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loss cast on the owner of the cargo in the general average statement, was held not to vary their liability under the policy (7).
3. Evidence of a usage of trade has been admitted to prove that, in the case of a ship engaged in the Greenland fishery, a policy on the ship, furniture, &c., did not cover the fishing tackle and stores (m).
4. A policy was effected “on money advanced on account of freight” on a voyage from C. to P. The policy was in the ordinary form, and with the ordinary memorandum. The ship was damaged during the voyage by stormy weather, and compelled to go to V. to repair. Part of the costs incurred thereby were a general average, to which plaintiff had to contribute in respect of his interest. Held, that the plaintiff could recover the amount of his contribution, and that the underwriters could not set up a custom of trade to the effect that insurers on freight advances are not liable to make good a general average, as it was inconsistent with the terms of the policy (n).
5. The plaintiff, whose ship was lost, authorized an insurance broker to adjust the loss with the underwriters. The policy had been effected in the broker's name, and he had kept it. An adjustment having taken place, the loss was settled in accordance with a usage prevailing at Lloyd's, by the underwriter setting off the amount payable by him upon the policy against the balance due to him from the broker for premiums on other policies effected by him. The jury found that the usage in question was generally known to merchants and shipowners, but that it was not known to the plaintiff, he having merely left the policy in his broker's hands for safe custody. Held, that the plaintiff was not bound by the usage (o).
(1) Dickenson V. Jardine, L. R., 3 (n) Hallv. Janson, 4 E. & B. 500. C. P. 639.
() Sweeting v. Pearce, 7 C. B., (m) Hoskins v. Pickersgill, 1 Park, N. S. 449. Ins. 97; Marshall, Ins. 239, 241.
EFFECT OF DEVIATION OR ABANDONMENT ON A POLICY.
What will amount to a deviation.
$ 142. Any deviation by the vessel from the course usual and proper for the voyage specified in the policy, will constitute a violation of the warranty not to deviate, and will vitiate the policy and release the underwriters (a). Thus if a ship be insured for one voyage and sail upon another the policy will be discharged, even though she be captured before reaching the dividing point of the two voyages (6). Where, however, the ship is merely temporarily impeded by an accident, she may go to a neighbouring port to repair, or to wait till the impediment to the voyage (e.g. an embargo) is removed (c).
A deviation has been defined to be “any unnecessary or unexcused departure from the usual course or general mode of proceeding towards the original terminus ad quem of the insured voyage so that the risk is altered, although it be not aggravated, by such departure" (d). If the loss occur in the course of a voyage, only collateral to and not incidental to the voyage insured, the insured cannot recover in an action on a voyage policy (e). Quitting
(a) Wooldridge v. Boydell, 1
(6) Wooldridge v. Boydell, 1
(c) Shroder v. Thompson, 7 Taunt. 462; Hadley v. Clarke, 8 T. R. 259 ; see “Cases" (2) at end of this §.
(d) 2 Emerigon, c. 13, sect. 16, p. 94; Arn. Ins. pt. 1, ch. x.
(e) Wingate v. Foster, 3 Q. B. D. 582; 47 L. J., Q. B. 525; 38 L. T. 737; 26 W. R. 650 (C. A.); see “ Cases " (4) at end of this g.
the usual course of the voyage in order to repel an enemy, or even to attack an enemy, will not be a deviation, if such a proceeding can fairly be considered necessary for the purpose of self-defence. If a hostile ship comes across her course the ship insured can fight her, though not for the purpose of self-defence, provided she does not depart from her course (f).
A deviation differs from an abandonment or change of Abandon. voyage in that in the case of a deviation the voyage constitutes,
ment-what insured is never lost sight of, while in the case of an and its effect. abandonment the original port of destination or terminus ad quem is abandoned for some other terminus, and so the voyage itself is changed and abandoned. Thus, in order to distinguish a deviation from an abandonment, the test to apply is, whether the original terminus ad quem continues to be the intended ultimate destination of the ship or goods insured (9).
The effect of an abandonment or change of voyage is to release the underwriter from all liability on the policy from the time when the determination to abandon the original voyage was definitely formed. Thus the policy will be void ab initio if the abandonment were decided on by the insured before the risk commenced (1).
Merely shipping goods and clearing out for a port, other than that specified in the policy as the port of discharge, will not be an abandonment of the voyage (i). So the mere fact of a ship, insured to two or more specified ports of discharge, shipping goods and clearing for only one of them, will not per se amount to an abandonment of the voyage (k). (f) Jolly v. Walker, 2 Park, Ins. (k) Wooldridge V. Boydell, 1
Doug. 16 (a). (9) 3 Kent, Com. 317; Wooldridge (i) Henkle v. Royal Ex. Ass. Co., v. Boydell, 1 Doug. 16 (a); Tasker i Ves. (senr.) 317 ; Kewley v. Ryan, v. Cunningham, 1 Bligh, Parl. Cas. 2 H. Bl. 343. 87.
(k) Marsden v. Reid, 3 East, 572; see “Cases" (3) at end of this $.
CASES. 1. Goods were insured from Bristol to Monte Video or other port in the river Plate. The ship carrying them, on arriving at the mouth of the river, was ordered off by the British commander there, the enemy having previously seized every port in the river. The ship then started for Rio Janeiro, the nearest friendly port, as she required water and repairs. During her voyage thither the goods were lost. Held, the loss was not covered by the policy (1).
2. The defendants contracted to carry the plaintiff's goods by sea from Liverpool to Leghorn. On the ship reaching Falmouth, a temporary embargo was laid on her, which lasted for two years. Held, that the embargo only suspended, but did not dissolve, the contract of affreightment, and that the plaintiff could recover damages for its non-performance (m).
3. Goods were insured from A. to B., C., and D. The ship sailed with the intention of sailing direct to D., and not of visiting the intermediate ports, but was captured before the dividing point. Held, that the underwriters were liable (n).
4. A marine policy stated the risk to be on four pumps “at and from Ardrossan to the A., a steamer ashore near Drogheda, and while there engaged at the wreck, and until again returned to Ardrossan by the Sea Mew, salvage steamer, beginning the risk from the loading on board the said ship wreck.” On the Sea Mew arriving at the wreck, the pumps were put on board the A., and she was raised and floated. The A. then with the pumps on board started for Ardrossan, towed by tugs. Encountering very bad weather she attempted to put into Belfast, but foundered on the way with the pumps on board. Held, that the loss was not covered by the policy (o).
Insurance, “at and from" deviation.
If the insurance be “at and from” an island or district, the vessel may for purposes connected with the voyage sail from one port to another in such island or district to load (). But if it be " at and from her port of loading" in such island or district, she cannot; for in such a case it
(1) Parkin v. Tunno, 11 East, 22.
(m) Hadley v. Clarke, 8 T. R. 259.
(n) Marsden v. Reid, 3 East, 572.
(0) Wingate v. Foster, 3 Q. B. D. 582 (C. A.).
(P) Camden v. Cowley, 1 W. Bl. 417; Warre v. Miller, 4 B. & C. 538 (S. C.); see “Cases" (1) at end of this ; Cruickshank v. Janson, 2 Taunt. 301.
would be an unlicensed deviation for her to proceed to any other port in the island or district, whatever the object might be. If a ship insured “at and from her port of loading," commence loading at one port, and finish at another port out of the course of her intended voyage, it will amount to a deviation and will vitiate the policy (9).
CASES. 1. Freight was insured at and from Grenada to London. The ship arrived in safety at Grenada, and discharged part of her outward cargo at three different bays. She was proceeding to a fourth bay, with the object of discharging the remainder of her outward cargo, and of loading her homeward cargo, when she was lost by perils of the sea. Held, that the underwriters were liable(r).
2. A ship was insured " at and from her port of lading in North America to Liverpool.” Having loaded part of her cargo at K., she sailed to B., seven miles distant on the same bay of the sea, but not on the direct course from K. to Liverpool. Having then finished loading, she returned to K. for provisions. She then sailed for England, but was lost on the voyage. Held, that after the ship had commenced loading at K., K. was her port of loading, and that her going to B. was a deviation (8).
§ 144. An insurance on a voyage to several ports specified, will Voyage cover a voyage to all or any of them; provided that the several ports vessel must visit them in the order in which they are men--deviation, tioned in the policy (t), and must not divide the voyage. From this it will follow that the master cannot load goods at one port, and unload them and ship others at one of the other ports specified (u). However, the vessel need not proceed to all the ports, she may leave out any of them or proceed to one only of them.
If a vessel be insured to a place generally, and the policy does not go on to provide for her safety while there,
(9) Broun v. Tayleur, 4 Ad. & (s) Brown v. Tayleur, 4 Ad. & E. El. 241 ; see “Cases" (2) at end 241. of this .
(1) Marsden v. Reid, 3 East, 572. (r) Warre v. Miller, 4 B. & C. (u) Sellar v. M Vicar, 1 B. & P.N. 638 (S. C.).
R. 23; see “Case" at end of this s.