
    Suydam and Wyckoff against the Marine Insurance Company.
    Insurance on goodsj at and from New York to a port or ports in the island of Cuba, and thence back to New* York, The vessel arrived at St. Jago de
    On a former argument of this cause, in May Term last, the Court were of opinion that the plaintiffs were not entitled to recover for a total loss, and-awarded a new trial.. The cause came now before the Court on a case containing the same facts, the right to recover for a partial loss having been disputed by the defendants.— In the report of the former case, (vol.l. p. 181.) the facts are so fully stated, that it is only necessary to subjoin three several statements submitted to the court, as to'the rule of calculating the amount of the partial loss, in ease ihe court should be of opinion that the plaintiffs were entitled to be paid for a partial loss.
    Cuba, but was not allowed to-enter there, and after waiting above 20 days, set sail for another port in the island, In going to which, she was driven by adverse winds into the Bite of Leo-gane, and for fear of the Bngandboais, went into Port Republican, in <he island of St. Domingo, where the cargo was forcibly taken out, and sold at a great loss. The proceeds, «xcept a small part, wei e af-tei wards vested in the produce of the island, and arrived at New-York. On receiving advice from Port Republican, of what had hap« pened, the as* sured aban-signed fordali cause, the refusal of an ea, try at St. Ja-go de Cuba, and the consequent loss of the voyage. It was held that the delay at St. Jago de Cuba was not, under the circumstances, unreasonable, or so as to amount to a deviation. That the going to Port Bepublican ■ was justified by necessity, and would have autho-rised an aban-donments on the ground of a loss of the - voyage, but as the insured did not abandon on that ground, he could only recover for a partial loss, which was to be estimated by deducting the nett proceeds of the sale at Port Republican, from the invoice amount, or cost of the goods.
    
      STATEMENT, No. I.
    Dolls. Cts.
    
    Costs of the outward cargo, including the premium of insurance, and deducting 2 pr. ct. 12,041 24
    Deduct nett proceeds of sales of cargo at Pori Republican, - 10,162 46
    Amount of partial loss, with interest from the 3d May, 1802. 1, 878 78
    No. II.
    Cost of Cargo, &c. as above, - 12,041 24
    The plaintiffs received in payment— goods, - - - $8,871 78
    Cash, - - - 1,290 46
    $10,102 46
    [*] Cost of cargo, &c. as in statement No.l. $12,041 24
    The amount of sales of the goods in Nevo-Yorlc, after deducting duties and charges, - $7,376 86
    Cash received at Port Republican, 1,290 68 — 8667 54
    Amount of loss is 3,373 70
    with interest from the 3d May, 1802.
    
      No, III.
    As in statement No. II, - - 3,383 70
    Add freight of the goods from Port Republican, to New-YorTc, 748 00
    4,121 70 Amount of loss, - with interest from 3d May, 1802.
    It was agreed that if the Court should be of opinion that either of these statements was correct, then judgment should be entered accordingly fqr such sum; or, if the Court should adopt a different rule, then judgment should begiven for the sum such rule would produce ; or if the plaintiff should not be considered as entitled to any sum, then the defendant was to hare judgment, aud either party to be at liberty to turn the facts of the case into a special verdict.
    
      Radcliff, for the plaintiff.
    I understand the Court as having decided on the former argument of the cause, that the plaintiff was entitled to recover fora partial loss, and that the only question remaining between the parties relates to the mode of calculating such loss. I contend that the statement No. 3. ought to be adopted as the measure' of damages. In ordinary cases, where the goods arrive at the port of delivery, the rule is, to take the difference between the prime cost or value in the policy, and the value at the pert of delivery. Here the goods never arrived at the port of delivery, but were sold at a different port. The plaintiff is entitled to an indemnity, which is the object of the contract. This was an insurance out and home. The insured was compelled to go into Pori Republican. The sale there was forced, and if he is to be charged with all the duties and charges there, and with the expense of transporting the proceeds to the port of delivery here, he will not be indemnified. The only mode of obtaining an indemnity, is to deduct the nett proceeds which came into the hands of the insured, from the prime cost of the goods. No objection can be-made to the conduct of the master who has acted with good faith, and for the best interest of all parties. He was under a necessity of investing the proceeds of the sales in the produce of the Island, either in whole or •parts according to the existing regulations there. It may be objected, perhaps, that by adopting, the third rule, the plaintiff will, in effect, recover what is equivalent to a total loss. It may so happen in this case as in others, that the calculation of a partial loss may produce a result amounting to an indemnity for-a total loss : but this is no real objection, if the principle on which the calculation is made, be correct.
    
      Colien and Benson, contra.
    1. The court are now to decide the case on all the facts before them, and one of the points which arises is, whether there was a deviation. Where the assurer alleges that there has been a deviation, the assured assigns some cause in justification. The jury are to ascertain the facts alleged as the cause, but whether such cause be sufficient to excuse the deviation, is a question of law. Now, was there a sufficient excuse or a justifiable cause for the vessel’s staying 23 days at the Moro, after it was decided that she could not be allowed to enter ? An unnecessary delay amounts to a deviation. The stay at the Moro could be for no other purpose than to carry on an illicit trade, in violation of the stipulation contained in the policy. The subsequent events which took place must be regarded as a consequence of this useless delay or deviation. Incase of an actual deviation, the policy is void, though the vessel return to her former route. Suppose the vessel Had sunk at the Moro, while staying there for an illicit purpose, would the assurers have been liable for the loss ? The clause in the policy must be considered as a warranty not to carry on an illicit trade. 2. This voyage was so far out of the usual course of trade, that it could not be carried on without a passport, or special license from the Spanish government. This was a material fact that ought to have beep disclosed to the assurers, and the concealment of which must avoid the policy.,
    
      
      [Court. This does not appear in the case. The objection should have been made at the trial. It was a fact for the jury to find.]
    3. The declaration states that the vessel was driven by storms and winds into Port Republican; but the evidence is,, that she went there to avoid the Brigands, or pirates. The true cause of loss must be stated, and after an abandonment, the assurer cannot recover for any other, or a subsequent accident. He may recover either for a total or partial loss, but his recovery mus be on the precise ground stated in the abandonment; unless he revoke the abandonment once made, he cannot recover for a new cause or after accident. Now, the cause assigned in the letter of abandonment, was the refusal of an entry at St. Jago de Cuba. The parties having persisted, the ope in his abandonment, and the other in his refusal, they ought to be held to the facts as they existed at the time, and were stated in the abandonment. The plaintiffs cannot be allowed to avail themselves of any subsequent events ; otherwise the advantage would be wholly on the side of the assured ; there would be no equality or equity between the parties. Though an abandonment made without sufficient cause may be a nullity, as it respects the party who makes it; yet, in regard to the other party, it will have its effect, so far that he rnay compel the party who brings his action after the abandonment, to rest his recovery on the facts or ground stated in the abandonment. For the assured, when he abandons, must be presumed to know the truth of the facts.on which he means to claim a total loss.
    The loss, if any, for which the plaintiff claims an indemnification is, that he has been prevented by some of the perils insured against, from having his goods carried to the port of destination. The difference between the sum they sold for at Port Republican, and their value at the port of delivery, is the true measure of loss. The plaintiff ought to have shown the price or value of the goods at St. Juan Los Remedios. The calculation of loss by this rule will afford a complete indemnity according to the nature and terms of the contract, which is for the safe arrival of the goods at their place of destination. It was not for the benefit of the defendants that the proceeds were vested in the produce of the island ; and they ought not to be charged with the freight of the, cargo to New- York. "
    
      Higgs, in reply.
    The Court on the former argument, decided that the charge of the judge was correct, and the jury have found a verdict which negatives .the idea of a deviation. The jury must be considered as having found that the stay at the Moro was reasonable, and that there was no illicit trade.
    Unless the events which forced the vessel to go into Port Republican,.can be connected with the refusal of an entry at St. Jago de Cuba, as cause and effect, the one" cannot be regarded as a consequence of the other. The argument turns on a mistaken idea, as if the voyage had terminated at St. Jago de Cuba, but the master had a right to go to other ports in the island.-
    The abandonment, in point of time, was made after the goods were in the hands of the government, at Port Republican, and the master under restraint. Thére is, in truth, no after . accident or distinct ground of claim. The whole is founded on the fact, that at the time of the notice of loss given to the defendant, the facts existed precisely as they are stated in the declaration. If there were any variance between the declaration and proof, it ought to have been made a ground of objection at the trial. It is too late now to take any advantage of it,
    [Court. That point need not be argued.]
    At the trial, the plaintiff proceeded for a partial loss5 and the letter of abandonment was not produced. It must, therefore, be regarded as a nullity, as having never existed ; so that all the reasoning on the other side about abandonment, is irrelevant,
    
      4. The rule for estimating the lpss, contended for on the other side, can never apply to a case like the present, where none of the goods, ever arrived at the port of delivery. It is impossible to say what the value of the goods would be when they arrived at the port of destination. And it would be very difficult to prove whether- any such •goods, as were insured, had ever been exposed for sale there. If any such proof of the value of the goods at St. Juan Los Remedios, be required, it ought to have been produced by the defendants. The forcé and violence, at Port Republican, which were the cause of the loss, may be considered as continuing until the proceeds came into the hands of the plaintiff. The just rule, then, is that contained in the statement No. III. annexed to the case.
    
      
      
        Lewis v. Rucker, 2 Burr. 1167. Park, 105.
    
   Kent, Ch. J.

delivered the opinion of the Court. The questions raised upon this new case, are, whether the plaintiffs are entitled to recover for a partial loss, and if so, by what rule shall that partial loss be estimated.

The plaintiffs are entitled to recover as for a partial loss. The delay at St. Jago cannot be considered as amounting to a deviation, because, under the'circumstances disclosed by the captain, it does not appear to have been an unreasonable and wilful delay. It was created by probable and flattering expectations of a permission to enter, and the captain acted according to the best of his judgment. While he was seeking another port in the island of Cuba, he was under the protection of the policy, which allowed him to go to a port or ports in the island, and his going into Port Republican was ah act of necessity, and justified by the cause assigned. The detention at Port Republican would have authorized an abandonment on the ground of a loss of a voyage; but as no abandonment was made for that cause, the loss of the voyage, as a technical total loss, is to be put out of view, and we are confined to the effect of the forced sale of the cargo at Port Republican. The cargo did not reach the place of destination, on'account of the detention, and the omission to abandon will not deprive the assured of his right to re- . , , , , • i' • •cover the actual loss he has sustained. This appears from the case of Mitchell v. Edie, which is, in all mate- • l , m. nal respeets, very analogous to the present case. That was an insurance on goods from Jamaica to London, and by means of a capture which took place on the the vessel was forced into Charleston, where the cargo was sold, after being kept there for several months. The assured aftewards brought their suit upon the policy, without any abandonment, and it was admitted that they were entitled to an average loss to the amount of the dif-' ference between the ¡produce of the sales at Charleston and the invoice; and Buller, J. likewise admitted that they were entitled to recover the amount ofthe commission on selling at Charleston, and it was disallowed in that case for reasons which do, not apply here.

That case, therefore, not only settles the right to recover, but furnishes us with the rule of liquidation of the damages and that rule corresponds with the estimate No" 1. annexed to this case. It would be improper to permit the plaintiffs to recover according to the other estimates, for that would be allowing them to speculate upon the state ofthe market at New-Yorh, and to retain the ultimate profits, if an advantageous return cargo should have been received, or to throw the loss upon the insurer, if a profitable re-investment should not have been made. — • This would not be an equal and just rule. If the plaintiffs did not choose to take upon themselves the risk as to the profit and loss of the goods .brought from St. Domingo, they had their election to abandon, upon notice of the detention and sale at Fort Republican ; not having done so, they cannot now be entitled to recover beyond the amount ofthe difference between the nett produce of the sales at Port Republican, and the invoice, according to schedule No. 1. annexed to the case.

Judgment for the plaintiffs. 
      
       1 Term, 608.
     
      
      
         if a master, acting with honest intentions, and in the use pf ordinary skill and discretion, depart from the safest and most usual route, this shall not be construed to avoid the policy. Brazier et al. v. Clap. 5. Mass. T. R. 1.
      A deviation is a voluntary and unnecessary departure from the wonted course of the voyage implied in the policy.
      If a neutral vessel on being pursued by a belligerent cruiser, put into an intermediate port to avoid capture, it is not a deviation. Post v. Phenix Ins. Co. 10 Johns, 79.
     