risks insured ation and geagainst. Where only a part of the usual risks are included in the neral remarks policy it is of more importance to keep in view this distinction.(3) upon it, see The consequence of a deviation is not to make the policy Doug. 291; void, but to discharge the underwriters from their liability for 13 Mass. Rep. any subsequent loss.(4) Though a deviation is spoken of in 447. (4) 2 Salk. some cases as vacating the policy,(5) and in some as avoiding it,(6) 444, 2 Lord yet it is generally said to discharge the underwriters; and wher- Raym. 840; ever the point has come distinctly before any court, it has been 6 Mass. Rep. held only to discharge them from all subsequent losses. The 121; 7 Mass. reason is not that the property is thereby exposed to risks not Mass. Rep. insured against, nor that it ceases to be liable to the identical 447. risks that are insured against, both of which may happen as we (5) 1 Taunt. have seen without any deviation, but it is, that the risks within 454. (6) 4 Esp. 26; the policy are so affected, and varied, and confounded with others, Park, 438; that it is impossible to show that a loss would have happened Condy's but for the deviation. Rep. 352; 9 Marsh. 203. n. warranty. A deviation is essentially different from a breach of warranty, Difference bewhich is the violation of an express or implied engagement on tween a devithe part of the assured, whereas the superinducing of additional ation and a and extraordinary risks, or the change of the risks insured against, breach of a is not a violation of any agreement express or implied. Risks may be voluntarily incurred, as long as those assumed by the underwriter are not affected. But when an extraordinary risk, not contemplated by the parties in making their contract, is of such a kind that it becomes impossible to say that it may not have indirectly contributed to a subsequent loss, occasioned immediately by one of the perils in the policy, the assured cannot thereafter show that he has sustained a loss by one of the perils insured against, as they were understood by the parties to the contract when it was made; and unless he can show this, he is not entitled to any indemnity under the contract. If, for example, the vessel unnecessarily delays, or goes out of the usual course of the voyage, she is not after that time exposed to the identical sea perils, to which she would have been exposed had she pursued the voyage expeditiously in the usual course. The risks insured against become altered, and upon this ground Lord Mansfield places deviation, when he says, 'The true ob |