Marine Insurance Company of Alexandria v. Tucker
7 U.S. 357 (1806)

Annotate this Case

U.S. Supreme Court

Marine Insurance Company of Alexandria v. Tucker, 7 U.S. 3 Cranch 357 357 (1806)

Marine Insurance Company of Alexandria v. Tucker

7 U.S. (3 Cranch) 357

ERROR TO THE CIRCUIT COURT

OF THE DISTRICT OF COLUMBIA

Syllabus

If a vessel be insured "at and from Kingston in Jamaica, to Alexandria" and take in a cargo at Kingston for Baltimore and Alexandria, and sails with intent to go first to Baltimore and from thence to Alexandria, and before she arrives at the dividing point, is captured, it is a case of intended deviation only, and the assured are entitled to recover.

An intent to do an act can never amount to the commission of the act itself. That an intended deviation will not vitiate a policy, and that the vessel remains covered by her insurance until she reaches the point of divergency and actually turns off from the course of the voyage insured is a doctrine well understood among merchants, and has universally governed the decisions of the British courts.

The ordinary rule for ascertaining the identity of the voyage insured is by adverting to the termini -- a rule which is certainly correct as far as it extends, but in the rigid application of which it is easy to conceive that cases may occur in which it would bear injuriously upon the insurer.

It depends upon the particular circumstances of the case whether, if the vessel be captured and recaptured, the loss shall be deemed total or partial.

Page 7 U. S. 358

This was an action of covenant by John and James H. Tucker on a policy of insurance dated Sept. 1, 1801, upon the sloop Eliza at and from Kingston in Jamaica to Alexandria in Virginia.

The defendants pleaded 1st, that the vessel never sailed on the voyage insured, and was not prosecuting the voyage insured at the time of the capture, and 2d, a general performance of the covenants contained in the policy, upon which pleas the issues were joined and verdict and judgment for a total loss.

At the trial the defendants took three bills of exceptions.

The 1st presents the following case:

The execution of the policy was admitted. The vessel was of the value insured, and belonged to the plaintiffs (the defendants in error), who were British subjects resident at Alexandria. The vessel was navigated under a British register, and had sailed from Alexandria for Kingston in June, 1801, with a cargo consigned to Bryan & Co. in Jamaica, who were instructed by a letter from the plaintiffs to sell the vessel and remit the proceeds. The vessel was commanded ostensibly by Boaz Bell, but really by Eli R. Patton, who also went as supercargo, with orders to sell the vessel at any rate, but if not sold, to return to Alexandria, with the proceeds of the outward cargo. Bryan & Co. used their best endeavors to sell the vessel, but without effect, and

Page 7 U. S. 359

could get no offer for her either before or after she sailed from Kingston. Having taken in ten tierces of coffee, the property of the plaintiffs, to be delivered at Alexandria, she cleared out at the custom house in Kingston on 10 August, 1801, for the port of Alexandria, with intention to sail on that day with convoy then lying at Port Royal, but which convoy did not sail until the 17th.

While waiting for convoy, freight was offered to Baltimore, and the master, having obtained a permit and made a port entry, discharged his ballast and took on board twenty hogsheads and ten tierces of sugar for that port, and signed bills of lading accordingly, but this caused no delay as to the time of his sailing, as he waited for convoy, it being known that several Spanish cruisers were hovering on the coast of Jamaica. On the 17th, she sailed for Baltimore, with intention to go first to Baltimore and from thence to Alexandria. On the 22d, whilst sailing in the usual course from Kingston to Baltimore and Alexandria, she was captured, by a Spanish vessel as prize, and all her men were taken out by the Spaniards excepting Bell and one other. In less than three days she was recaptured by a British sloop of war and carried back to Kingston on 26 August, where she was libeled for salvage.

Page 7 U. S. 367

The rate of salvage in cases of recapture is fixed by British statutes, and does not exceed one-eighth of the value at the port of adjudication.

Bryan & Co., as agents of Patton, put in a claim in behalf of the underwriters, alleging that the vessel had been abandoned to them.

The vice-admiralty court decreed restoration on payment of one-eighth for salvage and full costs, and directed the vessel to be sold to ascertain the true value, unless it could be otherwise agreed upon.

The claimant used no endeavors to agree with the captors as to the true value of the vessel and cargo otherwise than by a sale, and on 1 October she was sold for $915, and the ten tierces of coffee were purchased by Patton for the plaintiffs at the price of $1,000. The costs, charges, and commissions amounted to $909, and the salvage to $239. The agents of the plaintiffs were content and satisfied with the mode of ascertaining the value by sale, and did not apply for an appointment of appraisers to ascertain the value.

On 24 September, 1801, when the abandonment of the vessel was made by Bell and Patton, she was safe in the harbor of Kingston, but liable for salvage, and the value of the ten tierces of coffee was sufficient to pay the salvage and all costs and charges.

The register was lost by the capture and recapture, and has never been found. The plaintiffs could not, according to the laws of Great Britain, obtain a new British register while they continued to reside out of the British dominions.

Baltimore is not in the direct course from Kingston to Alexandria after a vessel has entered the Chesapeake Bay.

The plaintiffs received information of the capture and recapture at the same time in a letter from Bryan & Co. dated 25 September, 1801, which also mentions the sale, but it did not appear at what time the

Page 7 U. S. 368

plaintiffs received that letter. On 26 November they offered to abandon the vessel to the underwriters, who refused the offer. Upon this state of facts, the defendants moved the court to instruct the jury not to find a verdict for a total, but, at most, for a partial loss, which instruction the court refused to give, and the defendants took their bill of exceptions.

The second bill of exceptions did not vary the material facts above stated, but alleged that the vessel sailed from Kingston with an intention of going to Alexandria, but also with an intention of touching first at Baltimore and there delivering part of her cargo, and from thence to Alexandria. That while prosecuting her voyage with that intent and while in the direct course, both to Baltimore and Alexandria and before she arrived at the dividing point between Baltimore and Alexandria, she was captured, &c. Whereupon the plaintiffs prayed the court to instruct the jury that there was no deviation at the time of the capture and that the voyage insured was actually commenced, which instruction the court gave as prayed, and the defendants took their second bill of exceptions.

The third exception was to the refusal of the court to instruct the jury that the loss of the register by means of the capture and recapture was not sufficient in law to defeat the voyage, but that the loss of that document might be supplied by special documents of public officers setting forth the circumstances of the loss, so that the vessel might have prosecuted that voyage without seizure and confiscation under the laws of Great Britain for want of a British register.

Page 7 U. S. 384

MARSHALL, Ch. J. did not sit in the trial of this cause.

The other judges, except CHASE, J. whose ill health prevented his attendance, gave their opinions seriatim.

JOHNSON, J.

Upon the trial of this cause in the court below, two grounds of defense were assumed by the plaintiffs in error.

1. That the policy had been avoided by a deviation from the voyage insured.

2. That if the insured were entitled to recover at all, it could only be for an average, not a total loss.

In the argument before this Court, the first ground was varied, and the plaintiffs in error contended "that the risk insured was never entered upon."

Without considering the propriety of entering upon the discussion of a question so materially different from that made in the bill of exception, I will only remark that it was judicious in the counsel to abandon an opinion as inconsistent with natural reason as it is with the established doctrine of the law of insurance. An intent to do an act can never amount to the commission of the act itself. That an intended deviation will not vitiate a policy, and that the vessel remains covered by her insurance until she reaches the point of divergency and actually turns off from the due course of the voyage insured, is a doctrine well understood among mercantile men and has uniformly governed the decisions of the British courts from the case of Foster v. Wilmer to the present time.

The doctrine now insisted on by the plaintiffs in error was probably suggested by some incorrect expressions attributed to Lord Mansfield in the case of Wooldridge

Page 7 U. S. 385

v. Boyde. It is said that the judge in that case expressed an opinion that

"if a ship be insured from A to B, and before her departure the insured determine that she shall call at C, which is out of the usual course of the voyage from A to B, this is rather a different voyage than an intended deviation."

This opinion was certainly in no wise material to the decision of that case, and is expressly contradicted by the case of Kewley & Ryan and a case, which I consider with much respect, decided in the State of New York between Henshaw and the Marine Insurance Company of New York. We can only vindicate the accuracy of his Lordship's opinion in the case which he states by supposing that his mind was intent upon those cases of intended deviation, in which a suppressio veri or necessary increase of risk are the grounds of decision.

The ordinary rule for ascertaining the identity of a voyage insured is by adverting to the termini -- a rule which is certainly correct as far at it extends, but in the rigid application of which it is easy to conceive that cases may occur in which it would bear injuriously upon the insurer. If it has any defect, it is in not extending far enough the claim to indemnity, as the terminus ad quem may in many instances be relinquished without any possible increase of risk or even without varying the risk, except only as to lessening its duration. I will instance the case of an insurance from America to St. Petersburg, when the vessel in fact is to terminate her voyage at Copenhagen, or the case of an insurance to Alexandria, in Virginia, when the vessel is to terminate her voyage at Georgetown, in Maryland.

Whether the risk insured against in this case ever was incurred, I would test by the question whether, if the Eliza had arrived in safety, or even had sailed for Europe, the insured might have legally demanded a return of the premium? I presume not. The insurance being at and from the port of Kingston, the risk commenced during her stay in port, and cannot be apportioned when thus blended, but was wholly and indefeasibly vested in the underwriters, although the vessel

Page 7 U. S. 386

had forfeited her policy by shaping her course for Europe the moment she had left the port of Kingston. In the case before us, she adhered to her ultimate destination, and the forfeiture of her insurance could not have been incurred until after entering the Chesapeake and actually bearing away further eastward than was consistent with her course to the Potomac.

2. With regard to the question whether it be a case of total or average loss, a very few observations will suffice to satisfy the mind that the judgment below is correct.

If, under every combination of circumstances, the insured is bound to procure money at whatever interest or to raise it at whatever sacrifice of property to defray the disbursements for repairs, reshipping a crew, salvage, costs of suit, and every incidental expense, this will be shifting the loss from the insurer to the insured. Should it be admitted that in the case before us the insured were under any greater obligation to ransom and refit the vessel than the insurer, the circumstances in evidence are sufficient to excuse him. Unsuccessful attempts had been made to dispose of both vessel and cargo, and as to raising money on bottomry, who would have accepted the security of a vessel embarrassed by the loss of her register, to a degree the extent of which could not possibly be foreseen; a bond for money to become due on the arrival of a vessel which perhaps might never be able to sail, or if she did sail without her necessary documents would be exposed to innumerable hazards, and among them the forfeiture of her insurance for that very cause.

It is true that a case of capture and recapture where the two events are communicated before an election to abandon has been actually communicated to the underwriters will not of itself sanction an abandonment. Yet it is equally true that in case of capture, a recapture alone will not deprive the party of his right to abandon. The consequences of the capture and recapture, the effect produced upon the fate of the voyage, must govern the right of the parties. This effect is always a matter of evidence, and must rest much upon

Page 7 U. S. 387

the discretion of a jury. This doctrine is well illustrated in the cases of Pringle v. Hartley and Goss v. Withers.

In the case before us, the information of the capture, recapture, and sale was communicated in the same letter. The loss was then certainly total, and as the insurers cannot charge the insured with any premeditated design to involve the vessel in the difficulties which broke up the voyage, I think they ought to bear the loss.

Much has been said about the liability of the insured for the misconduct of his agents, but as all amounts to a charge that they did not make use of forced means to raise money for the release of the vessel, an obligation not incumbent upon them, it does not appear to me that the extent of the liability of the insured for the acts of the captain or supercargo, after the death stroke is given to the voyage, need be considered.

WASHINGTON, J.

There are but two questions in this cause which I deem worthy of particular consideration, for the last exception is to the refusal of the court to give an opinion upon a matter of fact and for which no foundation was laid by the evidence spread upon the record, even if it had been proper for the court in such a case to give an answer to the question propounded. I also lay out of the case the award mentioned in the declaration not only because no breach is assigned which applies to it, but because no opinion was asked of or given by the court respecting it.

The first subject which claims attention is whether upon the facts stated in the second bill of exceptions, the court below was right in the direction given to the jury that there was no deviation at the time of capture from the voyage insured, and that the voyage insured was actually commenced. The facts material to the decision of this point are that the Eliza cleared out at Kingston for Alexandria and a bill of lading was signed by the master to deliver her cargo at Alexandria. That after her

Page 7 U. S. 388

clearances were obtained, she took in a cargo for Baltimore and bills of lading were signed for delivering the same at that port. That the captain sailed from Kingston with an intention, previously formed, of proceeding first to Baltimore and there landing part of her cargo, and then to go to Alexandria, but she was captured before her arrival at the dividing point between Baltimore and Alexandria.

It is admitted that this is not a case of deviation, because the intention formed at Kingston before the voyage commenced of going first to Baltimore was never carried into execution. The only question, then, is whether the voyage described in the policy was changed or not. As to this, there is no difference of opinion at the bar respecting the legal effect of an alteration of the voyage on the contract of indemnity; it is and must be conceded that the policy never attached. But the difficulty is in determining what circumstances do in point of law constitute such an alteration as will avoid the policy.

The criticisms of the counsel for the plaintiffs in error upon the rule contended for by the defendants ought not in my opinion to avail them if that rule be firmly established by uniform decisions, for in questions which respect the rights of property, it is better to adhere to principles once fixed, though originally they might not have been perfectly free from all objection, than to unsettle the law in order to render it more consistent with the dictates of sound reason.

The first case we meet with upon this subject is that of Carter v. Royal Exchange Assurance Company, which is cited in Foster v. Wilmer, decided in 19 Geo. II. The former was an insurance on a ship from Honduras to London, and the latter on a ship from Carolina to Lisbon and at and from thence to Bristol. In both a cargo was taken in to be delivered at an intermediate port but the loss having happened before the ship had arrived at the dividing point, the insurers were held liable upon the ground that nothing more was intended than a deviation which, not being carried into execution, did not avoid the policy.

Page 7 U. S. 389

The case of Wooldridge v. Boydell is next in point of time. This was an insurance on a ship at and from Maryland to Cadiz. She cleared for Falmouth, and a bond was given to land the whole cargo in Britain. No evidence was given that the vessel was bound to Cadiz; she was taken before she came to the dividing point. At the trial of this cause, Lord Munsfield told the jury that if it thought the voyage intended was to Cadiz, it was to find for the assured; but if there was no design to go to that port, then it was to find for the defendant, and the ground upon which the court decided the motion for a new trial was that there never was an intention to go to Cadiz. But it is plain that if Cadiz had been intended as the ultimate port of destination, the clearing out for an intermediate port with an intention to land the cargo there would not have been considered as anything more than an intended deviation.

Way v. Modigliani was decided in 1787, and was an insurance at and from 20 October, 1786, from Newfoundland to Falmouth, with liberty to touch at Ireland. She sailed on 1 October from Newfoundland, went to the Banks and fished till the 7th, and then sailed for England, and was lost on the 20th. The reasons assigned for the decision of this case give it the appearance of an authority unfavorable to the doctrine laid down in the above cases. But the weight of it is greatly diminished, if it be not destroyed, by the following consideration: 1st, that as there was a clear deviation, it was unnecessary to decide the other point that the policy did not attach, and 2d, that this latter opinion seems to have been entertained only by one of the court, and even this judge seems to have relied very much upon the fact that the vessel sailed to the Banks; 3d, from what is said in Kewley v. Ryan, it would appear that the ship, when she left Newfoundland, did not sail for England, and of course the voyage insured never was commenced.

Kewley v. Ryan, decided in 1794, was a policy on goods from Genoa to Liverpool. The ship sailed on that voyage, but it was intended, as plainly appeared by the clearances, to touch at Cork. She was lost, however, before she arrived at the dividing point, and the decision conformed to those given in the preceding cases, the

Page 7 U. S. 390

termini of the intended voyage being really the same as those described in the policy.

The case of Stott v. Vaughan, decided at Nisi Prius in 1794, before Lord Kenyon, seems opposed to the principles laid down in the preceding cases, and, if we have an accurate report of it, is inconsistent with the decisions of the same judge in Kewley v. Ryan and other cases.

Murdoch v. Potts, decided in 1795, was in principle as strong a case of a change of voyage as that of Wooldridge v. Boydell, but equally contributes to explain the general doctrine laid down in all the cases. For in this the terminus ad quem was most obviously St. Domingo, where the freight insured was payable, or some port other than Norfolk, where the ship was to call for the sole purpose of receiving orders.

The last English case which I shall notice is that of Middlewood v. Blakes, decided in 1797. It was an insurance on the Arethusa at and from London to Jamaica, for which place she cleared out, but the captain was bound by orders to call at Cape St. Nicola Mole in order to land stores there pursuant to a charter party. She was captured after she had passed the dividing point of three several courses to Jamaica but before she had reached the subdividing point of the continuing course to Jamaica and that leading to the Mole. The whole court considered this as a case of deviation only, and Lawrence, J., was so strongly impressed with the weight of former decisions that, not attending to this obvious objection to the plaintiff's recovery, but considering the termini of the voyage intended to be the same with those mentioned in the policy, his first opinion inclined to the side of the plaintiff.

The case of Henshaw v. The Marine Insurance Company, decided in the supreme court of New York, confirms the principles of the above cases and would command my respect were it opposed to them.

The rule, then, which I consider to be firmly established by a long and uniform course of decisions, is that if the ship sail from the port mentioned in the policy with an intention to go to the port or ports also described

Page 7 U. S. 391

therein, a determination to call at an intermediate port, either with a view to land a cargo, for orders, or the like, is not such a change of the voyage as to prevent the policy from attaching, but is merely a case of deviation, if the intention be carried into execution or be persisted in after the vessel has arrived at the dividing point.

The next question is whether the court below erred in refusing to instruct the jury that if it believed the facts stated in the first bill of exceptions, it was to find an average and not a total loss. The defendants in error contend that by the capture and recapture of the vessel under the various circumstances of loss of crew, inability to pay the salvage and expenses, loss of register, &c., the voyage insured was completely defeated, and therefore the assured had a right to abandon and demand as for a total loss.

On the other side it is insisted that the captain might in a variety of ways have prevented the sale of the vessel, and that if he had done the best in his power for the interests of all concerned, he might have liberated the vessel from the lien of the captors and have performed his voyage in safety to Alexandria without any other inconvenience than this temporary interruption and the payment of salvage and expenses. If so, that it was not competent to the assured under these circumstances to convert a loss partial in its nature into a total one.

Whether the assured had a right to abandon and recover as for a total loss or not was a question of law dependent upon the point of fact whether, upon the whole of the evidence, the voyage was broken up and not worth pursuing, and in the consideration of this question the jury would, of course, have inquired, amongst other matters, whether the captain had done what was best for the benefit of all concerned. The court might with propriety have stated the law arising upon this fact which ever way the jury might find it, and indeed such would have been its duty if a request to that effect had been made. But the court very correctly refused to give the direction as prayed, because by doing so it would have decided the important matter of fact upon which the law was to arise which was only proper for the determination of the jury. In the case of Mills

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v. Fletcher, which turned upon the question whether the captain, by his conduct, had not made the loss a total one, Lord Mansfield would not decide whether the loss was total or not, but informed the jury that it was to find as for a total loss if it was satisfied that the captain had done what was best for the benefit of all concerned.

Upon the whole, then, I am of opinion, that the judgment ought to be affirmed.

PATERSON, J.

This action was brought on a policy of insurance which John and James H. Tucker, being British subjects, residents at Alexandria, had effected on the body of the sloop Eliza, her tackle, apparel, and furniture to the value of $3,800 at and from Kingston, in the Island of Jamaica, to Alexandria, in the State of Virginia. The policy bears date 1 September, 1801.

The first question to be considered is whether the voyage on which the sloop Eliza set out was the same or a different voyage from the one insured. By the terms of the policy it is stipulated that the Eliza was to sail from Kingston to Alexandria, and it is stated in the bill of exceptions that she did sail from Kingston, but with an intention to go first to Baltimore, and there deliver 20 hogsheads and 10 tierces of sugar, and then to proceed to Alexandria, which was the port of destination described in the policy. She cleared out at the custom house in Kingston on 10 August, 1801, for Alexandria, and the master signed a bill of lading to deliver her cargo at that place, after which he took in the sugar to be delivered at Baltimore. It is contended on the part of the insurers that the taking in the sugar to be landed at Baltimore constituted a different voyage from the one agreed upon, and vitiates the policy, or in other words that the voyage which was the subject of the contract was never commenced. From a review of the cases which have been cited, the principle is established that where the termini of a voyage are the same, an intention to touch at an intermediate port, though out of the direct course and not mentioned in the policy, does not constitute a different voyage. In the present case, the termini, or beginning and ending points of the intended

Page 7 U. S. 393

voyage, were precisely the same as those specified in the policy, to-wit from Kingston to Alexandria, and, in legal estimation, form one and the same voyage, notwithstanding the meditated deviation.

The first reported case on this subject is Foster v. Wilmer, in 2 Str. 1249, in which Lee, C.J., held that taking in salt to be delivered at Falmouth, a port not mentioned in the policy, before the vessel went to Bristol, to which place she was insured, was only an intention to deviate, and not a different voyage. And the Chief Justice, in delivering his opinion, mentioned the case of Carter v. Royal Exchange Assurance Company, where the insurance was from Honduras to London and a consignment to Amsterdam; a loss happened before she came to the dividing point between the two voyages, for which the insurer was held liable. The adjudication in Strange was in the 19 Geo. 2, and from that time down to the year 1794 we find no variation in the doctrine. A remarkable uniformity runs through the current of authorities on this subject. In Kewley v. Ryan, 2 H.Bl. 343, Trinity term, 1794, the principle is recognized, and in 2 New York Term 274, Henshaw v. Marine Insurance Company, February, 1805, it is fortified and considered as settled by the supreme court of that state. In a lapse of sixty years we find no alteration in the doctrine, which is sanctioned, and has become too deeply rooted and venerable by time, usage, and repeated adjudications to be shaken and overturned at the present day. It has grown up into a clear, known, and certain rule for the regulation of commercial negotiations, and is incorporated into the law merchant of the land. Where is the inconvenience, injustice, or danger of the rule? It operates in favor of the insurers by a diminution of the risk, and not of the insured, who has the departure in contemplation, for if the vessel, after she has arrived at the point of separation, should deviate from the usual and direct road to her port of destination, the insurers would be entitled to the premium and exonerated from responsibility. An intention to deviate, if it be not carried into effect, will not avoid the policy. There must be an actual deviation. The policy being "at and from," the risk commenced; there was also an actual inception of the voyage described, for the Eliza sailed from Kingston for Alexandria, was captured in a

Page 7 U. S. 394

direct course to the latter before she reached the dividing point, and therefore the underwriters became liable for the loss.

The second point in the cause is whether the insurers were liable for a total or a partial loss. And here a preliminary question presents itself. Was the abandonment made in proper time? When the Tuckers received information of the loss, it became incumbent on them to elect whether they would abandon or not, and if they intended to abandon, it was incumbent on them to give notice of such intention to the underwriters. Our law has fixed no precise period within which the abandonment shall be made and notice of it shall be given to the insurers, but declares that it shall be done within a reasonable time. In the case before us it appears that John and James H. Tucker received information of the capture and recapture of the Eliza at the same time, in a letter from W. and B. Bryan and Co. dated 26 September, 1801, but it does not appear when the letter came to hand.

On 26 November, 1801, the Tuckers offered to abandon the Eliza to the insurers, which offer was rejected. Can it, under these circumstances, be pretended that the Tuckers were guilty of neglect or that the abandonment was not made according to the settled rule? It was made within a reasonable time, and no neglect can justly be imputed to them. We must have some facts whereon to build the charge of negligence, for it is not to be presumed, and the intervening period between the date of the letter and the time of abandonment, after making a due allowance for the passage of the letter, does not afford sufficient ground on which to raise the imputation of neglect.

This brings us to the great question in the cause whether the insurers were liable for a total or an average loss. On 22 August, 1801, the Eliza was captured by a Spanish armed schooner in the usual course from Kingston to Baltimore and Alexandria, and a day or two afterwards was recaptured by a British sloop of war and carried into Kingston on the 26th of the same month. The mere acts of capturing and recapturing are not of themselves sufficient to ascertain the nature and amount of the loss sustained. The loss may be total, though there is a recapture. Hamilton v. Mendez, 2 Bur. 1198; Aguilar v. Rodgers, 7 D. & E. 421. Whether the loss be partial or total will depend upon the particular

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circumstances of the case, which it becomes necessary to take into view. The Eliza was consigned to Bryan & Co. at Kingston, who were authorized to dispose of her; they endeavored to sell her, but without effect, and it is stated that they could get no offer for her before she sailed from Kingston nor since that time. Bryan & Co. put on board 10 tierces of coffee, of the value of $1,000, belonging to the Tuckers, to be delivered at Alexandria, and when she was captured, all the seamen except Bell, the ostensible master, and one man were taken on board the Spanish schooner. The Eliza was navigated under a British register during the voyage, which register was lost by reason of the capture and recapture and has never been found.

After the recapture, the Eliza and her cargo were libeled in the vice-admiralty court for salvage; a claim was put in by Bryan & Co. as agents for Eli Richards Patton, the real and navigating master and supercargo, and the sloop and cargo were adjudged to be lawful recaption on the high seas and ordered to be restored on paying to the recaptors one full eighth part of the value of the sloop and cargo for salvage, with full costs, and to ascertain the value it was further ordered that the sloop and cargo should be forthwith sold by the claimants unless the value should be otherwise agreed upon. The sloop was insured for $3,800 and sold for $915; the coffee sold for $1,000, and the costs, charges, and commissions amounted to $909, which almost absorbed the sum for which the sloop was sold. It is not found that the sloop had sustained no damage by the capture and recapture, and considering the difference between $3,800, the value insured, and $909, the price for which she sold, the jury might, without other evidence, have presumed that she had received considerable injury.

From these facts taken together, the inference is rational and just that the voyage was broke up and destroyed and that the underwriters were liable for a total and not for an average loss. To repel this inference and remove responsibility from the insurers, it has been urged in argument that the agents for the Tuckers were guilty of gross neglect and misconduct. If Bryan & Co. ceased to be agents after the sailing of the sloop, then

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the captain became clothed with an implied authority to do what was fit and right and most conducive for the interest and benefit of all the concerned, and therefore whether the agency of Bryan & Co. continued or, being at an end, devolved by operation of law on the captain is perfectly immaterial, for the question still recurs whether the actual or implied agent had been guilty of fraud, negligence, or other improper conduct which would exonerate the insurers. I am not able to discern any misconduct on the part of the agent that would exculpate the underwriters and prevent their being responsible for a total loss. And indeed this was a point proper for the decision of the jury, agreeably to the case of Mills v. Fletcher in Doug. 230, and therefore the exception taken to the opinion of the court was not will founded. The sloop could not be sold at private sale, and, by reason of the capture and recapture, she might have sustained considerable damage. To sell the coffee, which constituted the cargo for Alexandria, to satisfy the salvage and costs would have been an imprudent measure, for the redemption would have absorbed the whole proceeds, and then she would have returned to Alexandria without a cargo, as the captain had no funds to purchase one; and besides she must have sailed without a register, which would have exposed her to great and unnecessary danger. Prudence dictated the sale as a safe step and most for the benefit of the concerned.

The error set forth in the third bill of exception is that the court below refused to instruct the jury that the loss of the register by means of the capture and recapture was not sufficient in law to defeat the voyage from Kingston to Alexandria, and might have been supplied by special documents. Though the register did not impart any physical ability to the sloop in regard to her sailing, yet it was a document which tended to communicate safety, as it designated her character, individually and nationally. It is a necessary paper, and operates as a national passport, for without it she might be seized as an unauthorized rover on the ocean, and in certain cases would have been liable to confiscation. The register is a document

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of such a special and important nature that its loss cannot be fully made up by other official papers. It would have been a very imprudent step for the captain to have proceeded on his voyage without a register; if he had, he would have been justly charged with improvidence, negligence, and culpable misconduct.

CUSHING, J.

I consider this as clearly a case of intentional, not actual, deviation, but not as a case of noninception of the voyage insured.

This is proved by a number of cases cited, and contradicted by none.

What a case of non-inception is, is shown by the case of Wooldridge v. Boydell, Douglass 16, where the ship was insured from Maryland to Cadiz, having no intention at all of going there, but that is totally different from the present case, where the vessel was cleared out at Jamaica for Alexandria with a cargo taken in for Alexandria and intended to go there.

It is true sugars were taken in for Baltimore, and the captain intended going there first. That amounts only to an intent to deviate, but no deviation unless executed.

This is proved by divers authorities. Middlewood v. Blakes, 7 T.R. 162, B.R., a ship insured at and from London to Jamaica, and the captain had orders (exactly like the case at the bar) to touch at Cape Nicola Mole, to land stores, pursuant to charter party. Upon which, one of the judges (Lawrence) gave an opinion that if the vessel had been captured before she came to the dividing point between the northern and southern courses to Jamaica, the insurers would have been liable.

And the other judges agreeing with judge Lawrence, to lay the whole stress of the cause in favor of the insurer, upon the captain's not exercising his judgment at the time upon which was the best and safest of the three courses, (whose judgment the insurers had a right to have the benefit of), but taking the northern course, merely in pursuance of orders, to land stores at Cape Nicola Mole. All this shows that had the captain exercised

Page 7 U. S. 398

his judgment in going the northern course as being the best and safest, the whole court would have held the insurer liable, as the vessel was captured before she came to the dividing point between the course to the Cape and to Jamaica.

Another case, more direct and decisive, is Foster v. Wilmer, 2 Str. 1248-1249, where the ship was insured from Carolina to Lisbon and to Bristol, and the captain took in salt to deliver at Falmouth before going to Bristol, repugnant to the specification of the policy, yet, being captured before arriving at the dividing point between Falmouth and Bristol, the insurer was held liable, which seems exactly the present case.

The mere taking in goods for another port does not of itself make a deviation. It may, however, if it materially vary the risk, and be a circumstance designedly concealed and suppressed, excuse the underwriters. In the present case it does not appear materially to vary the risk any more than in taking in stores to land at Cape Nicola Mole, in the case of Middlewood v. Blakes varied the risk, which was not suggested by court or counsel that it did, or the taking in salt to land at Falmouth in the case of Foster v. Wilmer. It did not delay the voyage in the present case; the vessel sailed with convoy as soon as it was ready, and was afterwards captured in the proper course, before deviating.

The award may be laid out of the case for more reasons than one. I think it void for uncertainty.

As to the loss, whether total or average, the jury, who had the whole evidence before it, has in effect found a total loss and the voyage broken up. It is not certified by the court that the bill of exceptions contains the whole evidence, and as strong circumstances (I think conclusive ones) are stated that show the voyage could not be safely pursued or could not be pursued at all in consequence of the loss of register and loss of hands by the capture, either of which it does not appear could be supplied, I think we are not warranted to overrule the verdict or reverse the judgment.

Judgment affirmed.

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