
    Marine Insurance Company of Alexandria v. Stras.
    Wednesday, October 17, 1810.
    1. ilarine Insurance — Construction—Case at Bar. — A marine Insurance, “at and from Norfolk to Cnrracoa, with liberty of going- to any other island In the West Indies, or any one port on the Spanish Main, and at and from thence back to Richmond,” must be understood as an insurance “at and from Norfolk to Curracoa, in the first place, with liberty ot going from Curracoa to any other island,” &c.
    2. Sains-Same — Same—Deviation.—If, therefore, the vessel put into the island of St. Thomas, and thence return to Norfolk, without ever going to Curracoa. it is a deviation from the voyage; and, there being no proof that such deviation was occasioned by stress of weather, or other unavoidable accident, the person insured is entitled to no return of premium; such being the terms of the policy.
    3. Same —Same— Same — Evidence— Protest — Quajre.— A protest before a Notary Public, by the master of the vessel, after his return to Virginia, is no evidence in such case: and quiere, would such a protest, made at St. Thomas’s, have been any evidence; the person who made it being alive, and no impediment to prevent his deposition from being regularly taken ?
    This was a controversy about a return of premium upon two policies of insurance ejected by William Hodgson, on behalf of George Frederick Stras, on a voyage ■‘at and from Norfolk to Curracoa, with liberty of going to any other island in the West Indies, or any one port on the Spanish Main, and at and from thence back to Richmond;” the first policy bei”g “upon any kind of lawful goods and merchandises, valued at 6,000 dollars, 409 laden or to be laden on board *the good schooner called the Sophia, George C. Eeacy, master, and to continue and endure until the said goods and merchandises should be safely landed at Richmond aforesaid;” the second, “upon the body, tackle, apparel and other furniture of the said schooner, valued at 4,500 dollars,” and to continue “until the said vessel be safely arrived at Richmond aforesaid, and until she be moored twenty-four hours in good safety.”
    In each policy there was a clause expressing that “it should and might be lawful for the said vessel in her voyage to proceed and sail to, touch and stay at any port or places, if thereunto obliged by stress of weather, or other unavoidable accident, without detriment to the insurance.” The rate of premium was 27 1-2 per cent, “to return five per cent, if the vessel did not proceed to a second port, and five per cent,  if the propert3' returned in the said vessel,  and no loss happened: in all cases of return premium, one half per cent, on the sum insured to be retained by the assurers: and it was mutually agreed by the parties, in each policy, that no part of the premium should be returned, or abated, on account of any deviation which should be made by the owners, or their factors, from the present voyage. ’ ’
    Hodgson, the agent of Stras, having, on the 2d of December, 1799, given his own note negotiable at the Bank of Alexandria for the amount of the premium being 2,754 dollars, with James Patten and James Dykes, endorsers, payable in six months; Stras, on the 13th of May, 1800, filed a bill in the late High Court of Chancery against The Marine Insurance Company and the said Hodgson, and obtained an injunction to inhibit the defendant Hodgson from paying 1,825 dollars, part of the said note, until the further order of that Court.
    The bill stated that “the said schooner, while on her direct course to Curracoa, was chased by an armed vessel, which overtaking her fast, the Captain, to escape being captured, thought it most prudent to put into the island of St. Thomas, then not far to the leeward, where he arrived in 410 '^safety; that, on his arrival, he was deterred from proceeding to Curracoa, from the information he had, of the way thither being greatly infested with privateers, so as to render it almost impossible to have escaped capture, had he continued his voyage; in consequence of which, and by the advice of his supercargo, he thought it for the benefit of all concerned to remain at St. Thomas’s, sell the cargo, and take a return one, on freight, to Norfolk; that he accordingly did so, and left St. Thomas’s on the 11th December, and arrived at Norfolk on the 30th of the same month, without touching at any port or place in the West Indies other than St. Thomas’s; that the risk on a voyage to St. Thomas’s being considerably less than on one to Curracoa, the rate of insurance was of course less, and could have been effected at 10 per cent, on the outward vo3'age, and at the same rate on the return; so that the putting into St. Thomas’s was a benefit to the insurers, whose risk was thereb3'considerably diminished. The plaintiff did not claim any thing on account of that difference of risk, but conceived himself, within the express terms of the policy, entitled to a return of 10 per cent, on the insurance, (which would amount to 1,000 dollars,) and to a farther deduction of premium on the return cargo, as no return cargo was taken on board, and no risk incurred; (this at 13 1-2 per cent, on the said cargo amounts to 825 dollars;) that, on the return of said schooner, it appeared the Captain had neglected to make any protest at St. Thomas’s, or immediately on his arrival in this country; and, as it was deemed necessary, for obtaining the return premium, that such proof should first be presented to The Marine Insurance Company of Alexandria, the Captain was written to at Norfolk, and requested to make out a protest stating his reasons for g<fing into St. Thomas’s; which was accordingly done; as would appear by his protest annexed to and made part of this bill.”
    William Hartshorne, President of The Marine Insurance Company, answered, for and in behalf of the said company ; averring the true intent and meaning of the policies to have been to insure from Norfolk to Curracoa, with liberty, after arrival at Curracoa, to go to any other island 411 in the West *indies, or any one port on the Spanish Main, and at and from thence to Richmond; that so the contract, though a little vaguely expressed, was to be understood among mercantile men; that the going to St. Thomas’s, without ever going to Curracoa, was therefore a deviation from the voyage, and a breach of the contract on the part of the insured; on account of which there was, by the terms of the policies, to be no return of premium. “The defendant did not admit that the said schooner while on her direct course to Curracoa was chased by an armed vessel, so as to make it necessary or prudent to put into the island of St. Thomas, or to excuse the said schooner from proceeding to Curracoa; or that any other sufficient cause for the deviation from Curracoa did exist. If any such sufficient cause existed, the usage of trade, for the purpose of obviating frauds, required that the same should have been stated in a regular protest at St. Thomas’s immediately after the arrival of the vessel there. And the said protest should have been subscribed by the master and mate, or master and some of the seamen, and duly sworn or affirmed to. Such an instrument would have been entitled to credit; but the protest produced was not entitled to any; having been made at Norfolk, and at a considerable distance of time after the alleged cause of deviation had happened.” Neither did “the defendant admit that the said vessel returned empty from St. Thomas’s; but saith she brought, in money, 592 dollars; so that a deduction of the premium upon the whole sum home, (viz. 6,000 dollars,) cannot, upon any principle, be correct.”
    The protest exhibited was the only document (except the two policies) filed in the cause; no depositions being taken. In that instrument, the captain sets forth the circumstances which induced him to put into St. Thomas’s, much in the same manner as alleged in the bill; but does not say whether any return cargo was taken on board at that place; though he mentions that it was his intention, when he went thither, to take, on freight, a cargo for the port of Norfolk.” He farther says that he sailed from St. Thomas’s, and arrived 412 *at Norfolk; but says nothing about returning to Richmond, at which place, according to the policies, the voyage was to be ended.
    The cause was heard on the 8th of March, 1804, and the late Chancellor was of opinion that the true construction of the policies was that the schooner Sophia, and goods and merchandise laden or to be laden on board of it, were insured in a contemplated voyage from Norfolk to Curracoa, or some other island in the West Indies, and any port on the Spanish Main and back again ; that therefore the diversion to St. Thomas’s was no deviation from the voyage. He was. also of opinion that the phrase “goods and merchandise laden or to be laden” was. to be construed as applying to a return cargo; and that as no return cargo was taken on board, there ought to be a deduction of premium on that account. He therefore made the injunction perpetual;, except as to the 1-2 per cent, which the company, by a clause in each policy, was authorized to retain : from which decree the defendants appealed.
    Call and Williams, for the appellants,
    relied on two points; 1. That the vessel was bound to go to Curracoa, before she was authorized to go to any other island in the West Indies. Without this construction, that part of the policy which mentions a second port (after going to Curracoa) would be senseless. The general course of decision is that, where several ports are mentioned to which the vessel may go, but the order in which to take them is not prescribed, their geographical position furnishes the rule; but, where a particular order is prescribed in the policy, it must be pursued, 
    
    2. The protest of the master, even if made at St. Thomas’s immediately on his. arrival, would not have been evidence ; the person who made it being living. But if any credit should be given to any protest, none is due to the protest in this case, which was not recent; nor immediate j 413 *but since this controversy began. Even the deposition of the master, taken ex parte, would not be evidence.
    Wickham, contra.
    The vessel’s going to St. Thomas’s was no deviation. The contract did not require that she should go to Curracoa first; and, that being silent, she had aright to touch at" St. Thomas’s, which is in the direct route to Curracoa. But, indeed, she was not bound to go to Curracoa at all; and, upon failing to do so, might claim a return of the premium. There are different opinions, whether the insured has a right not to proceed on the voyage: but the law is laid down that he has such right; and, in case he chooses to exert it, the premium ought to be returned ; for risk is the essence of the contract; and it is not necessary to stipulate for a return of premium, where ex asquo et bono it ought to be returned, 
    
    As to the evidence. The protest was read at the hearing, and not excepted to. If an objection had been made, we might have regularly taken the deposition of the captain. The protest, therefore, ought to be received. But if it be not evidence, the only effect should be to open the cause, and give the parties leave to take their testimony again. As the case now' stands, rejecting the protest, there is no proof of the deviation; for the policies prove nothing;(a) and then there is nothing to prevent a return of premium.
    Argument in reply.
    The principle, that, where there is no stipulation to the contrary, and the risk is not run, the premium shall be returned, does not apply to this case: for here the stipulation is express, that, in case of deviation, there should be no return of premium.
    The plaintiff states in his bill that he went to St. Thomas’s from necessity. The answer admits that he went there but denies the necessity. The plaintiff then must iwove it: the burden of proof does not lie on the defendants. The evidence on the part of the plaintiff being altogether illegal, it was not necessary for us to make an objection in the Court below: for the rule is that, where a party means to object 414 *to a paper which on the face of it appears to be evidence, he must shew his objection : but that is not necessarj as to a paper which, on its face, is no evidence. Mr. Wickham’s position that the cause should be sent back, and leave given to the parties to take new testimony, would produce an endless circle of litigation. Where the parties are prepared and go to trial, this Court must take the record as it stands, and, if no evidence appears in support of the decree, it must be reversed.
    Friday, October 26. The JUDGES FLEMING and TUCKER (JUDGE ROANE not sitting in the cause) pronounced their opinions.
    JUDGE TUCKER. This was a bill brought by the appellee Stras, for a return of premium on the schooner Sophia and her cargo “at and from Norfolk to Curracoa, with liberty of going to any other island in the West Indies, or any one port on the Spanish Main, and at and from thence back to Richmond.”
    The bill suggests that the schooner, while on her direct course to Curracoa was chased by an armed vessel, which overtaking her fast, the Captain, to escape being captured, put into the island of St. Thomas, then not far to the leeward, where he arrived in safety; that he was deterred from proceeding to Curracoa from information that the way thither was greatly infested with privateers, so as to render it almost impossible to escape capture. He therefore sold his cargo at St. Thomas’s, and took a return cargo on freight to Norfolk, where he arrived on the 30th of December, 1799, without touching at any port or place in the West Indies, other than St. Thomas’s. There was a condition in the policy for a return of premium in case the Sophia should not proceed to a second port; and also for a further return if the property (the cargo) should return in the vessel, and no loss should happen.
    The policies contain two other material clauses; 1 ‘first, that it shall and may be lawful for the said vessel in her 41S ‘^voyage to proceed and sail to, touch, and stay at any port or places, if thereunto obliged by stress of weather, or other unavoidable accident, without prejudice to that insurance.’' Secondly; “it was mutually agreed by the parties that no part of the premium should be returned, or abated, on account of any deviation which shall be made by the owner, or their factors, from the present voyage.”
    The sole question then is, was, or was not, the going into St. Thomas’s a deviation?
    If the case stated in the bill be made out, there is no ground to call it a deviation ; the first recited clause in the policy expressly providing, that if thereunto obliged by stress of weather, or other unavoidable accident, she might lawfully go into St. Thomas’s (or twenty other different places, under the like circumstances) to avoid the danger,  The case is expressly within the terms of the policy.
    But what is the proof of this danger, and necessity? Not the complainant’s bill surely! So much of it as relates to this necessity is expressly denied by the answer. There remains then no shadow of proof of such necessity but a paper purporting to be the copy of the Captain’s protest, made in Norfolk (not St. Thomas’s, nor corroborated by the oaths of his mate and seamen, as is usual when a vessel is forced out of her course into a different port) on the Sth day of February, 1800, near six weeks after his arrival in Norfolk. Whatever may be the effect of a protest taken in a foreign country, to which not only the master but the mate and mariners of the vessel may make oath immediately after their arrival in a port into which they have been driven by stress of weather, or by an enemy, according to the ordinary usage in such cases, (on which I mean not to give any opinion,) such a protest as this, taken at so remote a period of time, and in a different port and country from that where the vessel first arrived, after the insurance upon her could operate, appears to me to be entitled to no more respect as evidence, in a case of this nature, than any other voluntary affidavit, made by a person respecting any controversy which 416 *had happened, or might happen, between any persons whatsoever. Therefore, without relying on the decision in the case of Senat v. Porter, 7 T. Rep. 158, I am decidedly of opinion that this protest is no evidence at all in the present case. The consequence is, that the complainant has failed to prove his case to have been such as to entitle him to the benefit of that clause of the policy which would have justified his sailing into, and staying at, St. Thomas’s, if the facts stated m his bill had been supported by proper testimony. The case, therefore, falls under the last clause of the policy before recited, by which it was agreed that no part of the premium should be returned or abated on account of any deviation which should be made by the owners, or their factors, from the intended voyage; unless the description of the intended voyage contained in these words of the policy, viz. “at and from Norfolk to Curracoa, with liberty of going to any other island in the West Indies, or any one port on the Spanish Main, and at and from thence back to Richmond,” will apply to the voyage which has been performed.
    Mr. Wickham, for the appellant,
    contended that the true intent and meaning of the policy was, that the schooner might lawfully go to any two ports in the West Indies, of which Curracoa must be one; but that she was not bound to go first to Curracoa, but might go first to any other port in the course of the voyage to Curracoa, and then proceed to Curracoa, from whence she was in that case to return back to Richmond. But the words of the policy do not admit of that construction; for the word thence refers to the last-mentioned description contained in the policy, viz. any other island in the West Indies, or any one port on the Spanish Main, and at and from thence (i. e, such last-mentioned island or port on the Spanish Main) back to Richmond. The sense is so clear that I am somewhat surprised that so much stress was laid upon that point. The Sophia did not then proceed upon the voyage described in the policy. This was a deviation; 417 by which *is meant a voluntary departure, without any necessity, from the usual course of the voyage insured. From the moment this happens the voyage is changed, the contract (of risk) is determined ; the insurer being discharged from all subsequent responsibility; yet he is entitled to retain the whole premium; for the effect of a deviation is not to vitiate or avoid the policy, but to determine the risk from the time of the deviation. The proper course of the voyage being once interrupted cannot be resumed in the eyes of the law. The shortness of the time, or of the distance, of a deviation makes no difference as to its effect on the contract. Whether it be for one hour, or a month; or for one mile, or one hundred, the consequence is the same. The true reason (as it is said) why a deviation discharges the insurance, is not the increase of the risk, but, that the party contracting has voluntarily substituted another voyage for that which was insured,  So, here, the Sophia, by returning back from St. Thomas’s (supposing her going into that port was matter of necessity to avoid capture, and therefore justifiable) to Virginia, instead of proceeding to • Curracoa, substituted another voyage from that which was insured, which vitiated the policy from that time. So that the underwriters were not only discharged from all future liability, or risk upon the policy, but, also, from the condition of an abatement, or return of premium on any account whatsoever.
    But this is not the only deviation that the Sophia made from the intended voyage, if the charges in the bill be evidence against the complainant, or the captain’s affidavit, or protest, as it is called, be admissible evidence in this cause. The voyage intended and insured against was- from Norfolk to Curracoa, &c. and back to Richmond. But, instead of returning back to Richmond, the Sophia took in a freight at St. Thomas’s for Norfolk, and there discharged her cargo. It does not appear she ever did return to Richmond: if she did, the taking in a freight, and going into Norfolk to discharge it, was such a 418 deviation, as, from that *time, (if nothing which happened before had done so,) discharged the policy, by substituting an entirely different return voyage from that insured. The cases of Fox v. Black, Townson v. Guyon, and Elliott v. Wilson, cited Marshall, ibid. 394, and Park, ibid. 295; and that of Beatson v. Haworth, cited ibid. 396, and 298, and reported in 6 T. R. 531; with the case of Clason v. Simmonds, there cited by Judge Lawrence, all going to the same point, are conclusive in my opinion to shew that the taking in a freight for Norfolk, instead of Richmond, was the substitution of a different voyage from that insured against, and a voluntary abandonment of the terms and condition of the policy. I am therefore of opinion, that Mr. Stras was not entitled to any return of premium; but that his bill ought to have been dismissed: consequently, that the decree be reversed, and the bill now dismissed.
    
      
      See monographic note on “Insurance, Fire and Marine” appended to Mutual, etc., Soc. v. Holt, 29 Gratt. 612.
    
    
      
       If she was not sold (in the policy on the vessel.)
    
    
      
      
        In the policy on the cargo.
      
    
    
      
       Beatson v. Haworth, 6 Term Rep. 531, Marshall on Ins. p. 395, 396.
    
    
      
       Senat v. Porter, 7 Term Rep. 158, Marsh. 616.
    
    
      
       Marshall, 563, 564.
    
    
      
       Marshall, 565, 568, 6 Burr. 1237, Stevenson v. Snow.
    
    
      
       Marshall, 611.
    
    
      
       See Marshall on Insurance, 409, Park on Insurance, 308.
    
    
      
       Marshall on Insurance, 392; Park, 294.
    
    
      
       Marshall, ibid. 392, 393, 394; Park, ibid. 294, 298.
    
    
      
       Marshall, ibid. 394, 401; Park, 294.
    
   JUDGE FLEMING.

It is a sound general principle that whoever comes into a Court of Equity to ask relief against any part of his contract, ought to shew by the clearest evidence that he has done every thing on his part to entitle him to such relief.

There can be no doubt but the Sophia’s having put into the port of St. Thomas’s, before she arrived at Curracba, the first destined port of her voyage, was a deviation from her course; which would have been justified, had there been legal evidence that it was to avoid capture by an enemy, as alleged by the appellee; but, there being no such evidence, o.r of any other justifiable cause, proved, or even alleged, the deviation must have the same effect upon the insurance if she voluntarily had gone a hundred leagues out of her direct or usual course. The consequences of such deviation, and the authorities on which they are founded, have been so fully stated by Judge Tucker, that I shall only add my concurrence in the opinion that the decree be reversed, and the bill dismissed with costs.  