
    * John Whitney and Another versus Joseph Haven.
    Imminent danger of capture is a justifiable cause of a delay of sailing, and does not avoid an insurance.
    Where the assured, at the time of effecting the policy, said, that the vessel was to sail in five days, and the underwriter said he would not be bound if she did not then sail; and in fact she did not sail until more than a month after; and in the mean time the rate of premium on such risks had considerably increased; it was holden, that such declarations, not being part of the written contract, did not affect the insurance.
    Assumpsit on a policy of insurance, dated June 10th, 1814, by which the plaintiff was insured $700 on property on board the boat Juliann, at and from Boston to Eastport, with liberty to discharge at Machias, if Eastport should be blockaded.
    Trial on the general issue, before the Chief Justice, at the last November term. The property insured was not on board at the time of effecting the insurance, but was shipped within two or three days afterwards, except two hogsheads which were kept in store for safety, and which were ready for shipping, and could have been put on board in an hour at any time. The vessel did not sail until the 13th of July, and was, soon after, captured by a British vessel, so that a total loss took place. The rate of premium on such risks had considerably increased, between the date of the policy and the sailing of the vessel in this case.
    The delay of sailing was relied upon by the defendant, as equivalent to a deviation ; but, there being evidence that the harbour of Boston was constantly watched by a British force, and that the master of the boat took great pains to ascertain when he might sail with most safety, it was left to the jury to determine, whether the delay was not justified by the imminent danger of capture which existed.
    The defendant then proved, by the broker, that the plaintiff declared, at the time of effecting the policy, that the vessel was to sail within five days ; and that the defendant said, that his name should be taken off the policy, or that he would not be bound, if she did not then sail. The jury were instructed, that this, being in the nature of a condition which went to defeat the contract, could not avail, not being inserted in the policy, or otherwise put in writing.
    A verdict being returned for the plaintiff, a .new trial was moved for by the defendant, on account of misdirection.
    * Welsh, for the defendant.
    The conversation between the broker and the underwriter was not a warranty ; it was nothing more than a representation, and was therefore binding, without being put in writing. The declaration of the defendant, that he would not be bound unless the vessel should sail within the time stated by the plaintiff, was no more than the law would have declared upon the same point. 
    
    There being no property of the assured on board at the date of the policy, it never attached.
    Button, for the plaintiffs.
    
      
      
        Marshall, 334.
    
   Curia.

The objection, that there was a delay of sailing, amounting to a deviation, was left to the jury to determine, whether the delay was caused by imminent danger of capture. We think the cause for delay was a justifiable one ; and the jury have found that it existed. The declaration of the underwriter, that unless the vessel should sail by a certain day he would not be bound, should have made a part of the written contract, if he intended to avail himself of it. Parol evidence is not sufficient to give it effect. As to the objection that the policy did not attach, because the property insured was not on board the vessel at its date, we think it of no weight.

Judgment on the verdict.  