ceeded on the voyage, she was guilty of a deviation which discharged the underwriters. Whenever such circumstances exist as render a deviation necessary', the voyage (which may then be termed a voyage of necessity,) must be pursued according to its due course in like manner as the original voyage. An intention to deviate from the due course, not carried into execution", will not be considered as a deviation. Where goods were insured from Heligoland to Memel, with liberty to touch at any ports, and to seek, join, and exchange convoy, warranted free from capture in the port of Memel, and the ship sailed from Heligoland with orders to go to Gottenburgh to know whether to proceed to Anholt or Memel, and was captured in her way to Gottenburgh, which is in the track either to Anholt or Memel: it was holden", that this was to be considered as a voyage to Memel, although it was subject to be changed according to circumstances upon the ship's arrival at Gottenburgh; and therefore the risk commenced on her leaving Heligoland; and the ship never having reached Gottenburgh, the purpose of going thither for orders was merely an intention to deviate, which did not vacate the policy; neither was it a restraint on the captain's judgment as to the place of seeking convoy, it not appearing that he could have met with convoy before the capture; and consequently the underwriter was liable. Policy of assurance on goods at and from London to the ship's discharging port or ports in the Baltic, with liberty to touch at any port or ports for orders or any other purpose, and to touch and stay at any ports or places whatsoever and wheresoever: it was holden, that the ship having touched at C. for orders and gone on to S., a more distant port, for further orders, and having received orders at S., because it was unsafe to land there, to return to C. and wait for orders, might so return to C. without being guilty of a deviation; it being found that she went to S. for orders in the prosecution of her voyage; and returned to C. to obtain orders as to the further progress of the voyage, and no fraud being found.

So where the policy was "at and from Singapore, Penang, Malacca, and Batavia, all or any, to the ship's port of discharge in Europe, with leave to touch, stay and trade, at all or any ports or places whatsoever and wheresoever in the East

1 Lavabre v. Wilson, Doug. 284.
m Foster v. Wilmer, Str. 1249. Thellus-
son v. Fergusson, Doug. 361. Kew-
ley v. Ryan, 2 H. Bl. 343.

n Heselton v. Alnutt, 1 M. and S. 46. o Mellish v. Andrews, 2 M. and S. 27.

Indies, Persia, or elsewhere, &c. upon goods in certain ships, beginning the adventure from the loading thereof aboard the said ships: the ship took in part of her cargo at Batavia, and then went to Sourabaya, another port in the East Indies, (not in the course of a voyage from Batavia to Europe, and not mentioned by name in the policy,) and took in other goods, then returned to Batavia, whence she afterwards sailed to Europe and was lost by perils of the seas; it was holden P. that Sourabaya being a place in the East Indies might be considered as a loading port or terminus a quo within the meaning of the policy; and consequently that the going there was not a deviation and the goods there taken on board were protected.

In a policy on ship and freight, it is not an implied condition that the ship shall not trade in the course of her voyage, if that may be done without deviation or delay, or otherwise increasing the risk of the underwriters. Hence, where a ship was compelled in the course of her voyage to enter a port, for the purpose of obtaining a necessary stock of provisions, which she could not obtain before in the usual course, by reason of a scarcity at her loading ports, and during her justifiable stay in the port so entered for that purpose, she took on board bullion for freight, the jury having found that no delay in the voyage was occasioned thereby, it was holden, not to avoid the policy. So where a ship had liberty to touch at a port, it was holden', not to be any deviation to take in a quantity of salt during her stay there, the ship not having thereby exceeded the period allowed for her remaining there. N. In this case a

communication had been made to the underwriter that the ship was to touch for the purpose of trade. It seems, however, that the words "liberty to touch" will not authorize a general tradings. See further on this subject Phelps v. Auldjo, 2 Campb. 350. Assumpsit on a policy on freight of a ship at and from Grenada to London. It was proved that there is only one custom-house for the whole island of Grenada, that the vesel arrived in safety at Grenada, and discharged parts of her outward cargo at three different bays, and she was proceeding to a fourth to discharge the residue of her outward cargo, and take in part of her homeward cargo, when she was lost by perils of the sea: it was holdent,

r Urquhart v. Barnard, 1 Taunt. 450. s Per Sir J. Mansfield, S. C. 1 Taunt, 456.

p Hunter v. Leathley, 10 B. & C. 858. Affirmed on error, 7 Bingh. 517. q Raine v. Bell, 9 East, 195. recognised in Laroche v. Oswin, 12 East, t Warre v. Miller, (in error) 4 B. & C.

131.

538.

that the vessel, at the time of the loss, was proceeding to this fourth bay for a purpose connected with the voyage insured, and, consequently, that it was not a deviation.

2. Seaworthiness.-In every marine insurance, whether on ship or goods, there is an implied warranty, that the ship is seaworthy at the commencement of the risk, or in the language of the charter-party, tight, staunch, and strong. Any defect, which may endanger the ship, though unknown to the assured, will discharge the underwriter; for it is the duty of the assured to provide a good ship in such state and condition as to be able to perform the destined voyage, i. e. seaworthy. As to any decay to which the loss of the ship may be attributed, the question will be, whether the same commenced previously to or after the insurance made. If a ship, in a short time after having sailed, become leaky, and founders, or is obliged to return to port, there not having been any storm, external accident, or cause adequate to the producing such effect, it may be presumed that she was not, at the time of sailing, seaworthy: but the conclusion, in all cases of this kind, is to be drawn by the jury, to whom the several circumstances are to be submitted. If a ship be insured at and from a port, although in want of repairs, she is protected by the policy, whilst in the port. The condition that she shall be seaworthy for the voyage, does not attach until her sailing". Where a ship is insured at and from a foreign port, it is necessary that she should have once been at the place in good safety; for if she arrives at the outward port so shattered as to be a mere wreck, a policy on the homeward voyage never attaches.

In Franco v. Natusch, 1 Tyrw. & Gr. 401. where, in an action on a policy, the loss was alleged to be by perils of the sea, and the defendant pleaded, that the ship at the commencement of the risk was unseaworthy; Parke, B. observed that it had been laid down in Parker v. Potts, 3 Dow. 23, that it must be taken prima facie that a ship is seaworthy at the commencement of the risk; but that if, soon after her sailing, it appears that she is not sound or fit for sea, without adequate cause of stress of weather, &c. to account for it, the rational inference is, that notwithstanding appearances she was not seaworthy when the voyage commenced.

By the new rules, which see ante, p. 122, 3, unseaworthiness, misrepresentation, concealment, deviation, and various other defences must be pleaded. And semble, that the buru Annen v. Woodman, 3 Taunt, 299. x Parmeter v. Cousins, 2 Campb. 235.

See

then of proving unseaworthiness lies on the defendant. the opinion of Baron Parke, in the foregoing case of Franco v. Natusch.

It is also an implied condition, that the ship insured shall be furnished with every article necessary for the purpose of safe navigation during her voyage, i. e. properly equipped with sails, a sufficient number of hands on board (50), an able captain, skilful pilots, and a crew of competent skilla. In an action on a policy of insurance on ship and goods from Stettin to London, in which the plaintiff declared upon a loss, by reason of the vessel sinking before she had been moored twenty-four hours, in consequence of an anchor having been driven into her; it appeared, that the captain had taken a pilot on board at Orfordness, on entering the river Thames, who quitted her at Half-way Reach; after which and before she had come to her moorings higher up the river, the accident happened which occasioned the loss, and in consequence of which the vessel filled with water, before she had been moored twenty-four hours; but the precise time at which the damage was sustained within those limits, or by what particular default, was not ascertained. The captain had also left the ship before the time of the actual loss. It was holden", that the underwriter was discharged; Lord Kenyon, C. J. observing, that in this case the captain did not perform his duty; for he had no pilot on board at the time when the accident happened; and it is one of the things implied in contracts of this kind, that there shall be some person on board the ship apparently qualified to navigate her. If the underwriters had been previously informed, that there would be no pilot on board during the ship's sailing up the river Thames, pro

z Wedderburn v. Bell, 1 Camph. 1.
a Per Lord Tenterden, C. J. in Shore v.
Bentall, 7 B. and C. 798. n.

b Law v. Hollingsworth, 7 T. R. 160.

(50) In Hunter v. Potts, London Sittings after Trin. T. 45 G. 3. Lord Ellenborough, C. J. said, that the vessel must not only be seaworthy, but the crew must be adequate to discharge the ordinary duties, and to meet the usual dangers to which she is exposed, "Underwriters are responsible for the misconduct or negligence of the captain and crew; but the owner, as a condition precedent, is bound to provide a crew of competent skill." Per Lord Tenterden, C. J., Shore v. Bentall, 7 B. and C. 798, n. If the captain of a vessel, about to enter a foreign harbour, uses due diligence to obtain a pilot and fails, and then in the exercise of a fair discretion attempts to enter, and the vessel is lost, the underwriter is responsible for the loss. Phillips v. Headlam, 2 B. & Ad. 380.

bably they would not have undertaken the risk. On the ground, therefore, that there was no pilot on board the vessel when the accident happened, he was of opinion that the underwriter was discharged (51).

When the assured have once provided a sufficient crew, the negligent absence of all the crew, at the time of the loss, is note any breach of the implied warranty that the ship shall be properly manned.

Where a vessel, engaged in the southern whale and seal fishery, and with liberty to chase and capture prizes, was insured in August, 1807, with a retrospect to the 1st of August, 1806, although at the time of her insurance she was not competent to pursue all the purposes of her voyage, her crew being reduced by death and casualties; yet if she had a competent force to pursue any part of her adventure, and could be safely navigated home, she is to be deemed seaworthyd.

c Busk v. R. Exch. Ass. 2 B. and A. 73. d Hucks v. Thornton, Holt's N. P. C. 30. C. B. Gibbs, C. J.

(51) Another question was agitated, viz. Whether the defendant would have been answerable, if there had been a pilot on board, whom the captain believed to be of sufficient skill, but who was not duly qualified under stat. 5 G. 2. c. 20, The court declined giving an opinion, as in the case before them no pilot was on board. Pilotage from Dover, Deal, and the Isle of Thanet, up the rivers Thames and Medway, is regulated by statutes 3 Geo. 1. c. 13. 7 G. 1. c. 21. and 43 Geo. 3. c. 152. Pilotage down the Thames, and through the North Channel, to or by Orfordness, and round the Long SandHead into the Downs, and down the South Channel into the Downs, and from or by Orfordness up the North Channel and the Thames and Medway, by stat. 5 Geo. 2. c. 20.; and pilotage into or out of the port of Liverpool, by stat. 37 Geo. 3. c. 78. See also modern regulations as to pilots in later statutes, 47 Geo. 3. sess. 2. c. 70. Local, 48 Geo. 3. c. 104, continued and amended by 52 Geo. 3. c. 87. 6 Geo. 4. c. 125. This statute will be found in the Appendix to the 5th edition of the Law relative to Merchant Ships, published by Mr. J. H. Abbott, p. 530 to 572. The 6th section, which enacts that it shall be lawful for the Trinity House of Hull and Newcastle to appoint sub-commissioners of pilotage to examine and license pilots, is permissive and not imperative. Beilby, q. t. v. Raper, 3 B. & Ad. 284. The 6 Geo. 4. c. 125, has been amended by 9 Geo. 4, c. 86.