
    Kane, survivor of Kane and Platt, against the Columbian Insurance Company. The same against the same.
    A vessel and cargo were m-sured ‘from NYork, (o Antigua, and at& iT'curácólv T*ll;vesse>saii-York for An-dfivenbby^e-croS^'whfre Pa*'tofhercar-,gOj being per*® ishabie&dam-bf/brV^hVne-^ere'^onipíe3 ted- The mas-impracticable* Antigua,"saii-dl«“ct from St. Croix to Curacoa, and while proceed*ng to that port was captured by a British cruiser and carried into Jamaica, where she was condemned for attempting to enter a blockaded port. It was held that her going to Curacoa, without proceeding first to Antigua, was no deviation ,* and that thfe;sale of part of the cargo at St. Croix did not avoid the policy.
    These were actions on two policies of insurance, one * 3 on the schooner Mariner, the other on her cargo, on a „ , . ° voyage, “at and from JSew-xorJc to Antigua, and at ánd from thence to Curacoa.” The causes were tried at the New-Yorlc Sittings, before Mr. Justice Livinsrston, in December, 1806.
    On the trial tbe preliminary proofs were admitted. The cargo consisted of meal, flour, fish, onions, &c. and there was the usual memorandum in the policy, as to * ** corn, meal Ac. The vessel was new, and sailed from New-York, with one of the owners onboard as supercargo and consignee, the 1st December, 1804, on the voyage to Antigua. The Mariner met with very bad weathev in attempting to beat up to that island, and having sprung .her fore-mast was obliged to.gp into St. Croix to, refit,'where she arrived the 22d ofDecember, it being the ’ ° 
      nearest port of safety. It was found necessary to procure a new magt>
    While the vessel lay at St. Croix, the corn was found to heated and damaged by sea water, and the greater part of the corn, meal, and flour, with part of the onions, being more than half of the cargo, were sold there. The sale produced no delay, and was completed before it was possible' to finish the repairs. . The gross proceeds of sales amounted to above 3,000 dollars, and the whole disbursements, for repairs and expenses, to 408 dollars.
    The Mariner sailed again on' the 5th of January, bound to Curacoa. The reasons assigned by the captain, in his testimony, for not going to Antigua were, that the vessel was a dull sailer, and he deemed it impracticable, with such a vessel to beat up to Antigua, against the winds and currents which then prevailed; he therefore proceeded to Curacoa, which is a .port to the leeward of Antigua. While the Mariner was prpceeding towards Curacoa, she was captured by a British frigate and carried into Jamaica, and was there condemned with the remainder of her cargo, (a part having been sold at St. Croix.) The ground of condemnation, alleged by the captors, was a breach of the blocade of Curacoa. The master did not know of any blockade, except from vague reports which weré not credited.
    From the admiralty proceedings, it appeared that the owner onboard, in answer to the standing interrogatories, stated, that had the vessel gone to Antigua, he should probably have been informed officially of the blockade of Curacoa ; that it was originally intended to go to Antigua, and to sell there if the market was favourable; if not, to proceed to such other ports as were not blockaded. It appeared also, that before the vessel sailed, there were reports at New-Yorlc, that Curacoa was blockaded, and there were other reports that the blockade was raised.
    Several witnesses were produced on both sides, as to lije practicability of beating up to Antigua, in such a vessel as the one insured was described tobe. It appeared, that though she could not beat up to windward by the shortest and ordinary route, which is a distance of about 45 leagues, yet by stretching to the northward she might have got into the variable winds, and in that way have reached Antigua. Though the latter is not the ordinary track, yet it is sometimes pursued.
    The'judge charged the jury that the insured were justified from necessity, in going to St. Croix, and in selling a part of the cargo, as there was no delay of the voyage on that account; that having arrived by necessity at St. Croix, they might proceed directly to Curaca a without-attempting to go to Antigua.
    
    The jury found a verdict for the plaintiff.
    A motion was made to set aside the verdict, and for a new trial: 1. Because the insured had no right to trade at St. Croix, or to sell a greater portion of her cargo than was necessary to defray the expenses of repairs. 2. Because, under existing circumstances, it was his duty to have proceeded to Antigua before going to Curacoa.
    
    
      Pendleton, for the defendant.
    1. It is a general principle, that where several ports of discharge are named in a policy, the vessel must proceed to them in the order in which they are named. The exceptions are founded on some particular usage in regard to the voyage ; and as in other cases, a deviation will be excused by necessity. If the Mariner was excused for going to St. Croix, she was bound to pursue the voyage to Antigua as soon as the necessity ceased. The route or voyage described in the policy, constitutes a contract, and like a warranty, must be strictly performed. If the vessel depart from the voyage described, the voyage insured is at an end, and the insurer is no longer liable. It matters not what the motives may have been for assigning the particular order of the ports. In fiitet, there were stronger reasons forgoing first tp Antigua, 
      both to avoid capture and for a market ; and had the yesse] proceeded to Antigua, there is the highest probability that the loss would never have happened. The chance that the voyage might terminate at Antigua, in of the blockade of Curacoa, was of considerable importance to the insurers. In the case of Beat-«on v. Haworth,
      
       where the voyage was described from Gothenburg to 'Leith and Cockensie, and the vessel without going to Leith, put into Cockemic., and was there stranded and lost, it_ was decided that the going first to. Cockensie.was a deviation. The case of Marsden v. Reid,i will probably be cited on the other side ; but it confirms the rule laid down in Beatsonv. Haworth. Where several ports arc named, though the insured may elect one of them as a place of discharge, y-et if he go to more than one, he must visit them in the order in which they stand inthe policy. He cannot deviate but from necessity, and when that necessity no longer exists, he is bound to return to the course of the original voyage. This princi-pie was laid down in' Gold v. Shaw, in the court of errors, ail<^ *s recognized in the case of Neilson v. The Columbian Insurance Company
      
       The day the vessel arrived at St. Croix, the master resolved to sell part of the cargo, and proceed direct to Curacoa. His conduct was.riot.adopted from necessity, but from choice. It may be said, that by going to Curacoa, the voyage was shortened, and the. rjsjk thereby diminished. But the insured have no right to deviate, in order to shorten the voyage. He can shorten the voyage only while .pursuing the voyage insured. If he deviates for any purpose, except from necessity, the original voyage is broken up, and at an end. If the vessel was so peculiarly constructed, that she could not beat up to windward, that ivas an.internal defect for which the insurers are not responsible.' The necessity which will excuse a deviation must arise from .some external cause.
    
      2. The election of the master to trade at St. Croix, put an end to the voyage. There was no necessity for selling the cargo there. There is no express permission to trade at that place in the policy ; and it can only be implied in a case of necessity. To permit the insured to sell in such a situation, unless from necessity, would be opening a door to fraud and controversy. The safest rule is, that nothing can be done beyond what is absolutely necessary. Though the sale did not occasion any delay, still the court ought to adhere to the general principles by which the conduct o'f parties are to be governed.
    
      Hoffman and Harrison, contra.
    The general principle is, that where a vessel is forced by necessity to deviate, she must return, if practicable, to her original voyage. Here the Mariner could not reach Antigua, in the usual and ordinary route; as she was unable to beat up in the usual track, the necessity continued, and she was justified in going to Curacoa. That she was a dull sailer does not vary the case. It is enough that she was seaworthy when she left New-York. She was not bound to go northward. All that is required is, that the vessel should pursue the regular and customary track. One reason why a vessel is not allowed to deviate is, that it prolongsor enhances the risk. In the present instance, the voyage was shortened and the risk diminished, by going to Curacoa. Where a master acts bona fide, according to his best judgment, for the benefit of all parties concerned, his acts will be protected by the policy.
      Mil-lar is of opinion, that where the acts of the master are done with good reason, and fairly, and are useful to the concerned, the departure is to be considered as founded on the tacit consent of the insurers. The insurer, if he were consulted, would certainly prefer that the vessel should go to one port rather than to two, for the risk is much less. In the case of Marsden v. Reid
      
       the judges relied much on the supposed intention of the parties. And they will always be presumed to intend what is most beneficial to. themselves. A vessel may as well shorten her voyage by dropping- a port,, and going direct to the ultimate port, as by electing, before the inception of the voyage, tago to the last port. The insured is not bound to go to all the ports named in the policy ; but may shorten the voyage by going to one of them only. Yet if he will go to the intermediate ports, he must proceed to them in the order in which they are named. ■ Curacoa was the ultimate port, and the insured had aright to go there at all events. Why may he not shorten the voyage, by going there from an intermediate port, into which he is forced by necessity, as well as from, the original port of departure ? It seems unreasonable to oblige him to proceed to Antigua, when he would be at liberty, after touching there, to go to Curacoa. The true and just principle is, that it is always in the power of the insured to shorten the voyage-, and diminish the risk of the insurer. It would have taken the Mariner fifteen or eighteen days to have beat up to Antigua, if it were- practicable at all to get there, while she might proceed before the wind, in two or three days to Curacoa. It is strange-, then, that the insurer should- insist upon the vessel’s pursuing the circuitous course under such circumstances.
    In the case-of Lriscol v. Pasmore,
      
       after the vessel was compelled to- return to Lisbon,, that became a port of necessity, from which she sailed direct to Saffi, and the insurers were held: liable. Though the vessel might have sailed direct from Lisbon to Safi, in the first instance, yet, after she was forced back to the former place, she must be considered as sailing from a port of necessity to the ultimate port, dropping the intermediate port of Maderia,. precisely as, in the present case, the Mariner proceeded from Si. Croix- to Curaco.a, without going to Antigua.
    2,. The right to. sell or trade turns on the point, whetlicv it was necessary to break bulk. The instant it becomes necessary to break bulk, or unload, it becomes of no importance how the cargo is disposed of, if no delay bo created by the sale. It is one thing to break bulk for the sake of trading, and another to sell the cargo after you have been compelled by necessity to land it. If not sold, it must bo reladcd. The owner of the goods, after they are landed, would have a right to insist on selling them, and to pay the freight to the owner of the vessel. The risk of the insurer is clearly diminished by the sale in such a case. The case of Stitt v- Wardell, which is a nisi prim case, was decided on the ground that there was no necessity to break bulk. In Delaney v. Stoddard,
      
       trading at a port of necessity, where the risk was not enhanced, or a delay produced, was considered as no deviation. In the present case the cargo was of a perishable nature, and in a perishing condition, so that it became necessary to land it, to prevent its spoiling. The sale was justified from necessity; and it is not pretended that it produced any delay. By disposing of so much of the cargo, the aliment of risk and peril was diminished.
    
      Pendleton, in reply.
    There is no difference between shortening a voyage, and going a shorter or different voyage. The right to drop an intermediate port does not exist, when the vessel has ouce sailed with intent to go to such intermediate port. In Marsdenv. Reid, Lord Eilcnborough admits, that if the voyage insured was commenced, it would be a deviation, if the vessel afterwards went out of the track of that voyage. The cases on this subject cannot bo reconciled, but on the doctrine that, when a vessel has once commenced the voyage insured, she must pursue it as prescribed in the policy. In the case of Delaney v. Stoddard, there was not a sale, but the vessel merely took in part of her cargo at a port of necessity. There should be some general rule or princiciple to govern the decision in all cases, without taking into view, whether there was a greater or less risk in each particular case.
    
      
      
        Marshall, 305, 396.
    
    
      
      
        Emerigon, 5. 1». 56. 59» 60.
    
    
      
      
        6 Term,531.
    
    
      
      
         East, 572.
    
    
      
      
        Douglas, v ')viison>re ff’oM.p.301. 108. ’
    
    
      
      
        Emaricón, so, 60.
    
    
      
      
        Douglas, 284.
    
    
      
      
        Marshall, 392.
    
    
      
      
        Marshall, 405.
    
    
      
      
        Marshall, 408. Park, 310. Covjper, 601.
    
    
      
      
        Millar, on Insurance^ 406.
    
    
      
       3 Past. 572.
    
    
      
      
        BosMPul-ler, WO. lb. 313. Dris-ioIv. Bovil. 3 Bast, 372.
    
    
      
       I BosifyJPulL goo.
    
    
      
      
        Marshall, 187. 2 JEsp, 610.
    
    
      
       1 Term,‘in
      
    
   Thompson, J.

delivered the opinion of the court. The insurance, in this case, was upon the schooner Mariner, on a voyage as subscribed in the policy, “ at and from New-York to pintigua, and from thence to Curacoad’ It became necessary, in the eourse of the voyage, to put into St. Croix to refit. A considerable part of her cargo was there sold, and when the necessary repairs were made', the voyage was continued directly to Curacoa, without going to Antigua. The vessel was captured by a British frigate, carried into Jamaica, and there condemned. Arecoveryis resisted by the underwriters, on two grounds. 1st. That the schooner should have gone from St. Croix to Antigua, and not directly to Curacoa; and, 2d That the trading from St. Croix avoided the policy.

These objections appear to me not tenable. With respect to the first, the only rational rule of construction, and which I apprehend to be well settled, in cases like the present is, that where there is an intention of going to more than one port, the order described in the policy must be pursued. But that the assured is not bound to goto all the ports mentioned, but may proceed directly to any one of them. This distinction is very fully and clearly established in the case of Marsden v. Reid. (3 East, 572.) Lord Ellenhorough there says, that the obvious meaning of the parties in such cases is, that the voyage insured is to all or any of the places named, with this reserve only, that if the vessel goes to more than one place, she must visit them in the order described in the policy; and no case that has fallen under my observation in the least militates against this construction. The voyage being described at and from the intermediate port, can make no difference ; the only reason for this was to protect the vessel under the policy during her stay at Antigua, if she should go there. Nor can it be of any importance whether the determination to go directly to ‘ , , . Curacoa., was made at the commencement of, or at any intermediate point of the voyage. The schooner put into St. Croix from necessity, and was of course still under the policy ; and if she might originally have sailed ly for r, i uraco a. there can be no good reason assigned why she might not so there from St. Croix.

The second ground of objection appears to me equally desírvate of solidity. It was absolutely necessary that the flour and Indian meal, which were sold at St. Croix, should be landed before the vessel could be repaired, and what possible injury could the sale occasion to the underwriter, provided it occasioned no delay ?. It certainly would not render the vessel less safe during the remainder of the voyage. That no delay was occasioned by the sale, is satisfactorily established. The principle adopted by Lord Kenyon ■ at nisi prim, in the case of Stitt v. Wardcll, (2 Esp. Rep. 610.) cannot apply. The question there turned upon the construction of the words in the policy, “ touch and stay at any port or ports,”c. and it was ruled that the assured was not thereby authorised to trade at any such pftrts where the vessel might touch. The reason, undoubtedly, must be, because such trading would probably occasion a delay; and this, perhaps, is to be necessarily implied unless the contrary appears. In the case before us, the breaking bulk was not for the purpose of trading, but was rendered necessary for the purpose of repairing. It appeared to be admitted by the defendant’s counsel, that the part of the cargo which was landed,, might be sold without prejudice. I cannot, however, see any reason for a distinction. The greater part of the corn which was sold directly from the schooner, had received considerable sea-damage, which rendered it absolutely necessary to unlade it, to prevent its spoiling. The repairs might have been made without unlading the corn ; but it cannot be pretended, that it was the duty of the master to keep it on board to spoil. Suppose the master instead of selling- it, had thought proper to throw it overboard; it surely will not be said, that the policy would have been thereby discharged. We are therefore of opinion, that the plaintiff is entitled to judgment.

Judgment for the plaintiff.  