Lawrence v. Ocean Insurance

Thompson, Ch. J.

delivered the opinion óf the court. The Insurance in this case is upon the cargo of the ship Atlantic, on a voyage, as described in the policy, at and from Nerv-YorTe to Gottenburgh, and at and from thence to one port in the Baltic„ On the arrival at Gottenburgh, the assured elected St. Peters» burgh as the ultimate port of destination, and sailed for the same; but meeting with adverse winds, was obliged to put into Carlsham, where the vessel was compelled to winter; and before leaving that place, it was determined by the supercargo to go to Stoc7c~ holm, instead of Petersburgh ; and the principal question in the cause is, whether this was a substitution of a new voyage so as to discharge the underwriters.

There were, however, several questions raised in the course of the trial, which may require some notice.

The objection to the sufficiency of the preliminary proofs was properly overruled. The usual and customary documents accompanied with an affidavit, showing the interest of the assured, were exhibited to the underwriters, together with a eopy of a letter from the master of the Atlantic, received from Messrs. Parish <?- Co., and which was the only evidence sf loss in their possession; and this was all that could be re» *260 quired. The clause in the policy malting preliminary proof necessary, before payment of the loss can be demanded, requires only reasonable information to be given to the underwriters, so that they may be able to form some estimate of their fights and duties, before they are obliged to pay; this clause has always been liberally expounded, and is construed to require only the best evidence of the fact which the party possesses at the time. Such has been the uniform construction put upon it by this court. (2 Johns. Rep. 136. 8 Johns. Rep. 317.) The question of seaworthiness was properly submitted to the jury, and the verdict does not appear to be so much against evidence as to justify the setting it aside on that ground.

The objection to the reading certain letters from the correspondence produced by the plaintiff was properly overruled. These letters were drawn out from the plaintiff under a rule of court obtained on the application of the defendants, and which required the plaintiff to produce, under oath, all letters in his possession, or under his control, which related to, or concerned, the ship, or in respect to the voyage in the declaration mentioned. This was analogous to an answer in chancery; and it is an invariable rule that, where an answer is given in evidence in a court of law, the party is entitled to have the whole of his an-.. swer read. It is to be received as prima facie evidence of the'-'-J facts stated in it; open, however, to be rebutted by the oppo- -" site party. (Peake’s Ev. 85-~37. 2 Esp. N. P. 21.)

Whether there was an unnecessary delay at Goltenburgh, (a) and whether the Atlantic sailed from thence under the protection of a British convoy, were questions properly submitted to the jury, and their verdict is fully warranted by the evidence in the case.

These are all the questions made upon the argument, except that wljich relates to the change of voyage, which I am now to notice.

*261 tllf It is necessary, in order to arrive at a correct conclusion on this question, to ascertain, in the first place, what is the voyage described in the policy. It is a voyage from New-York to Gottenburgh, and at and from thence to one port in the Baltic. The terminus ad quern is left open, and to be filled up at the election of the assured. The assured were certainly not bound to make this election before leaving New-York. The Atlantic, therefore, sailed on the voyage insured, and was under the policy, at all events, until her arrival at Carlsham. It is unnecessary to say at what time the assured were bound to make this election of the ultimate port of destination. The election, in fact, xvas made at Gottenburgh, and the assured were bound by that election. (3 Com. Dig. 614.) We must, therefore, consider the policy as if St. Petersburgh had been inserted; and it is to be regarded one entire voyage, commencing at New-York and terminating at such port in the Baltic as the assured should elect. There is nothing in the case to xvarrant us in considering the policy as upon txvo distinct voyages; the one from New-York to Gottenburgh, and the other from thence to a port of discharge. There is one entire risk for one entire premium; but the result in the case xvould be the same whether the voyage is considered in the one light or the other.

Assuming, then, the voyage described in the policy to be from New-York to St. Petersburgh, how or where has that voyage been changed, or another substituted, and on which the Atlantic was, in fact, sailing ? In all the cases on this subject which have fallen under my observation, the termini of the voyage have been described in the policy; and, generally, the question has been as to the effect of an intention to go to some intermediate port, out of the usual course of the voyage, intending, however, ultimately to go to the terminus ad quern mentioned in the policy. The rule seems to be well settled, both in England and this court, that where the termini of the voyage described in the policy, and of the intended voyage, remain the same, that any designed deviation, whether formed before or after the commencement of the voyage, would not vitiate the policy. ( 1 Johns. Cas. 184 . 2 Caines’ Rep. 274. 3 Crunch, 384. 2 H. Bl. 343. Park, 316.)

The rule laid down by Millar, (389.) is, that if the alteration of the voyage takes place before the risk commences, it becomes a different voyage; but if alter, il is only a deviation. When *262 there is a substitution of a different voyage, the policy never attaches, and the assured is, of course, entitled to a return of premium. Did the risk in this case commence ? Of this there @ no doubt. The vessel was, unquestionably, on the voyage insured until she arrived at Gottenburgh; the policy, therefore, attached. There was an inception of the risk insured against, and there could be no return of premium, (Marsh. 230.)

Had the policy in this case been originally filled up with St. Petersburgh as the port of delivery, or had that port been elected as the terminus ad quern, before the Atlantic left Ncm-York, and afterwards, but previous to her sailing, the assured had changed the voyage to Stockholm instead of St. Petersburgh, this would have been substituting a new voyage; the risk would never have commenced, and there must have been a return of premium. It would then have been like the case of Wooldridge v. Boydell, (Doug. 16.)

The insurance there was from Maryland to Cadiz, but the whole evidence in the case showed that the voyage was for Falmouth, and that there was no intention whatever of going to Cadiz. The voyage described in the policy was, therefore, never commenced. Lord Mansfield told the jury, that if they thought the voyage intended was for Cadiz, they must find for the plaintiff but if they should think there was no design efl going to Cadiz, they must find for the defendant. , ™

There is, I am persuaded, no case to be found where a change of voyage, after the commencement of the one described in the policy, and after the policy has attached, has been held to be a substitution of a new voyage. If in such case the alteration actually takes place, it is a deviation which discharges the underwriter, and if not, it is only an intended deviation, which does not affect the policy. 3

I have thus far considered the case on the ground that the voyage insured is to be viewed as one entire voyage from NemYork to some one port in the Baltic, at the election of the assured ; and this, I think, is the true ground upon which it ought to be placed. But, as I have before said, the result will be the same if the voyages be considered distinct,

Suppose the policy had taken up the vessel at Gottenburgh, and described the voyage from thence to Petersburgh, the po? Mcy would have attached, and the risk commenced»

*263 The sailing from Gottenburgh was with an intention of going to at. Petersburgh, and it was not until alter her arrival at Carlsham that there was any change of intention, or a determination to go to Stockholm. The vessel was then on her direct coarse to St. Petersburgh, and continued on such course until her capture. There was, therefore, only an intended deviation In consequence of information received by the supercargo after leaving Gottenburgh,

The election of Si. Petersburgh as the port of discharge was made at Gottenburgh, and had the ship left Gottenburgh with a determination to go to Stockholm instead of St. Petersburgh, it. might have been a change of voyage; the policy would not io suen case have-attached, or the risk commenced. The terminus, ad quem would have been altered before the commencement oj the voyage, and the vessel would not have entered upon the voyage described in the policy.

It is, I believe, a position not to be controverted, that the legal effect of an alteration of the voyage upon the policy, is, that it never attaches. (3 Crunch, 388.) It would seem to follow, as a necessary conclusion, that when the policy does attach, any subsequent alteration of the voyage must be either a deviation or an intended deviation; and I think I have sufficiently shown, that, in the case before us the policy did attach-The cargo was clearly at the risk of the underwriters front P'ew- 1'ork to Gottenburgh, and Irom thence to Carlsham. J therefore entertain a strong and decided opinion, that the determination formed at l 'arlsham to go to Stockholm, instead of St. Petersburgh, was only an intended deviation, and that the lost having happened before the arrival of the vessel at the dividing point, the underwriters are responsible. The plaintiff is accordingly entitled to judgment.

Van Ness, J.

I cannot assent to the opinion of my brethren-We all agree that the assured, having elected, at Gottenburgh, to proceed to St. Petersburgh, he was not at liberty afterwards to change the final destination of the ship. This is the only point in the case upon which 1 have doubted ; but I am satisfied that, the weight of argument is on the side of the assured, and I shall proceed to consider this as an insurance on a voyage from Not York to Gottenburgh, and from thence to Si. Petersburgh. The question is¿ whether the setting sail from Carlsham for Stockholm,-, *264 and not for St. Petersburgh, was merely an intention to deviate, Qr wjiet]ier jt was an alteration of the original plan of the voyage, or a different voyage from that described in the policy; if the former, the assured are entitled to recover; if the latter, they are not.

The facts, in relation to this part of the case, are, that after this vessel had wintered at Carlskam, it was determined to abandon the voyage to St. Petersburgh, and go to Stockholm, for which latter place she actually sailed. The testimony of the captain, on this point, is clear and decisive. “ About the 2d of May, 1811, the navigation at Carlskam opened, and about that time the vessel sailed for Stockholm, the voyage to St. Peters- burgh having been given up." It appears, also, that when the vessel “ sailed in the spring for Stockholm, a clearance for that place had been obtained at Curlsham."

Considering the voyage insured, then, as being from New-York to Gottenburgh, and thence to St. Petersburgh, I had supposed, after the pause which had been made at Carlskam, in the prosecution of it, (though for a justifiable cause,) after the determination there formed of abandoning the port of destination and substituting a different port, and after procuring a clearance for such substituted port, and actually sailing from Curlsham, in pursuance of such determination, that the underwriters could never be called upon to pay for any subsequent loss. That this was not a mere unexecuted intention to deviate from the voyage insured, will, I think, appear from a brief review of some of the cases in which this branch of the law of insurance has been considered. In the case of Wooldridge v. Boydell, (Doug. 16.) Lord Mansfield says, “ a deviation merely intended, but never carried into effect, is as no deviation. In all the cases of that sort, the terminus a yuo and ad quem are certain and the same.” In the case of Kemley v. Ryan, (2 H. Bl. 343.) it is held, that “ where the termini of the intended voyage were really the same as those described in the policy, it was to be considered as the same voyage, and a design to deviate, not effected, would not vitiate the policy.” In Sylva v. Low, (1 Johns. Cases, 184.) the late chief justice of this court observed, that “ the courts 'have gone a considerable length towards giving us a precise and definite criterion by which we can test the identity of a voyage. While the terminus a quo and the terminus ad quem are the same *265 with the termini of the voyage described in the policy, the voyage intended and the voyage insured are the same, notwithstanding any proposed deviation, or touching at any intermediate port, out of the usual and direct course of the voyage.” The opinions of Lewis, Ch. J. and Radcliff, J. are to the same effect. The same language is held by the court, in the case of Henskaw v. Marine Insurance Company, (2 Caines' Rep. 274.) u The previous intention to touch at Halifax did not make it a different voyage, as the termini, as well as the substantial object of the-voyage described, were the same.” The like doctrine isBiaicRt own, with great force and precision, by three of the judges of the supreme court of the United States, in the case of the Marine Insurance Company of Alexandria v. Tucker. (3 Crunch, 384,) Washington, J. says, “ If the ship sail from the port mentioned in the policy, with an intention to go. to the port or ports also described in the policy, a determination to call at an intermediate port, either with a view to land a cargo, for orders, or the like, is not such a change of the voyage as to prevent the policy from attaching, but is merely a case of deviation, if the intention be carried into execution, or be persisted in after the vessel has arrived at the dividing point.”

From these cases, to which many more might be added, the following principles may be deduced:

1. That where the termini of the voyage are preserved, an. unexecuted intention to deviate does not destroy the policy;

2. That when the termini are abandoned, and a new or independent voyage is determined upon and commenced, from that moment the protection afforded by the policy ceases, and the underwriter is discharged;

3. That there is no such thing as a deviation in any case where the identity of the voyage is not preserved, because there cannot be a deviation from a voyage which the assured does not intend to perform.

The application of these principles to the present case will show, decisively, that the plaintiff cannot recover. The termini were not preserved; the port of delivery was totally abandoned, and a new port substituted, for which the ship actually sailed. It would be a departure from all correct rules of expression to say, here was an intention to deviate from the voyage to St. Re - fer sburgh, when all intention to perform such a voyage was im *266 conditionally renounced. It is supposed, however, that if a determination to abandon the terminus ad quern, and to end the voyage at another port, be made after the vessel has sailed upon the voyage insured, and a loss happens before she arrives at the point of divergency, this is not a change of voyage, but a mere intention to deviate; and I am aware that, in some cases, expressions may be found which countenance such an idea. It is necessary, therefore, to consider this part of the case a little more at large.

A deviation is a departure from the usual cours^of the voyage insured, without necessity. Where the identi^rof Sie voyage insured is preserved, and the assured, either before or after the ship sails, intends to perform it circuitously, by going out of the common iter, if a loss happen before the arrival at the point of separation, this is a mere intention to deviate; and, for this plain and obvious reason, the identity of the voyage insured is not deranged; neither the beginning, nor end, nor route, are altered; it is a mere act of the mind, a bare intent to proceed to the terminas ad quern, but, in some stage of the voyage, to depart from the ordinary route. In every case, however, (and I affirm it without exception,) where such an unexecuted intention has been held not to vitiate the policy, it will be found that the terminus ad quern, mentioned in the policy, was not abandoned, but that the vessel intended, ultimately, to proceed to it. In case a determination is formed to deviate, no matter whether before or after the voyage is commenced, provided the voyage insured is intended to be performed, the ship may be said to be upon her voyage, though not in the customary route; but with what propriety or reason can it be said, if the terminus ad quern is completely abandoned, a different port of destination adopted, and the vessel proceeds, in pursuance of such a change of plan and design, that she is pursuing the voyage insured ?

It so happens, in this case, (at least so is the evidence,) that the Atlantic was in the common route to St. Petersburgh and Stockholm when she was taken. . But, I would ask, was she on & voyage to St. Petersburgh of Stockholm ? Most certainly she was not prosecuting a voyage to both ports. I do not mean that she was not on a route common to both St. Petersburgh and Stockholm, as far as she had proceeded, but, I ask, on what voyage was she sailing ? She determined, while at Carlsham, not *267 fca go to St. Petcrsburgh ; she set sail from that place with the intention of going to Stockholm, and took a new clearance for that port, nor was it until many hours after she had been upon her new voyage that she was captured.

Whether the voyage insured has been abandoned is always a question of fact, and so it has often been decided. The fact that it was abandoned being once established, there is an end of the liability of the assured. Can there be a difference, in principle, at what time, in relation to the local position of the ship, this abandonment takes place ? In the case of Wooldridge v. Boydell, the insurance was at and from Maryland to Cadiz. It was clear, the voyage was never intended for Cadiz. The determination not to go to Cadiz was probably formed before the vessel sailed; she was taken, however, before she reached the dividing point. It was held, that the underwriters on the policy were not liable, and that it was not a case of mere intended deviation, but that the voyage intended was different from the voyage insured. Buller, J. observes, “ This is a question of fact; there cannot be a deviation from what never existed. The weight of evidence is, that the voyage was never designed for Cadiz.” The inquiry was not, when or where was the voyage insured given up; but was it, in fact, given up ? That being shown, the underwriters were discharged. This is clear, not only from the case itself, as reported, but also from what fell from Mr. Justice Buller, in the case of Way v. Modigliani, (2 D. & E. 32.) In speaking of the case of Wooldridge v. Boydell, he remarks, that it was there decided, “ that if a ship insured for one voyage, sail upon another, although upon the same track part of the way, and she be taken before she reach the dividing point of the two voyages, the policy is discharged. That was a stronger case than the present; for there the very intention of sailing upon a different voyage than the one insured vacates the policy.” There, as in the case before us, it might have been urged, with equal force and plausibility, that the master might have changed his mind before he came to the dividing point. There was still left a locus penitentm, that he might have received new instructions before an actual deviation had taken place, not to go to Falmouth, but to Cadiz ; or he might himself have come to such a resolution. The ship was taken in the Chesapeake, in the common track, both to Falmouth and Cadiz» Her going to Falmouth, or Boston, rested solely on naked, un= *268 executed intention, and yet the underwriters were held not to chargeable with the loss.

Let us take a closer view of this subject. What ground is there f°r a distinction in the plan formed for going to a port, different from the one insured, whether it be before or after the voyage is commenced ? If before, the ship is said never to have sailed upon the voyage intended to be insured, and, therefore, the assured are not liable; if after, then, from the moment the new voyage is entered upon, the ship is no more upon the voyage insured than in the former case.

It may be true in this, and in many other cases, that the ship, for a few hours, perhaps a few days, may be on a route common both to the original and new port of destination; sometimes by design, sometimes by accident. But is not the voyage insured as effectually changed as if the vessel had proceeded on a totally different route ?

When the voyage, upon which the ship sailed from the port of departure, is different from that described in the policy, if it were an insurance "from?' only, there would, of course, be a return of premium, because she never was at the risk of the as-surer. But when such a change takes place after the risk has attached, there will be no return of premium; and this, in my opinion, is the only difference in the change of voyage, before or after it has been commenced. A return of premium would depend, however, upon the form of the insurance, even where the determination to change the voyage described in the policy, is formed before the ship sails. In the case of Wooldridge v, Boydell, for instance, there was no return of premium, because, as the insurance was at and from Maryland, the policy had attached as much as if the vessel had actually sailed upon the voyage insured.

The case of Blackenhagen v. London Insurance Company, (Park, 226, 227. 1 Campb. N. P. 454.) appears to me to support the opinion I have expressed. That was an insurance from London to Revel. The ship sailed for the Sound, and arrived there on the 27th of October. On the 11th of November she proceeded towards Revel, and two days after, while on the voyage thither, information was received that an embargo was laid on all British ships in the ports of Russia, in consequence of which the ship returned to Copenhagen, and some days after *269 sailed for England, and was lost. The return, under the circumstances of this case, was justifiable, but it appearing that the voyage to Revel was never intended to be performed, it was held by Lord EUenborough that there was no colour for charging the underwriters, subsequently to her setting sail from England ; that this was a contract for a voyage out, and although a ship from necessity might be allowed to take a circuitous route, yet the ultimate point of destination must ever be the same; that such necessity might, perhaps, even justify a return to England, if it could be proved, satisfactorily, that it was the intention of the parties to seize the first favourable opportunity of returning* to Revel. This cause was afterwards tried before Chief Justice Mansfield, who left it as a matter of fact to the jury, whether the ship had abandoned the voyage or not. Here, then, is a case, where the voyage insured was abandoned, after it had been commenced, and a great part of it actually performed.

Let us suppose, for a moment, that in this last case the master, instead of determining to return to England, had relinquished the voyage to Revel, with a view to go with Ms vessel and cargo to Stockholm, and there to terminate the voyage, and that, after proceeding for several days, in pursuance of such determination, but happening", at the same time, also, to be on the route to Revel, he had been captured, would this have been considered as a mere intention to deviate, or as an actual change of voyage ? The principles upon which this case was put by the judges before whom it was tried, leave little or no doubt that it would have been held to be a change of voyage. They put it expressly upon the fact, not whether there had been an actual deviation, but whether the ship did intend to go to Revel, the port to which she was originally bound, and if this was not her intention, they then considered the voyage as abandoned, and the underwriters discharged. The case of Stocker v. Harris ( 3 Mass. Rep. 409 .) appears to me to support the same doctrine. (See, also, note in Marsh. 201. Amer. ed.)

In further illustration and support of the principles and reasons upon which my opinion is founded, let it be supposed that a ship is insured on a voyage from New-York to the Cape of Good Hope, and that she sets sail accordingly; that when she arrives at the narrows she is overtaken by a boat, despatched by her *270 owners with new instructions from them to the master, directjng JjJjjj j0 proceed to Canton, and not to go to the Cape of Good Hope, accompanied with a new clearance, and such other documents as are usually procured for an East-India voyage, and that, being delayed by some injury to his ship, for a week or two, he again sets sail upon the voyage to Canton; let it bq supposed, further, that, within a few days’ sail of the Cape of Good Hope, and in the common route to both ports, the ship is lost, can it be possible that the underwriters would be liable for the loss ? I think not; and if they could not in the case I have put, most certainly they are not in the case before us, unless it is meant to go the length of saying, that there can be no such thing as a change of voyage, as distinguished from an intent to deviate, after the ship has sailed.

Whether the risk in this case was increased by the change of voyage is immaterial. It is worthy of remark, however, that the degree of risk, so far as it respects the peril by capture, depends, not unfrequently, upon the country to which a vessel is bound. Sweden and Russia have, alternately, been the allies and enemies of both France and Great Britain, and the danger of capture may have been essentially increased, in this instance, by the substitution of Stockholm as the final port of destination.

Again, whether this vessel would have sailed at the moment she did, in case the voyage to St. Petersburgh had not been abandoned, it is impossible to say. If she had not, who can say that she might not have escaped capture ? All the preparatory measures of the master, before he left Carlsham, and his whole conduct, were founded on the plan of a voyage to Stockholm, and not to St. Petersburgh. How far these circumstances may have affected the sailing of the vessel it is impossible to determine. For aught that is known to the contrary, the risk of .the underwriters may have been essentially enhanced.

After as attentive a consideration of this case as I am capable of giving it, I think it a clear one for the defendants.

Platt, J. not having heard the argument in the cause, gave no opinion.

Judgment for the plaintiff.

In Rucker and another v. Allnut, (15 East, 278.) it was decided that, under a policy on goods at and frcm London to any port or ports, place or places, in the Baltic, backyards and forwards, &c. with leave to touch and stay at any- ports and places for all purposes whatsoever, the insured may wait at any port or place whatsoever for information ns to what port in the Baltic the ship might safely proceed to discharge her cargo, puch being the object and peculiar nature of the adventure; though, in an ordinary policy upon a definite voyage, those general words would not authorize a stay to pro* 4iire information as to the ulterior destination of the ship.