
    DUNCAN McCOLL, et al., Plaintiffs and Respondents, v. THE SUN MUTUAL INSURANCE COMPANY, Defendant and Appellant.
    MARINE INSURANCE—POLICY, CONDITIONS OP—TOTAI LOSS.
    The facts in this case show the vessel upon a reef at Cow Bay od the coast of Cape Breton, a dangerous coast, at a season when there was the greatest probability of gales and destructive seasl and the vessel on the rocks under a high and precipitous clifl'l and confirm' the oral testimony that she could not have beeil taken off, and was a total loss, subject only to a chance that shl might survive the winter tempests and waves. This merl chance (which was sold at public auction) did not forbid thi conclusion that under this policy the loss was total. If the facts had been submitted to the jury, a finding contrary to this conclusion of the court would have been against a decided preponderance of the testimony.
    DEVIATION.
    The hark “ Lindo,” was insured for the voyage, “at and from Miramichi, to a port in (Jape Breton, and at and thence to (New York"
    
    The vessel sailed from Miramichi November 34th, 1864, bound for Big Glace Bay, a port in Cape Breton, having cleared at the Custom House in Newcastle (within which district Miramichi lies) for the port of Big Glace Bay, under a certificate from the collector to that effect, consigned to the agent of the Clyde Mines, at Big Glace Bay, to load coal at that port for New York under a writjen charter dated November 18th, 1864, by which the owner agreed with Halls & Creed, agents of the mines, that the said vessel should receive on board a full cargo of coal in bulk, which the charterers agree to furnish “at Clyde Mines, Big Glace Bay, C. B.,” and being so laden, to sail to New York, for three dollars and seventy-five cents, gold, per ton. By the charter it was also stipulated that “if on the arrival at Big Glace Bay, the captain does not consider it safe to remain and load, then he is to be at liberty to proceed elsewhere, and this charter to he considered cancelled.” On the evening of November 35th, the vessel having passed the North Cape of Cape Breton, and at ten o’clock p. m. Sydney light, then bearing west about three miles, the captain concluded to put into Sydney, a port in Cape Breton, and lying off and on till morning entered that port and anchored there November 36th. There was no storm or stress of weather which required him to put into Sydney. There the vessel remained sixteen days, until December 13th, when she sailed for Cow Bay, a third port in Cape Breton, and while loading there with coal for New York, a sudden storm drove her upon the rocks, constituting the alleged loss.
    
      Held, That the act of the master taking the vessel from Sydney, to Cow Bay (a second port of Capo Breton) was a deviation from the voyage for which she was insured.
    The master had a right to select a port of Cape Breton, but his right and the rights of the bark were exhausted by the use of one port. He could not enter one for the purpose of selecting another, or afterwards proceed to another port from the one first entered.
    If the nso of the first port was a part of the voyage, then the act of seeking and taking another was a deviation. If the first port was not a part of the voyage, then the act of seeking it was a deviation in itself. By the policy, it was also warranted, that the vessel was commanded by a captain holding a certificate from The American Shipmasters’ Association. The bark was not so commanded, hut this fact was made known to the insurers by the insured, and the policy made and delivered, and the premium paid upon the condition that this vessel was a foreign vessel, and it should not or would not apply.
    
      Held, that the insurers dispensed with such a certificate, and waived the same.
    Before Sedgwick and Speir, JJ.
    
      Decided May 3, 1875.
    Appeal from judgment for plaintiff on verdict direcd by the court.
    The action was upon a policy of marine insurance which insured the bark “Lindo,” “at and from Miramichi to a port in Cape Breton, at and thence to New York, with privilege of carrying coal exceeding her tonnage.”
    The bark sailed from Miramichi, on November 23 1864, for Cape Breton. There were several ports in Cape Breton, viz. : Cow Bay, Little and Big Glace Bays, Schooner Pond, Bridgeport, and Lingan, which were upon open roadsteads. Vessels loaded with coal at these ports ; but daring the winter months, it was dangerous to vessels to lie there, while waiting to load. Strong evidence was given to show that, at such time, it was the custom of trade and navigation that] vessels proceeded to the port North Sydney, where! the harbor was safe, and waited until they could b immediately' loaded at the unsafe ports with coal, an then went, were loaded and departed on the voyage.
    The “Lindo” was chartered at Miramichi, to take a cargo of coal at Big Glace Bay. The charter party had the provision, that “ if on arrival at Big Glace Bay! the captain does not consider it safe to remain and load! then, he is at liberty to proceed elsewhere, and this charter to be considered cancelled.” The captain was not, on the voyage, acquainted with the terms of the policy. The bark arrived off the North Cape of Breton, on November 25th about noon. It then began to snow in thick squalls. This continued until six o’clock in the afternoon. About eight o’clock in the afternoon Sydney Light was made. At about ten o’clock in the afternoon the captain tacked ship and lay off and on until morning, and at about five o’clock in the afternoon of November 28th, dropped anchor in the harbor of Sydney. In his protest lie stated that he went into Sydney “for the purpose of making a harbor, there being no safe anchorage either at Big Glace Bay or Cow Bay.” In his testimony he said that he went to Sydney for a harbor, that he did not know what kind of a place Big Glace Bay was, and did not like to go there with the vessel. In answer to a question by plaintiff, “ Did you go into Sydney for the purpose of obtaining a cargo of coal, or did you go into it as a port of safety?” he said: “ 1 went into it as a port of safety, but did not go in for the purpose of obtaining a cargo of coal.”
    The captain went to Big Glace Bay to find if it were prudent to take in coal there, but deemed it best to cancel the charter party, and then entered into a charter-party to take a cargo at Cow Bay. This was done promptly, but the. bark waited at Sydney for her turn at Cow Bay until December 12th. She. reached the wharf at Cow Bay on the 18th. On the evening of the-19th, a most violent gale arose and tore the bark from her fastenings. Her bitts were pulled out and part of her deck ripped up, and she was driven upon a reef of rocks, beating and thumping heav-ily. The main-mast, fore-mast, and mizzen top-mast went by the board with all the gear attached. She was driven to the foot of a perpendicular cliff, from sixty to one hundred feet in height. She received many other serious injuries. It was impossible, under the circumstances, to get her off the rocks, at that time, on account of her situation and the stormy character of the climate at that season. Some of the spars, sails, rigging, blocks, and stores, were removed from the bark to the shore, and they and the hull were sold by the captain at public sale for the aggregate gross sum of one thousand and seven dollars. The captain had to pay for stripping the vessel, two hundred dollars. In August of 1865, and after she had been still further injured, she was raised and taken to Sydney, where she was repaired at the expense of about ten thousand dollars in gold. The cost of raising her and towing her to Sydney was more than two thousand dollars in gold. She was not repaired until 1866.
    The policy contained a warranty by the assured, that the vessel be commanded by a captain holding a certificate from the American Ship Masters’ Association. The bark was a British vessel, and th.e master of it a British subject. The president of the company, when the plaintiff’s broker informed him before the taking out. of the policy of the facts in this regard, said to him, that this provision was not, applicable. There was no proof that the master had the certificate.
    On the evidence the defendants moved for anon-suit, but the court directed a verdict for the plaintiff, to which exception was taken.
    
      Joseph H. Choate, for appellants.
    
      Albert Matthews, for respondents.
   By the Court.—Sedgwick, J.

We must consider with the learned judge who directed the verdict, that at the time the bark was upon the reef at Cow Bay, she was totally lost under the policy. The character of the coast, the season, when there was the greatest probability of gales, and a destructive sea, the-situation of the bark on the rocks under the cliff, contain the oral testimony, that she could not then have been taken off'. At the best, there was a possibility that in the next season, she might be raised and removed. But in the meantime, how far she would be broken up by the storms and waves, was not certain, It was certain that, as the fact turned out, she must suffer more and more loss from time to time. It was not improbable that in the next spring, she could not be known as a vessel. The captain had no means of determining the event. It then being certain that before the vessel could be repaired, there must be a delay until spring to know whether or not she could then be moved, and it being just as likely, as not likely, that in the spring the only improvement in the circumstances would be that the weather and the sea would allow work to be done, but that then the vessel would have been broken up by the tempests and waves of the winter, there was at the time the bark went on shore, a loss, total to human calculation and obversations, subject to a chance, that there might be in the future enough left of her to permit her being moved. This mere chance, which was sold at public auction, was not a well-founded hope, that she could be repaired in the spring, and does not forbid the conclusion that under this policy the loss was total. If the question had been sent to the jury, and they had found that the captain was bound in November to have a reasonable hope that the bark would retain its character as a vessel through the winter, and until the calmer weather of the next year, it would have been against what seems to me to be the decided preponderance of the testimony on this point.

I, however, am of the opinion, that the master taking the bark from Sydney to Cow Bay was a deviation. She was insured to and at a port in Cape Breton. The owner or master had a right to select the port. The rights of the bark would be exhausted by use of one port. Even if it be granted that whatever (even another) port was by custom incidental to use of the selected port might itself be used, it is manifest that there was no right to enter one port, for the purpose of of selecting another port as the one at which the policy provided the insurers were to be liable, and to proceed to the other port. It was not meant that the liberty described in the policy might be enjoyed in full, in order to enable the master to select another port, with its additional risks. This would be using two ports in Cape Breton, the use thus made of Sydney not being by custom incidental to the use of the other. If such use of Sydney was part of the voyage, to take another port was a deviation ; if it were not, either geographically or by the custom of trade or navigation, then it was itself a deviation.

The testimony of the master is direct, that when he went into Sydney he had a purpose to take a cargo at either Big Glace Bay or Cow Bay, but had not made up his mind at which. He then used Sydney for a purpose which was not incidental to the use of another port. At the time, he had no knowledge of the terms of the policy, and had no regard one way or the other to its specific provisions. The fact was, he went into Sydney before he had selected another port to load at. The policy insured him at Sydney, but his departure thence to Cow Bay, and not to New York, was a deviation.

For the determination of the party’s right it is only necessary to see if the course taken was contemplated by the policy, and it is unimportant to see that the risks were increased. Yet we observe that Miramichi was but a short sail from Cape Breton, and the owner or master had full opportunity of determining, before sailing, at which port it was best and safest to load.

We do not mean to decide what is the construction of such a policy as respects its giving a right to elect the port, and then to use another port which prudent navigation and the custom of trade have made necessary or incidental to the use of the first. We have endeavored to show that Sydney was not thus used. But we further remark, that the supposed use of Sydney would only be justifiable or incidental to the use of a single port, theretofore selected. The use of Sydney would, under the policy, be the use of the privileged port. In the present case, no other port having been selected, the master when he entered Sydney, intending to go to Big Glace Bay or Cow Bay, as he should thereafter choose, in fact used Sydney as incidental to the purposes of trade at more than one port, until he in fact made his final choice.

It is not correct that the risks were in fact the same as if the insured had chosen, as he might have done, that port of loading which would involve the longest delay at Sydney. The contract, in giving the election to the insured, should not be construed absolutely in view only of a selection most unfavorable to the insurer. Beyond, however, the risks existing through this longest period, there was actually the risk that lasted through the time spent in examining the different ports before selecting one, be it that which involved the least or the most delay. In the present case the master was prompt, and examined but two ports. If his course can be justified on principle, the difficulty will be to find in other cases whether the time spent was necessary or not, to the due selection from not only two ports, but several more that are on that side of Cape Breton. It can not be said there was no more risk, for the one or two or three days then spent, might delay the vessel until the coming on of a destructive storm.

It would not change the conclusion to consider that Cow Bay was not a port. It was not within the port of Sydney. If the policy allowed only the use of that port, to depart from the direct voyage to New York was a deviation. I can not find any evidence tending to show that the bark was compelled to go into Sydney, by stress of weather or fear of disaster. She went in voluntarily for the convenience of the harbor only.

Under the evidence, I think the learned judge was right in holding, that the want of a certificate from the American Ship Masters’ Association did not prevent a recovery. There was but one inference to be drawn from the testimony on this point. The company dispensed with such a certificate, and received the premium after this. As we think there was a deviation, upon the present evidence, the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Speir, J., concurred. 
      
       This case was before the court, and a new trial ordered, because of a failure to prove total loss. See 34 Sup’r Ct. Rep. 310.
     