ure for the purpose of saving property is, under all circumstances, a deviation;1 perhaps for the reason that if the property be saved, the salvors may claim out of it a recompense by way of salvage, and in decreeing salvage an admiralty court may, and in practice always does, allow for the loss of insurance. A delay for the purpose of towing a vessel is certainly a deviation.2

If an entirely new voyage is undertaken, the old one being wholly abandoned, this is of course a deviation, and the widest deviation; although it is not often the case, that such undertaking of a new voyage could be so far justified by necessity, or by any circumstances, as would prevent it from being a deviation, and still hold the insurers.3

upon the whole evidence, that the plaintiff had failed to make out a case of necessity. So in Kettell v. Wiggin, 13 Mass. 68, where a vessel, insured from Gibraltar to the United States, with liberty to proceed to the Cape de Verd islands for salt, on arrival at the Isle of May, finding that there was a scarcity of provisions and water there, made an intermediate voyage to procure them, it was held to be a deviation. This was decided on the ground that the vessel should have been sufficiently provided at Gibraltar to have enabled her to stay and load at the Isle of May without depending on procuring provisions there. See Thomas v. Royal Exch. Ass. Co., 1 Price, 195.

1 Bond v. Brig Cora, 2 Wash. C. C. 80; Mason v. Ship Blaireau, 2 Cranch, 240 ; Warder v. Goods, etc., 1 Pet. Adm. 31.

2 Hermann v. Western M. & F. Ins. Co., 13 La. 516; Natchez Ins. Co. v. Stanton, 2 Smedes & M. 340.

3 In Winter v. Delaware Mut. Ins. Co., 30 Penn. State, 334, insurance was effected on a vessel and cargo from Baltimore to Portland in Oregon. The vessel put into Rio Janeiro in distress, and the only way in which she could be repaired was by funds raised on a bottomry bond payable in San Francisco. The ship sailed for this port, but was again obliged to put back to Rio Janeiro, where she was condemned and sold together with the cargo. It was contended that the deviation by sailing on the voyage to San Francisco discharged the underwriters. The court, per Lowrie, C. J., said: "It was certainly the duty of the master, under the circumstances, to provide for the transportation of the merchandise to its destination by the best means in his power, and so carried, it would still be under the protection of the insurance. If he could not send it by the direct route, he would be justified in sending it by another; or in taking it by another in his own vessel, if he could not get it repaired so as to go directly. So far then as relates to the merchandise, the accident, and the necessary terms of repairing it, justified the change of route by San Francisco." See post, p. 309,

n. 3.

SECTION VI.

OF INTENDED DEVIATION.

If before the policy attaches, the insured, acting in good faith and for sufficient reason, wholly abandons his intended voyage, and substitutes another, the insurers never assume, in fact, any risk, because no risk under their policy ever exists. They therefore, in commercial phrase, do not earn the premium, and it may be reclaimed by the insured.1 And if an entirely different voyage be intended, for any reason, the policy upon the voyage insured never attaches, although the ship is at the proper port, and sails from it at the proper time; for she never sails on that voyage. It is sometimes a little difficult to reconcile the cases which come under this rule, with those to which another rule is applicable, namely, that which declares that no intended change shall amount to a deviation, until the insured has at least begun to carry it into effect; for a mere intention is not an act; and an intention to deviate is not carried into effect, although something is done to forward it, unless that something is an actual change of risk. Thus, if a vessel not insured as a letter of marque, takes out letters and arms herself, it has been held, by some authorities, that this act does not discharge the insurers; 2 nor if she

1 See ante, ch. 5, sect. 2, p. 185.

2 In Denison v. Modigliani, 5 T. R. 580, the ship and cargo were insured from Liverpool to Oporto. After the policy was taken out, the insured asked permission to take guns on board, and to have a letter of marque. The latter was refused, but it was nevertheless taken out. The ship was taken without having used the letter in any way. The underwriters were discharged on the ground that the captain had "a strong temptation to deviate," and that this was "an essential alteration of circumstances from the condition of the vessel at the time of the insurance." It is to be observed, however, that permission to take the letter of marque was asked and refused, which was strong evidence of the intention of the parties. And this is evidently considered as the ground on which the case was decided, in Moss v. Byrom, 6 T. R. 379, by Lord Kenyon, C. J., who gave the opinion of the court in Denison v. Modigliani. In Moss v. Byrom, the letter of marque was taken with the view of inducing the seamen to ship, but as it did not have the necessary certificate, it was invalid, and the question presented in the case of Denison v. Modigliani, was not decided. There are some dicta in England on this subject, which clearly show that the mere taking a

defends herself; but it certainly becomes a deviation as soon as she chases, or even lays to, for the purpose of making a prize.1

letter of marque would not avoid the policy. Thus in Raine v. Bell, 9 East, 195, 201, Lawrence, J., said: "If an intention to deviate, not carried into effect, will not avoid a policy, still less can a temptation to deviate. If the doing of a thing do not alter the risk of the underwriter, and be not expressly prohibited to be done, I cannot say that it vitiates the policy as upon the breach of an implied condition." And Lord Ellenborough, C. J., in Jarratt v. Ward, 1 Camp. 263, 266, said: "I believe the general opinion now is, that a mere irritation of this sort shall not operate as a deviation."

In this country the authorities are in accordance with the view that the mere taking a letter of marque does not discharge the underwriters. Wiggin v. Amory, 13 Mass. 118, 14 Mass. 1, 10; Wiggin v. Boardman, 14 Mass. 12; Haven v. Holland, 2 Mason, 230.

1 One of the earliest cases on this subject is Cock v. Townson, Park, Ins. 396, where a vessel bound from Cork to Jamaica, cruised during the night in hopes of meeting with a prize. This was held to be a deviation. In Jolley v. Walker, Park, Ins. 396, "the ship was warranted to proceed on that voyage with sixty men, and equipped with twenty-two guns, eighteen and six pound shot, and sheathed with copper." The ship sailed with letters of marque, and was directed not to cruise, but to chase, take, and make prize of an enemy's ship, if one should be met in the direct course of the voyage. The question arose whether if an enemy's vessel was pursued and lost sight of, the chase could be kept. Lord Mansfield, C. J., left it upon the evidence to the jury, who found for the plaintiffs. In Parr v. Anderson, 6 East, 202, 2 Smith, 316, a vessel, insured "with or without letters of marque," saw a sail to leeward, altered her course a quarter of a point, and pursued the vessel about fifteen minutes, and then continued her voyage. At the first trial before the jury, Lord Ellenborough was of the opinion, "that the mere liberty to carry a letter of marque, would not justify such a deviation; nor give the assured a liberty of engrafting on a commercial adventure, an adventure for hostile capture." His lordship then added: "But if it were for the purpose of defence which might happen in various ways, as by making a show of confidence in the face of an enemy with a view to deter them from an attack; or if that could not be accomplished, with a view to obtain some advantage in the conflict, or the like," the verdict should be for the plaintiff. The jury having found a verdict for the defendant, a rule nisi was obtained, and the case argued before the King's Bench, and sent back to a jury to ascertain the usage of trade if any in similar cases. The case of Jolley v. Walker, was distinguished on the ground that it contained no liberty to take letters of marque, and that the warranty in regard to the number of men and guns, showed that the intention was to use the vessel as a private ship of war. Of the further progress of the case of Parr v. Anderson, we have only a brief note by Mr. Park, as follows: "This case came on to be tried again before Lord Ellenborough, and a special jury. From my memory of what passed, having been one of the counsel in it, aided by a note which I have seen, his lordship was strongly of opinion on the evidence, that this vessel had cruized, which of course, if the jury so thought, would put an end to the question. The jury found for the defendant; and I have no doubt upon that ground, from the evidence of the plaintiff's own witnesses." Park, Ins. 398. But this seems to confine the use to which a letter of marque may be put, within rather narrow limits. In Hooe v. Mason, 1 Wash. Va. 207, it was held that a merchant vessel with a letter of marque, was not obliged to act merely on the defensive, but might attack and chase an

If the owner of a vessel, insured at Boston on a voyage from Boston to New Orleans, changes his mind after the insurance is

enemy in sight, but could not cruise out of her course to look for prizes. And Mr. Justice Jackson, in Wiggin v. Amory, 13 Mass. 118, 127, said: "The only material difference between a privateer and a ship sailing under a letter of marque, is the use to be made of their commissions. The one intends to cruise in search of prizes, and the other intends to attack and take only what may fall in her way."

In Wiggin v. Amory, 13 Mass. 118, it was held that the capture of a vessel, although the vessel did not go off of her course, but merely delayed for a few hours, was a deviation, the underwriters not knowing that a letter of marque was taken. In Wiggin v. Boardman, 14 Mass. 12, the facts were the same, except that the jury found that the defendant knew before he subscribed the policy that the ship was armed and equipped, and commissioned as a letter of marque. The court said: "The knowledge that a vessel is armed, and has a commission, does not necessarily carry with it an assent that the vessel shall do any thing, which may cause a delay of her voyage, or that her commission shall be used, except for defence. It may be that she is armed only for the purpose of defence, and that her commission is to be used only to justify the attack of such vessels as may come in her way; and possibly the capture of such vessels, if that can be done without delaying the voyage." The underwriters were therefore held not to be liable.

In Haven v. Holland, 2 Mason, 230, which was an action on a policy of insurance upon merchandise on board the same vessel, the Volant, Story, J., instructed the jury that if, when the Volant wore round to attack the other vessel, "it was for the purpose of self-defence, to intimidate the enemy, and to repel a meditated attack, before the Volant should herself be disabled," the act was not a deviation, but otherwise, if it was done without any view to self-defence, and for the mere purpose of making a prize. He also ruled that if the capture was made in self-defence, the master had a right to take possession of the prize, and man it, if he could do so without injuriously weakening his own crew. In regard to what would be an act of self-defence, the learned judge said: "If a vessel, supposed to be an enemy's cruiser, be in sight, and apparently intend an attack upon a merchant vessel, the master of the latter is bound to exercise his best skill and judgment as to the time and mode of his defence, and if he act honestly and fairly, he will be justified, whatever may be the event. He is not bound to endeavor to make his escape in the first instance, and on failure of this, to meet the enemy; nor is he bound to lay by or fly until an attack is commenced upon him, and he has received injury, and then, and not before, to exert his right of self-defence. The law vests him with a large discretion for the benefit of all concerned. He is to consult the safety of the persons and property on board, in the best manner he can. He may lay to, or chase the enemy's ship, if he deem that the most effectual means of securing his object. It may be his best course to begin the attack, and to attempt to cripple the enemy, or to encourage his own crew by commencing a chase, or to intimidate the enemy by laying to, and showing a determination to resist any attack." Mr. Phillips mentions a subsequent suit between a shipper of goods and the owners of the vessel, in which it appeared "that the taking possession of the captured vessel was a defensive measure, for the purpose of preventing intelligence of the course of The Volant to British cruisers, whereby she might have been exposed to capture." It was accordingly held not to be a deviation. Gray v. Thorndike, Sup. Jud. Ct., Mass. Suffolk, Nov. T. 1817. 1 Phillips, Ins. § 1030. We have

effected, and the vessel sails from Boston for Liverpool, this is no deviation, because the policy never attaches. The voyage insured against never begins, although it is true that until the vessel leaves Boston harbor and passes the lower light, her route may be the same for both voyages.1 But if a vessel, after being insured on such a voyage, receives goods on board to be left at Savannah on her way to New Orleans, and sails with this intention, it seems that it would be a sailing upon the voyage to New Orleans, with an intention to deviate from it as soon as the vessel reached that point, at which a vessel bound for Savannah would bear away for that port. The policy would therefore attach; and until the vessel actually changed her course there would be 'no deviation, and the insurers would be liable for a loss occurring while the vessel was on the route which she would have pursued had she been bound to New Orleans alone, but not for a loss which happened after she had entered upon a course which she takes only because she is bound to Savannah.2

examined the records of the court, but have been unable to find on what precise grounds the verdict of the jury was rendered. If a vessel on a fishing voyage has liberty to chase, capture, and man prizes, she cannot lie nine days off a port waiting for an enemy's ship to come out, although she should be during that time within the limits of her fishing-ground. Hibbert v. Halliday, 2 Taunt. 428. If liberty is given to see a prize into port, the ship will not be authorized to remain in port, while the prize is undergoing repair. Jarratt v. Ward, 1 Camp. 263. If a vessel has liberty to cruise and capture, she may convoy her prizes, if she does not go out of her course for that purpose, and the risk is not increased thereby. Ward v. Wood, 13 Mass. 539. But if the vessel shortens sail, or lays to in order to let the prize keep up with her, this is a deviation. Lawrence v. Sydebotham, 6 East, 45.

1 Wooldrige v. Boydell, 1 Doug. 16; Tasker v. Cunninghame, 1 Bligh, 87; Way v. Modigliani, 2 T. R. 30. In Forbes v. Church, 3 Johns. Cas. 159, a cargo was insured from New York to Andero. The vessel cleared for Hamburg, but on the way she altered her course with the intention of proceeding to St. Andero, and going thence to Hamburg at a more favorable season, but was captured on the way. Held, that the voyage insured had never commenced. See Bain v. Kippen, Millar, Ins. 445, and cases in note infra.

2 Foster v. Wilmer, 2 Stra. 1249; Carter v. Royal Exch. Ass. Co., id.; Thellusson v. Fergusson, 1 Doug. 361; Kewley v. Ryan, 2 H. Bl. 343; Hare v. Travis, 7 B. & C. 14; Marine Ins. Co. v. Tucker, 3 Cranch, 357; Thompson v. Alsop, 1 Root, 64; Henshaw v. Marine Ins. Co., 2 Caines, 274; Hobart v. Norton, 8 Pick. 159; Winter v. Delaware Mut. Ins. Co., 30 Penn. State, 334.

In Heselton v. Allnutt, 1 M. & S. 46, insurance was effected at and from Heligoland to Memel, with liberty to touch at any ports whatsoever. The captain sailed with written orders to go to Gottenburgh, and there ascertain whether he should pro