Burgess v. Equitable Marine Insurance

Endicott, J. By the terms of the policy the vessel was insured “ at and from Plymouth to the Banks, cod-fishing, and at and thence back to Plymouth.” ' This is a definite and distinct description of the contemplated voyage between two fixed termini. The Banks are named as the outward terminus, and while there engaged in cod-fishing, and until her return to Plymouth, the vessel was covered by the policy. The language used is not open to the construction that it was the intention of the parties to insure her while prosecuting the adventure elsewhere, or doing what was necessary to make it successful outside and beyond the prescribed limits. A voyage is the sailing of a vessel from one port or place to another port or place, and the purpose for which it is to be conducted, whether as a trading, freighting or fishing voyage, is often mentioned in policies of insurance. But this designation cannot vary or extend the description, route or termini of the voyage, as named in the policy, unless some usage, connected with the particular trade or adventure, is shown — 78 — co exist. No evidence was offered of a usage in such voyages to leave the Banks and go into port for bait. So far as the evidence reported discloses any usage in that regard, it appears that for some years it had been the practice to carry out a limited amount of bait, and to rely upon obtaining an additional supply on the Banks. Such being the practice to obtain bait on the Banks, when the supply taken out was exhausted, a departure from the Banks for that purpose could not have been contemplated by the parties in making the policy. We have, therefore, a definite description of the voyage in the policy, and a usage that does not extend its provisions. The question decided in Friend v. Gloucester Ins. Co. 113 Mass. 326, arose upon a clause in a policy prohibiting a fishing vessel from sailing on a voyage east of Cape Sable after a certain date, and throws no light upon the construction to be given to the words of this policy. The decision in The Tarquin, 2 Lowell, 358, turned upon the construction of the shipping articles of seamen, and not of a policy of insurance. We are, therefore, of opinion, that the vessel, by leaving the Banks and going to St. Peter’s for bait, departed from the voyage described in the policy, and the only question to be determined is, whether in law there has been a deviation which avoids the policy. It may be stated, in general terms, that the assured is protected by his policy, while the vessel pursues the usual and customary course of the voyage; but any departure from the course, or delay in prosecuting it, without necessity or just cause, is a deviar tian, and discharges the insurer, because another voyage has been voluntarily substituted for that which was insured. Whether the degree or period of the risk is increased, is unimportant, as the assured has no right to substitute a different risk. Whenever, therefore, there is a manifest departure from the course of the voyage, the assured must show that it was justified by the necessity of the case. Stocker v. Harris, 3 Mass. 409, 418. Brazier v, Clap, 5 Mass. 1. Coffin v. Newburyport Ins. Co. 9 Mass. 436, 449. Kettell v. Wiggin, 13 Mass. 68. In the case at bar, the alleged necessity arose from scarcity of bait. The plaintiff did not put on board, when the vessel sailed from Plymouth, enough for the entire trip. Squid had been — 79 — plenty on the Banks during several years prior to 1874, and the plaintiff relied upon catching them there and using them for that purpose. They happened this season to be very scarce, and, after fishing three weeks, and nearly exhausting his supply, the master sailed for St. Peter’s, over one hundred miles distant, procured bait, and returned to the Banks after an absence of a week. It is to be observed, that this so-called necessity did not arise from any peril insured against in the policy, or ordinarily insured against in policies of insurance, and did not involve the safety of the vessel, or of any property on board; it had relation solely to the success of the fishing adventure; and in this the defendant had no interest and had assumed no responsibility. We are of opinion that the claim of the plaintiff cannot be sustained; and that a necessity to justify the departure in this case cannot be found in the fact that, without going to St. Peter’s for bait, the voyage would have failed to be successful or profitable to the plaintiff. The strictness with which the courts have held the insured to the route named in the policy, is illustrated by the cases already cited, and by many others cited at the argument. Dodge v. Essex Ins. Co. 12 Gray, 65. Middlewood v. Blakes, 7 T. R. 162. Brown v. Tayleur, 4 A. & E. 241. Fernandez v. Grreat Western Ins. Co. 48 N. Y. 571. Merchants’ Ins. Co. v. Algeo, 32 Penn. St. 330. But the question to be determined here is, what is the nature and extent of the necessity or just cause which will warrant a departure from the route. In this connection it may be well to refer to the necessities which clearly justify a departure. There is no deviation when the master is compelled by force, either to depart from his route, or delay its prosecution by the acts of his crew; Elton v. Brogden, 2 Str. 1264; Driscol v. Passmore, 1 B. & P. 200; Driscol v. Bovil, 1 B. & P. 313; or where he is detained by those in authority, or taken out of his course by a ship of war. Scott v. Thompson, 1 N. R. 181. In Phelps v. Auldjo, 2 Camp. 350, a master was ordered to sail out and examine a vessel in the offing, by a captain of a king’s ship, and, it appearing that he complied without remonstrance or threat of force, it was held to be a deviation. In cases of this description there must be a vis major, compelling a departure or delay, which excuses the master. So — 80 — where the master is obliged to leave his course, or delay by stress of weather or other peril of the sea, or to go into port to repair or refit, or to re-man or recruit his crew disabled by sickness or reduced by casualties, or to avoid capture or to join convoy in time of war, there is no deviation. It is unnecessary to cite all the cases which fall within these exceptions; many of those relied on by the plaintiff are clearly within them. Dunlop v. Allan, Millar on Ins. 414. Green v. Elmslie, Peake, 212. Clark v. United Ins. Co. 7 Mass. 365. The case last cited is put upon the express ground that the ship was prevented by causes insured against from proceeding on her route, and the departure was from necessity. See also Folsom v. Merchants’ Ins. Co. 38 Maine, 414. Nor is the departure from the route for the purpose of saving human life a deviation;, nor is a policy avoided when the ship goes out of her course to obtain necessary medical assistance for those lawfully on board. Bond v. Brig Cora, 2 Wash. C. C 80. Perkins v. Augusta Ins. Co. 10 Gray, 312. In this class of cases the justification does not rest on the same ground as in those previously noticed. It is allowed from motives of humanity, and cannot be extended to the saving or protection of property. In all other cases the necessity must be a real and imperative necessity affecting the vessel, such as actual force preventing the master from exercising his will, peril of the sea, danger of capture, want of repair, disability of the crew, or unseaworthiness, occurring under such circumstances that the master, acting upon his best judgment for the interest of all parties, has no alternative, and is forced to leave his route, or delay its prosecution. When the departure is caused by such a necessity, the change of route in no respect alters the insurance; because the course of a seá voyage must at times be necessarily subject to extraordinary perils of the sea, and contingencies beyond the control of the master, and in the presence of which he is forced to succumb; and when they occur, and he is obliged to depart from the usual course of the voyage, there is no deviation in the legal sense of the term, for the departure is the necessary incident of the route named in the policy, as prosecuted at the time by the ship. The probability of such occurrences is well understood; — 81 — they are known perils of the voyage, and enter into the ordinary contract of marine insurance. And when the master, compelled by the necessity, does that which is for the benefit of all concerned, the act is within the intention of the policy, as much as = if expressed in terms. It would be practically impossible to state in the policy all the perils which might arise in a sea voyage and excuse departure from the route; and therefore, by the rules of interpretation applicable to this species of- contract, the policy is held by implication to include them. See Greene v. Pacific Ins. Co. 9 Allen, 217, 219. In such a policy as this, the necessities justifying a departure, in the absence of usage, from the route, and a visit to a port not named, are those which are caused by some peril occurring in the prosecution of the voyage within the limits named in the policy, and not those which arise in the prosecution of the business for which the voyage was undertaken. It is true, there is a class of cases much relied on by the plaintiff, where the test is whether the ship at the time of the alleged deviation was pursuing the object and business of the voyage. But those are cases of delay, where the ship was at the port or place named or permitted in the policy. The permission in a policy to go to certain ports or places must always be construed in reference to the purpose of the voyage. Williams v. Shee, 3 Camp. 469. 1 Arnould on Ins. §§ 141, 142. Any delay for the prosecution of other business, or any unreasonable delay in prosecuting the business of the voyage at such port is a deviation. African Merchants v. British Ins. Co. L. R. 8 Ex. 154. But if the delay was necessary in order to accomplish the objects of the voyage, and was reasonable under the circumstances of the case, then there is no deviation. Columbian Ins. Co. v. Catlett, 12 Wheat: 383 Phillips v. Irving, 7 Man. & Gr. 325. In other words, if the ship is at a place permitted, the delay shall not be a deviation, if it is necessary in the proper prosecution of the business of the voyage. But this test cannot be applied to a departure from the route to a port not named or permitted, for the purpose of the adventure. In all trading voyages, for example, the ship is confined to the ports or coasts named in the policy, and she cannot depart to other places, simply because she may better prosecute the trade elsewhere. If — 82 — the departure from the route to insure the success of the adven turc can be justified as a necessity, it would be difficult io state any limit to the privilege, or to the duration of the insurance, .and, in the absence of permission to do so in the policy, it cannot be implied. See Kettell v. Wiggin, 13 Mass. 68; Robertson v. Columbian Ins. Co. 8 Johns. 491. The plaintiff’s vessel might have delayed for .any reasonable time upon the Banks for the purpose of fishing or getting bait, without being guilty of deviation ; and would have been protected by the policy, even without proof of usage, because fishing was the purpose of the voyage, and she could properly prosecute it within the route named in the policy. Noble v. Kennoway, 2 Doug. 510, 513. But she could not go beyond or away from the route for that purpose. The illustration put by the defendant’s counsel is apposite: “If a vessel insured to Havana and back should learn, before entering the port, that there was no cargo there with which she could be loaded, no one would say that her policy protected her in going to the nearest port where a cargo could be had.” Other illustrations may be given. If a vessel insured to a particular port, having letters of credit, should find on arrival that the parties on whom they were drawn had failed, she could not go to another port for funds, and return for her cargo, and be protected by her policy. If fish had been scarce on ■ the Banks in 1874, it would hardly be contended that the vessel could have gone to other fishing-grounds to fish, although not more distant than St. Peter’s, and yet, if she was justified by necessity in leaving to obtain bait at St. Peter’s and to return in order to make the trip successful, it would be difficult to hold that the same necessity would not allow her to fish elsewhere. In the argument of the plaintiff’s counsel, no case was cited which "sustains the position he has assumed, and we are not aware of any case which goes to this extent. In Greene v. Pacific Ins. Co. 9 Allen, 217, the voyage was broken up by reason of perils to the ship insured against in the policy, and the question was as to the right to abandon. In Stocker v. Harris, 3 Mass. 409, which is strongly relied on by the plaintiff, an American ship sailing under Spanish colors, as allowed by the policy, delayed at Vera "Cruz five months for the purpose of — 83 — recovering outward cargo, which, had been seized after landing by the authorities. The captain failed to obtain a restitution, and, being unable to obtain a clearance from Vera Cruz to the United States under Spanish colors, without giving bond to land his cargo in some part of the dominion of Spain, and there being a partner of a Spanish house in Havana by whose assistance he could restore the character of his ship as an American bottom, he took a cargo and freight and sailed for Havana. It is stated in the opinion, though not necessary to the decision, that the delay at Vera - Cruz was not a deviation. And it was said by the court: “ It may be understood that the insurers, by this policy,” (which was on ship, cargo and freight,) “ were not inter ested in the outward cargo, after it had been safely landed from the ship. But the captain is the common agent of the concerned, and it is his duty to manage their distinct and separate, as well as their joint interests, according to his best judgment; and whatever is fairly done with this purpose is within the course of the voyage.” This is simply stating, in another form of words, that the object for which the ship was at Vera Cruz was the disposal of her cargo, and if the delay was occasioned by fairly attempting to do so, there was no deviation. But the case was decided for the defendant, on the ground that, in sailing for Havana, instead of to a port in the United States, as required by the policy, the ship deviated, and that the reason for doing so was not such a necessity as justified the departure. It was suggested, in giving the reasons for this decision, that if the partner had died, or had left Havana before the ship arrived, then by force of the same necessity a voyage to some other Spanish port or ports would have been equally excused; and thus the ship might have made several passages, although by the terms of the policy she was only insured from Vera Cruz to the United States; and that this would have been to engage the insurer in an unlimited voyage and risk. The same suggestion would be applicable in this case. If the master had failed to find bait at St. Peter’s, the same necessity would have justified him in visiting port after port until he found it. As in the opinion of the court the trip to St. Peter’s was a deviation which discharged the insurer, by the terms of the report Here must be Judgment for the defendant.