port and a market" covers the vessel while on her way from that port to any other port in search of a market, to which it is usual to go for that purpose, under such a clause, or which is actually within what must be deemed a reasonable distance.1

The question of the order in which ports should be visited is presented, either when many ports are named, or when there is liberty to touch or trade at ports between certain termini, or

place vessels from the Chincha Islands clear, and sailed on her homeward voyage. After being at sea a day or two, the vessel sprung a leak, and was compelled to return to Callao. It was necessary to unload the cargo, which was sold for less than it cost to take it out of the vessel. After the vessel was repaired, she returned to the Chincha Islands, took in another cargo and sailed for home, and was lost on the way. Held a deviation, because the vessel had once begun her homeward voyage. But it is sometimes difficult to determine when the outward voyage terminates. In Ashley v. Pratt, 16 M. & W. 471, a ship was insured "at and from Liverpool to ports and places in China and Manilla, all or any, during the ship's stay there for any purposes, and from thence to her port or ports of calling and discharge in the United Kingdom." The vessel went to Tongkoo in China, discharged part of her cargo there, sailed thence to Manilla, and there discharged most of the remaining cargo. Freights being low at Manilla, a cargo of opium was taken on board for Tongkoo, with the intention of there seeking a freight back to the United Kingdom. On the voyage to Tongkoo the vessel was lost. It was contended that the voyage back from Manilla to Tongkoo was a deviation, but the court held that from thence meant not from Manilla only, but from any place in China or Manilla. This case was affirmed on appeal. Pratt v. Ashley, 1 Exch. 257.

In Coffin v. Newburyport Mar. Ins. Co., 9 Mass. 436, a ship and cargo were insured from Newburyport to one or more ports beyond the Cape of Good Hope, one or more times, at and from them, or either of them, to her port of discharge in the United States, with liberty to touch and trade, at any ports and places on the outward or homeward voyages. The vessel arrived at the Cape of Good Hope, and sailed thence for the Isle of France. It was held that an intermediate voyage from the Isle of France to the Cape of Good Hope, and back to the Isle of France, would not be protected by the policy.

1 Thus, where a vessel was insured "at and from Boston to St. Thomas, and a market in the West Indies, and at and from thence to a port of discharge in the United States," it was held, that if there was no market at St. Thomas the master might go from thence to any port in the West Indies for a market, and after leaving that port might return, if such return were with the honest intent of finding a market, and might visit the islands in any order. Deblois v. Ocean Ins. Co., 16 Pick. 303. See also, Maxwell v. Robinson, 1 Johns. 333, where, however, the court said they did not mean to say that the same construction was to be given to a policy in any other trade than that to the West Indies.

In Smith v. Bates, cited 2 Johns. Cas. 299, the court said, that on a policy to a market in the West Indies, the vessel might go from market to market until the whole cargo was disposed of. And in Gaither v. Myrick, 9 Md. 118, it was held that the description "to Valparaiso and a market," would authorize the ship to visit ports other than that named.

embraced within a certain country, district, or coast. Under such a liberty all need not be visited. The insured is never bound to exercise a mere liberty, and the mere omission to do so, is never a deviation. It must be noticed, however, that although the voyage may thus be shortened by the omission of a terminus ad quem, it must not be by the omission of the terminus a quo, as by commencing the voyage at a point in the route at which the vessel had only liberty to stop.2

1 In Marsden v. Reid, 3 East, 572, goods were insured "at and from Liverpool to Palermo, Messina, Naples, and Leghorn, provided the French should not be at Leghorn." Intelligence having been received that the French were in possession of Leg'horn, the vessel took goods and cleared for Naples only, and was captured before arriving at the dividing point. It was held that the vessel had a right to go to Naples alone, and that the underwriters were liable. So, where insurance was effected on goods from Boston to Terceira and back to a port of discharge in the United States, a quarter per cent. to be added for every other port used in the Western Islands besides Terceira, and the vessel went immediately to Graciosa, one of the Western Islands, it was held not to be a deviation. Hale v. Mercantile Mar. Ins. Co., 6 Pick. 172. The rule has been laid down the same way in New York. Kane v. Columbian Ins. Co., 2 Johns. 264. The voyage in this case was from New York to Antigua, and at and from thence to Curaçoa. It was held that the vessel might go to Curaçoa, without going to Antigua, although she sailed on a voyage to the latter named port, and the intention to go to Curaçoa was formed while in a port of distress. So, in South Carolina, Cross v. Shutliffe, 2 Bay, 220, where the vessel was insured on a voyage from Charleston to Cape de Verd Islands, and from thence to the coast of Africa, it was held that the vessel might go directly to Africa, the evident intention of the parties being that the vessel should have liberty to stop at the Cape de Verd Islands, which liberty the master was not bound to exercise. And where a vessel was insured from St. Johns to Kingston, and a market in Jamaica, with orders to proceed to Jamaica, and when off the east end of that island, to proceed to Port Maria, if in season to fulfil a contract for the delivery of goods at that place, but otherwise to proceed to Kingston, and then go to Port Maria, it was held that the vessel might go directly to Port Maria, although these orders were not communicated to the underwriters. Houston v. New England Ins. Co., 5 Pick. 89. But in Marine Ins. Co. v. Stras, 1 Munf. 408, where insurance was made, "at and from Norfolk to Curaçoa, with liberty of going to any other island in the West Indies, or any other port on the Spanish Main, and at and from thence back to Richmond," it was held that the vessel was bound to proceed to Curaçoa first, and could not stop at St. Thomas and sail from thence home.

2 As where a ship and freight were insured "at and from Calcutta, with liberty to touch at Madras, for trade, and to take in a part of her cargo," beginning the said adventure "at and from Calcutta, and to endure until her arrival at New York," it was held that a voyage from Madras to New York, the vessel not having been at all at Calcutta, was not covered by the policy. Murray v. Columbian Ins. Co., 4 Johns. 443. In Maryland Ins. Co. v. Bossiere, 9 Gill & J. 121, insurance was effected on the return cargo of a vessel, at and from St. Andreas to Baltimore, with the liberty of two

If any or all of these ports are visited, they must be visited in their proper order. What this order is, it may not always be easy to determine by rules of law. We should say, however, first, that if the ports be named in the policy, they must be visited in the order in which they are named,1 unless the policy itself, the order of the enumeration, the character of the voyage, or other similar circumstances, show that this order was accidental, and not intended to prescribe the course of the voyage. Secondly, if the ports are not enumerated, or are mentioned in an order not intended to direct the course of the voyage, the ports entered must be visited in their geographical order.2 This generally means, but does not always or necessarily mean, the order in which they would stand on a map; but it may differ from this, for what is intended is, that order which is most consonant with, or conducive to the progress of the ship to its ultimate destination. This last, is the rule which in fact, enters into all the others. Thus, whether an island is to be included in a designation in the policy, is to be determined, not by the geography, but by commercial usage. And, generally, whatever be the words used, or however wide the liberty given, if there be a definite ultimate destination, this liberty must be construed and exercised in such a way as shall be, on the whole, reconcilable with the proper progress of the vessel towards that destination.5

other ports on the Spanish Main, and at and from any of them to Baltimore. In the order for insurance, mention was made that the vessel was reported as having sailed from San Blas for St. Andreas. The vessel had sailed from St. Andreas for Cordea and San Blas, and was proceeding from the latter place to St. Andreas, when she was lost. The court held that the risk had not commenced.

1 Thus, in Beatson v. Haworth, 6 T. R. 531, the policy was on the ship, "at and from Fisherrow to Gothenburgh, and back to Leith and Cockenzie." On the homeward voyage, the ship put into Cockenzie before going to Leith. The latter port was further from Gothenburgh than Cockenzie, but it was held to be a deviation to put into Cockenzie first.

2 See Clason v. Simmonds, cited 6 T. R. 533.

See Gairdner v. Senhouse, 3 Taunt. 16.

* Robertson v. Clarke, 1 Bing. 445, 8 Moore, 622; Robertson v. Money, Ryan & M. 75.

5 A very liberal construction was put upon the policy in Bragg v. Anderson, 4 Taunt. 229. The insurance was "at and from Martinique, and all or any of the West India islands to London, the ship to have liberty to proceed, sail to, and to touch and stay at any ports or places whatsoever." The ship sailed from Martinique to St. Domingo,

If such ultimate destination is not designated, then it seems that any permitted port may be visited in any order, for the purpose of obtaining instructions or orders which shall determine the final destination of the ship. In a late case, the voyage was from New York to Gibraltar, and at and from thence to Tarragona, with liberty of using one other port between Tarragona and Gibraltar, and at and thence to New York. By a subsequent indorsement, permission was given to stop at one other port between Tarragona and Gibraltar. The court held, that this latter clause gave the right to stop at one other port between the places mentioned, on the homeward voyage.2

which was much out of her direct course to London, took in her cargo at St. Domingo, and sailed thence for London. Sir James Mansfield, C. J., held this not to be a deviation.

1 Mellish v. Andrews, 16 East, 312, 2 M. & S. 27 ; s. c. Andrews v. Mellish, 5 Taunt. 496. The policy in this case, was from London to the ship's port or ports in the Baltic. It was held, that before the port of discharge was selected, the vessel was not confined to take the ports in a successive order, but might return to a port she had quitted for orders as to her port of discharge, and it was said, that after the port of discharge is selected, the ship must proceed direct, touching at ports only in a successive order. In Armet v. Innes, 4 J. B. Moore, 150, the policy was "at and from London to New South Wales, and from thence to the ship's loading port or ports in the East Indies and elsewhere, forwards and backwards, and backwards and forwards, as well on the other side, as at and on this side the Cape of Good Hope, in ports and at sea, at all times and in all places, on all services until her safe arrival at her port of discharge in Great Britain." It was also provided, that "it should be lawful for the yessel in the voyage insured, to proceed and sail to, and touch and stay at, any ports or places whatsoever and wheresoever and for any purpose whatsoever." The vessel went with convicts from London to New South Wales, thence in ballast to Batavia, where she took on board a quantity of iron in bars, which she discharged at Sourabaya and was there loaded with a full cargo of rice, with which she sailed for the Mauritius, where part was unloaded, and the vessel being injured, was broken up. Held to be no deviation, partly on the ground of the existence of a usage for vessels in voyages of that description to trade. See also, Ashley v. Pratt, 16 M. & W. 471, 1 Exch. 257.

2 Perkins v. Augusta Ins. and Banking Co., Sup. Jud. Ct. Mass., Nov. T. 1855.

SECTION V.

THAT A DEVIATION MUST BE VOLUNTARY.

Deviation applies only to a voluntary act. The very definition shows that any change which can be justified, or shown to proceed from a just cause, is not a deviation. And, of course, no act done under compulsion, can be regarded as a deviation.1 The change of risk, to operate as a "deviation," must be not only voluntary, but unnecessary; or rather, if it be necessary, it must be considered as compelled, rather than as voluntary. If, therefore, it be necessary to go out of the course for repairs, to obtain provisions, or for any such sufficient cause, it is no deviation;2

1 Winthrop v. Union Ins. Co., 2 Wash. C. C. 7. In this case, the vessel was put in the hands of the American consul at the Isle of France, on account of the death of her officers. The underwriters were held liable for acts done by the consul, which, had they been done by the owners or their agents, would have discharged them. So, where a vessel was carried out of her course and detained about six weeks by a cruiser, it was held to be no deviation. Scott v. Thompson, 4 B. & P. 181. In Phelps v. Auldjo, 2 Camp. 350, it was held that, where the master of a merchant vessel was ordered by a man-of-war, to go out to sea to examine a strange sail, and the master did so without remonstrance, this was a deviation, it not being proved that the master acted under any duress or compulsion. Lord Ellenborough, C. J., said it would have been otherwise, "If a degree of force was exercised towards him, which either physically he could not resist, or morally, as a good subject, he ought not to have resisted."

2 In Pouverin v. La. State M. & F. Ins. Co., 4 Rob. La. 234, it was held, that a vessel insured from New Orleans to Vera Cruz, might, on her way through Lake Borgne, touch at the Bay of St. Louis for a pilot to conduct her through Pass Christian.

When a vessel is damaged by a peril of the sea, she may go out of her course to refit. Motteux v. London Ass. Co., 1 Atk. 545; Gilbert v. Readshaw, Marsh. Ins. 208, nom. Guibert v. Readshaw, Park, Ins. 402; Coffin v. Newburyport Mar. Ins. Co., 9 Mass. 436, 447; Coles v. Marine Ins. Co., 3 Wash. C. C. 159; Akin v. Miss. M. & F. Ins. Co., 16 Mart. La. 661; Hall v. Franklin Ins. Co., 9 Pick. 466; Turner v. Protection Ins. Co., 25 Maine, 515. And if, after the risk has commenced, the vessel becomes so short of hands that the voyage cannot safely be performed, a deviation to obtain a crew is justifiable. Cruder v. Philadelphia Ins. Co., 2 Wash. C. C. 262. In this case, the vessel was at a port when the loss took place, but as no crew could be obtained there, a voyage to another port was held justifiable. See Cruder v. Penn. Ins. Co., 2 Wash. C. C. 339.. So, where the loss took place at sea. Winthrop v. Union Ins. Co., 2 Wash. C. C. 7.

Where a vessel is driven out of her course by stress of weather, of course, this is nò