
    Lawrence, Survivor of Whitney, against The Ocean Insurance Company.
    NEWYORK,
    August, 1814.
    Goods were Insured “ from. Ñeiv-York to Gottenburgh, and at and from thence to one port in the Baltic or North Sea, not south of the river Ey&er” “ The risk to continue until the goods shouldbe safely landed atGoiienburgh and oneoih.Tpovt1’ The ship sailed from Ncrv-York the 20th of May, 1810, and arrived at Gotfoiion-iug, where she remained nutit ter, beíns daterse^nads! ' The master, according to instructions from the supercargo, sailed from Gottenburgh to St. Petersburgh, to which place he intended to proceed, but meeting with accidents, was compelled, from necessity, to put into Carlskam, as the nearest port, for repairs, where he arrived about the 10th of November, and was detained hv adverse winds until the season was too far advanced to attempt the navigation of the. Gulf of Finland; •and he. accordingly wintered at Garlsham, intending to pursue the voyage to SI. Petersburgh, as soon as the navigation was open. About the 7th of April, 1811, the supercargo determined to send the ship to Stockholm instead of St. Petersburg; and as soon as the navigation was free, which was about the came time for both tho^e places, the ship, about the 2d of May, jo the afternoon, sailed from Carlshatn for Stockholm, and early the next morning, off the west end of the inland of Ovland, while in the direct route, either to Stockholm or St. Petersburgh, and before she had come to the dividing point, she was captured by a French privateer and carried into Dantzic, and was afterwards condemned by the council of prizes at Paris. It was held that there was an intended deviat'd only, and the loss having happened before the vessel arrived at the dividing point, the insurer* were liable for a total loss.
    The assured exhibited to the insurers the usual documents and proof of interest, and also a copy of a letter from merchants at Hamburgh, to the owners of the ship, mentioning her capture and condemnation, which was the only proof of loss in the possession of the assured; this was held to be sufficient preliminary proof of interest and loss within the clause in the policy.
    Where, by an order of the court, the assured were directed to produce, under oath, to the assurers, all letters and papers in their possession, or under their control, relative to the matters in issue $ it was held that the insurers were entitled to read the whole correspondence and papers produced pursuant to such order, it being analogous to an answer to a bill of discovery, in chancery, the whole of which the party is entitled to read.
    If a vessel^ is insured from N to G. and one xother port, she may stay at G. a reasonable time after her arrival, to make the necessary inquiries as to a market, áse., without its being considered a deviation, and what is a reasonable delay, in sivli case, is a proper que.* tion for the jury to decide.
    Where an American vessel sailed from Gottenburgh, bound to St. Petersburgh, the next day after a British convoy, and came up with the convoy the d'-'y after, and kept company wlih it through the Belt, but without receiving or exchanginganysignals, or receiving any assistance from the convoy, and without altering its course or retarding its voyage on account, of the convoy, tills was not considered as sailing under a British convoy, so as to affect the right of the insured to recover for a total loss, in consequence of a capture by the French, though the ground of the condemnation was stated to be, he? having sailed underBritish convoy.
    THIS was an action on a policy of insurance, dated the 24th of May, 1810, on goods laden or to be laden on board of the American ship Atlantic, Jayne master, “ at and from Nem-York to Gottenburgh, and at and from thence to one port in the Baltic, or Black Sea, not south of the river Eyder.” The risk to continue until the goods should be safely landed “at Gottenburgh, and one other port.”
    The premium was 9 1-2 per cent, to return 31-2 per cent, if the risk ended safely at Gottenburgh. Warranted free from seizure in port, except in Swedish or Russian ports. The plaintiff claimed a total loss by French capture.
    On the 6th of November, 1811, the plaintiffs gave information to the defendants of the capture of the ship by a French privateer, and abandoned to them the cargo, to the amount insured ’ thereon, as for a total loss, and at the same time delivered to them the proof of interest and loss. The defendants objected to the sufficiency of the preliminary proof, because the proof of loss was only a copy of a letter from Messrs. Parish Sr €'<?» merchants at Hamburgh, dated the 20th> of September, 1811, to Messrs. Hoyt Sr Tom, the owners of the ship, inclosing a let-^er’ dated at Paris 11th September, 1811, from Captain Jayne to Messrs. Parish S' Co. informing them of the condemnation of the Atlantic, by the court of prizes ; and stating the reason given for the condemnation to be, that the ship had been under English convoy, which the court considered as a denationalization. The objection to this proof was overruled by the judge.-
    The master, Jayne, testified that he sailed from Nem-York in the ship Atlantic, on the voyage insured, the 29th of May, 1810, and on or about the 17th of July, following, arrived at the quarantine ground in Wingo Sound, which is between 10 and 20 miles below the harbour of Gottenburgh. After a quarantine of 4 days, the Atlantic went into safe harbour, about the 25th of July. Soon after the expiration of the quarantine, he received sailing instructions from the supercargo, to proceed with the Atlantic from Gottenburgh to St. Petersburgh in Russia. The ship remained at Gottenburgh until the 8th of October following-, being- detained from about the 26th or 28th of July, until that time, by adverse winds. Several hundred vessels which put into Gottenburgh, during that time, were also detained by adverse winds. The master was instructed by the supercargo not to take convoy. A convoy with a great number of vessels, which had been detained at Gottenburgh by adverse winds, got under weigh and sailed from that place on the 7th of October. The Atlantic sailed on the 8th day of that month, bound to St. Petersburgh in Russia, and on the next day came up with the convoy. Two or three American vessels sailed from Gottenburgh before the Atlantic, but the master testified that it was by beating against a head wind; and that the Atlantic, with the cargo she had on board, did not beat well; and that from the 26th or 27th of July, until she left Gottenburgh, the wind was never, in Ms opinion, such as could permit him to sail with safety or prudence.
    After the Atlantic left Gottenburgh, on the 9 th of October, she encountered continued adverse winds, for 20 days, and had frequently to come to anchor, in making her passage through the Great Belt, and while at anchor was run foul of "by a Galliott, by which the jib-boom and main yard were carried away, and the windlass had become strained and weakened. The Atlantic entered the Baltic about the 1st November, but in consequence of the damage she had received, it was necessary to make the first port to repair; and after consultation, it was determined to put into Carlsham for that purpose, that being the nearest port, where they arrived between the 1st and 10th of November. Having repaired the damage, the Atlantic sailed from Carlsham for St. Pctersburgh about the 10th of November, but meeting with violent adverse winds the ship returned to Carlsham the next day; and the wind continued so adverse as to prevent any attempt, for 10 or 15 days, to pursue their voyage to St. Pctersburgh. The master then thought the season too far advanced to attempt to navigate the Gulf of Finland, and dismantled the ship, intending to winter at Carlsham, and to pursue the voyage to St. Pctersburgh, when the navigation should be open the ensuing spring.
    A month or two after the Atlantic was laid up at Carlsham, war was declared between England and Sweden, and the Atlantic, as well as other foreign vessels at Carlsham, were seized by order of the Swedish government, and her papers sent to Stockholm, and the master went to Stockholm and obtained her liberation.
    About the 2d of May, 1811, the navigation of Carlsham opened, and the Atlantic, about that time, sailed from thence, being then destined for Stockholm, the voyage to St. Peters-burgh having been given up. A number of other vessels bound up the Baltic had also wintered at Carlsham; but the Atlantic was among the first that was ready for sea, and sailed from Carlsham in the afternoon of the 2d of May; and early the next morning, off the southwest end of the island of Ouland, dis. tant three leagues, was boarded by a French privateer, and carried into Dantzic. The ship’s papers were sent to Paris, where the master went, and the ship and cargo were condemned by the court of prizes at Paris, about the 10th of September,'1811. The copy of the sentence of condemnation, which was produced and verified by the witness, contained the following sentence: “ the council decides the prize made by the French privateer Le Petit Diable, of the ship Atlantic under the American flag, carried into Dantzic, good and valid; consequently adjudges to the owners and crew of the said privateer all the said vessel, &c. as well as the merchandize of her cargo ; the whole to be sold at vendue, according to the forms, and in the manner prescribed by the laws and regulations made concerning prizes.”
    The master further testified, that when the Atlantic was taken s^e was on ^le direct route^either to Stockholm ox St. Petersburgh; that had she been going to either of those places, her course;, after she left Gottenburgh, and till she was taken, would not have beén different.
    On his cross examination, the master said, that he was under the directions of the supercargo for the voyage; that 4 or 5 days after the arrival of the ship in Wingo Sound, the supercargo went to Gottenburgh; and on his return to the ship, he said he should wait at Gottenburgh for letters from Hamburgh and Copenhagen, and that in his letters from Copenhagen, he expected to receive a Danish Sound pass, which was an essential document in order to pass through the Belt.
    
    The master said he sailed from Carlsham as soon as possible after the navigation was open, which happens about the same time to Stockholm and St. Petersburgh. When he went to Carlsham he had no intention of going to Stockholm, but intended to pursue the voyage to St. Petersburgh, as soon as the necessary repairs were made. Whether it was his intention to go to Stockholm or St. Petersburgh, he must, in either case, have stopped at Carlsham. If he had intended to have gone to Stockholm, he could not, after the detention at Carlsham, have reached Stockholm that autumn, on account of the lateness of the season. He said it was his intention, when he left Gottenburgh, to keep company with the convoy; but not, if by doing so, he should be obliged to go out of his way, or, in any respect, alter the course of or retard his voyage; that he came to anchor only on account of adverse winds, and only where he should have done so had his ship been alone ; that he made frequent attempts to get ahead of the convoy, but always fell astern, and was often so far behind as to be entirely out of their protection. The convoy paid no attention to the Atlantic, and made no signal to her, nor did the Atlantic make any signal to the convoy. When the Atlantic was injured by being run foul of, a boat from another vessel came to offer assistance, which was declined, lest it might be considered as connecting the Atlantic with the convoy. The convoy was understood to be British.
    
    The defendant’s counsel, after giving some evidence, which it is not necessary to state here, as to the seaworthiness of the ship, in not having sufficient cables when she left Gottenburgh, &e„, offered to read sundry letters from the supercargo to the owners of the Atlantic, relative to the stay of the Atlantic at Gottenburgh, which letters, with various others, concerning different events of the voyage, to and from various persons, had been furnished to the plaintiffs, pursuant to a rule of the court, in the cause, 
    
    The plaintiff’s counsel objected to the reading of the letters offered, unless all the letters and documents which had been furnished pursuant to the rule of the court, were also to be cos* sidered in evidence, so fa,r as the plaintiff was entitled to read any °f them. The defendants’ counsel insisted that reading ^rom t^e correspondence, as to a particular point, would not authorize the plaintiff’s counsel to read what -related to other matters wholly distinct. The judge overruled the objection of the defendants’ counsel, arid decided that any of the letters might be read by either party.
    
      Jan.term,23l3.
    In causes on policies of Insurance, the courtwillmake an order for the assured to produce to the insurers, upon affidavit, all papers, or fme copies thereof, relative to the matters in issue between the parties.
    
      In a letter from the supercargo to the owners of the ship and the plaintiff, dated July 21st, 1810, at Gottenburgh, he states that Gottenburgh afforded no market, and that he had written to inquire the state of the ports in Holstein, Prussia, and Swedish Pomerania; that the risk of proceeding to another port was great, “ as the Danes captured every thing; the only alternative seemed to be, to take British, convoy, and instead of going-through the sound, to pass through the Belt,” See. “ That he should rather remain where he was than risk the property in any way that might affect the insurance.” In another letter from the supercargo to the plaintiff, dated Gottenburgh, the 10th of August, 1810, speaking of the necessity of proceeding to another port for a market, and that other vessels had been ordered to a port in Holstein, he adds, “ which would hardly have been done if there was danger of capture in port; and if captured previous to arrival, the owners were protected by the insurance.” The plaintiff’s counsel then read several passages from the correspondence. . In a letter from the supercargo to thé owners, dated September 26, 1810, in which he speaks of the long detention at Gottenburgh by continued adverse winds, he states that the best of the season was past, and that there was great hazard of being obliged to winter in the Baltic ; and that if the wind continued many more days unfavourable, he should be obliged to abandon the Baltic expedition, or go up with the certainty of wintering there; that several American ships had received instructions from the British commander, and formed part of his convoy to the 
      'Baltics that in case of capture by the Danes they would be condemned for sailing with such convoy, and it might be the cause of difficulty with the underwriters; and that he had instrucied Captain Jayne not to receive instructions of such convoy, but that there would be no impropriety in sailing with the first fair wind, even if he passed through the Belt at the same time with the convoy»
    In a letter from the supercargo to the owners, dated at Garb sham, the 81st of October, 1810, he mentions that his destination, on leaving Gottenburgh, was to St. Petersburgh, but having been obliged, in consequence of injuries sustained, to make the Erst port to repair, he had put in there, and expected to sail in two days for St. Petersburgh, but should the weather set in severe, he should go into Revel. In another letter from the supercargo, dated the 14th of November, 1810, he mentions the detention of the ship at Carlsham by adverse winds, but that notwithstanding the lateness of the season, he had made an attempt to proceed to St. Petersburgh or Revel, but was driven back to Carlsham by adverse winds, and 'that it was necessary to winter there, &c. That “ as soon as the navigation opened in the spring, the ship would leave Carlsham for St. Petersburgh? that in the mean time he should order 80 tons of iron, and 230 tons of hemp to be ready for her at Cronstadt, that on her arrival, as soon as her cargo was landed, she might be immediately despatched.” In another letter, dated at Carlsham, the 17th o£ November, 1810, he recommends insurance on ship and cargo, from St. Petersburgh home. In a letter from the supercargo to Captain Jayne, dated Carlsham, 17th of February, 1811, he says? “ As the destination of the Atlantic, as soon as she can leave this port, is fixed for Russia, I now, as supercargo, and in virtue of the authority vested in me, by the owners, give you the following instructions, relative to your destination and proceedings, on your arrival at St. Petersburgh,” &c. In a letter, dated St. Petersburgh, the 10th of March, 1811, from merchants there to the supercargo, they state that the documents, relative to the sargo of the Atlantic, communicated to them, were very full, and would formerly have entitled it to admission in the Russian ports, (as they did not have the least doubt of its neutrality,) but that the orders of the government being positive that any cargo from America, &c. must have a certificate of origin of a Russian consul, the admission, of the Atlantic’s cargo, being deficient in that document, would wholly depend on the grace of qie government.
    In another letter, dated the, 17th of March, 1811, from the same merchants at St Petersburgh, to the supercargo, they say, “ You will consider, from the regulation being positive, that every cargo or parcel of goods, imported hereafter into this country, must be accompanied with the Russian consul’s certificate, whether it may be worth your while to venture on the voyage to Crotistadt.”
    On the 7th of April, 1811, the supercargo wrote from Carl-sham to his owners, enclosing the letters from his correspondents at St. Petersburgh, saying, “ They confirm me in the opinion, that it is most for your interest to land the Atlantic’s cargo at Stockholm, and I now inform you, that in the course of 10 days she will proceed to that port.”
    In a letter from Captain Jayne to the owners, dated Dantzic, the 6th of May, 1811, he informs them of the capture of the Atlantic by a French privateer, in 12 hours after her departure from Carlsham, and of her being sent into Dantzic, &c.
    The Russian consul at New-York testified, that at the time of his appointment, which was the 16th of March, 1810, he was directed by the Russian consul general to give public notice that the cargoes of American vessels, bound to Russia, must be furnished with the Russian consul’s certificate of origin; and that he was accordingly applied to for such certificates, and from the 31st of March to the 29th of May, 1810, issued 31 such certificates to American vessels, bound to Russia.
    
    On the 19th of July, 1811, the plaintiff addressed a letter to the defendants, informing them of the arrival of the Atlantic at Carlsham, and her situation, and that the supercargo had written on the 28th of April that he was only waiting for a fair wind to leave that place for Stockholm, and that as a question might arise, in case of accident, whether the ship had not deviated, and that as they were not willing to have so large an amount of property at risk, by which any doubt might arise, as to a recovery in case of loss, they request the defendants to say on what terms they would give liberty to proceed to Stockholm.
    
    The judge left the point of seaworthiness to the jury, as a question of fact, intimating, however, his opinion, that the weight of evidence was against the suificiency of the cable when the vessel left New-York. That as it appeared that the vessel had sailed from Gottenburgh with an intention to proceed to St. Petersburgh, and had, after she had been obliged to put into Carlsham in distress, and before she sailed from that port, a the opening of the navigation, in the spring of 1811, determined to change her destination, and proceed to Stockholm, instead of St, Petersburgh, an i having sailed from Carlsham with the inten tion to go to Stockholm, and that intention not having been chang ed when she was captured, it became a question whether the poli ey was not discharged; but this question was, by the consent of the parties, reserved for the opinion of the court.
    That, after disposing of the question as to the seaworthiness the next question for the consideration of the jury was, whether ■there had been an actual delay at Gottenburgh. That under the policy, he was of opinion that the vessel was not confined to a mere right to touch at Gottenburgh, but had a right to remain there a reasonable time, to make inquiries respecting the markets, or for any other purpose; that a delay for eight or ten days did not appear to him unreasonable, even if the winds had been fair for her departure during that time. But if, after that time, the Atlantic had voluntarily remained at Gottenburgh waiting for a convoy, or from any other cause than necessity, it would be deviation, and discharge the insurers. That the weight of testimony, in his opinion, was strongly in favour of" the fact that there had been no such voluntary detention.
    That another question for the consideration of the jury was, whether the Atlantic had sailed from Gottenburgh under convoy. If she waited for convoy, or retarded her voyage for the sake of the protection of convoy, it would discharge the defendants; but a mere sailing in company with convoy, would not, in his opinion, vitiate the insurance, and it appeared from the evidence that the Atlantic had done no more. That if the jury believed the vessel to be seaworthy, and agreed with him on the points submitted to them, they would find a verdict for the plaintiffs, subject to the opinion of the court on the point reserved; the amount to be recovered to be settled by persons to be appointed by the court, at the time judgment should be given.
    The jury found a ver iict for the plaintiffs, subject to the opinion of the court, on the question reserved.
    The following points were raised by the plaintiffs’ counsel for the consideration of the court:
    1. The preliminary proofs were sufficient;
    
      2. The plaintiffs had a right to read any part of the correspondence, under the rule of court;
    The question raised as to the seaworthiness of the vessel was submitted to the jur", and their verdict is not against evidence ;
    4. The delay at Gottenburgh was reasonable and justifiable, and the charge of the judge on that point ivas correct;
    5. The vessel did not sail under convoy; and her sailing in. company with convoy, ivas no breach of the warranty in the policy;
    6. The vessel was not obliged to elect her second port before she left Gottenburgh, but might proceed from thence to any other port, provided she was never, after she left Gottenburghf on the route to more than one port;
    
      7. While at Gottenburgh, she did elect St. Petersburgh, though she afterwards intended to go to Stockholm; yet having been captured while she was on the route to St. Petersburgh there was merely an intended, and not an actual, deviation.
    
      Colden, for the plaintiffs,
    said he should argue only the two last points, being those reserved; leaving the other points-for the decision of the court, on the authorities which might be cited.
    
      1. The vessel was not bound to elect her second port, before she left Gottenburgh, but might proceed from thence to any other port, so that she was never on the route to more than one port, and never put the insurers to more than one risk.
    The object of this species of insurance is to give to the assured the advantage of all information which may be obtained abroad, when the vessel is going to look for a market; and she may avail herself of the information obtained after she leaves her first port,. as well as of that previously received, provided, however, and the argument is to be understood with that qualification throughout, that the insurers are never-subjected to more than one risk. If she advances one foot on a second or different route from the one she set out upon, no doubt the policy would be at an end,
    Suppose an insurance from Nen-York to a port in Europe, and the vessel sails for London, and while she is in the route to London, but before she is at the dividing point, she hears of 
      war with England, may she not change her destination and go to Cadiz?
    
    Insurances to a port and to a market; are very frequent; but it has never been understood that the vessel is bound to elect her market before she left the first port, nor that she is obliged, at all events, to adhere to that election.
    Another form of insurance, also very common, is to a particular port, and from thence to a port of discharge; but it has never been supposed that the port of discharge must be elected at the first port.
    Indeed, to give the construction to the policy which will be contended for by the defendants’ counsel, would be to add words to the policy, and substitute another contract between the parties. It would make the language of the policy, instead of the Avords used, to be, that the insured shall make his election at the first port, and when made, that the vessel should go "to the elected port, and no other.
    There is no reason Avhy the insured should be bound to make an election at the first port, if by not doing so, he puts the assurer to no additional risk. The assured is under the same necessity of shoAving that the vessel was never in two routes, as he Avould be of showing there Avas no deviation, if the second port had been specified in the policy. ' Admitting, even, that this kind of insurance may subject the insurers to additional hazard, or the chance of imposition, yet these chances must, or ought to have been, taken into consideration at the time the insurance was made, and if so, it is to be presumed that a premium was taken proportioned to the risk.
    2. If the vessel Avas obliged to elect her second port at Gotlenburgk, she did in fact elect St. Fetersburgh, and though she afterwards intended to go to Stockholm, yet having been captured Avhile she Avas in the route to St. Fetersburgh, and before she came to the dividing point, it was only an intended, not an actual, deviation.
    The difference between an abandonment of a voyage and an intended deviation, is rveli settled. An abandonment of the voyage, is Avhere the destination is changed before the voyage commences. An intended deviation, is where there is an intention, formed after the commencement of the voyage, to go to a port different from the one permitted by the policy.
    
    Admit, then, that St. Fetersburgh, was elected, it may be con™ sidered as if actually inserted in the policy, and the voyage wou^ be from JNetv-lork to Gottenburgh, and thence to St. JV tershurgh. Considering, then, Nem- Yor v Gottenburgh as the terminus a quo, there was no intention to deviate, until the voyage commenced; for the i essel left Gottenburgh on her ulterior voyage, with the sole intention of going to St. Petersburgh, the voyage insured. It is not, and cannot be, pretended, that there was any deviation in going to, -or remaining at, Carlsham, since it is proved that she went and remained there from necessity; and it was not until a very short time before the vessel sailed from Carlsham that the intention to go to St, Petersburgh was changed; and it is proved that the Atlantic sailed from. Carlsham at the same time, and pursued the same course, until her capture, that she would have done had she been bound either to Stockholm or St. Petersburgh. While at Carlsham, she was as-much on her voyage to St. Petersburgh, as if she had been on the open sea. Suppose that after she left Gottenburgh, and while on the open sea, in her route to St. Petersburgh, the captain or supercargo had determined to go to Stockholm instead of St. Peters• burgh, and had pursued that intention, this would not' have amounted to a deviation, so as to avoid the policy, if the vessel had been lost before she came to the dividing point, and while she was in the «direct route to her proper port.
    The intention of going to Stockholm was formed by the supercargo, on receiving, while at Carlsham, information, no matter whether well founded or not, that on account of certain decrees of the Russian government, the vessel would not be admitted into a Russian port, without certain certificates, with which she was not furnished. Now, if after she sailed from Carlsham, with intent to go to Stockholm, but before she- came to the dividing point, she had been met at sea, and this information had been contradicted; or suppose she had heard that Stockholm Was shut, and St. Petersburgh open, and had gone direct to St. Petersburgh, would the intention of going to Stock, holm have vacated the policy, so that the assured could not have recovered, if the vessel had been lost before she arrived at St. Petersburgh, though she never had been, for a moment, out of the route to that port ?
    A mere intention to deviate has no effect on the contract of insurance; there is always a locus penitential, and, until the intention is in part executed, it is to be presumed that the party will avail himself of it; and there was ample room for him to do so in the present case, for the vessel was captured immediately after leaving Garisliam, and at a great distance from the dividing point.
    Again, it will be contended by the defendants that the information which induced the intention to go to Stockholm, was un- - founded, and that the Russian decrees did not apply to the cargo of the Atlantic. If so, might she not have learned the truth before she arrived at the dividing point, and thereby have been induced to pursue, without deviation, the voyage to St. Peters-burgh?
    
    The terms, abandonment of voyage, or dereliction of voyage, are not applicable to this case. Wherever there is an abandonment of a voyage there must be a return of premium. Suppose the voyage to be described in the policy, from New-York to Gottenburgh, and from thence to St. Petersburgh. If' the voyage to St. Petersburgh had been abandoned, the insured would be entitled to a return of premium, pro tanto. But as the vessel was on the route to St. Petersburgh, and it was not abandoned before capture, there could be no claim for a return of premium in this ease.
    The cases decided in our courts, on the subject of deviation,~ are those of Silva v. Low, Henshaw v. The Marine Insurance Company, Forbes v. Church, and Tucker v. Marine Insurance Company of Alexandria. The case of Hensham v. The Marine Insurance Company, is a very strong case to show that a mere intention to deviate can have no effect on the contract of insurance.
    The English cases, as to deviation, and which are to be found in Marshall and Parke, are Foster v. Wilmer, (2 Stra. 1249.) Kewley v. Ryan, (2 H. Bl. 343.) Thelluson v. Ferguson, (Doug. 61.) Lavabre v. Wilson, (Doug. 284.)
    As to the sufficiency of the preliminary proof, the counsel cited Talcot v. Marine Insurance Company, Craig v. United Insurance Company, Barker v. Phœnix Insurance Company.
    
    As to the second point, he cited, 1 Peake's Law of Ev. 35. Bull. N. P. 237. Vin. Abr. tit. Ev. Ab. sec. 16. p. 91. 2 Bac. Abr. 621. tit. Ev. F. 2 B. & P. 548.
    To show that the sailing in company with British convoy could not affect the policy, and that even if the vessel had availed herself of it, to avoid imminent danger, it would not have avoided the policy, he cited Wilson v. Marine Insurance Company,
      
       and Post & Minturn v. The Phœnix Insurance Company.
      
    
    
      Griffin and Wells, contra.
    1. The insured was bound to make his election, as to the ulterior port, at Gottenburgh, otherwise, on her sailing from Gottenburgh, there would have been no terminus ad quern—no voyage. It is the termini that constitute the voyage; and it is essential that the voyage insured should be certain.
    
    But it is enough that the insured did, in fact, before the departure of the vessel from Gottenburgh, elect St. Petersburgh as the ulterior port; and that election once made, must be final an<* irrevocable. This is the settled rule of common law. The same rule prevails in chancery, and is adopted by the maritime law; as if an insurance be made on goods on board of ° “ any ship,” the insured having once elected a ship, and in which ke pUt the goods and commenced the voyage, cannot after-wards put them on beard of another ship, except in a case of necessity.
    So the insured in this case, having elected St. Petersburgh, it is the same, in effect, as if that place had been inserted in the policy as the port of ulterior destination. The right of election was spent and gone, and could not be again exercised.
    2. Nothing occurred afterwards to authorize the substitution of Stockholm as the place of destination, or the consequent change of voyage.
    
      [Emmet. We do not pretend that any thing occurred to render a change of the port necessary, nor do we offer any excuse for-the change; we contend that we had right to do so, as a matter of mercantile speculation.]
    3. But the case is not varied in the result, by the fact of the loss having happened while the vessel was in the common iter to St. Petersburgh and Stockholm. Though much might be said, if the question was entirely open, on what has been laid down by Lord Mansfield,
      
       yet it must be admitted, that a mere intention to deviate does not vacate a policy, if the loss happens before the vessel arrives at the dividing point. But the present case may be distinguished from that of an intended deviation, in two particulars: first, a mere intention to deviate does not- affect the identity of the voyage. The component parts of a voyage, and those on which its identity depends, are the terminus a quo, the iter, and the terminus ad quern. A mere intention to deviate, deranges neither of these component parts of the voyage. But if either of them is varied, the identity of the voyage is gone, and the policy is vacated. Hence, if the terminus a quo is varied, the policy will not avail, though the loss does not occur, until after the vessel has reached the common track. So, if the iter is changed, as in a case of actual deviation; and the rule must be the same if the terminus ad quern be changed.
    This variation of the voyage vitiates the policy, because it is a substitution of a new contract, and enables the insurer to say, non in hesic feeder a veni.
      
       The degree of risk, so far as it depends on the important peril of capture, depends much on the port or country to which the vessel is bound, and this risk is very materially varied by a change of the terminus ad quern of the voyage.
    Secondly, a mere intention to deviate does not influence the locality of the vessel. But the substitution of Stockholm as the ulterior port of destination, did produce that effect. Had the voyage to St. Petersburgh been only in view, it is probable that the vessel would not have proceeded from Carlsham, but have unloaded there. At any rate, it is not to be supposed if the expedition to Stockholm had not been adopted, that the vessel would have sailed at the very time, and have reached the precise place she was in at the time of her capture.
    The substitution of voyage, therefore, instead of being like amere dormant and unexecuted intention to deviate, is the very thing which has led the vessel to the place of jeopardy, and occasioned her loss.
    The opposite doctrine is, that if after the inception of the risk, the vessel is in the proper iter, at the time of loss, it is no matter quo animo she came there. Suppose, however, the Atlantic, being furnished with letters of marque, had left Carlsham in quest of a prize, and had been lost, would the fact, in that casé, that she was in the common iter, at the time of loss, have prevented the policy from becoming void ?
    4. The present case does not differ in principle from that of a change of voyage before the vessel has sailed from her original port of departure. The substitution of a different terminus ad 
      
      quem, in that stage of the voyage, it is admitted, clearly vitiates qie policy. This is sometimes said to proceed on the principle of a non inception of the voyage. This language may be correct when the insurance is from a place, but not where, as in ^ case> ^6 insurance is at and from; more especially, where the terminus ad quem, mentioned in the policy, is, in fact, the one originally intended) but a different one has been substituted before the vessel sails. That the risk has its inception in the latter case, appears from the fact that the premium cannot be recovered bacli.
    
    Lord Mansfield, the author of the distinction between an in-tended deviation and a substitution of voyage, states the reason ^e distinction in Wooldridge v. Boydell. He says, that “ in ^ie case an intended deviation, the terminus a quo and the terminus ad quem remain the same.” But speaking of a substitution of voyage, he says, “that was never the voyage intended, and, consequently, is not what the underwriters meant to insure.” Hence it appears, that the only reason why a substitution of a different terminus ad quem, at the port of departure, vitiates the policy, is, that it destroys the identity of the voyage; and the same principle equally applies to a subsequent change of the terminus ad quem.
    
    
      5. The result, from a view of the whole subject, is, that if a vessel, at any period, abandons the voyage insured, and proceeds on a new enterprise, the protection of the policy is lost, and the assurers are not liable for a subsequent loss, though liappening before the ship had departed from the common iter.
    
    
      Marshall,
      
       after citing Roccus
      
       and Emerigon,
      
       quotes a passage from Casaregis, who observes, “ The voyage is said to be changed when the master of the ship no longer pursues his first principal destination, as when the ship, with her cargo and first freight, no longer intends to go, nor actually goes to the destined port;” and this, Marshall adds, is understood to b'e the law of England.
    
    
      Emerigon,
      
       (c. 13. s. 14.) in the passage cited, treats of a voyage changed, and in the 11th section he speaks of a voyage altered or broken up before the departure of the vessel, and in section 15. he discusses the doctrine of deviation, (changement de route.) In the l-,th section he must intend to speak of a change of a voyage after the vessel’s departure. He says, “ if the vessel sets sail for a different destination than that of the voyage insured, or if arrived off, or in sight of, the port of destination, she proceeds to another place, or if, when departing from the lawful route into which she had entered, the ship abandons her original destination, in order to proceed elsewhe. e, in all these cases the voyage is changed.” lie expresses üls dissent from the opinion of lioccus, that a letting of the ship to freight for another place would be a change of voyage; he then cites the opinion of Casa Regis,
      
       approved by Marshall, and he tests the identity of the voyage by reasoning, a contrario, that the voyage is always the same, when the captain, without losing sight of his first destination, departs from it only in the accessories, by touching at different places in the course of the route, in support of which he also cites the opinion of Casa Regis.
      
    
    In the 27th article of the ordinance of Louis XIV. it is declared, that “ if the changing of the course of the voyage or ship happens by the order of the insured, without the consent of the insurers, they shall be discharged from the risk.”
    
    In Driscoll v. Passmore,
      
       and Bovil v. Passmore,
      
       and especially in the latter case, the question was made to depend, not so much on the propriety of the deviation, as on the inquiry whether the assured had abandoned the voyage; and it seemed to be taken for granted that if such was the ease, it would be fatal.
    In Norville v. St. Barbe,
      
       it is stated by the counsel for the assurer, and not denied by the other side, that when the terminus 
      
      ad quern is at any time abandoned, the policy is thereby forfeited, and that there is a distinction between such a case and that of an intended deviation.
    In Blackenhagen v. London Assurance Company,
      
       Lord Ellen-borough nonsuited the plaintiff, not because the vessel had departed from what, under the circumstances, might have been the allowed iter had she kept the port of original destination in view, but because the voyage insured had been abandoned. The plaintiff afterwards brought his action in the court of common pleas, and Sir James Mansfield submitted the cause to the jury upon the point whether or not the plaintiff had abandoned the voyage insured.
    
    In Stocker and others v. Harris,
      
       the insurance was from Boston to the Canaries, and at and from thence to any port or ports in Spanish America, and at and from thence to her port of discharge in the United States, under whatever papers, &c- The vessel went to the Canaries, and there obtained Spanish papers, and sailed for Vera Cruz, where she arrived, and landed her' outward cargo; from thence she sailed for the Havanna, and in her passage to that port, but before she left the track she must have taken if coming to the United States, she was lost. It was held that the outward voyage terminated at Vera Cruz, and the sailing for the Havanna was a new and distinct enterprise, not protected by the policy, and a deviation from the voyage insured.
    
      T. A. Emmet, in reply,
    said this was a floating policy. It was hot a case of an election. The object was to leave the terminus ad quern undefined and uncertain, until the last moment, fof the benefit of the assured, provided he did not subject the insurers to a second risk. Mere intention to change or deviate does not subject the insurer to any new or,second risk. Change of voyage is where the policy.never attaches, but a deviation is after the risk has attached,
    
      Roccus
      
       most certainly considers a change of voyage, after the risk has commenced, as a deviation. The definition of a deviation, laid down by the defendants’ counsel, is too narrow, Park
      
       defines a deviation to be “ a voluntary departure, without necessity,- or any reasonable eause, from the regular and usual course of the voyage insuredand he is supported by 
      Moceas, and the authority of Lord Mansfield, in Lambre v. Walter.
       The substitution of another voyage, after the risk has commenced, is a deviation, because the insurer is not to incur a second risk. So long as he continues exposed to the same risk lie is bound, and no longer. After the voyage commences, the Znsured has a locus penitential,, and a mere intention to deviate will not conclude him. The positions cited from Casa liegis9 Eoccus, and Emerigón, are not the law at this time, in England, nor here.
    The case of Thellusson v. Ferguson
      
       is remarkably analogous, and is conclusive on the point, that here was a mere intention to deviate, and the vessel having been lost before she came to the dividing point, the policy is not vacated.
    Until some act is done to put the insurer on a different risk, it is no more than an intended deviation, and the true mode of testing the matter is, to inquire whether there has been any alteration or change of risk. If there has not, and the risk was the same, what ground is there for objection or complaint on the part of the insurer ?
    
      
       Lawrence, survivor of Whitney, against The Ochan Insurance Company.
      S. JONES, juo. for the defendants, moved for a rule that the plaintiff in this cause produce, on affidavit,¿to the defendants, or their attorney, within such reasonable time as the court should direct, all the written correspondence or letters, in the possession of the plaintiff, or under his control, or in tiie possession of, or under the control of, Goold Hoyt, trading under the firm of Hoyt % Tom. at any time heretofore carried on or interchanged between the master or supercargo of the ship Atlantic, mentioned in the plaintiff’s declaration, and any, and all persons, in the United States, or in foreign parts, relating to the said ship, her cargo, or the voyage mentioned in the declaration of the plaintiff, and also, all letters of instructions to the captain or supercargo, and each of them, from any person or persons whatever, relating to the said ship, cargo, or voyage, or otherwise concerning this cause; and that the plaintiff allow the defendants, or their attorney, to inspect the same, and take copies thereof, or that the plaintiff deliver to the defendants, or their attorney, true copies thereof at large; and that in the mean time, and until 60 days after the production of such correspondence, letters, and papers, &c. all proceedings on the part of the plaintiff be stayed, or for such other or further relief as the court may think fit and reasonable.
      
        Wells, also, argued in support of the motion. They cited Goldschmidt v, Marryaf, ($ €ampb. N. T. Cases, 559, 562.) and Clifford v. Taylor, (I Taunt. Rep. 167,)
      
        Colden, contra.
      It appeared, from the affidavits read, that the defendants had made a demand of the plaintiff of the letters and papers, or copies thereof, which were the object of this motion, and that he referred them to Goold Boyt, who was concerned in.the cargo, and had a similar claim against the defendants, and said that he would consent to whatever Hoyt would do in the business; that application was then made to Hoyt, who refused to produce or deliver the original correspondence, &c. to the defendants or their counsel, but said that the president of the company, and two or three of the directors, might, in hie room and in his presence, read and examine the papers, but without their counsel being present.
      The affidavit of the president of the company was also read, stating that such letters, papers, and documents, were in the possession of the plaintiff, or under his control, and that the defendants, as they were¿advised by counsel, could not safely proceed to trial without them» or true copies thereof.
      
        The Court granted the following Orden il Supreme Court, January 21,1813.
      66 It appearing to the court, in this cause, that the action is on a policy of insurance» and that the defence made thereto is, that the assured used belligerent convoy $ that there has been a deviation from the voyage insured, or a substitution of another voyage instead thereof, and upon due notice and motion for that purpose by the defendants’ counsel, and upon hearing counsel on both sides, ORDERED, that the plaintiff produce upon affidavit, to the defendants, or to their attorney, the written correspondence or letters, or copies thereof, in the possession of the plaintiff, or under his control, heretofore carried on or interchanged between the mailer or supercargo of the ship Atlantic, meationed in the declaration, and each of them, and any other person or persons, or such parts thereof as relate to, or concern, the said ship or her cargo, in respect to the voyage, in the said declaration mentioned: and also all the letters of instructions to the said captain or supercargo relative to. the said ship and cargo, in respect to the voyage aforesaid* and that in the mean time, and for 10 days after the production of the said papers, the proceedings in this cause on the part of the plaintiff be stayed 5 provided, however, that the said papers shall be only used in support of the said defence, and not o* any other.™
    
    
      
      
         Mash. on Ins. 184.
      
    
    
      
       1 Johns. Cases, 184.
    
    
      
       2 Caines' Rep. 274
    
    
      
       3 Johns. Cases, 159.
    
    
      
       3 Cranch Rep. 357.
    
    
      
       Marsh. on Ins. 202, 203.
    
    
      
       Park Ins. 112, 436.
    
    
      
       2 Johns. Rep. 130.
    
    
      
       6 Johns Rep. 226.
    
    
      
       8 Johns. Rep. 307.
    
    
      
       3 Cranck, 187. 110 Johns.Rep.
      
    
    
      
      
        Mar. Ins. Co. v. Wood, 6 Cranch. 29. 47.
    
    
      
      
         3 Com. Dig. 414. Elect. C.2. 9 Vin. Abr. 362. Elect. E. 3 Co. 26. b.
      
    
    
      
       Anstr. 229. 2 Str. 1248. Disk v. Barrell.
      
    
    
      
      
         Wooldrige v. Boydell, Doug. Rep. 16.
    
    
      
      
        Marshal, 185. Park, 387.
    
    
      
      
         Doug. 16.2 Term Rep. 30. Silva v. Low, 1 Johns. Cases, 184. Henshaw v. Mar. Ins. Co. 2 Caines' 274.
    
    
      
      
        steinbach v. Col. Ins. 130. per Livingston, J. Hogg v. Horner, Park, 421. Mar. Ins. Co. v. Tucker, 3 Cranch, 185. per Johns, J.
    
    
      
      
         On Ins. 202. note.
      
    
    
      
      
         See Ingersoll's trns. of Roccus, 95. note. note xx.
    
    
      
      
         Tom. 2. p. 56. c. 13. s. 14. voyage ckangS. Marshall evidently cites the foreign writers from £¡merigon; the whole passage in Roccus, n. 20. is ■as follows* and should be read in connexion withnote52: ilEtsi navis in cam pr cedido mutaverit iter, vel ceperitsecun• dum viagium, vd convenerit, asporlare alias merces in alium locum, vel alias assecuraivm.es fecerit pro dicto secundo viagio, tunfifo, casibus prcediciis assecuratores* pro primo viagio, amplius non tqnenlur, ila probat Rot. Gen. Decis. 25, fyc. Nam cum navis diverterit ad extráñeos actus didiur mutasse iter* et phvra viagia fecisse»el primum didtur mutatum ; el ampliat Rota, hoc procederé etiamsifuit orj/Uum secundum viagium licet non completum; nam cum faerit deventum ad actum proximum, destinado kabetur pró profecía y cum polentia prophvpfa adui kabeatur pro aciu; limita tamen si muleiur exjusta causat yt infra not, 52,”
    
    
      
      
        Tom, 2. p. 56.
    
    
      
      
        2 Peters' Adm. Dec. Amp. 14.
    
    
      
      
        1Bos. & Pull 200.
    
    
      
       1 Bos. & Pull, 313.
    
    
      
       5 Bos, & Pull. 434.
    
    
      
      
        а) “Mutari niagium tunc dicttur, quando priniam principalem dcslinationem magisier nazis non sequitur; utpole quod navis cum onere et cum primis vecturis, ad fe.itm dcslinatum amplias non intendat ire, nec eat. Disc. 07. n. 24.”
    
    
      
       “ Cum capitanms, retento semper primo proposito et destimlione, in accessoriis t t rter illam non sequitur, mutondo xiam de recta in indircdam, xelplnres scatas, phtres portas attii» gendo ; animo tamen et intentione prosequendi viagivm ad metam datiMtaml'
      
    
    
      
       1 Campb. N. P. 454. end Park, 226.
    
    
      
       1 Campb. N. P. 564.
    
    
      
      
        3 Mass. Rep. 409.
      
    
    
      
      
        De Assec. not 20. 52.
    
    
      
      
        Park, 6th Ed. 387.
    
    
      
      
        Doug. 288.
    
    
      
       Doug. 31.
    
   Thompson, Ch. J.

delivered the opinion óf the court. The Insurance in this case is upon the cargo of the ship Atlantic, on a voyage, as described in the policy, at and from Nerv-YorTe to Gottenburgh, and at and from thence to one port in the Baltic„ On the arrival at Gottenburgh, the assured elected St. Peters» burgh as the ultimate port of destination, and sailed for the same; but meeting with adverse winds, was obliged to put into Carlsham, where the vessel was compelled to winter; and before leaving that place, it was determined by the supercargo to go to Stoc7c~ holm, instead of Petersburgh ; and the principal question in the cause is, whether this was a substitution of a new voyage so as to discharge the underwriters.

There were, however, several questions raised in the course of the trial, which may require some notice.

The objection to the sufficiency of the preliminary proofs was properly overruled. The usual and customary documents accompanied with an affidavit, showing the interest of the assured, were exhibited to the underwriters, together with a eopy of a letter from the master of the Atlantic, received from Messrs. Parish <?- Co., and which was the only evidence sf loss in their possession; and this was all that could be re» quired. The clause in the policy malting preliminary proof necessary, before payment of the loss can be demanded, requires only reasonable information to be given to the underwriters, so that they may be able to form some estimate of their fights and duties, before they are obliged to pay; this clause has always been liberally expounded, and is construed to require only the best evidence of the fact which the party possesses at the time. Such has been the uniform construction put upon it by this court. (2 Johns. Rep. 136. 8 Johns. Rep. 317.) The question of seaworthiness was properly submitted to the jury, and the verdict does not appear to be so much against evidence as to justify the setting it aside on that ground.

The objection to the reading certain letters from the correspondence produced by the plaintiff was properly overruled. These letters were drawn out from the plaintiff under a rule of court obtained on the application of the defendants, and which required the plaintiff to produce, under oath, all letters in his possession, or under his control, which related to, or concerned, the ship, or in respect to the voyage in the declaration mentioned. This was analogous to an answer in chancery; and it is an invariable rule that, where an answer is given in evidence in a court of law, the party is entitled to have the whole of his an-.. swer read. It is to be received as prima facie evidence of the'-'-J facts stated in it; open, however, to be rebutted by the oppo- -" site party. (Peake’s Ev. 85-~37. 2 Esp. N. P. 21.)

Whether there was an unnecessary delay at Goltenburgh, and whether the Atlantic sailed from thence under the protection of a British convoy, were questions properly submitted to the jury, and their verdict is fully warranted by the evidence in the case.

These are all the questions made upon the argument, except that wljich relates to the change of voyage, which I am now to notice.

tllf It is necessary, in order to arrive at a correct conclusion on this question, to ascertain, in the first place, what is the voyage described in the policy. It is a voyage from New-York to Gottenburgh, and at and from thence to one port in the Baltic. The terminus ad quern is left open, and to be filled up at the election of the assured. The assured were certainly not bound to make this election before leaving New-York. The Atlantic, therefore, sailed on the voyage insured, and was under the policy, at all events, until her arrival at Carlsham. It is unnecessary to say at what time the assured were bound to make this election of the ultimate port of destination. The election, in fact, xvas made at Gottenburgh, and the assured were bound by that election. (3 Com. Dig. 614.) We must, therefore, consider the policy as if St. Petersburgh had been inserted; and it is to be regarded one entire voyage, commencing at New-York and terminating at such port in the Baltic as the assured should elect. There is nothing in the case to xvarrant us in considering the policy as upon txvo distinct voyages; the one from New-York to Gottenburgh, and the other from thence to a port of discharge. There is one entire risk for one entire premium; but the result in the case xvould be the same whether the voyage is considered in the one light or the other.

Assuming, then, the voyage described in the policy to be from New-York to St. Petersburgh, how or where has that voyage been changed, or another substituted, and on which the Atlantic was, in fact, sailing ? In all the cases on this subject which have fallen under my observation, the termini of the voyage have been described in the policy; and, generally, the question has been as to the effect of an intention to go to some intermediate port, out of the usual course of the voyage, intending, however, ultimately to go to the terminus ad quern mentioned in the policy. The rule seems to be well settled, both in England and this court, that where the termini of the voyage described in the policy, and of the intended voyage, remain the same, that any designed deviation, whether formed before or after the commencement of the voyage, would not vitiate the policy. (1 Johns. Cas. 184. 2 Caines’ Rep. 274. 3 Crunch, 384. 2 H. Bl. 343. Park, 316.)

The rule laid down by Millar, (389.) is, that if the alteration of the voyage takes place before the risk commences, it becomes a different voyage; but if alter, il is only a deviation. When there is a substitution of a different voyage, the policy never attaches, and the assured is, of course, entitled to a return of premium. Did the risk in this case commence ? Of this there @ no doubt. The vessel was, unquestionably, on the voyage insured until she arrived at Gottenburgh; the policy, therefore, attached. There was an inception of the risk insured against, and there could be no return of premium, (Marsh. 230.)

Had the policy in this case been originally filled up with St. Petersburgh as the port of delivery, or had that port been elected as the terminus ad quern, before the Atlantic left Ncm-York, and afterwards, but previous to her sailing, the assured had changed the voyage to Stockholm instead of St. Petersburgh, this would have been substituting a new voyage; the risk would never have commenced, and there must have been a return of premium. It would then have been like the case of Wooldridge v. Boydell, (Doug. 16.)

The insurance there was from Maryland to Cadiz, but the whole evidence in the case showed that the voyage was for Falmouth, and that there was no intention whatever of going to Cadiz. The voyage described in the policy was, therefore, never commenced. Lord Mansfield told the jury, that if they thought the voyage intended was for Cadiz, they must find for the plaintiff but if they should think there was no design efl going to Cadiz, they must find for the defendant. , ™

There is, I am persuaded, no case to be found where a change of voyage, after the commencement of the one described in the policy, and after the policy has attached, has been held to be a substitution of a new voyage. If in such case the alteration actually takes place, it is a deviation which discharges the underwriter, and if not, it is only an intended deviation, which does not affect the policy. 3

I have thus far considered the case on the ground that the voyage insured is to be viewed as one entire voyage from NemYork to some one port in the Baltic, at the election of the assured ; and this, I think, is the true ground upon which it ought to be placed. But, as I have before said, the result will be the same if the voyages be considered distinct,

Suppose the policy had taken up the vessel at Gottenburgh, and described the voyage from thence to Petersburgh, the po? Mcy would have attached, and the risk commenced»

The sailing from Gottenburgh was with an intention of going to at. Petersburgh, and it was not until alter her arrival at Carlsham that there was any change of intention, or a determination to go to Stockholm. The vessel was then on her direct coarse to St. Petersburgh, and continued on such course until her capture. There was, therefore, only an intended deviation In consequence of information received by the supercargo after leaving Gottenburgh,

The election of Si. Petersburgh as the port of discharge was made at Gottenburgh, and had the ship left Gottenburgh with a determination to go to Stockholm instead of St. Petersburgh, it. might have been a change of voyage; the policy would not io suen case have-attached, or the risk commenced. The terminus, ad quem would have been altered before the commencement oj the voyage, and the vessel would not have entered upon the voyage described in the policy.

It is, I believe, a position not to be controverted, that the legal effect of an alteration of the voyage upon the policy, is, that it never attaches. (3 Crunch, 388.) It would seem to follow, as a necessary conclusion, that when the policy does attach, any subsequent alteration of the voyage must be either a deviation or an intended deviation; and I think I have sufficiently shown, that, in the case before us the policy did attach-The cargo was clearly at the risk of the underwriters front P'ew- 1'ork to Gottenburgh, and Irom thence to Carlsham. J therefore entertain a strong and decided opinion, that the determination formed at l 'arlsham to go to Stockholm, instead of St. Petersburgh, was only an intended deviation, and that the lost having happened before the arrival of the vessel at the dividing point, the underwriters are responsible. The plaintiff is accordingly entitled to judgment.

Van Ness, J.

I cannot assent to the opinion of my brethren-We all agree that the assured, having elected, at Gottenburgh, to proceed to St. Petersburgh, he was not at liberty afterwards to change the final destination of the ship. This is the only point in the case upon which 1 have doubted ; but I am satisfied that, the weight of argument is on the side of the assured, and I shall proceed to consider this as an insurance on a voyage from Not York to Gottenburgh, and from thence to Si. Petersburgh. The question is¿ whether the setting sail from Carlsham for Stockholm,-, and not for St. Petersburgh, was merely an intention to deviate, Qr wjiet]ier jt was an alteration of the original plan of the voyage, or a different voyage from that described in the policy; if the former, the assured are entitled to recover; if the latter, they are not.

The facts, in relation to this part of the case, are, that after this vessel had wintered at Carlskam, it was determined to abandon the voyage to St. Petersburgh, and go to Stockholm, for which latter place she actually sailed. The testimony of the captain, on this point, is clear and decisive. “ About the 2d of May, 1811, the navigation at Carlskam opened, and about that time the vessel sailed for Stockholm, the voyage to St. Peters-burgh having been given up." It appears, also, that when the vessel “ sailed in the spring for Stockholm, a clearance for that place had been obtained at Curlsham."

Considering the voyage insured, then, as being from New-York to Gottenburgh, and thence to St. Petersburgh, I had supposed, after the pause which had been made at Carlskam, in the prosecution of it, (though for a justifiable cause,) after the determination there formed of abandoning the port of destination and substituting a different port, and after procuring a clearance for such substituted port, and actually sailing from Curlsham, in pursuance of such determination, that the underwriters could never be called upon to pay for any subsequent loss. That this was not a mere unexecuted intention to deviate from the voyage insured, will, I think, appear from a brief review of some of the cases in which this branch of the law of insurance has been considered. In the case of Wooldridge v. Boydell, (Doug. 16.) Lord Mansfield says, “ a deviation merely intended, but never carried into effect, is as no deviation. In all the cases of that sort, the terminus a yuo and ad quem are certain and the same.” In the case of Kemley v. Ryan, (2 H. Bl. 343.) it is held, that “ where the termini of the intended voyage were really the same as those described in the policy, it was to be considered as the same voyage, and a design to deviate, not effected, would not vitiate the policy.” In Sylva v. Low, (1 Johns. Cases, 184.) the late chief justice of this court observed, that “ the courts 'have gone a considerable length towards giving us a precise and definite criterion by which we can test the identity of a voyage. While the terminus a quo and the terminus ad quem are the same with the termini of the voyage described in the policy, the voyage intended and the voyage insured are the same, notwithstanding any proposed deviation, or touching at any intermediate port, out of the usual and direct course of the voyage.” The opinions of Lewis, Ch. J. and Radcliff, J. are to the same effect. The same language is held by the court, in the case of Henskaw v. Marine Insurance Company, (2 Caines' Rep. 274.) u The previous intention to touch at Halifax did not make it a different voyage, as the termini, as well as the substantial object of the-voyage described, were the same.” The like doctrine isBiaicRt own, with great force and precision, by three of the judges of the supreme court of the United States, in the case of the Marine Insurance Company of Alexandria v. Tucker. (3 Crunch, 384,) Washington, J. says, “ If the ship sail from the port mentioned in the policy, with an intention to go. to the port or ports also described in the policy, a determination to call at an intermediate port, either with a view to land a cargo, for orders, or the like, is not such a change of the voyage as to prevent the policy from attaching, but is merely a case of deviation, if the intention be carried into execution, or be persisted in after the vessel has arrived at the dividing point.”

From these cases, to which many more might be added, the following principles may be deduced:

1. That where the termini of the voyage are preserved, an. unexecuted intention to deviate does not destroy the policy;

2. That when the termini are abandoned, and a new or independent voyage is determined upon and commenced, from that moment the protection afforded by the policy ceases, and the underwriter is discharged;

3. That there is no such thing as a deviation in any case where the identity of the voyage is not preserved, because there cannot be a deviation from a voyage which the assured does not intend to perform.

The application of these principles to the present case will show, decisively, that the plaintiff cannot recover. The termini were not preserved; the port of delivery was totally abandoned, and a new port substituted, for which the ship actually sailed. It would be a departure from all correct rules of expression to say, here was an intention to deviate from the voyage to St. Re - fer sburgh, when all intention to perform such a voyage was imconditionally renounced. It is supposed, however, that if a determination to abandon the terminus ad quern, and to end the voyage at another port, be made after the vessel has sailed upon the voyage insured, and a loss happens before she arrives at the point of divergency, this is not a change of voyage, but a mere intention to deviate; and I am aware that, in some cases, expressions may be found which countenance such an idea. It is necessary, therefore, to consider this part of the case a little more at large.

A deviation is a departure from the usual cours^of the voyage insured, without necessity. Where the identi^rof Sie voyage insured is preserved, and the assured, either before or after the ship sails, intends to perform it circuitously, by going out of the common iter, if a loss happen before the arrival at the point of separation, this is a mere intention to deviate; and, for this plain and obvious reason, the identity of the voyage insured is not deranged; neither the beginning, nor end, nor route, are altered; it is a mere act of the mind, a bare intent to proceed to the terminas ad quern, but, in some stage of the voyage, to depart from the ordinary route. In every case, however, (and I affirm it without exception,) where such an unexecuted intention has been held not to vitiate the policy, it will be found that the terminus ad quern, mentioned in the policy, was not abandoned, but that the vessel intended, ultimately, to proceed to it. In case a determination is formed to deviate, no matter whether before or after the voyage is commenced, provided the voyage insured is intended to be performed, the ship may be said to be upon her voyage, though not in the customary route; but with what propriety or reason can it be said, if the terminus ad quern is completely abandoned, a different port of destination adopted, and the vessel proceeds, in pursuance of such a change of plan and design, that she is pursuing the voyage insured ?

It so happens, in this case, (at least so is the evidence,) that the Atlantic was in the common route to St. Petersburgh and Stockholm when she was taken. . But, I would ask, was she on & voyage to St. Petersburgh of Stockholm ? Most certainly she was not prosecuting a voyage to both ports. I do not mean that she was not on a route common to both St. Petersburgh and Stockholm, as far as she had proceeded, but, I ask, on what voyage was she sailing ? She determined, while at Carlsham, not fca go to St. Petcrsburgh ; she set sail from that place with the intention of going to Stockholm, and took a new clearance for that port, nor was it until many hours after she had been upon her new voyage that she was captured.

Whether the voyage insured has been abandoned is always a question of fact, and so it has often been decided. The fact that it was abandoned being once established, there is an end of the liability of the assured. Can there be a difference, in principle, at what time, in relation to the local position of the ship, this abandonment takes place ? In the case of Wooldridge v. Boydell, the insurance was at and from Maryland to Cadiz. It was clear, the voyage was never intended for Cadiz. The determination not to go to Cadiz was probably formed before the vessel sailed; she was taken, however, before she reached the dividing point. It was held, that the underwriters on the policy were not liable, and that it was not a case of mere intended deviation, but that the voyage intended was different from the voyage insured. Buller, J. observes, “ This is a question of fact; there cannot be a deviation from what never existed. The weight of evidence is, that the voyage was never designed for Cadiz.” The inquiry was not, when or where was the voyage insured given up; but was it, in fact, given up ? That being shown, the underwriters were discharged. This is clear, not only from the case itself, as reported, but also from what fell from Mr. Justice Buller, in the case of Way v. Modigliani, (2 D. & E. 32.) In speaking of the case of Wooldridge v. Boydell, he remarks, that it was there decided, “ that if a ship insured for one voyage, sail upon another, although upon the same track part of the way, and she be taken before she reach the dividing point of the two voyages, the policy is discharged. That was a stronger case than the present; for there the very intention of sailing upon a different voyage than the one insured vacates the policy.” There, as in the case before us, it might have been urged, with equal force and plausibility, that the master might have changed his mind before he came to the dividing point. There was still left a locus penitentm, that he might have received new instructions before an actual deviation had taken place, not to go to Falmouth, but to Cadiz ; or he might himself have come to such a resolution. The ship was taken in the Chesapeake, in the common track, both to Falmouth and Cadiz» Her going to Falmouth, or Boston, rested solely on naked, un= executed intention, and yet the underwriters were held not to chargeable with the loss.

Let us take a closer view of this subject. What ground is there f°r a distinction in the plan formed for going to a port, different from the one insured, whether it be before or after the voyage is commenced ? If before, the ship is said never to have sailed upon the voyage intended to be insured, and, therefore, the assured are not liable; if after, then, from the moment the new voyage is entered upon, the ship is no more upon the voyage insured than in the former case.

It may be true in this, and in many other cases, that the ship, for a few hours, perhaps a few days, may be on a route common both to the original and new port of destination; sometimes by design, sometimes by accident. But is not the voyage insured as effectually changed as if the vessel had proceeded on a totally different route ?

When the voyage, upon which the ship sailed from the port of departure, is different from that described in the policy, if it were an insurance "from?' only, there would, of course, be a return of premium, because she never was at the risk of the as-surer. But when such a change takes place after the risk has attached, there will be no return of premium; and this, in my opinion, is the only difference in the change of voyage, before or after it has been commenced. A return of premium would depend, however, upon the form of the insurance, even where the determination to change the voyage described in the policy, is formed before the ship sails. In the case of Wooldridge v, Boydell, for instance, there was no return of premium, because, as the insurance was at and from Maryland, the policy had attached as much as if the vessel had actually sailed upon the voyage insured.

The case of Blackenhagen v. London Insurance Company, (Park, 226, 227. 1 Campb. N. P. 454.) appears to me to support the opinion I have expressed. That was an insurance from London to Revel. The ship sailed for the Sound, and arrived there on the 27th of October. On the 11th of November she proceeded towards Revel, and two days after, while on the voyage thither, information was received that an embargo was laid on all British ships in the ports of Russia, in consequence of which the ship returned to Copenhagen, and some days after sailed for England, and was lost. The return, under the circumstances of this case, was justifiable, but it appearing that the voyage to Revel was never intended to be performed, it was held by Lord EUenborough that there was no colour for charging the underwriters, subsequently to her setting sail from England ; that this was a contract for a voyage out, and although a ship from necessity might be allowed to take a circuitous route, yet the ultimate point of destination must ever be the same; that such necessity might, perhaps, even justify a return to England, if it could be proved, satisfactorily, that it was the intention of the parties to seize the first favourable opportunity of returning* to Revel. This cause was afterwards tried before Chief Justice Mansfield, who left it as a matter of fact to the jury, whether the ship had abandoned the voyage or not. Here, then, is a case, where the voyage insured was abandoned, after it had been commenced, and a great part of it actually performed.

Let us suppose, for a moment, that in this last case the master, instead of determining to return to England, had relinquished the voyage to Revel, with a view to go with Ms vessel and cargo to Stockholm, and there to terminate the voyage, and that, after proceeding for several days, in pursuance of such determination, but happening", at the same time, also, to be on the route to Revel, he had been captured, would this have been considered as a mere intention to deviate, or as an actual change of voyage ? The principles upon which this case was put by the judges before whom it was tried, leave little or no doubt that it would have been held to be a change of voyage. They put it expressly upon the fact, not whether there had been an actual deviation, but whether the ship did intend to go to Revel, the port to which she was originally bound, and if this was not her intention, they then considered the voyage as abandoned, and the underwriters discharged. The case of Stocker v. Harris (3 Mass. Rep. 409.) appears to me to support the same doctrine. (See, also, note in Marsh. 201. Amer. ed.)

In further illustration and support of the principles and reasons upon which my opinion is founded, let it be supposed that a ship is insured on a voyage from New-York to the Cape of Good Hope, and that she sets sail accordingly; that when she arrives at the narrows she is overtaken by a boat, despatched by her owners with new instructions from them to the master, directjng JjJjjj j0 proceed to Canton, and not to go to the Cape of Good Hope, accompanied with a new clearance, and such other documents as are usually procured for an East-India voyage, and that, being delayed by some injury to his ship, for a week or two, he again sets sail upon the voyage to Canton; let it bq supposed, further, that, within a few days’ sail of the Cape of Good Hope, and in the common route to both ports, the ship is lost, can it be possible that the underwriters would be liable for the loss ? I think not; and if they could not in the case I have put, most certainly they are not in the case before us, unless it is meant to go the length of saying, that there can be no such thing as a change of voyage, as distinguished from an intent to deviate, after the ship has sailed.

Whether the risk in this case was increased by the change of voyage is immaterial. It is worthy of remark, however, that the degree of risk, so far as it respects the peril by capture, depends, not unfrequently, upon the country to which a vessel is bound. Sweden and Russia have, alternately, been the allies and enemies of both France and Great Britain, and the danger of capture may have been essentially increased, in this instance, by the substitution of Stockholm as the final port of destination.

Again, whether this vessel would have sailed at the moment she did, in case the voyage to St. Petersburgh had not been abandoned, it is impossible to say. If she had not, who can say that she might not have escaped capture ? All the preparatory measures of the master, before he left Carlsham, and his whole conduct, were founded on the plan of a voyage to Stockholm, and not to St. Petersburgh. How far these circumstances may have affected the sailing of the vessel it is impossible to determine. For aught that is known to the contrary, the risk of .the underwriters may have been essentially enhanced.

After as attentive a consideration of this case as I am capable of giving it, I think it a clear one for the defendants.

Platt, J. not having heard the argument in the cause, gave no opinion.

Judgment for the plaintiff. 
      
       In Rucker and another v. Allnut, (15 East, 278.) it was decided that, under a policy on goods at and frcm London to any port or ports, place or places, in the Baltic, backyards and forwards, &c. with leave to touch and stay at any- ports and places for all purposes whatsoever, the insured may wait at any port or place whatsoever for information ns to what port in the Baltic the ship might safely proceed to discharge her cargo, puch being the object and peculiar nature of the adventure; though, in an ordinary policy upon a definite voyage, those general words would not authorize a stay to pro* 4iire information as to the ulterior destination of the ship.
     