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MA. Ix. Co.
OP ALEXAN-

DRIA
V.

TUCKER.

We admit the intention to deviate after entering the Chesapeake, but we insist that the voyage and`risk insured had commenced; and that the vessel was in the J. AND JH. actual prosecution of that voyage when the loss happened. In such a case, although there was an intention to deviate, the insured had a right to abandon. Park, 314. Str. 1249, Foster v. Wilmer. Burns on Insurance, 107. 2 H. Bl. 343, Kewley v. Ryan. 2 New-York Term Rep. 274, Henshaw v. Marine Insurance Company.

In the case of Wooldridge v. Boydell, there was no intention of going at all to the place mentioned in the policy.

The only point in the case of Stitt v. Wardell, 2 Esp. Rep. 610, is the difference between touching and trading at a port. In that case there was an actual trading, but here was only an intention to trade.

In Beatson v. Haworth, 6 T. R. 531, the decision was merely that if the voyage described be to B and C, the vessel deviates by going to C first, and afterwards to B, although C be the nearest port.

In Way v. Modigliani, 2 T. R. 30, the real ground of the opinion of the court is, an actual deviation by the vessel having sailed for and stopped to fish on the Banks, instead of sailing directly from Newfoundland to England.

The opinion of Roccus, cited in a note to Marshall, 406, is contradicted by that of Emerigon, also cited in the same note-and the latter seems to be the better opinion.

If the alteration of the voyage takes place before the risk is commenced, it becomes a different voyage; but if after, then it is only a deviation. Millar, 117.

In the present case, the risk commenced at Jamaica, and before the alteration of the voyage was contemplated.

oF ALEXAN

It was to terminate at Alexandria. When the termi- MA. Ix. Co. nus a quo, and the terminus ad quem, are the same, the voyage is the same.

2. The loss itself, was, in fact, total, and unless the insured have been in fault, they ought to recover for a total loss.

The loss of the register alone was sufficient to defeat the whole voyage, and if the vessel had sailed without it, and had been lost, the underwriters would have been discharged by that very fact of the vessel sailing with out proper documents. It would so increase the risk of loss by seizure and condemnation, as to vacate the policy. If she had been found sailing without a register, she would have been considered by the British laws as an alien vessel, and if found trading from a British colony, would have been liable to condemnation. Reeve on Ship. 46, 379, 429. Bryan & Co. were not the general agents of the defendants in error. Their authority ceased when the vessel was dispatched and had sailed from Jamaica for Alexandria. They were not authorised to sacrifice the property of the insured in their hands, if they had any, to raise money to pay the salvage and expenses. It is true, the master had an implied authority to do what was fit and proper for the benefit of all concerned; but he was not authorised to send out the vessel without a register, and she could never get a new one unless her owners (the insured) should change their domicil. No document could supply the place of that which itself never could have been obtained, and to which the party was not entitled.

The exception is to the refusal of the court to give the instruction prayed. This instruction would have been'improper for two reasons.

1. It would have been conclusive of the whole cause, and no such instruction can be given, unless all the evidence is stated, and unless the bill of exceptions avers it to be the whole evidence. This bill of exceptions does not contain the whole evidence, nor such an

averment.

DRIA

V.

J. AND J. H.
TUCHER.

MA. IN. Co.

DRIA

V.

2. The instruction prayed involves the decision of OF ALEXAN- a fact, which the jury only were competent to find, viz. whether the damage amounted to more than half J. AND J.. H. the value of the thing insured. Mills v. Fletcher, Doug. 230. This fact is not stated in the bill of exceptions, nor any other fact from which the court can infer it. It contains no evidence that the master had funds to pay the salvage and charges.

TUCKER.

The evidence shows the 'loss to be actually total. The information of the capture, recapture, libel for salvage, and sale to a stranger, all came to the insured at the same time; and there is no evidence of fraud or collusion. The only allegation is, that the master did not do every thing in his power to prevent a total loss. But this allegation is unsupported by evidence. Even' if, by a sacrifice of the cargo, he had raised money enough to pay the salvage, expenses, costs, charges and repairs, he must have obtained a new crew, and then could not have sailed without a register.

The voyage was completely destroyed; and, upon an abandonment, which the insured had a right to make, relief would have been refused to the underwri ters, even in equity. 3 Atk. 195, Pringle v. Hartley. Marshall, 485.

C. Lee, in reply. There are two bills of exceptions to the opinion of the court.

1st. To the instruction given in favour of the plaintiff below, that there was no deviation from the voyage insured, and that the voyage insured was actually commenced.

2d. To the refusal of the court to instruct the jury. that if the facts stated in that bill of exceptions, should be proved to their satisfaction, they ought not to find a verdict for a total, but at most for a partial loss.

1. The voyage insured was a direct voyage from Kingston in Jamaica, to Alexandria in Virginia. But the voyage commenced was a voyage from Kingston to Baltimore, and from thence to Alexandria. Baltimore

OF ALEXAN

DRIA

V.

TUCKER.

not being in the direct course from Kingston to Alex- MA. Ix. Co. andria, the voyage commenced was not a direct voyage from Kingston to Alexandria, and, therefore, was not the voyage insured. There can be no necessity of re- J. AND J. H. ferring to authorities to show that, in a policy, a voyage from one place to another, always means a direct voyage in the usual course; because, upon this principle is founded the whole doctrine of deviation. But the cases of Beatson v. Haworth, 6 T. R. 531. Delaney v. Stoddert, 1 T. R. 22, and Middlewood v. Blakes, 7 T. R. 162, show with what strictness it has been maintained.

If the direct voyage was not commenced, the commencement of an indirect, circuitous voyage, will avail nothing. The voyage insured was not commenced, Doug. 16, Wooldridge v. Boydell. 2 T. R. 30, Way v. Modigliani. Even if the risk is diminished by the circuitous course, it is not a justification of the voyage, and will not support the policy. Millar, 377, 382.

The case of Kewley v. Ryan, 2 H. Bl. 343, is relied upon by the defendants in error. But the law of that case is doubted by Marshall, 232, who refers to the case of Stott v. Vaughan, decided in the king's bench, in 1794, and is opposed to the case of Wooldridge v. Boydell.

Kewley v. Ryan differs essentially from the present case. The intention in the former was only to touch at Cork, in the way to Liverpool. Whether Cork is not usually touched at in such voyages, does not appear; but no cargo was on board to be delivered at Cork. The only port of delivery was Liverpool.

In the present case, a considerable cargo was received on freight, deliverable at Baltimore. The intention, therefore, was not merely to touch, but to trade at Baltimore. It was one of the principal objects of the voyage. To touch at a port, differs essentially from delivering a cargo, and trading at a port. 2 N. Y. Term Rep. Williams v. Smith, refers to Stitt v. Wardell, decided by Lord Kenyon, in 1797, Marshall, 187. After clearing for Alexandria, to receive a cargo fo.

MA IN. Co. Baltimore, to be delivered there for trade, and to sail OF ALEXAN- with intention to go to Baltimore first, was a complete alteration of the voyage insured.

DRIA.

V.

AND J. H. TUCKER.

The opinion in Kewley v. Ryan, if understood rightly, does not decide this case against the underwriters. The court says, "where the termini of the intended voyage are really the same as those described in the policy, it is to be considered as the same voyage."

The word termini does not mean mercly the beginning and end of a thing, but all the limits; and, in regard to a voyage, it means also the intermediate ports of delivery for any part of the cargo.

In the present case the policy expresses but one port of delivery, the voyage commenced was to two; one of which was out of the course to that mentioned in the policy.

The case of Way v. Modigliani, was not decided on the ground of deviation, but expressly on the ground of non-inception. Upon this point, the opinion of Buller, J. is full.

Wooldridge v. Boydell was not decided on the fact, that there was no intention of sailing to the port mentioned in the policy, but upon the fact that the vessel had actually sailed for a different port.

The weight of the case of Kewley v. Ryan, therefore, is diminished.

1. Because it stands contradicted.

2. It differs essentially from the case before the court, and is not decisive.

3. It may be reconciled with the doctrine advanced in this case by the plaintiffs in error, and, if so understood, is in their favour.

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