
    Miller and Robertson against Russell and others.
    Where a res-sel is staunch and properly beforef°siieea ot springing a leak, or other accident at sea, after-wards, wilt poiicy'of h,. ^anaoe-dJ^ tion on the voyage make it void, if occasioned by stress of weather, unavoidable accident, or to avoid an enemy, or the like»
    CASE upon a policy of insurance, tried before a special « JUty*
    The defendants in this action were underwriters upon a policy of insurance on the brig John, whereof 'Yohn Howell was master, bound to Jamaica. There was ** , insured on the vessel the sum of 350/. and on the freight 7 , 150/.
    It appeared in evidence, that the brig sailed from Charles-ion in October, 1792, and on her voyage sprung a leak, which admitted so much water into the vessel, that it was with the utmost difficulty the hands on board, together with three others they got from on board a French vessel, could keep her afloat. That faffing to the leeward of the island of Ja~ matea, they were obliged to put the vessel about, in order to avoid a small island, and croud all sail upon her, which drove her upon a reef, where she was lost.
    The defendants set up several grounds of defence :
    1. That the brig was not in a proper condition for sea when she sailed, and consequently, there was not a proper representation of her condition before she proceeded on her voyage. That it was the duty of the master to see that the ship or vessel was seaworthy, before she sails ; and that an omission of this kind on the part of the master, vitiated the policy. That in this respect, he was the agent of the owners, and his neglect affected their right of action.
    2. That there was a deviation from the due course of the voyage, which had she pursued, she might have made a port and been saved.
    3. That an unreasonable sum was insured on her.
    For the plaintiffs, in reply, it was admitted that it was the duty of the master to see that his vessel was seaworthy, before she proceeded on her voyage ; and that a deception or misrepresentation on that head would affect the policy : but they contended, in this case, (and one or two witnesses proved,) that the brig had been repaired, and put in as good order as usual, before she sailed, and that there was no default or misrepresentation on the part of the master.
    On the second ground, it was not denied but that an alteration or deviation in the voyage, might affect such policy, if such deviation was not the effects of necessity; but wherever urgent necessity required it, for the 'greater degree of safety of the vessel and cargo, it was otherwise.
    With respect to the last ground, it was proved that the sums insured on A- r.ss .-i and freight, were not unreasonable, or out oi the course of‘trade, therefore it was not pressed.
   The Court,

in charging the jury, told them there were two points for their consideration, as the third ground seemed to be given up j first, the good condition or seaworthiness of the vessel before she went to sea. Secondly, the conduct of the captain. Should they be of opinion, from the testimony, that the vessel was not in a proper condition, it would vitiate the policy; as good faith on these occasions was essentially requisite. That the insurers could receive the necessary information, from no other quarter than from the master or owner; and if they respresent a ship to be stout and staunch, and every way equipped for sea, when in fact she is not — -that is such a misrepresentation as will exonerate the underwriters. On the contrary, if they should think the brig was in good order, and fit for sea when she sailed, then the defendants undertook for every risk afterwards. With respect to the second point, it was clear that every unnecessary deviation or departure from, the voyage, equally with the unfitness of the vessel for sea, made the policy void. But where such deviation was owing to stress of weather, unavoidable accidents, or with a view to avoid an enemy, or the like-' — then every such case formed an exception to the general rule.

Verdict for plaintiffs.  