
    Ebenezer Stocker and William Farris versus Abel Harris.
    A ship, cargo, and freight, are insured “ from Boston to the Canaries, at and from thence to any port or ports of Spanish America, and at and from thence to her port of discharge in the United States, under whatever papers she may sail. She goes safely to the Canaries, and from thence under Spanish colors, and with Spanish papers to Vera Cruz, where the outward cargo is landed, and afterwards seized by the Spanish government as an illegal importation; the master remains with the ship five months at Vera Cruz, prosecuting the recovery of the cargo. Failing in that object, he takes a cargo on freight for the Havanna, at which place he was to exchange his papers, and thence return , to the United States. On her passage to the Havanna, the ship is captured and condemned.
    It was held that the stay at Vera Cruz was not, and that the voyage to the Havanna was, a deviation.
    Case upon a policy of insurance effected for the plaintiffs, dated March 18th, 1800, and subscribed by the defendant for 200 dollars, whereby the plaintiffs caused themselves to be assured 5000 dollars on the ship America, cargo and freight, from Boston to •the Canaries, at and from thence to any port or ports in Spanish America, in the Atlantic or Ethiopia ocean, at and from thence to her port [ * 410 ] of* discharge in the United States, under whatever papers she may sail, at a premium of 25 per cent. And the plaintiffs aver that whilst said ship was sailing and proceeding in the voyage aforesaid, and before her arrival at her port of discharge in the United States, she, with her cargo then on board, were captured by a British man-of-war, and thereby the said ship, and the freight of certain goods then on board, and laden on freight, and certain other goods, the property of the owners of the ship, were wholly lost; and that the plaintiffs were owners to the amount of two thirds.
    
      Upon the general issue pleaded, the cause was tried November term, 1805, and, by consent of the parties, a verdict was taken for the plaintiffs as for a total loss, subject to the opinion of the Court whether, upon the facts stated and in evidence, the defendant is liable by this policy for the loss averred and proved, and, if liable, whether for a total or partial loss. If the opinion of the Court should be that the defendant is not liable for any loss, the verdict to be set aside, and a verdict entered for the defendant; if the opinion of the Court should be that the defendant is liable for a partial loss only, such loss to be ascertained by referees to be appointed by the Court, and a verdict entered for the amount so ascertained.
    The material facts in the case were, that, on the 22d of February, 1799, the ship America, Keyran Walsh, master, laden with a cargo, the property of the plaintiffs and others in the proportions alleged, sailed from Boston, arrived at Teneriffe, one of the Canary Islands, about the 20th March following, there changed the character of the ship and cargo by the assistance of Madan Brothers, Spanish merchants resident at Teneriffe, who became the nominal owners, and, with papers and colors as Spanish property, proceeded from thence to La Vera Cruz in Spanish America, where she arrived the 14th of July, in the same year, and landed her outward cargo. This was afterwards seized by the Spanish government as an illegal importation; and this seizure and detention of the cargo occasioned a stay there of the vessel and master until the middle of. December following, when the master, upon the credit of the outward cargo and of the * owners, having taken up about [ * 411 J 1000 dollars, which he put on board the ship in logwood for ballast, and having received on board a cargo on freight for the Iiavanna, cleared and sailed for that port, after giving bonds to land his cargo there, or at some other Spanish port. In her passage to the Iiavanna, but before she had left the track she must have taken if coming to the United States, the ship was chased on shore upon the island of Cuba by a British ship of war, by whose crew the ship and her cargo were afterwards captured, carried to Jamaica, and there condemned to the use of the captors, as Spanish property, Great Britain being then at war with Spain.
    
    It was further in evidence, that the ship could not have peen cleared from Vera Cruz for the United States under Spanish colors, or without bond being given to land her cargo in some part of the dominions of Spain; and that a partner in the house of Madan Brothers resided at the Iiavanna, by whose assistance it was expected the character of the ship, as an American bottom, might be restored.
    
      The plaintiffs abandoned to the underwriters their interest in the ship, but not in the cargo or freight. Since the commencement of this action, an order of the Spanish government has been obtained for the restoration of the property seized at La Vera Cruz.
    
    The cause was argued at the last November term in this county, before Sedgwick, Sewall, and Parker, justices, by Livermore, for the plaintiffs, and Jackson and Story, for the defendant.
    
      For the defendant, it was contended, 1. That the policy was void, as containing no specification of the subject of the insurance, or of the sums relatively insured on each subject, viz. ship, cargo, and freight. Without such specification, the underwriter cannot know whether he is liable in case of a partial loss, or how to apportion the loss. In the case at bar, for instance, suppose a loss of ship only, it is uncertain whether the underwriters would be liable to contribute for the whole 5000 dollars, or only a part of that sum in proportion of the value of the ship to the aggregate value of the ship, cargo, and freight; or whether the insurance is to be distributed equally on the three subjects, one third each.
    [ * 412 ] *By this policy, no average loss was to be paid under 10 per cent. If a partial loss had happened, say, of six per cent, on the ship, and 15 per cent, on the cargo, it would have been impossible to adjust such a loss, from the uncertainty in the terms of the contract.
    
      Park
    
    
       lays it down as absolutely necessary that there should be such a specification, and for the reason already given, that otherwise it is impossible to know whether, in any instance, the underwriter is liable or not to the loss sustained.
    2. The defendant is discharged from the policy in this case, from the unreasonable stay at Vera Cruz, from July to December, which amounts to a deviation. The ship was not seized. The seizure of the cargo was after it was wholly landed, and the ship might have departed immediately. The delay was voluntary, or, at any rate, occasioned by a misfortune to the cargo not within the policy; and a delay is only justified when it is occasioned by a necessity arising from the risks insured. In this case, it arose from the misconduct of the assured, in counteracting the revenue laws of Spain 
      .
    3. The voyage to the Havanna was also a deviation, because not occasioned by any necessity growing out of the perils insured against, but by a necessity created by the owners, in changing and covering their property. The policy allows the changing of papers, but leaves the consequences at the peril of the assured. If he was under a necessity thus to deviate, it was not such a necessity as will justify the deviation, as arising from natural causes, as stress of weather, &c.
    Here was no insurance against the consequences of illicit trade. On the contrary, the defendant, by permitting the change of papers, had good ground to suppose that no risk of that description was in tended to be run by the assured. As this insurance was not against damage arising from a breach of the Spanish revenue laws, so a deviation to avoid such damage discharges the underwriter from his responsibility .
    4. Notwithstanding the broad language of the policy, the outward voyage ended on landing the cargo at Vera Cruz, and *the ship was then bound, in order to keep within the [ * 413 ] policy, to return directly to the United States. The voyage to the Havanna was a new voyage, undertaken for purposes of profit. This is different from an intent to deviate, never executed. A cargo was taken on board for the Havanna, and the voyage thither pursuing at the time of the loss, and this was a new voyage growing out of the incidents of the old one .
    5. But should the policy be held to cover the loss, which finally occurred, still it is contended that the plaintiffs can recover but for a partial loss, because there has been no abandonment of the cargo left at Vera Cruz. The owner cannot, in this case, abandon his interest in the ship only, where ship, cargo, and freight, are jointly insured.
    The cargo which was seized aft Vera Cruz has since been restored without loss ; and as to the logwood taken in at that port as cargo, it was covered by a policy prior to this.
    Freight has been earned on the two first passages, and as to that intended to be obtained on the new voyage from Vera Cruz to the Havanna, it was not within the policy.
    
      Livermore, for the plaintiffs,
    contended that, if this cause was to be determined upon the plain and necessary meaning of the contract on which the action was brought, and the facts in evidence, the plaintiffs were entitled to judgment on the verdict which they had obtained. They have suffered a loss, against which the underwriters assured them an indemnity. The property went to the ports contemplated by the parties at the commencement of the voyage, and to no other ports, and in the regular course of the voyage had been lost.
    A policy of insurance is to be construed beneficially for all concerned, and liberally for the security and promotion of commerce; in this construction the understanding of the parties, al the time of making the contract, ought to govern.
    It is not contended by the plaintiffs that they had a right under this policy, broad as the words of it are, to undertake a new voyage from port to port, after discharging the outward cargo. They were bound to return from La Vera Cruz to a port of dis- [ * 414 ] charge in the United States, or the policy would * cease to protect their property. But it is insisted that they had a right to touch at the Havanna, because this was absolutely necessary, as a mean of returning to the United States 
      . And being under this necessity, they had a right to take on board a cargo for that port, which neither did nor could increase the risk of the underwriters.
    The passage cited from Park does not show that a policy is void for want of a specification of the different subjects of the insurance’. It merely states that it is for the convenience of the parties, that each subject should be named. Where all the subjects, as ship, cargo, and freight, are totally lost, it is very absurd for the underwriters, who promised to indemnify the assured, to attempt to avoid their contract, because the respective amounts of loss are not set against the several objects, when it is not and cannot be denied that a loss, greater in amount than the sum insured, and within the terms of the policy, has taken place.
    The detention and stay at Vera Cruz arose from the duty and even necessity in the master, as the agent of all parties interested, to labor for the recovery of the cargo, which had been seized. There were strong grounds to hope he would be able to retrieve the property and bring home the proceeds of it in his ship.
    There was nothing left for an abandonment to operate upon, when ship, cargo, and freight, were irretrievably lost. The underwriters had no claim to an abandonment of the property left at Vera Cruz. The plaintiffs claim nothing for the detention of that property. They might have so increased their property by the sales there, that they should choose to leave a portion of it behind, and they might have made their insurance accordingly, with reference to such an arrangement. They claim for the actual loss which they sustained by the capture, and which exceeds the amount insured; and with which alone the underwriters have any concern.
    The case cited from New Reports, it is confessed, has an aspect unfavorable to the plaintiffs in this case. But it does not, perhaps, apply with so much strength as the counsel for [ * 415 ] * the defendant seem to have imagined. In the case at bar the freight was valued ; but it was not so in the case alluded to. In tint case no freight had been earned; but here it was otherwise. The decision in that case seems to turn principally upon the point, that there had been no inception of the voyage from Berbice to London, and so the policy had never attached. In the case at bar, the voyage was actually commenced from Vera Cruz to the United States by the way of the Havanna. But should the case referred to, be thought by the Court to have a more direct bearing on that before the Court, than the plaintiffs’ counsel are willing to believe, it is yet respectfully suggested that a deference to the opinions of English judges must have its limits. It cannot be agreed, that every decision of the courts of Westminster Hall is to be received as law in this country, as soon and as fast as our booksellers see fit to import those decisions.
    
      
       Page 20.
    
    
      
      
        Marshall, 54, 226.—2 Kent. 176.
    
    
      
      
        Park, 310.—Marsh. 399. 413.—Woolfe vs. Claggett 3 Esp. Rep. 259.—Lavabre vs. Wilson, Doug. 284.
    
    
      
      
        Marsh. 230 232, 406.—Doug. 18.—1 Bos. & Pul. New Rep 23.
    
    
      
      
        Gregory vs. Christie, cited in Marsh. 185, and in Park 41.
    
   The cause stood continued for advisement, until this term, and now the opinion of the Court (the Chief Justice, having been of counsel for the plaintiffs, did not sit in the cause) was delivered as follows, by

Sewall, J.

(After stating the facts.) The defendant objects against the demand in this action.

1. That the policy is wholly void, for its uncertainty in not speci fying what part of the gross sum insured is applicable to each of the distinct subjects to be protected by the insurance.

2. That the loss did not happen in the course of the voyage insured, or while the ship was under the protection of this policy.

It is not necessary to decide upon the first objection, and, indeed, we are not all agreed in opinion upon it, but we are all agreed upon the second objection in a manner decisive of the action.

In deciding upon the second question, arising in this case, whether the loss happened in the voyage insured, and while the ship was under the protection of this policy, it seems essential to ascertain the construction of this policy, as to some of the termini of the voyage insured. The words in this instrument describe a voyage, which at the first view seems to be interminable, unless at the will of the assured. A voyage from the Canaries to any port or ports in Spanish America *may, by a possible construe- [ * 416 ] tian, be understood to authorize an unlimited employment of the ship in the ports of Spanish America, at the will of the insured, under the protection of this policy. But this construction is too unreasonable to be admitted.

In France, where insurance is usually made to the French West Indies generally, the risk is construed to continue on the goods until they are landed, and on the ship until the outward cargo is discharged . In cases governed by certain notorious usages, as in the case of vessels chartered by the East India Company in England. an insurance of a ship at and from Bengal to any ports or places in the East Indies, and forwards and backwards, and during her stay at each place, until her arrival at London, has been construed to cover intermediate country voyages in the East India seas, and the customary detention or prolongation of the voyage by the orders of the company’s servants in India . But in an insurance of a foreign ship, a more limited construction has been given of the liberty of touching and staying at ports and places. As in the case of Lavabre vs. Wilson , where the insurance was of a French ship upon a voyage to Pondicherry and China, with liberty to touch and stay at any ports and places beyond the Cape of Good Hope, &c., it was decided that the words would not cover a voyage to Bengal, being out of the usual course of the voyage insured.

In the case before us, one part of the voyage insured is to commence at the Canaries, and to terminate outwards at a port or ports in Spanish America; but no voyage commencing at a port in Spanish America to another port in Spanish America, is within this description; and the reasonable construction, according to the opinions and decisions cited, there being no notorious usage to control this case, must be, that the outward voyage terminated at the discharge of the outward cargo of this ship carried from the Canaries, and the destination of the ship was to Vera Cruz. There the whole of the outward cargo was discharged, and there the outward voyage must be considered to have terminated.

[ * 417 J * Then a further inquiry will be, whether the stay at Vera Cruz, occasioned by the seizure of the outward cargo, was a deviation from the voyage insured, or a voluntary change of the risk.

The captain (Walsh) swears that the sole occasion*of his stay was the seizure and detention of the outward cargo. There is nothing in the case which contradicts this representation of his conduct. With his owners, and all interested in the cargo which had been seized, the hope of recovering .it,and the advantages of the captain’s agency, in soliciting their .claim, would sufficiently justify his stay at Vera Cruz, and the consequent detention of the ship. It may be understood that the insurers, by this policy, were not interested in the outward cargo, after it had been safely landed from the ship. But the captain is the common agent of the concerned, and it is his duty to manage their distinct and separate, as well as their joint interests, according to his best judgment; and whatever is fairly done with this purpose, is within the course of the voyage; and delays occasioned by such events are accidents to which the insurers are accidentally, if not directly, subjected.

And if the stay at Vera Cruz was not, then was the voyage commenced from Vera Cruz for the Havanna, in the course of which the loss happened, which is now demanded, a deviation from the voyage insured, or the engaging in a distinct and unconnected risk ?

Upon the ground that the outward voyage terminated at Vera Cruz, the words of the policy covered only the necessary stay there, and a voyage from that place to a port of discharge in the United States. According to the testimony of the captain, his object was to bring the ship back to the United States, and he had her cleared out for the Havanna, as being the most safe and expeditious route to the United States; and because, as one of the house of Madan Brothers lived at the Havanna, the captain could there make the ship an American bottom, and sail from thence directly to the United States. This is the general representation of his intentions in his own words; and admitting his intentions to have been as he seems to represent them, the passage to * the [*418] Havanna is not covered by the words of the policy, even if it was to have been taken in the course of the voyage to the United States . It was, under all the circumstances, a voyage to a place, where the vessel was to be detained upon a distinct trade and business, the disposal of the cargo received on freight, for the IIa vanna; and being a distinct and additional risk, it is only to be justified, if at all, by the supposed necessity for it. And admitting that the necessity of going to the Havanna, to restore the property of the ship, and her original character, and for the means of obtaining proper custom-house papers for a voyage directly to the United States, was a sufficient excuse for the deviation or new voyage, will this necessity extend to any other property than that originally subjected to it at the risk of the insurers ? Necessity may justify a deviation made for a sufficient cause, and fairly intended for the benefit of the concerned, and the security of the property insured . A deviation under such circumstances, though not within the letter, is within the spirit, of the contract.

To maintain the demand in this action for the loss of freight, upon the goods shipped at Vera Cruz for the Havanna, the supposed necessity must be understood as an extension of the contract, at the will of the insured, to comprehend a new risk in property as well as place, and to afford an opening for a new adventure not provided for, in the original contract.

But the necessity supposed in this case appears to me not to t« of the kind which justifies a deviation. Nothing will justify a deviation, but a real and imperious necessity . In all the decisions, where necessity has been considered a sufficient excuse for a departure from the voyage insured, the cases are of that kind. In the present case, a change of papers was expressly licensed by the policy; but it would be an unreasonable construction to say, that the insured had, under that Ucease, an authority to engage the insurers in an unlimited voyage and risk. The ship was destined to the Havanna, because one of the Spanish house happened to reside there. But if he had not been there, or had died [ * 419 J before #the arrival of the ship, then, by force of the same necessity, a voyage to Teneriffe had been equally excused; or if the partner supposed to be at the Havanna, had gone from thence to Vera Cruz, to render his good offices there, then the vessel might have returned to that place with the benefit of another freight, and all these different passages, and as many more as the assured had been disposed to undertake, might have been brought within the protection of this policy, which, at the time the voyage to the Havanna commenced, according to the words of it, and in the events stated, insured only a passage from Vera Cruz to the United States. Without examining how far Captain Walsh’s deposition proves any necessity applicable to the ship itself, I am clearly of the opinion that, in the utmost latitude, which can be imagined, of a necessity arising by the voluntary act of the insured, or of their agent, in the negotiation of the property insured, and the evidences of it, it is not that real and imperious necessity which justifies a change of the risk, stated in the policy.

And upon the whole it is the opinion of the Court, that no part of the loss demanded in this action happened in the course of the voyage insured, and, therefore, that the defendant is not liable.

According to the terms of the rule, bringing the case before the whole Court, the verdict for the plaintiffs must be set aside, and a verdict entered for the defendant. 
      
      
        Marshall, 179, cites Emerigon, tom. 1, p. 72.—tom. 2, p. 73.
     
      
      
        Marshall, 183.—3 Burr. 1707.
     
      
      
        Doug. 271
     
      
       Vide Park, 295.—Fox vs. Black.—Townson vs. Guyon.
      
     
      
      
        Marshall, 408, 409
     
      
      
        Marshall, 413.—[Kettell vs. Wiggin, 13 Mass. 68 —Ed.]
     