
    John Kettell versus Timothy Wiggin and Others.
    A vessel was insured from Gibraltar to the United States, with liberty to proceed to the Cape de Verd Islands for salt. On her arrival at the Isle of May, she found so many vessels there that she must have waited four or five weeks for her turn to take a cargo of salt. On the proposal of the governor, she went to two other of the islands, and brought for him a cargo of provisions, he engaging, that, on her return, she should be immediately despatched, and by this means she was expedited sooner than she otherwise would have been. She was after-wards lost, and this was holden to be a deviation which avoided the policy.
    Assumpsit on a policy of insurance, subscribed by the defendants, upon the schooner Pocahontas, and freight * from Boston to Gibraltar, and from thence to her port of discharge in the United States, with liberty to proceed to Si. Ubes or the Cape de Verd Islands for salt.
    The vessel arrived in safety at Gibraltar. and from thence sailed for the Isle of .May, one of the Cape de Verds, for a cargo of salt, where, she arrived on the 12th of May, 1810. On her arrival there, there were seventeen vessels in the port, and it is the custom of the place for vessels to load' in turn as they arrive. The Pocahontas could not have bad her turn in less than four or five weeks, and she was short of provisions, of which and of water there was a scarcity at that place. The governor of the island proposed to the master to go with his vessel to St. Jago and Fuego, two other of the Cape de Verd Islands, and procure a cargo of provisions ; and engaged, that, if he would, he should be loaded with salt as soon as he should return, although his turn should not have arrived. The master agreed to this proposal, went to those islands, brought provisions for the governor, and was immediately permitted to take his cargo of salt; and he was thus enabled to load his vessel considerably sooner than he would have been, if he had remained at the Isle of May for his turn.
    After taking in the cargo, the vessel sailed on the return voyage, and, being short of water and provisions, put into the port of Praya, in St. Jago (which is a place usually slopped at for provisions and water, on a voyage from the Isle of May to the United States), where she arrived on the 4th of June, and in the night of the 5th was attacked by banditti, carried off, and subsequently totally lost; having been recovered by the master nineteen days after she was so piratically seized, but some time afterwards captured by a British vessel of war, libelled as prize, and condemned.
    The evidence was full and satisfactory, that provisions and water were scarce and difficult to be procured at the Isle of May; and that it was the usage to touch at St. Jago, on the way home, for supplies. It was also proved, that it * was usual for vessels to go from island to island, among the Cape de Verds, for salt or to complete their cargo.
    
      The Chief Justice, before whom the cause was tried, November term, 1814, instructed the jury, that, if they believed the usage with respect to touching at St. Jago, on the way home from the Isle of May, and that there was a necessity for it, without any fault of the master, on account of provisions or water, the act would not be a deviation ; and further, if they were fully satisfied, that the trip taken to St. Jago and Fuego, at the request of the governor, was for the purpose of expediting the loading of the vessel and the return home, without any intention on the part of the master to deviate from his voyage ; and that the voyage home was, m fact, expedited by that circumstance ; and that the stay at the Isle of May for her turn to load would have been hazardous, on account of the scarcity of provisions and water ; they might consider that there was no deviation from the voyage, less time being consumed than would have been, had the vessel remained at the Isle of May.
    
    A verdict was returned for the plaintiff, and the defendants moved for a new trial, for misdirection to the jury, by the judge who sat at the trial.
    At the last March term, Selfridge, for the defendants, contended, that it was the duty of the judge to instruct the jury, that a deviation had taken place, which avoided the policy, in going to St. Jago, on the passage home, for provisions. They should have been laid in at Gibraltar, or there was a want of seaworthiness. But especially the going to St. Jago and Fuego, at the governor’s instance and for his benefit, was a gross act of deviation, an actual and wilful making of another voyage, and without the plea of necessity, which alone can justify any departure from the direct course of the voyage. Nor is it material to inquire, whether by a deviation the voyage is shortened or lengthened, or whether the safety of the adventure is thereby increased or diminished. 
    
    Rockwood, for the plaintiff,
    insisted, that, by the terms of # the policy, the vessel had a right to go to any or all the Cape de Verd Islands ; and the usage of calling at St. Jago, for provisions, was well established. If, on the departure from Gibraltar, the vessel had sufficient provisions for the voyage to the Cape de Verds, the objection as to a want of seaworthiness fell to the ground. The necessity, which justifies a departure, is not a merely physical necessity ; but rather means any reasonable cause. Thus, in this case, the master’s going to St. Jago and Fuego was the exercise of a sound discretion, in order to forward his enterprise and lessen the risk of waiting at the Isle of May, which was the actual effect. 
    
    
      
      
        Marsh. 392, 3, 401, 405. — 5 Mass. Rep. 1.— Brazier & al. vs. Clap, 1 Munf. Rep. 408.
    
    
      
       1 Johns. Rep 301, 333. - Marsh. 397, 408. —7 D. & E. 162 — 3 Mass. Rep. 351. -7 Mass. Rep. 365. — 8 Mass. Rep. 531.—9 Mass. Rep. 447. — 2 Johns. Cases, 296.— 3 Ibid. 10. — 3 Binney, 457.
    
   The opinion of the Court was delivered at this term by

Parker, C. J.

The touching at St. Jago, on the voyage home, was relied upon by the defendants as a deviation which destroys the action. But, it being in evidence, that vessels from the Isle of May usually touch at St. Jago for supplies, which are not always to be obtained at the Isle of May, the touching there was justifiable, and no deviation.

But the vessel went an intermediate voyage after her arrival at the Isle of May, under a contract with the governor of that island ; and the question is, whether that act is justifiable. The vessel is insured from Gibraltar to the United States, with liberty to touch at St. Ubes or the Cape de Verd Islands for salt. Under this policy she might have sailed from one to another of those islands, and successively to all of them, for salt; but her arrival at any one of them, where salt was to be obtained, and where the cargo was intended to be taken on board, determined the voyage to those islands, and the vessel could not proceed from thence to another for the purpose of earning a freight, or for any other purpose, under the policy. Now the Me of May is one of the Cape de Verd Islands, at which the vessel might touch ; she did touch there, and it was determined to take on board a cargo there ; but she went thence to St. Jago and Fuego, not for the purpose of procuring salt, * but on a contract with the governor, to get provisions for the island, and then returned to the Isle of May, to prosecute her homeward voyage. This was undoubtedly a deviation, unless it can be shown to have been necessary for the safe prosecution of the voyage. Mere purposes of convenience will not excuse a deviation, nor will any thing but actual necessity.

It was contended, that this voyage was necessary, because there was a scarcity of provisions and water, and the crew of the vessel might have suffered. This, perhaps, would be a sufficient excuse, if the necessity, on which it is founded, did not arise from the negligence of the master ; if it did, the owners cannot avail themselves of it, to excuse a deviation. The voyage from Gibraltar was to the United States, with liberty to touch at the Cape de Verds. The vessel should have been sufficiently found at Gibraltar, to enable her to stay and load at the Isle of May, without depending upon procuring provisions there. Indeed, the necessity, which is alleged, seems to prove that the ship was not seaworthy at the time the policy was to take effect.

But it was confidently insisted, that, as the effect of this expedition,. at the request of the governor, was to shorten the duration of the voyage, by enabling the master to obtain his cargo much sooner than he otherwise could, it ought to be considered as done for the benefit of all concerned, and not as amounting to a deviation.

But masters have not a right to speculate, in this manner, upon the possible advantages of pursuing a route which does not belong to the voyage. They are to pursue the usual course, and let the consequences fall where they may. In this case the master probably thought he was advancing the interest of his employers, of the underwriters, and of all concerned, by getting his vessel loaded several weeks sooner than would have been his turn ; and yet it is almos* certain, that his very success, in being able to commence his homeward voyage so soon, was the cause of the disaster which befell his vessel. Certainly, had he arrived * at St. Jago a week later, he would have avoided the immediate cause of the loss.

Notwithstanding it is established by the verdict, that the voyage was in fact expedited by the intermediate voyage to St. Jago and Fuego, we are of opinion, that voyage was, under the circumstances, an unjustifiable deviation. To test this, let us inquire whether the vessel was at the risk of the underwriters, from the Isle of May to Fuego and back. It was not within the terms of the policy ; it was not necessary, unless it had become so by the culpable neglect of the master. Had the vessel been lost upon that voyage, the underwriters could not have been held answerable. The policy, then, had ceased to protect the vessel ; and it is not possible that any thing subsequent should restore the obligation of the underwriters.

We are all of opinion, that the verdict must be set aside, and a

Mew trial granted.

[Robertson vs. Col. Ins. Co. 8 Johns. 383. — Ed.]  