in this country,' but we are not aware of any decision to that effect, and the point has been decided otherwise in Pennsylvania.2

Some questions have arisen as to the way in which such an average should be adjusted, but they must rest on the same principles which are applicable to the case of an adjustment under the fifty per cent. rule, and we will for the sake of convenience consider them together hereafter.

propose to consider them as the whole subject is so learnedly discussed in Ralli v. Janson. In a recent case, however, it has been held that the doctrine in Ralli v. Janson, applies only where the cargo is composed of the same kind of goods, and that where they are different, and a part is lost, this may be recovered, although the articles are not separately valued. Duff v. Mackenzie, 30 Law Times, 103, 20 Law Reporter, 701. Goods described as the "master's effects" were insured free from average, and many of the articles being lost, this action was brought for compensation, and the court held it could be maintained.

If an open policy is made on goods to be declared, it has been held that the insured cannot by a separate valuation of each package or bag in the indorsement create a separate insurance on each package or bag. Entwisle v. Ellis, 2 H. & N. 549. See ante, p. 34, n. 4.

1 In Kettell v. Alliance Ins. Co., Sup. Jud. Ct., Mass., March T. 1858, Shaw, C. J., speaking of the rule which allows a recovery for a total loss of part, said: "It is admissible only, we think, when goods of the same kind are separately invoiced and insured, or when insurance is made specifically upon bales, boxes, or other packages, valued and insured by the bale or package, or number of packages in parcels less than the whole."

2 Newlin v. Insurance Co., 20 Penn. State, 312. In this case insurance was effected on one hundred and four bales of cotton valued at fifty dollars per bale. There was a clause in the policy exempting the underwriters from partial loss under five per cent. Four bales were lost by the perils of the sea, and the insured claimed to recover on the ground that each bale being separately valued, the contract was to be considered as an insurance on each bale, but the court held that the defendants were not liable. Whatever the law may be where each parcel is separately valued, it is certain in this country, that, where this is not the case, there can be no total loss of part. Biays v. Chesapeake Ins. Co., 7 Cranch, 415; Wadsworth v. Pacific Ins. Co., 4 Wend. 33; Morean v. United States Ins. Co., 1 Wheat. 219; Humphreys v. Union Ins. Co., 3 Mason, 429; Waln v. Thompson, 9 S. & R. 115. In Brooke v. Louisiana State Ins. Co., 16 Mart. La. 640, the court held that where a number of mules were insured against total loss only, and some were lost, the insured could recover for these, but after a most able argument on a rehearing, 16 Mart. La. 681, they reversed their decision, in order to conform with the current of American cases, 17 Mart. La. 530.

CHAPTER VIII.

OF DEVIATION.

SECTION I.

WHAT IS MEANT BY DEVIATION.

THE basis upon which the contract of Insurance, and all the law regulating that contract, rests, is, that the insurers agree to indemnify the assured against certain perils, in consideration of a premium paid by the insured, and, that the contract may be fair between the parties and useful to the commercial public, it is obvious that this premium must be adequate, or in due proportion to the risks. This, however, is impossible, unless the risks can be to a certain extent known beforehand, and therefore estimated. For this purpose, the voyage, where the insurance is upon a voyage, must be distinctly stated; and its course and termini being known, the insurers may then judge of the risks to be encountered on that voyage. If, however, the insured is to be at liberty to vary the voyage at his own pleasure or convenience, it is plain that he may vary the risks in the same, and then that the estimate of the insurers must be of no use. It is, therefore, a perfectly well-established rule of law, that the vessel must not deviate from the proper course of the voyage. But the principle on which this prohibition rests, extends to all other things which enter as elements into the calculation which determines the amount of premium. The result of this is, that although the "deviation" of insurance originally meant, no doubt, only a departure from the course of the voyage, it is now always understood in the sense of any material departure from, or change in the risks insured against, without just cause.

Nor is it necessary, that the change in the risks, should be an increase of them; it is enough, that the parties have agreed that the insurers shall assure certain risks, and no others; and the insured have no right to substitute any others, in the place of those assumed, whether they be greater or smaller.1 For example, if goods are transshipped from one vessel to another, this is a change of risk, which discharges the insurers, without inquiry whether the new vessel be better or worse, than the old one.2 In practice, however, it is generally true, as the cases in our notes to this chapter will show, that a slight change, which does not increase the risk, is not considered a deviation.

1 In Maryland Ins. Co. v. Le Roy, 7 Cranch, 26, the vessel had liberty to touch at the Cape de Verd Islands for the purchase of stock, such as hogs, goats, and poultry, and taking in water. The judge in the court below instructed the jury, that the taking in four jackasses did not avoid the policy, unless the risk was thereby increased. The jury having found for the plaintiff, the judgment was reversed on account of the above ruling. Mr. Justice Johnson said: "The discharge of the underwriters from their liability in such cases depends, not upon any supposed increase of risk, but wholly on the departure of the insured from the contract of insurance. The consequences of such violation of the contract are immaterial to its legal effect, as it is, per se, a discharge of the underwriters, and the law attaches no importance to the degree, in cases of voluntary deviation." And Lord Mansfield, C. J., in a case where a ship had been turned into a factory-ship for the slave trade, said, in substance: The single point here is, whether there has not been what is equivalent to a deviation, whether the risk has not been varied? It is not material, whether or not the risk has been greater. If a ship insured for a trade, is turned into a floating warehouse, or a factory-ship, the risk is different, it varies the stay, for while she is used as a warehouse, no cargo is bought for her. Hartley v. Buggin, 3 Doug. 39. See also, Child v. Sun Mutual Ins. Co., 3 Sandf. 26. So, where a vessel, insured from Gibraltar to the United States, with liberty to proceed to the Cape de Verd Islands for salt, arrived at the Isle of May, and found that there were so many vessels waiting, that her turn to load would not come for several weeks, but the governor of the island proposed that the captain should make a voyage to two of the other islands for provisions, and should load immediately on his return. This was done, and the vessel was loaded sooner than would otherwise have been the case. The intermediate voyage was, nevertheless, held to be a deviation. Kettell v. Wiggin, 13 Mass. 68. See also, Robertson v. Col. Ins. Co., 8 Johns. 491.

2 Emerigon, c. 12, § 16, Meredith's Ed. 339; Bold v. Rotheram, 8 Q. B. 797. And in Winthrop v. Union Ins. Co., 2 Wash. C. C. 7, 20, where part of the cargo insured was taken out and sold under pretence that the ship was overladen, and a lighter cargo bought and put on board, Mr. Justice Washington said: "The changing of the cargo was sufficient to avoid the policy, if, under the circumstances of the case, it were imputable to the plaintiff. The reason is not, that the risk insured is increased, but that it is not the risk insured; and therefore it could be no excuse to say, that the load was lightened by the change. If a necessity exists to throw overboard, or to land a part of the cargo, the act of doing so may be excused, but in this case, there is no evidence of any necessity to lighten the vessel."

Nor is the question, whether such a change is a deviation or not, that is, whether it proceeded from a sufficient cause or not, to be judged of by the event. For this might show that no necessity really existed, although any prudent man would have believed at the time, that circumstances required or compelled the change that was made; or, it might make it evident, that an apparently slight cause for change, too feeble to be at all considered by any person of intelligence, did in fact, by means of the change which it produced, save the vessel from great but unknown dangers. The rule, therefore, is, that the necessity for the change, or the justification of it, must be judged of and determined by the circumstances of the case, as, at the very time, they came or could come before the consideration of the assured or his representative.1

There may be a deviation while the ship is in port; 2 and a deviation where the insurance is on time, no voyage being indicated:3· And it may be added, that as the reason of this rule

1 Byrne v. La. State Ins. Co., 19 Mart. La. 126; Gazzam v. Ohio Ins. Co., Wright, 202. And in Stewart v. Tenn. Mar. & F. Ins. Co., 1 Humph. 242, it was held, that though generally it would be a deviation to lash a flat-boat, descending the Mississippi laden with produce, to a steamboat to be towed, yet, if the flat-boat had been damaged by a collision, and the master, believing the danger to be imminent, should cause his boat to be taken in tow, although this enhanced the danger and contributed to the loss, yet if it was honestly intended by the master for the preservation of the boat, the underwriters were liable. The same principle was established in Gazzam v. Ohio Ins. Co., supra, where a steamboat, while being moved from a wharf to her landing place, by a line and yawl, steam not being up, was struck by a sudden flaw of wind and thrown upon some rocks. The court held, that if there was a usage in respect to the mode of moving a steamboat from one wharf to another, the master was bound to follow it, and a variation from it would be a deviation, but if there was no usage, and the master acted honestly in moving the boat in the manner described, it was no deviation, though other masters, of equal ability and fairness, stated that they would have acted differently under the same circumstances.

2 Gazzam v. Ohio Ins. Co., Wright, 202. See also, note supra. In -v. Westmore, 6 Esp. 109, the vessel was insured "during one month's remaining in Portsmouth harbor, securely moored." The vessel was moved twice. Lord Ellenborough held, that this did not change the risk. So, in Bell v. Western Mar. & F. Ins. Co., 5 Rob. La. 423, where the marshal of a court in which the vessel had been libelled, removed her from one side of the river to the other, and there kept her, the underwriters were held liable, there being no proof that the risk was at all increased.

3 See cases in the preceding note. In Stuart v. Columbian Ins. Co., 2 Cranch, C. C. 442, a vessel was insured for six months, and described in the policy as now bound on VOL. II.

24

applies to all navigation, so does the rule itself, and the law of deviation is in full force in reference to all river and lake navigation.1

SECTION II.

OF THE EFFECT OF A DEVIATION.

It is perfectly well settled, that any deviation whatever discharges the insurers from all further responsibility; leaving them, however, liable for any loss occurring before the deviation, and caused by a peril insured against. Nor are they discharged, if the change of risk is merely temporary, and when it ceases, all subsequent risks are precisely and certainly the same as they would have been had no deviation taken place. In this case, the effect of the deviation is only to suspend the responsibility of the insurers, and discharge them from any liability for a loss, which occurs during the existence of the deviation. But it is obvious, that there are very few changes of risks, that can be said to leave all the subsequent perils in precisely the same condition as if there had been no change; and this exception, therefore, is seldom applicable.3

a voyage from Georgetown to Madeira and a market, between Finisterre and Naples, with liberty, after the expiration of six months, to freight or trade for six months more," at an additional premium. Held, that the policy for the second six months, was on time only, and that the vessel had a right to go to Brazil during that time.

1 Hermann v. Western Mar. & F. Ins. Co., 13 La. 516; Gazzam v. Ohio Ins. Co., Wright, 202; Jolly v. Ohio Ins. Co., Wright, 539; Bell v. Western F. & M. Ins. Co., 5 Rob. La. 423; Natchez Ins. Co. v. Stanton, 2 Smedes & M. 340.

2 Hare v. Travis, 7 B. & C. 14; Richardson v. Maine F. & M. Ins. Co., 6 Mass. 102.

3 Mr. Justice Sedgwick, in delivering the opinion of the court, in Coffin v. Newburyport Mar. Ins. Co., 9 Mass. 436, 449, said: "It is undoubtedly true, that the shortness of the time, or the distance of a deviation, makes no difference as to its effect on the contract. Whether for one hour or one month, or for one mile or one hundred miles, the consequence is the same. If it be voluntary and without necessity, it puts an end to the contract." But it is obvious, that in some cases there may be a temporary deviation, which would exonerate the underwriters for loss during such deviation, but not for a subsequent loss. Thus, if a steamboat which makes regular trips between two