
    (common law.)
    Hughes v. The Union Insurance Company.
    Insurance on a vessel and freight “ at and from Teneriffe to the Hayanna, and at and from thenee to New-York, with -liberty to stop at ■Matanzas,” with a representation that the vessel was “ to atop at ■Matanzas fo know- if there were any men of war off the Hayarma.” The vessel sailed on the voyage insured, and put into Matanzas to . avoid British cruizers, who were then off the Havanna, and wore in the practice of capturing neutral vessels trading from one Spanish port to another. While at Matanzas she unladed her cargo, under an order from the Spanish authorities ¡ and afterwards proceeded toHavanna, whence she sailed on her voyage for New-York, and was af- ■ ter wards lost, by the perils of the seas. It was proved that the slopping and delay at the Havanna was necessary to avoid capture, that no delay was occasioned by discharging the cargo, and that the frisk was not increased, but diminished.
    Held, that the order of the Spanish government was obtained under such circumstances as took from it the character of avis major imposed upon the master, and was, therefore, no excuse for discharging the cargo ; but that the stepping and delay at Matanzas were permitted by the policy, and that the untading tho cargo Was hot a deviation. This case distinguished from that of the Maryland' Ins. <2o. V; he Boy, et aU 7 Cranch, 26,
    Error to the circuit court for the district of Maryland.
    This was an action of assumpsit brought on a policy insuring the ship Henry, arid her freight, “ at and from Teneriffe to the Havanna, and at and from thence to New-York, with liberty to stop at Matanzas.” At the trial the plaintiff gave in evidence the representation on which the policy was made, which contained this expression: “ We are to stop at Ma~ tanzas to know if there are any men of war off the Ha» vanna.” The vessel sailed from Teneriffe on- the 7th of April, 1807, and on the 7th of June following, put Matanzas, in the island of Cuba, to avoid British cru;zerg^ were then cruizing on her way .to, and off the port of, Hávanna, and who were .then in the practice of capturing American vessels sailing from one Spanish port to another. On the 6th of July, as soon as the passage was clear, she proceeded to the Havanna, whence, on the 14th,of July, she sailed, on her voyage to' New-York. On th'e 28th of that month she foundered at sea,,and was totally lost. The action was for the insurance on the vessel and freight from, the Havanna. The underwriters gave in evidencer,.thafc while at Matanzas she unladed, her cargo, and insisted that this was a deviation, by which they were discharged, To rfepel this evidence, the plaintiffs, showed that the stopping and delay at Matanzas were necessary to avoid capture, and; therefore, allowed by the policy-; that no delay was occasioned by discharging the cargo ; that the risk was not increased, but diminished by it; and that an order from the Spanish government had made this act necessary.
    The court instructed the jury, that unlading the cargo at Matanzas was a deviation which discharged the underwriters, unless it was rendered necessary by the order of the Spanish government at the Havanna. That in this case the order did not justify such unlading, and that the underwriters were, consequently, d'scharged, Under these directions the jury, found a verdict for the defendants. The plaintiff having cepte i to the opinion of the court, the judgment ■which was rendered in favour of the defendants was. brought before, this court on writ of error.
    Mr. Harper, for the plaintiff,
    argued,, that the ding at Matanzas was by a mandate, and not a permission from the Spanish government, which being a vis major, excused the master. That in this case the risk was not increased but diminished, by stopping at Matanzas. Neither party Is at liberty to vary the risk j but this rule applies to cases where the change may,produce some inconvenience to the iusurer, not where it does actually produce it merely. Unnecessary deviation always discharges the underwriters, because it may increase the risk. But here the policy permitted the stopping and delay at Matanzas; and the risk not only could not be increased, but was actually diminished by discharging the cargo, and proceeding with the vessel close along the shore to the Havanna. This doctrine is not impugned, in the Maryland Insurance Company v. Le Roy et al.
      
       That case went on the ground of variation from the terms of the policy. The taking on board the jack asses might have increased the risk; but whether in point of fact it did, or no.t, the court said was- immaterial. But in the present case there is no.variation from the terms of the contract; the risk neither was, nor could be, increased, by unlading the cargo. In Raine v. Bell, the court of K. B. determined that a ship may trade at a port where she has Iiberty to touch and stay, provided this occasions no delay* nor any increase or alteration of the risk. It has' also been held in the comtsof our own country, that selling a.part of the cargo during a .necessary detention, does not discharge the insurers.
    Mr. Winder, and Mr. Jones, contra,
    argued, that the-proceedings of the Spanish authorities were a mere permission, which the party might use or not at-his pleasure, and. not an imperious mandate which he was compelled to obey. It isan elementary principle of insurance law", that whether the deviation increase the risk or not, it discharges the underwriters The- ca'se of the Maryland Insurance Company v. Le Roy et al. illustrates the rule, and the jury there found that taking on board the jackaáses did not increase the risk. Discharging the cargo at a place where permission is only given to touch, is a' deviation, It is immaterial whether the risk be increased, or diminished, or remaip the same in quantum. In Raine v. Bell, the jury found that the vessel wouM have otherwise been necessarily detained while she was taking in the cargo; and that case proves nothing more than that, while so detained, the. master, may take- in cargo, but not break bulk. Staying to unlade increases the risk; but taking cargo on board, while necessarily detained, does not increase or alter the risk.
    
      Mr, D. B. Ogden, in reply,
    contended that fhe«question was whether during the necessary detention of the vessel the master had á right to, land the cargo. The authority of Kane v. The Columbia insurance ny is conclusive to show that he had. If according to cargó at a,port of necessity, neither is it a deviation to land the cargo.at a port of necessity. The caseoft.he Maryland Insurance Company v. Le Roy, et al. is distinguishable. Where the master deviates from necessity, his Subsequent conduct, if bona fide, cannot discharge the insurers. But in' this case he acted in good faith for the benefit of all parties.
    Feb. 18th.
    
      
      
         7 Cranch, 26.
    
    
      
      
         9 East, 195. Marshall on Ins. App. No. VIII. 834. a.
    
    
      
      
         1 Emerigon, Des Assurances, 558. 1 Marshall on Ins. 185. et infra.
      
    
    
      
      
         Marshall on Ins. 208. 275. and the cases there collected.
    
   Mr. Chief Justice Marshall

delivered the opinion of the court, and after stating the facts, proceeded as follows:

At the trial cause seems to have turned princi- - pally on the necessity to unlade the cargo at Mantaiyxas produced by the order- of the Spanish government at the Havanna. As his court concprs with the circuit judge in the opinion that this order was obtained under circumstances which take .from it the character of a force imposed on the master, and compelling him to discharge his cargo, and is, therefore, no excuse for such discharge, it will be unnecessary farther to notice that part of the case. The question to be considered is, that part of the opinion which declares that unlading the cargo at Matanzas, although it oc .asioned no delay and did not increase, but diminish the risk, was a devi-. a tion which discharged the underwriters.

The stopping *nd delay at permitted3 "ify the policy.

The unlading 4ho cargo was ?aoi

In considering this question, it is to be observed that the termini of the voyage were not changed. The Henry did sail from Teneriffe to the Havanna, and was lost on the voyage from'the .Havanna to Baltimore. The policy permitted her to stop at Matanzás, and the pur- . . .... . .~ pose oí stopping was tp know if there were any men ot war off the Havanna. It would be idle tó stop -for the. purpose of making this enquiry, if it were not intended that the Henry might continue at Matanzas so long as the danger continued. The stopping and delay at Matanzas is then expressly allowed by the policy.

But, admitting this, it is contended, that unlading the cargo is a deviation. „

And why is, it a deviation ? It produced no delay, increase of risk, and did not alter the voyage. The vessel pursued precisely the course marked out for her in the policy. In reason nothing can be found in this transaction which, ought to- discharge the underwriters. If, however, th,e case has been otherwise decided,'especially in this court, those decisions must be respected.

In Stitt v. Wardel, (1 Esp. N. P. Rep. 610.) it was determined that liberty to touch and stay at any port, did not give liberty to trade at that port; and. in Sheriff v. Potts, (5 Esp. N. P. Rep. 96.) it was decided that liberty to touch and discharge goods did not authorise the taking in of other gpods.' These . cases certainly bear considerable force on that under consideration, but they were decided at nisiprius, and seem to have been in a great degree overruled by the court in the case of Raine v. Bell, reported in 9th East. In that casé, untier a policy to touch and stay at any place, goods were taken on board during a necessary stay at Gibraltar. The court was of opinion that as this occasioned no delay nor any increase or alteration of the risk, the plaintiff was entitled to recover. Between the case of Raine v. Bell, and this case, the court can perceive no essential difference.

This east distinguished from the Ms-' ryland Ins. Co, ▼. Le Roy it ■ al. 7 Crtnch, 26.

In the supreme court of Pennsylvania, (Kingston v. Gerard, 4 Dal. 274.) a similar question occurred, and it was there held, that unlading and selling part oí her cargo by a captured vessel during her detention, would not avoid the policy.

But it is contended, that this point has been settled in this court, in the case of the Maryland Insurance Company against Le Roy and others. In that case, a liberty was reserved in .the policy “to touch at the Cape de Verd Islands for the purchase of stock, such as hogs, goats, and poultry, and faking in water.” The vessel stopped at Fago, one of the Cape de Verd Islands, and took in four bullocks and four Jackasses,, besides water and other provisions, unstowed the dry goods, and broke open, two bales, and took. 40 pieces out of each, for trade. The vessel remained at the island from the 7th to the 24th of May, although the usual delay at those islands for taking in stock and water, when the weather is good, is from two td three days. The wea* ther was good during this delay ; and the bullocks and jackasses encumbered the deck of the vessel, more than small stock would have done. The court left it to the jury to determine, whether the risk was increased by taking the jackasses on board, and directed them to find for the plaintiffs, unless the risk was thereby increased. The jury found for the plaintiffs ; and this court reversed the judgment rendered ■ on that verdict, because the taking in the jackasses was not within the permission of the policy.

It is perfectly clear, that the case of the Maryland Insurance Company v. Le Roy and others, differs materially from this. In that case, , articles were taken on board which encumbered the deck of the vessel, and which were not within the liberty reserved in the policy. In that case too,'the insured trade:.!, and the delay was considerable and unnecessary ; the risk, if not increased, might be, and certainly was varied. The judge, therefore, ought not to have left it to the jury on the single point of increase of risk.by taking in the jackasses. Although the risk might not be thereby increased, the unauthorised delay and unauthorised trading during that d^lay, connected with taking on board unauthorised articles, discharged the underwriters according to the settled principles of law; and the court does not say in that case that these circumstances were immaterial or without influence. The court does not feel itself constrained by the decision in the Maryland Insurance Company v. Le Roy et al. to determine that in. this case also, .which differs from that in several important circumstances, the underwriters are discharged. The Judgment is reversed, and the cause remanded, with directions' to issue a venire facias de novo.

Judgment reversed.' 
      
      
         In the case of Urquhart v. Barnard, it was held by the English court of C. B. that if a ship has liberty, to touch at a port, it is no deviation to take in merchandize during her allowed stay there, if she does by means thereof exceed the period allowed for her remaining there. And that if liberty be given to touch at a port, the contract not defining for what purpose, but a communication having been made to the underwriter, that the-ship was to touch .for fa purpose of trade, it shall be intended as a liberty to touch for that purpose. 1 Taunt. 450. Liberty to touch at a port for any purpose whatever includes liberty to touch for the purpose of faking on board part of the goods insured Violet v. Allnutt, 2 Taunt. 416. Under a liberty-to touch and stay at all ports for all purposes whatsoever’ the stay must be for some purpose connected with the furtherance of the adventure. Whether the purpose is within the scope of the policy, is' a question for the court. The policy not limiting the time of stay, 'whether a ship has staid a reasonable time, for the,purpose, is purely a question for the jury. Langhorn v. Alnutt 4 Taunt. 511.
     