
    William G. Audenreid, Executor, etc., Appellant, v. The Mercantile Mutual Insurance Company, Respondent.
    (Argued April 8, 1875;
    decided April 20, 1875.)
    If a vessel, insured for a specific voyage, goes designedly and unnecessarily in the least out of her course,or lies by and interrupts the voyage without the assent of the underwriter, this is a deviation -which terminates the policy.
    Defendant issued a policy on the steamboat M., at and from P. to N. Y., with liberty “ to touch and stay at any ports and places, if thereunto obliged by stress of weather or other unavoidable accidents.” The vessel, after the commencement of the voyage; stopped at 0., an inter- • jacent port, to repair a defect in her steam chimney, which existed and was known to her owners before her departure from P. While lying at 0. she was destroyed by fire (a risk insured against). In an action upon the policy, Tield, that it was terminated by the delay at 0., and defendant discharged.
    Appeal from order of the General Term of the Supreme Court in the first judicial department, setting aside a verdict in favor of plaintiff1 and directing a new trial.
    This was an action upon a policy of insurance issued by defendant to one Davis, and b.y him assigned, after loss, to plaintiff’s testator. The substance of the policy and the circumstances of the loss are sufficiently stated in the opinion. Defendant’s counsel asked the court to direct a verdict for defendant. This was denied and exception taken. The court directed a verdict for plaintiff. ' Exceptions were ordered to be heard at first instance at General Term.
    
      Francis Kernan for the appellant.
    The stoppage of the vessel for repairs during the voyage was not a deviation which discharged defendant. (Park on Ins. [6th ed.], chap. 17, 387, 401; 1 Phil, on Ins. [3d ed.], 543, §§ 977, 980, 982, 1000, 1001, 1003,1018; 2 Kent’s Com. [m. p.], 312; Lockitt v. Mer. Ins. Co., 10 Rob. [La.], 339 ; Lavabre v. Wilson, 1 Doug., 291 ; Keeler v. Firemen's Ins. Co., 3 Hill, 251, 257; Hobart v. Norton, 8 Pick., 159, 160; Byrne v. La. State Ins. Co., 7 Martin [N. S.] [La.], 128; Fernandez v. G. W. Ins. Co., 48 N. Y., 571; Stevens, v. Conn. M. Ins. Co., 26 id., 397, 403; Que. Mar. Ins. Co. v. Com. Bk. of Can., 3 L. R. P. C. App. Cas., 234, 237, 240, 241.) It was not error for the court to refuse to dismiss the complaint on the ground that the vessel was unseaworthy. (Que. Mar. Ins. Co. v. Com. Bk. of Can., 3 L. R. P. C. App. Cas., 240, 241; Sherwood v. Ruggles, 2 Sand., 55.) An equitable interest in property is insurable. (1 Phil. on Ins., 165, §§ 188, 191, 287; Gordon v. Mass. F. and M. Ins. Co., 249, 258 ; Strong v. Manuf. Ins. Co., 10 Pick., 40, 43; Col. Ins. Co., v. Lawrence, 2 Pet., 25, 46; Spring. F. and M. Ins. Co., v. Allen, 43 N. Y., 389, 395; Tyler v. Ætna Ins. Co., 12 Wend., 507; 16 id., 385.) The assured was not obliged to disclose his interest in the insured property when the insurance was effected. (12 Wend., 507; 16 id., 385 ; White v. H. R. R. R. Co., 7 How. Pr., 341; Lawrence v. Van Horn, 1 Cai., 276 ; Bixley v. Frank. Ins. Co., 8 Pick., 86; Curry v. Comm. Ins. Co., 10 id., 535; 1 Phil, on Ins., §§ 28, 385, 388; Murray v. Colb. Ins. Co., 11 J. R., 302; Bailey v. Hope Ins. Co., 56 Me., 474.) The judge did not err in declining to dismiss the complaint on the ground that there was an omission or defect as to the proofs of loss or of interest. (Francis v. Ocean Ins. Co., 6 Cow., 404; S. C., 2 Wend., 64; Rogers v. Traders' Ins. Co., 6 Paige, 583; Martin v. Fishing Ins. Co., 20 Pick., 389.)
    
      James C. Carter for the respondent.
    An insurance of a vessel generally does not cover the interest of a mortgagor who has parted with all his title to the vessel. (1 Pars. on M. Ins., 202, 206, 227; 3 Kent’s Com., 258; OhI v. Eagle Ins. Co., 4 Mason, 172, 390, 394; Colb. Ins. Co. v. Lawrence, 2 Pet., 49 ; Marsh. on Ins., 789 ; Robertson v. U. Ins. Co., 2 J. Cas., 250; Riley v. Delafield, 7 J. R., 522; Cheriot v. Barker, 2 id., 346.) The fact that the vessel was unseaworthy when she sailed avoided the policy. (Forshaw v. Chabert, 3 B. & B., 158 ; Que. M. Ins. Co. v. Com. Bk. of Can., L. R. [3 P. C.], 234; Arnold M. Ins. [4th ed.], 613; 1 Pars. M. Ins., 367.) The deviation of the vessel from her course discharged defendant. (Fernandez v. G. W. Ins. Co., 48 N. Y., 571.) The assured was obliged to disclose his interest before he could call on defendant to pay the loss. (At. Ins. Co. v. Storrow, 5 Paige, 285.) The valuation of the vessel did not fix the amount of the recovery. (Locke v. N. Am. Ins. Co., 13 Mass., 66.)
   Allen, J.

The policy was upon the steamboat Meteor, her tackle, etc., at and from Philadelphia to Hew York, with liberty to touch and stay at any ports and places, if thereunto obliged by stress of weather or other unavoidable accident. The perils insured against were those of the sea and such as are covered by marine policies, including fires.

The vessel was destroyed by fire, after the commencement of the voyage, and while laying at the wharf at Chester, on the Delaware river, an interjacent port between Philadelphia and Hew York. The voyage was interrupted for the repair, at the place of the loss, of a defect or crack in -the steam chimney, which existed and was known to the owners of the vessel before the departure from Philadelphia. The repairs were not made necessary by any thing that occurred after the commencement of the voyage, or by any of the perils insured against. Heither was the steamer “ obliged by stress of weather or other unavoidable accident,” to touch or stay at the port or place at which she was burned. The delay at that place was the voluntary act of those in charge of the vessel, and was not excused by any of the circumstances which are • recognized as justifying a deviation from the usual course of a voyage as between insurers and insured. If, therefore, the delay was a departure from the due and usual course of the voyage insured, it was a violation of the implied conditions of the policy, and the risk had terminated at the time of the loss. A deviation is a varying from the route insured against without necessity or just cause after the risk has begun, and the effect of a deviation is to discharge the underwriters whether the risk is thereby enhanced or not. It is not confined to a departure from or going out of the direct or usual course of the voyage, but it comprehends unusual or unnecessary delay, or any act of the assured or his agents, which, without necessity or just cause, increases or changes the risks included in the policy. Whenever the insurance is upon a specific voyage, there is an implied condition to be performed by the assured that the ship shall pursue the most direct course, and that the voyage shall be prosecuted to its final termination with a reasonable diligence and without unnecessary delays. Any failure to comply with this condition alters the nature of the risk assumed by the underwriters, and from the instant of such failure terminates the insurance. (Park on Ins., 294; Arnold on Ins., 341, 342; Parsons on Marine Ins., 1.) In an insurance upon a specific voyage the commencement and termination are given, and if the insured intends or designs that the voyage should be interrupted, the contract should provide for all the stops apd delays intended in the course of the voyage. Otherwise the insurers will not be able to judge of the nature and extent of the risks to be encountered. If the insured may break up a single voyage between the termini named in the policy, at his own pleasure or for his profit or convenience, into several, by stopping at intermediate ports, he may essentially vary the risk, and the estimate of the underwriter will be of no value.

Permission to touch and stay at Chester for repairs or any other purpose was not given by the contract of insurance, and the risk was necessarily varied by such act. The vessel was exposed to perils while at the wharf, in charge of one or more of the hands and the chief officers absent, which she would not have encountered in the due prosecution of the voyage. The voyage was also prolonged, and the continuance of the risk in point of time increased, if the policy was valid, while the vessel should be detained at the intermediate port, and was to continue as provided in the policy until she safely arrived at Hew York and “ should be moored twenty-four hours in good safety.” It is self-evident that a risk upon a vessel at and from Philadelphia to Hew York direct and without delay, is essentially different from a like risk, with liberty to touch and stay at intermediate ports. By a policy upon a vessel “ at and from Philadelphia to Chester, and at and from thence to Hew York, or “ at and from Philadelphia to Hew York, with liberty to stop at Chester for repairs,” a different voyage is insured, and a different risk assumed, than by a policy on a voyage direct between the two extreme termini. If a vessel goes designedly and unnecessarily'in the least out of her course, or lie by and interrupt the voyage without necessity and without the assent of the underwriter the risk is substantially changed, and such change of risk is a deviation which terminates the insurance. (2 Par. on Mar. Ins., 9.) Lord Mansfield, in Petty v. Royal Ex. Assurance Co. (1 Burr., 341), says: “ If the chance is varied, or the voyage altered by the fault of the owner or nnaster of the ship, the insurer ceases to be liable.”

In the absence of any usage or stipulation to the contrary, the meaning of the parties to the policy is that the ship shall proceed from one terminus of the voyage insured, to the other, in a direct course, with all due expedition and without touching at any interjacent port, or pursuing any intermediate adventure. (1 Arnold on Ins., 354; Brown v. Tayleur, 4 A. & E., 241; Coffin v. Newburyport M. Ins. Co., 9 Mass., 436 ; Hobart v. Norton, 8 Pick., 159; Fernandez v. Great West. Ins. Co., 48 N. Y., 571.)

The question now under consideration, cannot arise upon time policies, as there can ordinarily be no deviation under policies of that character. Dixon v. Sadler (5 M. & W., 405), was upon such a policy. The cases involving the question of seaworthiness in different stages of a voyage, or those in which the effect of a license to touch and stay at intermediate ports are considered, some of which were cited by the learned counsel for the plaintiff, do not bear upon the case in hand, or elucidate any principle involved, and need not therefore be particularly referred to.

We are of the opinion that the policy was terminated by the interruption of the voyage and the delay at Chester without the assent of the underwriters. As this leads to a judgment for the defendant, we do not consider the other serious questions presented.

The order granting a new trial should be affirmed and judgment absolute for the defendant, pursuant to stipulation. All concur.

Order affirmed and judgment accordingly.  