Insurance on a vessel and freight "at and from Teneriffe to the
Havana, and at and from thence to New York, with liberty to stop at
Matanzas," with a representation that the vessel was "to stop at
Matanzas to know if there were any men of war off the Havana." The
vessel sailed on the voyage insured, and put into Matanzas to avoid
British cruisers, who were then off the Havana, and were in the
practice of capturing neutral vessels trading from one Spanish port
to another. While at Matanzas, she unladed her cargo under an order
from the Spanish authorities, and afterwards proceeded to Havana,
whence she sailed on her voyage for New York, and was afterwards
lost by the perils of the seas. It was proved that the stopping and
delay at the Havana was necessary to avoid capture, that no delay
was occasioned by discharging the cargo, and that the risk was not
increased, but diminished.
Held that the order of the Spanish government was
obtained under such circumstances as took from it the character of
a
vis major imposed upon the master, and was therefore no
excuse for discharging the cargo, but that the stopping and delay
at Matanzas were permitted by the policy, and that the unlading the
cargo was not a deviation. This case distinguished from that of
Maryland Insurance Company v.
Le Roy, 7 Cranch 26.
This was an action of assumpsit brought on a policy insuring the
ship
Henry and her freight "at and from Teneriffe to the
Havana, and at and from thence to New York, with liberty to stop at
Matanzas." At the trial the plaintiff gave in evidence the
representation on which the policy was made, which contained this
expression: "We are to stop at Matanzas
Page 16 U. S. 160
to know if there are any men of war off the Havana." The vessel
sailed from Teneriffe on 7 April, 1807, and on 7 June following put
into Matanzas, in the Island of Cuba, to avoid British cruisers,
which were then cruising on her way to and off the port of Havana,
and which were then in the practice of capturing American vessels
sailing from one Spanish port to another. On 6 July, as soon as the
passage was clear, she proceeded to the Havana, whence, on 14 July,
she sailed on her voyage to New York. On the 28th of that month she
foundered at sea and was totally lost. The action was for the
insurance on the vessel and freight from the Havana. The
underwriters gave in evidence that while at Matanzas she unladed
her cargo, and insisted that this was a deviation by which they
were discharged. To repel this evidence, the plaintiffs showed that
the stopping and delay at Matanzas were necessary to avoid capture,
and therefore allowed by the policy, that no delay was occasioned
by discharging the cargo; that the risk was not increased, but
diminished by it, and that an order from the Spanish government had
made this act necessary.
The court instructed the jury that unlading the cargo at
Matanzas was a deviation which discharged the underwriters unless
it was rendered necessary by the order of the Spanish government at
the Havana. That in this case the order did not justify such
unlading, and that the underwriters were consequently discharged.
Under these directions, the jury found a verdict for the
defendants. The plaintiff having excepted to the opinion of the
court, the judgment
Page 16 U. S. 161
which was rendered in favor of the defendants was brought before
this Court on writ of error.
Page 16 U. S. 163
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court,
and after stating the facts, proceeded as follows:
At the trial, the cause seems to have turned principally on the
necessity to unlade the cargo at Mantanzas produced by the order of
the Spanish government at the Havana. As this Court concurs with
the circuit judge in the opinion that this order was obtained under
circumstances which take from it the character of a force imposed
on the master and compelling him to discharge his cargo, and is
therefore no excuse for such discharge, it will be unnecessary
further to notice that part of the case. The question to be
considered is that part of the opinion which declares that unlading
the cargo at Matanzas, although it occasioned no delay and did not
increase, but diminish the risk, was a deviation which discharged
the underwriters.
Page 16 U. S. 164
In considering this question, it is to be observed that the
termini of the voyage were not changed. The
Henry did sail
from Teneriffe to the Havana, and was lost on the voyage from the
Havana to Baltimore. The policy permitted her to stop at Matanzas,
and the purpose of stopping was to know if there were any men of
war off the Havana. It would be idle to stop for the purpose of
making this inquiry if it were not intended that the
Henry
might continue at Matanzas so long as the danger continued. The
stopping and delay at Matanzas is then expressly allowed by the
policy.
But, admitting this, it is contended that unlading the cargo is
a deviation.
And why is it a deviation? It produced no delay, no increase of
risk, and did not alter the voyage. The vessel pursued precisely
the course marked out for her in the policy. In reason, nothing can
be found in this transaction which ought to discharge the
underwriters. If, however, the case has been otherwise decided,
especially in this Court, those decisions must be respected.
In
Stitt v. Wardel, 1 Esp.N.P. 610, it was determined
that liberty to touch and stay at any port did not give liberty to
trade at that port, and in
Sheriff v. Potts, 5 Esp.N.P.
96, it was decided that liberty to touch and discharge goods did
not authorize the taking in of other goods. These cases certainly
bear considerable force on that under consideration, but they were
decided at
nisi prius, and seem to have been in a great
degree overruled by the court in the case of
Raine v.
Bell, reported
Page 16 U. S. 165
in 9th East. In that case, under a policy to touch and stay at
any place, goods were taken on board during a necessary stay at
Gibraltar. The court was of opinion that as this occasioned no
delay nor any increase or alteration of the risk, the plaintiff was
entitled to recover. Between the case of
Raine v. Bell and
this case the Court can perceive no essential difference.
In the Supreme Court of Pennsylvania,
Kingston v.
Gerard, 4 Dall. 274 [omitted], a similar question occurred,
and it was there held that unlading and selling part of her cargo
by a captured vessel during her detention would not avoid the
policy.
But it is contended that this point has been settled in this
Court in the case of
Maryland Insurance Company v.
Le Roy, 7 Cranch 26. In that case, a liberty was
reserved in the policy "to touch at the Cape de Verd Islands for
the purchase of stock, such as hogs, goats, and poultry, and taking
in water." The vessel stopped at Fago, one of the Cape de Verd
Islands, and took in four bullocks and four Jackasses, besides
water and other provisions, unstowed the dry goods, and broke open
two bales, and took 40 pieces out of each for trade. The vessel
remained at the island from the 7th to the 24th of May, although
the usual delay at those islands for taking in stock and water when
the weather is good is from two to three days. The weather was good
during this delay, and the bullocks and jackasses encumbered the
deck of the vessel more than small stock would have done. The Court
left it to the
Page 16 U. S. 166
jury to determine whether the risk was increased by taking the
jackasses on board, and directed them to find for the plaintiffs
unless the risk was thereby increased. The jury found for the
plaintiffs, and this Court reversed the judgment rendered on that
verdict because the taking in the jackasses was not within the
permission of the policy.
It is perfectly clear that the case of
Maryland Insurance
Company v. Le Roy differs materially from this. In that case,
articles were taken on board which encumbered the deck of the
vessel, and which were not within the liberty reserved in the
policy. In that case too the insured traded, and the delay was
considerable and unnecessary; the risk, if not increased, might be
and certainly was varied. The judge therefore ought not to have
left it to the jury on the single point of increase of risk by
taking in the jackasses. Although the risk might not be thereby
increased, the unauthorized delay and unauthorized trading during
that delay, connected with taking on board unauthorized articles,
discharged the underwriters according to the settled principles of
law, and the Court does not say in that case that these
circumstances were immaterial or without influence. The Court does
not feel itself constrained by the decision in
Maryland
Insurance Company v. Le Roy to determine that in this case
also, which differs from that in several important circumstances,
the underwriters are discharged.
Page 16 U. S. 167
The Judgment is reversed and the cause remanded, with directions
to issue a
venire facias de novo.
Judgment reversed.
