
    
      Talcott against the Marine Insurance Company, of New-York.
    This was an action on a policy of Insurance on the brig IIwriter, on a voyage “ át and from New-Haven to Middhtown ; at and from thence to Martinique ; and at and from thence to New-Yorlc” ■ The vessel was valued at the sum insured. The policy contained a printed clause, that “ in case of loss, the insured were to abate two per cent, and the loss to be paid thirty days after proof thereof.” The declaration contained three counts on the policy. In the first count, the interest was averred to be in the plaintiff. The second count averred it to be in the plaintiff undone Ebenezer-Gilbert, and, the third count stated it to be in Atwater and Daggett. There were counts also for money paid, laid out and expended, money lent, and money had and received, to the use of the plaintiff. Plea non-assumpsit. The cause was tried at the New- York sittings, the 18th June, 3806, before Mr. Justice Thompson.
    
    
      A vessel was insured from N. Haven to Middletown,at and from tlience to Mar-, timque, and back to New-York. The policy contained a clause, that “the loss was to be paid in 30 days after proof thereof/* The vessel cleared out for St. Lucie, for the purpose of avoiding a detentionby cruisers, and the master was instruefedby the owner, to keep well to the eastward, and to endeavour to make a particular port m Martmique? and if he should meet with a cruiser who might compel him to abandon Martinique, then to go to St. Lucie,. and. take the first opportunity to get to Martinique. The vessel sprung aleak and foundered the day alter she left Connecticut river. In an action on the policy, it was held that the exhibiting of the protest of the master statingthe loss was a sufficient proof and a compliance with ¿he clause in the policy, and that preliminary proof of interest was not nececsary; that the concealment of tlie instructions to the master was not material, and that the clearance for St. Lucie did not make a different voyage, it being proved that the vessel sailed' on the voyage insured; and though 4he master stated in his protest, that he sailed for St. Lucie, he afterwards ex* plained it to have been so expressed fro.]) a notion that his protest must conform to the clearance.
    
      The facts proved at the trial of this cause, as to the commencement and prosecution of this voyage, and the subsequent loss, were substantially the same as stated in the present case of Talcot v. the Commercial Insurance Company, which was on a policy on the cargo laden on board of the same vessel. It appeared further in the present case, that the Hunter was owned by two persons at Neio-Haven, of the name of Atwater and Daggett, who chartered her to Gilbert, for the voyage. The charter-party on the part of Gilbert was guaranteed by the plaintiff, and signed by him. The Hunter was cleared out for St. Lucie, though in fact destined for Martinique ; and the master, in his protests stated the destination to-be for St. Lucie. The reason he assigned, in his testimony for clearing out for St. Lucie, was in order to avoid his being stopped and detained by cruisers, in case it was known she was bound for Martinique ; but that her real destination was for Martiniquet and - the crew were shipped for that place. He stated the destination in his protest for St. Lucie, because.it was thought necessary that it should correspond with the clearance. The crew consisted of the master, mate, five seamen and a boy. The mate and one of the seamen confirmed the evidence of the master, as to the real destination of the vessel, and the reason for clearing out for St. Lucie..
    
      Gilbert gave a letter of instructions to the master, which the latter considered himself as bound to obey, He was directed to keep to the eastward, on the passage out, and on his arrival in the latitude of Martinique, to run down to S. E. point of the island, and endeavour to make the island in the afternoon, in order, if possible, to stand in during the night time for the point, in order to avoid cruisers. . After doubling the S. E. point of the island, at three miles distance, he was to proceed till he arrived off thé harbour of Sac Marion, where he was to anchor and take a pilot. If the master met with any cruiser which might compel him to abandon Martinique, after every exertion to get there, he was instructed to proceed to St. Lucie, to write from thence to St. Anns ; and, after waiting a reasonable time without an answer, to clear but for Toiago, and in beating up for that island to put into St. Anns, in the night time, &c.
    On the 15th December',. 1804, the plaintiff wrote a letter of abandonment to the defendants, stating that the vessel had foundered at sea. This letter, with thé protest of the master and mate; was delivered to the secretary of the defendants at their office, the same day on which it was written, and thirty days before the commencement of the suit. • On producing this 'preliminary proof, at the trial, the defendants’ counsel moved for a nonsuit. It was admitted that formerly the policies of insurance contained the clause, that the loss was to be paid in thirty days after proof of interest and loss ; and it was contended that, though in some later policies, and in the present one, the word interest was omitted, still preliminary proof of interest as well as of .the loss was, necessary. The judge refused to nonsuit the plain-’ tiff; and the jury found a verdict for the plaintiff for a total loss.
    A motion was made on the part of the defendants for a ne.w trial.
    1. Because the preliminary proofs within the term and meaning of the policy were never exhibited to the defendants.
    2. Beeause the letter of instructions given to the masj ter, discharged the defendants from any liability on the policy.
    3. Because the policy never attached, as the vessel did not sail on the voyage insured.
    
      4. Because the verdict was against evidence.
    The question of seaworthiness, raised and argued by the counsel in this cause, having been decided in the last case, it is unnecessary to state it .here.
    
      J. M. D. Lawrence, for the defendants.
    1.' This was a valued or interest policy, and the insured was therefore bound to exhibit proof of interest as well as proof of loss. Proof of loss implies a proof of interest ; for if the insured had no interest, he could suffer no loss. The valuation does not dispense with the proof of the plaintiff’s interest, 2. The letter of instructions given by Gilbert to the master ought fo have been made known to the defendants. The insurers are entitled to the benefit of the master’s judgment, as to the best course to pursue in the voyage ; he ought to be left to his discretion, and if tied down- to particular instructions, that fact ought to be made known to the insurer, as it enhances the risk. This was so settled in the case of Middlewood v. Blakes ánd until the case of Henshaw v. The Marine Insurance Company, was supposed to be law. •
    [Kent, Ch. J. That case does not differ from, but perfectly agrees with, the English decisions.]
    The voyage insured was to Martinique, but the evidence exhibited at the time of the abandonment, states that the voyage was for St. Lucie, which is a different voyage. The plaintiff is bound to exhibit proof that the loss happened on the voyage insured. The clause as to preliminary proof is not merely formal; it was intended for the benefit and convenience of the parties, and to prevent unnecessary litigation. It ought, therefore, to have its effect, and be fully complied with.
    
      P. W. Radcliff, contra.
    The clause in the policy, requiring preliminary proof of loss, was intended to fix the time of payment. Without this clause, no such proof would have been necessary before the commencement of an action. It is therefore a derogation from the general practice, and ought to be construed strictly. It requires merely a proof of loss ; nothing is’Said,about a proof of interest. In the case of Lenox v. The United Insurance Company, which was an Insurance upon goods, the court considered the mere production of a bill of lading, as sufficient proof of interest. There is no reason for requiring stronger evidence in a casé of a policy on the vessel. - The protest of the master, stating the loss is equivalent, and a compliance with the terms of the clause, which could have intended no more than the usual and ordinary evidence of loss. It was a sufficient notice of the' plaintiff’s claim. But if this objection has hny weight, it ought to have been made at the time the proof was exhibited, that the plaintiff might have supplied any defect. As the defendant did not refuse payment for want of sufficient preliminary proofs, or make any objection to their sufficiency, they ought not to be allowed to avail themselves of that ground of defence ; but must be considered as having tacitly waived the objection. 2. The letter of instructions is made a ground of defence, either as a material concealment or a deviation. At most, they show an intention to deviate, which does not avoid the policy. The fact could not be material until the event was known, that was to induce him to go to St. Lucie. As such an intention could not affect the policy, neither could it vary the premium. The instructions were general, to keepwell to the eastward, and a latitude was given for the exercise of the master’s judgment. The best means for getting into the destined port, with the least risk, were pointed out, and were equally for the benefit of all parties. The cases decided on this point relate to two or more distinct routes. To support this objection it ought to have been shown on the part of the defendants, that there was another and a better route than the one pointed out in the instructions. No such evidence haft beengiven, nor that a knowledge of these instructions would,- in any manner, have affected the premium.
    
      3. The clearance for St.Lucie did not make a different voyage. It is sufficient if the plaintiff prove at the trial, that the vessel did actually sail on the voyage insured ; and the master was a competent witness to explain what was meant in his protest as to the clearance for St. Lucie.
    
    
      Golden, in reply.
    1. The object of the clause in the policy requiring preliminary proof, is not merely to give notice of a claim by the assured : it is to require proof of such facts as will enable the assurers to decide whether they are bound to pay or not, and thereby prevent the necessity of a suit. The protest contains no evidence of interest, nor that a loss happened within the voyage insured. Proof only of a loss, without showing when or where it happened, would hot enable the assurers to determine whether the assured had a right to recover. The silence of the defendants is no waiver of this objection, for they are not bound to mention to the plaintiff the defects which they may discover in his proceedings.
    2. Though the termini of a voyage be the same, yet, if there be different routes, and an extraordinary route be taken, it is not the same voyage. The letter of instructions directs the master to sail on a voyage different from the one described in the policy.’ The master declares, that he thought himself bound by these instructions,. and that he meant to follow them. He was not, therefore,, left to his discretion to act. according to his best judgment as circumstances might render it necessary. It is not necessary to prove, that a knowledge of these instructions would enhance the premium or risk. It is obvious that they would have had an influence on the defendants in settling the terms of the contract, and the ■concealment of them was material.
    3. It is not denied, that a clearance is not conclusive evidence of the real voyage. But. here was evidence that the vessel did sail on the voyage to St. Lucie, and not to Martinique direct.
    
      
      
         7 Term, 162.'
    
    
      
       2 Carnes, 274;
    
    
      
      
         Caines 217. JBarnewell y. Church.
      
    
   Per Curiam.

1. The.words in the policy, that ike loss was to be paid in thirty days after proof thereof, are not understood to mean proof in a strictly legal and technical sense, but as applying only to reasonable information of the fact of the loss.' It is sufficient, therefore, to exhibit, to the insurer the usual documentary evidence, and so it was decided by this Court, in the case of Lenox v. the United Insurance Company, (October Term, 1802.) That was the case of an insurance upon goods, and the policy contained such a clause as the above, and the insured exhibited to the underwriters a customary protest, showing his loss, and a bill of lading and invoice, showing-his interest, and this was held to be sufficient. The question in that case did not arise, whether the protest, as evidence of loss, would have been sufficient without the other documents as evidence of interest. Proof of loss of goods may, perhaps, in certain cases, imply an accompanying proof of interest, as requisite to ascertain the identity of the goods lost, but it is very clear that no such necessity exists in the present case, and .we are not for extending the words in the policy beyond their natural and obvious meaning. Proof of loss of a. vessel does not imply proof also of the owner’s title. It would be violence to push the construction of those words‘to that extent. .

The case of Abel v. Potts, (3 Esp. Cases, 242.) is some-thing analogous to the one before us. That was an insurance on goods, and by a memorandum in the policy, the loss was to be adjusted within three months after advice of the capture of the ship. The ship was captured, and it was ruled, that the entry of the capture in Lloyd’s Books, with presumptive evidence that the insurer must have seen it, was sufficient proof of the advice, and that the communication of the loss need not come from the assured. This case shows that the clause in question js to receive a reasonable and liberal construction as it respects the assured.

2. There is no weight in the second objection. The insurance was to Martinique ‘, no. particular part of the island or port was specified, and the owner was left to his own discretion in choosing his port. The instrue-^ons uPon this point to the captain, as to the most eligible of reaching in safety the port of Sac Marien, appear to be reasonable, prudent, and not unusually precise. The objection is hypercritical ; the case of Middlewood v. Blakes, which has been cited does not apply There were three different routes from London to Jamaica, and the captain in that case was limited to one of them, and not left to his discretion in selecting either, according to circumstances, arid the loss happened after hfe came to the dividing point between the several tracts, and had taken the one prescribed. Lawrence, J. in that case admitted, that if the ship had been lost before she took the n orthern course, the assured would have been entitled to recover.

3. Nor is there any colour for the third objection; the proof is clear and decisive, that the brig did sail on the voyage insured, and the insertion of St. Lucie in the protest of the captain and mate, is sufficiently explained by their subsequent depositions ; but,

4. On the question of seaworthines, the verdict is against evidence, and ought to be set aside, for. the reasons given by Mr. Justice Spencer, in the case of Talcott v. The Commercial Insurance Company, which was a policy on the same vessel and voyage.

New trial granted.  