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
Page 7 U. S. 392
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
Page 7 U. S. 395
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
Page 7 U. S. 396
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
Page 7 U. S. 397
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.