
    Jeremiah Murden against South Carolina Insurance Company.
    Charleston,
    May, 1817.
    ves"eutMdr“m wSratdcoaskTf Africa,during her tíiek Mdattra?id to charleston, coast'longer than the captain ení¿‘™ofañlnchor<; and after having ínsanchorage.and seeking for anotlv “ri“edorone fche 4th month be-InS VYs11 4 months froir breach*™!’war jranty.
    The case was tried before Mr. Justice Grimké., at Charleston, in-Term, 181 — .
    This was an action of assumpsit on a policy of insurance on the brig Commerce, K. o. Long, master, at and from Charleston, to the westward ^oast of Africa; during her stay and trade on :he coast, and at and from thence back to - ___ _ , ' . The adventure to begin, continue* o 7 ' endure, until the said vessel, &c. shall have . , _ t , 1 , j c thearrivea5 an« be moored at anchor twenty-tour in safety. At the bottom of the printed . . among other provisions, the following are “Warranted not to remain on the coast l°nger than four months; “ also warranted tree from loss, by reason of any capture, seizure, or detention, which may happen or arise after the first day of December next;” which policy was executed on the 18th day of June, 1807. The protest of the captain, which was given in evidence, stated, “That on the 16th day of June, 1807, they set sail and departed from Charleston in and with the said brigantine, (Commerce,) laden with sundry goods, wares, and merchandise, bound on a slaving voyage to the coast of Africa. That they continued in prosecution of the voyage with as much diligence and despatch as the winds and weather would permit; nothing matejial occurring until the. 27th of July, on which day, at eleven A. M. they struck soundings in thirty fathoms of water, at the same time saw the land, bearing southeast, distant about five leagues. On the thirty-first of the same month, at 2 P. M. experienced a heavy tornado, having first clued up and handed sails. At meridian; on the first day of August, having observed, in latitude of Senegal, they tacked ship and stood in for the land. The next day, at 4 P. M. they came to within one league of the land, with the small .bower; soon after let go the best bower, handed sails, and made all snug. The second mate and two hands attempted to land, but found it impracticable, on account of a very high surf. At day-light, blowing fresh, and eyery appearance of blowing a gale, parted their best bower cable, with great difficulty hove up the small b.ówer and stood off to sea, and made as much sail as the vessel would bear, being determined to run for Goree to procure an anchor and cable, as there remained only the small anchor on board, and no prospect of being able to get into Senegal. That they continued working ship to the best advantage, until the fourth of the said month of August, experiencing light and baffling wdnds. At half past 1 P. M. of that day, a breeze sprung up from the westward, and not being able to lay their course for Goree, they then made all sail for Senegal bar. On the ninth of the said month they, at 2 P. M. saw the town of Senegal, and bping boarded by a canoe, the captain went on shore to endeavour to procure a cable and anchor, but could not succeed; but got on board three casks of water, which they were much in want of, having been on short allowance for some time before. The captain was, however, detained by the Governor, until twenty-five barrels of flour were taken from on board the said brig, which had proceeded up to the town of Senegal. That the said flour having been paid for, they were permitted to proceed on their voyage, and accordingly, on the fifteenth of Üie said month, they set sail and departed from Senegal, and proceeded for Goree, to which place they •were under the necessity of going, in order to procure a cable and anchor; and on the twentieth came to in Goree roads with the small bower, the anchor they had, which was continually dragging, exposing the said brig to imminent danger. In the morning of the22d they experienced a strong tornado, accompanied with much rain; the weather becoming in the afternoon more settled, they sent to the Bay of Yeoff for an anchor, which they were fortunate enough to procure, and succeeded in getting it on board the said brig Commerce in five days, having been obliged to drag it over land for a considerable distance, and discharged some articles of the cargo to defray the expenses. That from the 7th of August aforesaid, to the 7 th of September following, they experienced continual gales of wind, accompanied With dreadful thunder-squalls, the vessel almost daily dragging her anchor, and often in great danger, and when the weather Was. moderate they were prevented from prosecuting their voyage to Gambia by head winds. That on the last mentioned day, the weather being moderate, and the wind favourable, they got under way and proceeded to the river Gambia, where, on the 17th of the said month, they*arrived and came to anchor abreast of Gillfree, in the said river. That on the 19th, when paying customs, a difference took place between the king’s people and the crew of the said brig, which occasioned most of the said crew to jump overboard, when the cook Was unfortunately drowned. That after this day commenced their trade, and continued trading without any material circumstance happening, except the loss of another man, and the crew generally in bad health, and not able to do duty. That on the 23d of said month of September, in ' discharging a part of the cargo, found 1 puncheon of rum leaked out, all but about 4 or 5 gallons, and another more than one-third part leaked out. That they continued trading in the said river of Gambia until the 11 th of October, on which day, at 11 A. M. they gotunderway inthesaidbrig Commerce from Gillfree aforesaid, worked down the river, and again proceeded for Goree, where they arrived on the 17th of said month, after experiencing two heavy tornadoes on that day, and at 1 P. M. came to with best bower, in the roads of said island, in eleven fathoms of water. That they remained at Goree until the 21st of November: at 4 P. M. ofi 7 that day they hove up and got under way, and Proceeded to return to the river Gambia, and ar~ rjye(j a¡. Gillfree, in said river, and came to anchor at 4 P. M. on the 23d of said month of November. That having completed their trade, and got every thing on board necessary for sea that could be procured there, they, on. the 29th day of December following, got under way from Gill-free aforesaid, and immediately proceeded on the voyage to return to Charleston, in the state of South Carolina, having on board the said brig Commerce, belonging to the owners of said brig, eighty-three slaves, besides three privilege slaves. That having lost three men of their crew, and no others to be procured to supply their places, they were obliged to leave the coast of Africa with that number of hands short of their compliment, and considerably deficient in the article of bread for the .use of the crew, it being impossible to procure any in that part of the coast where they had been trading. That they prosecuted their intended voyage for Charleston aforesaid, nothing remarkable occurring until the 11th day of February, now last past, when, finding no more than one third of a barrel of bread remained on board for the use of the crew, consisting of nine in number, many of whom, from sickness, were entirely unfit for ¡ hard or laborious duty; and the said brig being leaky in her upperworks, a consultation was held to determine what was best to be done for the general preservation. That every circumstance of their actual situation having been duly considered and maturely weighed, it was concluded to be dangerous and unsafe to venture on the American coast at that season of the year, and that it would be'best, for the general interest of the owners of vessel and cargo, as well as for the preservation of the lives df the crew, to bear away for the first port; but being informed of the attack on the Chesapeake, and of other reports while on the coast of Africa, they supposed war had taken place between Great Britain and the United States; they therefore judged it more prudent and safe to proceed to Matanzas, in the island of Cuba, than to put into Nassau; and they directed their course accordingly.” But unfortunately running too near the shore in the night, -the vessel grounded and was lost. This was all the evidence that was given on the trial, except a letter from the captain, dated, Goree, September 5th, 1807, in the following words :
    “After suffered to proceed from Senegal I came here with a full determination of protesting for my detainance there. ' But, dear sir, sorry I am to inform you that I have to return, for what 1 have on board 1 can get nothing for here. Sir» I have to go to the Gambia, where I ara in poor hopes to do much; but there is no alternative, for there is Mr. MiKetvey,s brig come from the leeward, and is in the Gambia; and, from the best information, there is not less than three hundred sail on the coast The rum, tobacco, dry-goods, and powder, I shall part with in the Gambia, and the remainder I have to proceed to Senegal with. Büt I have little hopes of getting home in time, and therefore I hope you will nbt neglect of putting a letter on board of every pilot boat to inform me how to proceed, for it will not do to make a sacrifice at present, if I am obliged to do so hereafter. The greatest offer that I have had is, fifty slaves for the whole that I have onboard, say every thing that came out in her. And, sir, I must strive to make a saving voyage, if I can’t do no better. Do be particular with your letters, for I will not come in sight of the bar, if it please God that I get off the coast,” &c<
    On this evidence the Jury, on the charge of the presiding Judge, found a verdict for the plaintiff.
   Nott, J.

delivered the opinion of the Court.

A motion is made for a new trial in this case, on two grounds.

1st. Because the verdict is contrary to law and evidence, inasmuch as the plaintiff committed a breach of warranty in continuing on the coast of Africa more than four months, contrary to an express stipulation in the policy, whereby the defendants became exonerated. And, 2dly,Beeause the plaintiff was guilty of a deviation, without any justifiable cause, in going to Matanzas instead of coming to Charleston or going to Nassau, .which was a nearer port. Under these two general grounds, it is also contended that the presiding Judge misdirected the Jury in several respects, which I shall notice in the course of my observations. One misdirection of the Court is, that the Judge directed the Jury, “ that where the risk or policy can be properly and naturally divided into parts, that there it should be done ; that this being the case here, the insurance to should be considered as one risk, at and from a second risk, and the homeward, voyage a third.” The ingenuity and learning of counsel have been exhausted in resisting this principle. A contrary construction of this policy is drawn from the words “ until the said vessel shall be arrived and moored at anchor twenty-four hours in safety which words, it is contended, having a direct reference to the final termination of the voyage at Charleston, furnish satisfactory and conclusive evidence that the parties considered it as one entire and indivisible contract. I have taken up this question in this place, in order that I may dispose of it before I consider the two principal grounds relied on, because I deem it utterly immaterial, as it regards the motion now before us, in which point of view it is considered. For whether we consider it one continued policy, or one capable of division, we must ascertain at what period the outward voyage terminated, in order to fix the period when the four months be* gan during which she was permitted to stay on the coast. And if they had been two distinct policies the question wofild have been precisely the same, for the same evidence by which the termination of one would be ascertained, would determine the commencement of the other. The lime the risk shall continue on a ship bound to a place does not appear to be settled by any general rule. In some countries it continues until she arrives at her place of destination, and is entirely discharged; in others it is made to end twenty-one days after her arrival, or sooner, if she be unloaded. In France it continues until her arrival, and until she be there anchored and moored at the quay. In England and the United States it is usually made by the policy to continue “ until she shall be arrived and moored at anchor twenty-four hours in safety.” (1 Marshall, 261.) And my present impression is, that such would be the construction of law, if there was no express stipulation to that effect, (do. 266 ) In the present case we cannot adopt a safer or a better rule; and by fixing the time when the outward voyage terminated, we settle the first question submitted, to wit, whether the plaintiff was guilty of a breach of warranty by keeping his vessel on the coast more than four months.

The captain, in his protest, says, that on the 1st of August, having observed in latitude of Senegal, they tacked ship and stood in for the land.” Let it herd be asked, for what purpose did they stand in for the land ? They were not driven by stress of weather; they were urged by no imperious necessity. The inferdnce, then, is,, for the purposes of trade; the captain intended to make that his first port of destination. This inference is strengthened; if not satisfactorily proved, by his letter, dated Goree, September ' 5th, 1807, wherein he says, “ Sorry I am to inform you that I have to return, (to Senegal,) for what I have on board I can get nothing for here.” In another part of the same letter, he says, “ the tobacco, rum, iron, dry goods, and powder, I shall part with in the Gambia, and the remainder I have to proceed to Senegal with.” This evidence appears to me conclusive of his original intention, though not of his arrival in safety according to the policy: for he was afterwards driven off with the loss of his anchor, before he got up to the town. As further evidence of his intention, he says in his protest that he shaped his course for Goree, there being “ no prospect of his being able to get into Senegalbut having to encounter head winds, and not being able to lay his course for Goree, he returned to Senegal; and arrived at the town on the 9th of August, where he continued until the l5th of the same month. He does, to be sure, say he was detained by the governor until twenty-five barrels of flour were taken from on board ; but that would not have required many hours detention, and it does not appear that he was detained for any other purpose. At all events he. appears to have-been moored in safety, although he had lost an anchor. This must be considered, then, as his first port of destination, and there the outward risk terminated. (Park, 38. 1 Black. 417. Camden v. Corby.) It does not, indeed, áppear that commenced trading there; but in the construction oi policies, regard must always be had to the course and usage of the trade in which the parties are engaged. (Park, 31.) It seems to be admitted that the usual course of trade on the coast of Africa is to sail from port to port, sometimes merely for information, or trade, according to the state of the market. The arrival at a trading town, for the purposes of trade, even though no trading had actually commenced, and having been safely moored at anchor there twenty-four hours, was a termination of the outward voyage. I do not think the case was varied by the loss of the anchor. Suppose a ship bound for London should part her cable at the mouth of the Thames, and. be driven from the coast; if she should return in safety, I presume the underwriters would be discharged, after she had been moored twenty-four hours in safety, although she might have lost her best anchor. And the arrival of this brig at Senegal was as much a termination of the outward voyage, as if that port had been particularly mentioned in the policy. But if we date the commencement of the four months' at Goree, and even after an anchor was procured, she was more than four months on the coast, and therefore the warranty was broken. It is no answer, to say a traffic in slaves was not permit-. ted at Goree; the whole tenor of the captain’s letter speaks a different language. He laments that he can do nothing there ; not because the trade is interdicted, but on account of the unfavourable state of the market;, for he says he has been offered only fifty slaves for his whole cargo. And he afterwards returned from Gambia to Goree, for no other purpose, that can be perceived, but a hope to find a favourable change in the State of the market. The object of the captain, therefore, in going to Goree, is not less manifest than that of his going to Senegal. It was for the purpose of trade, to sell, buy, or merely to gain information, as occasion might offer. It was for these purposes that four months were allowed, if he had met with a favourable market at any one port, as many weeks would probably have been enough, and more than enoiigh. But four months, and no more, were allowed. He exceeded those limits; he has violated the warranty, and the underwriters are exonerated.

in the con-^age^of the trade

It nevertheless becomes necessary to give an opinion on the question of deviation, as the case is to go back to be reviewed by another Jury. Deviation is defined to be, “ a voluntary departure, without necessity, from the usual course of the voyage.” 1 Mar. 183. The question then is, was there any such necessity for departing from the usual course of the voyage in this case ? Were there any such obstacles to the prosecution of the voyage, as authorized the captain to substitute Matanzas as the terminus ad quern, instead of Charleston ? The act of Congress prohibiting the introduction of slaves, is alleged by the counsel as good cause, and there is no doubt but that, to avoid capture or detention, will authorize a deviation, where thé danger arises after the contract is entered into, or perhaps where it was not known at the time, although it might have actually existed. Marshall, 211. But here the voy- ** J age was undertaken with a full knowledge of the danger, and the plaintiff himself had undertaken ° x warrant against it; and he was not authorized to substitute a new voyage at the risk of the un4/0 derwriters, to avoid a peril which he had stipulated to incur himself, and which they had expressly excepted. But this is not a reason given by the captain in his protest. His reason is, “ because it was concluded to be dangerous and unsafe to venture on the American coast at that season of the year.” But it was well known, when this voyage was undertaken, that that dam ger was to be encountered. They had no adverse winds, no unfavourable weather, but a mere pretended apprehension of possible dam ger. But how does this comport with his letter written from Goree ? In that he says, “ I am in little hopes of getting home in time, and therefore I hope you will not neglect of putting a letter on board of every pilot-boat, to inform me how to proceed.” Why inform him how to proceed ? The reason is apparent. He knew he could not come into Charleston. And after his long delay, which would necessarily protract the voyage beyond the thirty-first of December, he never intended it. For he further says, “ do be particular with your letters, for 1 will not come in sight of the bar, if it please God that I get off the coast.” Here is an express declaration of an intended departure. But again he says, he had lost several of his crew ^ others were sick; the vessel was leaky in her upper- works, and they were short of bread: it therefore was thought best for the “ general interest of the owners of the vessel and cargo, to bearaway for thefirstpórt ” Yet he passed by Nassau, which he acknowledges to have been the nearest port; because he says, having heard of the attack on the Chesapeake, he supposed war had taken place between Great-Britain and the United States. He therefore thought it more prudent and safe to proceed to Matanzas, that haven of safety, into which it- appears that most of the vessels engaged in the African trade were blown at that time. But no words or arguments can disguise the real motives for the departure in this case. The vessel had unfortunately been detained on the coast of Africa, until it became impossible for her to return before the prohibitory act of Congress took effect. It became necessary, therefore, to look out for another port. Matanzas furnished the best prospect, perhaps, of disposing of the cargo to advantage. On her way there, however, the vessel was unfortunately lost; and this is an attempt to visit the misfortune on the underwriters. The apprehension of a war between the United States and Great-Britain was a groundless pretext. If any such danger existed, it was not of that imposing character as justified the measure.

The insured having warranted ture^&c^aflerthe (meanS|thebact of Congress pro-trbde!jEit atbftoabputdtoto a foreign port, to pi'too Safedn°arodVstátesheUmt

Misapprehension of the Judge as to a material fact, and a direction to the Jury accordingly, is, an irresistible ground for anew trial.

But the misdirection of the presiding Judge on the question of deviation, furnishes an irresistible ground for a new trial. It appears from the Judge’s report, that he was under an impression there had been a subsequent contract between the parties, by which the vessel was permitted to remain on the coast two months longer than was first agreed on; from which he instructed the Jury, « The underwriters must have been aware it would be impossible for her to perform the third part of the voyage, viz. the return one to Charleston, before the 31st of December” — “ that they therefore acknowledged by this after contract, the right the vessel would have to make a different voyage.”

But it does not appear by the evidence reported to this Court, neither is it pretended by the counsel, that any such evidence was produced at the trial. As the Judge was mistaken in the fact, his conclusion was erroneous; and the Jury, in all probability, were misled by his opinion.

Ford, for the motion.

Drayton and Grimké, contra.

A new trial must therefore be granted.

The other Judges concurred, except Cheves, J. who gave no opinion, being interested as a stockholder in the Company.  