
    Hezekiah Chase versus The Eagle Insurance Company.
    Insurance was made on goods on board a ship from one port to another, with liberty to call at an intermediate port. The ship discharged her deck load at the intermediate port, and afterwards, from necessity, put into another port, where she took in another deck load; no delay of the voyage nor change of the risk being occasioned by such unloading or reloading. Held, that there was no deviation.
    Whether a ship is so much out of trim as to be unseaworthy, is a question for the jury to determine.
    Where a ship is out of trim during part of the risk, but before a loss happens is put into proper trim, the insurer will be held.
    Assumpsit on a policy of insurance upon property on board the sloop Delia, at and from New York to Lynn, with liberty to call at Newport.
    On the 13th or 15th of December the sloop sailed from New York, having 2,500 bushels of corn, 25 boxes of chocolate, and some boxes of goods, under deck, consigned to the plaintiff, and on deck, 50 barrels of tar, 9 barrels of provisions, and 15 bales of cotton, and proceeded to Newport, where she arrived the next day and unladed her deck load.
    The defendants contended, that under the leave to call at
    
      Newport the assured had no right to discharge any part of the carg° there ; but Wilde J., before whom the cause was tried, ruled that the unlading of a part of the cargo would not discharge the policy, unless the vessel were thereby delayed. The sloop was detained at Newport until the 21st, and the defendants contended that this delay was unnecessary and amounted to a deviation. The evidence on this point was left to the jury, with directions to find for the defendants if there was any unnecessary and improper delay.
    On the 21st the sloop sailed from Newport with a fair wind, but the wind coming ahead, she was obliged to put into Tarpaulin Cove, where she remained until the 23d. Being found out of trim, 200 bushels of corn were shifted from the after state rooms and carried forward, and an attempt was made to cross the shoals; but meeting with strong head winds, she was under the necessity of going into Edgarton, where, being still out of trim, it was thought proper, for the security of the cargo and all concerned, to take on deck 20 hogsheads of molasses ; which was done. After making three ineffectual attempts to cross the shoals, she at last succeeded, and on the 4th of January, off the Chatham lights, was, with the cargo, lost by the perils of the sea
    The defendants contended, that if the vessel was put out of trim by the unlading of the deck load at Newport, and thereby the voyage was at all impeded, it would discharge the policy ; but the jury were instructed that the policy would not be avoided on this ground, unless the vessel were so much out of .trim as to be rendered unseaworthy and unfit to encounter the perils of the sea.
    As to taking on board the molasses at Edgarton, the jury were instructed that it would not avoid the policy, unless thereby the risk was increased or the vessel delayed. It was clearly proved that the vessel was not delayed thereby ; and on the question whether the risk was thereby increased or diminished, there was conflicting evidence, all which was left to the jury under the preceding instructions.
    A verdict was found for the plaintiff, and the defendants moved for a new trial on account of the supposed misdirections to the jury.
    
      The case was argued by S. K. Williams, for the defendants, and by Hubbard and Merrill, for the plaintiff. The counsel on each side referred to the opinions of the judges m Thorndike v. Bordman, 4 Pick. 471, and authorities there ' cited.
   Parker C. J.

delivered the opinion of the Court. This vessel having liberty to call at Newport on her way from New York to Lynn, committed no deviation in going into that port; and, as we must suppose, the liberty to call there, which was purchased by a quarter of one per cent, more premium, was for some purpose useful or convenient to the" voyage or to the master. Being rightly there under the policy, any trading there which did not delay her voyage, or change the risk, was lawful, as has been determined this term in the case of Thorndike v. Bordman. She discharged her deck load there, which probably was the very object of going to that port; but whether so or not, as the jury have found that her voyage was not delayed thereby, this fact cannot affect the contract. It is found that she was detained by head winds, and by no other cause.

But when she sailed from Newport, she was discovered to be out of trim, and she put into Tarpaulin Cove to alter the position of the cargo, and this being done, she sailed again, but was still not in perfect trim ; and after several unsuccessful attempts to weather the shoals, she sought Edgarton of necessity, being driven there by stress of weather. It is said that her being out of trim was the cause of her inability to beat over the shoals, and that her being out of trim was occasioned by her discharging her deck load' at Newport, so that her final loss is attributable to this act, although before the loss she was put in trim by taking another deck load at Edgarton ; jut this is tracing things back too far. Most vessels may be supposed to be out of trim on leaving their harbour ; indeed t is only when they try the winds that they can tell what particular trim they need. It is not contended in the argument, that taking the molasses on board at Edgartc a was unjustifiable ; and it could not be, for if she went into that port from necessity, she was there under the policy, and being there, she might leave or take cargo, provided no delay or change of risk was occasioned, and the jury say there was not.

There appears therefore to be no cause for setting aside the verdict.

Without doubt there may be such negligence or want of . skill in stowing a cargo, as to render a vessel unfit for the voyage, and then she would be unseaworthy and the policy would be avoided ; but it is for the jury to determine the degree and effect of imperfect loading ; and we think it was rightly put to that body, whether this vessel was so much out of trim as to be unseaworthy for the voyage. They have negatived this supposition, and so on this ground the motion for a new trial must fail.

Judgment according to the verdict. 
      
       See 3 Kent’s Comm. (3d ed.) 313, 314.
     
      
      . See 2 Phil. Ins. 176.
     