New-York Firemen Insurance v. Lawrence

The Chancellor. Two questions arise upon this case ; 1. Whether the determination of the assured while at Gothenburg to go to Petersburg was not binding, so as to render Petersburg the port of destination equally as if it had been originally inserted in the policy ? 2. Whether the determination at Carlsham to abandon Peters-burg,| and go to Stocholm, and the sailing for Stockholm in pre — 55 — ference of that determination, and under instructions to the master to that effect, was not an abandonment of the voyage insured so as to discharge the underwriter ? 1. Liberty was given to the assured, to select, after the commencement of the voyage, the port of destination, and the only limit to his choice was, that the port was to be in the Baltic or North Sea, not south of the river Jade. The time when it was to be made was not specified ; nor do I think it necessary for us now to decide whether the election of the port of destination might have been deferred until after the departure from Gothenburg, for the assured did make his election while at Gothenburg, and he had a right to make it there ; and being made, it puts an end to the inquiry. It is a fact found by the verdict, that the vessel being at Gothenburg, the assured, by their authorized agent, did determine to go to Petersburg, and did instruct the master accordingly, and the vessel sailed for Petersburg under that determination. This was an exercise of the right of election, and being fairly made and acted upon, it was binding and definitive upon the party. On this point the supreme court were unanimous, and on this point the argument and the law are equally decisive. Mor should I have thought it necessary to have dwelt a moment upon it, if it had not been insisted upon by one of the learned counsel for the defendants in error, that though the assured, while at Gothenburg, elected to go to Petersburg, and sailed for that port, and persevered in that election until the spring following, yet, that the assured was still at liberty to elect another port. The principle of law is, that if a man has an election to do or demand one of two things, and he determines his election, it shall be determined for ever. This is so laid down by Lord Ch. B. Comyns, (Dig. tit. Election, c. 2.) who has always been deemed a great authority. There is a case given in Rolle, (1 Rol. Abr. 726, tit. Election E.) in support of this doctrine, A man delivers an obligation to A. for the use of B., and B., as soon as he hears of it, refuses the bond ; this refusal is peremptory, and he cannot afterwards accept of it. The modern case of Layton v. Pearce, in the K. B. (Doug. 14.) is another illustration of the rule. The defendant had received of G. ll. 6s., on condition, that if a certain lottery ticket should come up a blank ora prize on the next day, he would deliver to G. an undrawn ticket, or pay him 201. Lord Mansfield said, in behalf of the court, that they were of opinion, that if the option had been in G,, and if he — 56 — had made his election to take the 20l., he would have put an end 1° the alternative, and have converted the agreement into an ab-so^ute contract for the payment of money. The rule seems to be everywhere admitted. The numerous cases which treat of alternative obligations assume this as a conceded point, and I apprehend it to be most clearly and uniformly settled, that if a party has an election rese'rved to him in a contract, and he once fairly exercises that right of election, his determination is binding. This is the good sense and reason of the thing. If A. gives B. one of the horses in his stable, according to the instance given in Coke, B, has his election to take which he pleases, as no one in particular was designated by A.; but having elected one, all will agree that he cannot return it and take another. It is most convenient, in all manner of dealing, that contracts, uncertain at first, should be reduced to certainty as soon as possible, to guard against the temptations and speculations which that very uncertainty may lead to. We can see the injustice of the application of a contrary doctrine in this very case. The determination to go to Petersburg is said not to be binding, and that the party was at liberty, at any time afterwards, to change it, subject to some equitable modifications which were suggested. But can we say, from the facts in this case, that the election to go to Petersburg did not determine the fate of the voyage ? Are we certain the loss would have happened without the influence of that very determination ? The captain, on the 1st of December, at Carlsham, gave up the voyage for the winter, because the season was too far advanced to navigate the gulf of Finland. Be it so ; but was it too far advanced to navigate to Stockholm, which is not in the gulf of Finland, but is above half a degree of latitude south of Petersburg, and perhaps 300 miles of shorter navigation ? For aught that appears in this case, or that we can know, the vessel might have gone conveniently and safely to Stockholm in December, and, therefore, have avoided the capture in the ensuing spring. We have a right to say it was the election previously made to go to Petersburg, and which still kept its hold on the mind of the party that prevented the other destination. The election made at Gothenburg, probably controlled! and fixed the destinies of this voyage, and brought on the final catastrophe. Shall the party, then, be at liberty to say it was a matter of no conse — 57 — quence, and that he was free to change his purpose when he pleased, and that the underwriter must remain liable to all the hazard of determinations partly executed and then abandoned ? Such a construction appears to have as little foundation in justice as in law, and we ought to consider this case as if Peters-burg had been the place of destination inserted in the policy. 2. The second point was the one discussed at large in the supreme court, and on which there was a final difference of opinion. The point is whether the determination formed at Carl-sham, to abandon,,Petersburg and go to Stockholm, and sailing for Stockholm, was not, under the circumstances of the case, an abandonment of the cargo insured. A voyage imports a definite commencement and end. It is known and characterized by its termini. They are the recognised tests of its identity. It is equally clear that deviation is applicable only while the same voyage continues. Deviation is not a change of the voyage, but of the proper and usual course in performing it. The voyage insured is never lost sight of in cases of deviation, actual or intended. In all the cases of deviation, as Lord Mansfield observed in Wooldridge v. Boydell, (Doug. 16.,) the terminus a quo et ad quern were certain and the same. Thus, a permission to touch and trade at intermediate ports is understood to be subject to the intention of prosecuting the voyage described, to its specified end. Semper animo et intentione prosequendi viaggium usque adfinem designatam. A voyage is always deemed the same, whatever be the deviation, provided the original port of destination be not abandoned. These are plain elementary rules in the law of insurance. And, because the question of deviation always presupposes and admits a continuation of the original voyage, it follows that a mere intention to deviate, whether formed before or after the commencement of the voyage, is no deviation, if the intention was never carried into effect, and the loss happened before the vessel came to the dividing point. But if the original place of destination be abandoned, in order to go to another port of discharge, the voyage itself becomes changed, because one of the termini of the original voyage is changed. The identity of the voyage is gone, and a new distinct voyage is substituted. In that case, intention is every thing, for on that depends the fact, whether the original voyage was, or was not, abandoned. And if the intention to abandon®. — 58 — be once clearly and certainly established, (as it is in this case,. ^y the finding of the jury,) it then became perfectly immaterial whether the vessel was lost before or after she came to the dividing point, because, in either case, she was lost, not on the voyage insured, but on a different voyage. . In my apprehension, this simple statement of the law. is sufficient to decide this case. But in order to give these principles more full and satisfactory illustration, I proceed to observe further, that an insurance relates only to the voyage specially described in the policy. Thus in Wooldridge v. Boydell, already referred to, the ship was insured from Maryland, to Cadiz, but she cleared for Falmouth, and the weight of evidence was, that she sailed for Falmouth, without any intention of going to Cadiz, and, therefore, Lord Mansfield told the jury, that if there was no intention of going to Cadiz, they must find for the underwriter, and they did so, although the vessel was lost in the Chesapeake, and before she arrived at the dividing point between a voyage from Maryland to Cadiz, and a voyage from Maryland to Falmouth. A distinction has, however, been set up between ah intention formed before or after the voyage be commenced, to change the voyage, by dropping the port of destination and selecting another. It is admitted by those who make this distinction, that the intention to change the voyage, arid sailing under that intentibn, discharges the insurer if formed before the commencement of the voyage, arid’ that it is no matter whether the loss happens before or after the vessel comes to the dividing point. But it is contended, that if the intention to change the voyage, by changing the place of destination, be formed after the voyage be commenced, it is then to be likened to an intention to deviate in the same" voyáge, and does no hárm if the loss happens while the vessel is still on the common track. I am persuaded that •'there is no foundation for this distinction.' The difference between the cases is, that in the one the vessel' is in fact sailing *o’n the same voyage, arid in the other she is in fact sailing on a different voyage, though she may be for a while on the track common to both voyages. The new voyage was in the act of, performance, as mititih before as. it could have been after passing the’ dividing point, and the "want of attention to this circumstance has been the source of ’ thé error on this subject. If. .the voyage be abandoned by abandoning the port of dest inatiqn — 59 — and sailing for another, there is no reason why the underwriter should be holden. It is riot a case within his contract. There is no dispute about facts in this case. There never was a clearer case of an actual bona fide and decided abandonment of a voyage insured; In an intended deviation merely, there is no act done towards a performance of the intention. The same voyage continues, and if there be no actual deviation, there is no abuse of the contract. Here the contract was at an end, by the act of changing the port of destination and sailing on a different voyage, and the justice and legality of the underwriter’s claim to •be exempted strikes me with entire conviction. It was urged by the counsel, that the assured might have repented of his new voyage to Stockholm, and have reassumed his former one to Petersburg, before he came to the dividing point, had not the capture intervened. One of the learned counsel for the defendant in error, seemed to place his principal reliance on this argument, but the truth is, that there was no room for repentance in this case, for the captain xvas placed under a moral disability to make an election, or to exercise any discretion.' He sailed under directions from the agent of the assured, not to go to Petersburg, but to go to Stockholm, and the agent himself was not on board to discharge the captain from this obligation. We are to intend that every man will do his duty. We know it xvas the bounden duty of the captain to folloxv his instructions. He xvas, therefore, in a moral sense, unable to go to Petersburg ; and this court, it is hoped, will always recognise the force of moral obligation. An intention to deviate is nothing; because the intention may be given up before the vessel arrives at the dividing point; but if the captain be under positive instructions to take one course, and not the other, he has no discretion to act, and no liberty to repent. This cause alone is sufficient to discharge the underwriter, and so it was held by the court of K. B. in Middlewood v. Blakes, (7 Term Rep. 162.,) where it was laid down as a principle, that if the captain be tied up by instructions, so that he is not at liberty to exercise his judgment at ‘ the dividing point, for the benefit of all concerned, the underwriter is discharged. But another, and a more captivating argument for the defendant, arises. It has been said that there was no harm done in this case to the underwriter by the sailing for Stockholm, for she was taken on the common route to Stockholm and Petersburg i — 60 — it would have been the same thing, if she had been actually sailing for Petersburg. But no such principle is a safe or just rule of. decision. An actual deviation, without justifiable cause, is fatal, however short the time, or however short the distance, or however harmless the effect of the deviation. Whether it be for an hour, or a month—for one mile, or one hundred, the consequence is the same. If it be voluntary and without necessity, it puts an end to the contract. It is not the increase of the risk, but the substitution of another risk, that governs the case. These are plain rules on the subject of deviation, and they show that courts do not determine these cases by estimates of the greater or the lesser risk. Even if the risk had actually been diminished by changing Petersburg for Stockholm, the underwriters would have been discharged, and for this plain, unanswerable reason, that it was not the risk they undertook. The courts are bound to measure out justice to parties according to their own agreements, and not to make, agreements for them. But are we authorized to say, from the case itself, that no harm was done by the change of the voyage? We cannot adjudge that the capture would ever have taken place if the ves-' sel had not sailed for Stockholm. She might not have sailed at the very time she did, if she had been bound to Petersburg; The gulf of Finland might not then have been clear of ice. She might have been obliged to wait at Carlsham some days longer, and the privateer might not have been met with. It is very possible, if not very probable, that (he loss would not have happened if the voyage to Petersburg had not been abandoned. It is this very abandonment of one voyage, and the substitution of another, that may have produced the loss. But I forbear to dwell on such idle considerations. The contract of insurance, like other contracts, is governed by fixed rules, which have respect to the meaning of the parties, and not to calculations of chances. The true doctrine, on the whole of this subject, with great deference to the supreme court, I take to be this, that the alteration, at Carlsham, of the place of destination, by abandoning 1 Petersburg, and determining to go to Stockholm, and clearing for Stockholm, and sailing for Stockholm, and binding the master, by positive instructions, to go there, was a new voyage, not within the policy, and from that time forward it discharged the un — 61 — derwriter. I deem this to be the clear, settled sense of the law of insurance in this country, and in every other country where the law merchant prevails. There is no decision that contradicts this result, and there is much in the books to confirm it. Thus, in Norville v. St. Barbe, in the C. B., in 1807, (5 Bos. & Pul. 439.,) the counsel for the insurer laid down these propositions, which were not questioned either by the opposite counsel or'by the court, “ That an intended deviation would not vitiate a policy, if the loss happens before the ship arrives at the dividing point. That in the case of a deviation the- termini of the voyage remains, though the course by which the terminus ad quern is sought, be changed. But where the terminus ad quem is changed, it is not a deviation, but an abandonment of the voyage ; and such an abandonment, at whatever time it takes place, whether before, or after, the arrival of the ship at the dividing point, discharges the underwriter.” The opinion here given in the C. B., and seemingly acquiesced in, is precisely on the very point now before this court; and the case of Blackenhagen v. The London Ins. Company, decided the year after, (Park, 226. 1 Campb. 454.) appears to me to be a decision on the same principle. The voyage insured was from London to Revel. The vessel arrived in the Baltic, and hearing that an embargo was laid on all British ships in the ports of Russia, she put back first to Copenhagen, and then to or near Gothenburg. This was so far considered as justifiable and necessary; but the ship afterwards sailed for England, and in a few days was lost. There was no point raised about deviation, but the only question was, whether the sailing for England was an abandonment of the voyage. It was admitted, that if going to England was the best means of finally getting to Revel after the embargo was raised, and that the party so intended, the vessel might still have been considered in the course of the voyage. But Lord Ellenborough, in the first instance, and the court of C. B. afterwards, held, that from the weight of evidence it appeared that the sailing for England was a voluntary abandonment of the original voyage, and the underwriter was discharged. We have also a decision in this country on the same question, and to which decision very great respect is to be given. It is the case of Stocker v. Harris, (3 Tyng, 409.,) which was decided in the supreme court of Massachusetts, in 1807, and prior to the case in England. The in — 62 — surance was on the ship America, from Boston to the Canaries, and at and from thence to any port or ports in Spanish America, and at and from thence to her port of discharge in the United States. The ship goes to the Canaries, and from thence to Vera Cruz, in Spanish America. So far she was within the policy, and from thence she would have been protected on the voyage to the United States. But, at Vera Cruz, she takes a cargo and clearance for the Havanna, and on her passage to the Havanna, but before she had left the track she must have pursued if coming to the United States, she was captured and lost. For the underwriters it was contended that the voyage to the Havanna was a new voyage, undertaken for. purposes of profit, and different from an intent to deviate never executed. The very distinction was taken between an intent to deviate on the same voyage, and the sailing on a new one, and that in the latter case it was immaterial whether the vessel had, or had not, arrived at the dividing point. The court took the same distinction, and held that the voyage commenced from Vera Cruz for the Havanna was a new and distinct voyage, and that the underwriter was discharged, though the loss happened before the vessel came to the dividing point. I cannot but be persuaded, from the reasons and authorities which have been mentioned, that this is the true exposition of the law on this point, and, consequently, that the judgment of the supreme court ought to be reversed. Van Vechten, Allen, Cochran, Hager, Hascall, Keyes,. and Stewart, Senators, were of the same opinion. Barker, Senator, was of opinion that the assured were not bound to make their election at Gothenberg of the port of discharge ; that if they were, they did, in fact, sail for St. Peters-burgh; that the subsequent determination, at Carlsham, to proceed to Stockholm, was, at most, but a mere intention to deviate, the vessel being in the regular route of her voyage ; and that as there was no actual deviation, nor abandonment of the voyage, the judgment of the supreme court was correct, and ought to be affirmed, Bates, Bicknell, Bloom, Clark, Crosby, Dayton, Elhendorf, Loomis, Pendergast, Ross, Stranahan, Swift, Tib — 63 — bits, and Ver Bryck, Senators, were also of opinion that the judgment of the supreme court ought to be affirmed: and that being the opinion of a majority of the court,* it was thereupon ordered and adjudged, that the judgment of the supreme court be affirmed, and that the defendant in error recover against the plaintiffs in error his double costs, to-be taxed, &c., 9 * .Ti and that the record and proceedings be remitted to the supreme court, &c. Judgment of affirmance. Footnotes [*] For affirming, 15. For reversing, 8. April 3d. [2] §11 Johns. Rep. 269.