
    Timothy Wiggin and Others versus Jonathan Amory.
    A vessel, insured from her port of lading in France to the United States, in at tempting to come out of the harbour of Bayonne, struck upon a bar, and, being necessarily carried back to repair, most of her cargo was unladen, and carried by land to Passage in Spain, whither the vessel afterwards went and took it on board, and sailed thence for the United States. It was holden, that this was no unjustifiable deviation.
    The taking a letter of marque by a merchant vessel does not seem sufficient to avoid a policy on an expedition merely mercantile; since it only affords a temptation to deviate.
    But .the capturing of a prize, although the least possible time he spent in taking possession of it, and exchanging crews, is such a deviation as will discharge the underwriters on an adventure merely mercantile.
    This action was assumpstt on a policy of insurance, dated July 9th, 1812, whereby the sum of $ 1000 was insured by the defendant for the plaintiffs, on effects on board the ship Volant, from her port of lading in France, to her port of discharge in the United States, at a premium of fifty per cent.
    
    At the trial, before the present Chief Justice, November term, 1813, it was in evidence, that property to the amount insured was shipped by the plaintiffs on board the said ship, at Bayonne, in France ; and that, on her homeward passage, she was captured by British vessels of war, carried into Halifax, and there libelled ani condemned as prize.
    
      The facts in the case, from which the defence was made, were as follows, namely : — That the ship, while at Bayonne, after the news of the war between the United States and Great Britain had been received there, was commissioned as a letter of marque, under the authority of the United States, and was armed and equipped as such ; having taken on board a number of guns, and increased her complement of men, from twenty-five, the number with which she left' the United States, to seventy : and that, after leaving Bayonne, on her passage home, she recaptured an American vessel, which had been captured by the British, manned her, and sent her into France.
    
    It also appeared, that the vessel, being fully laden at * Bayonne, in attempting to go out of the harbour, struck upon a bar, and was necessarily unladen and carried back to Bayonne, to be repaired; and that, after being repaired, most of her cargo was sent round by land to Passage, a port within the dominions of Spain; and the ship went thither, took the cargo on board, and proceeded on her voyage home.
    It was testified by the master, that he acted, with respect to the loading of his vessel and the time of sailing, under the direction of an officer, called pilot major; who has the entire control of ships in the harbour, and directs the manner of loading them, and the time of their sailing ; that he could not be suffered, by the laws of the place, to act contrary to, or without •the direction of, that officer ; and that he sounded the bar, which was of a shifting nature, and ordered the vessel to proceed when she struck.
    
      Passage was the nearest place to Bayonne where the cargo could be taken in with safety. All vessels, on their.entrance and departure, are obliged to proceed over said bar ; and ships of the size of the Volant are frequently obliged to wait in port a long time, for the rise of water thereon. For this purpose the Volant waited several weeks, before she attempted to pass over the bar, being under the direction of the officer of the port, without whose permission she could not go.
    It was contended by the defendant, that the taking of a commission as a letter of marque, after the policy was subscribed, without the assent of the underwriters, vacated the contract of insurance ; and, if not, that the capture of a vessel, on the homeward voyage, under such commission, produced that effect, either as a deviation, or as an exercise of the authority given by the commission.
    It was also contended, that the going to Passage was a deviation, and so that the policy was void.
    It being stated in the logbook, that the Volant chased the vessel which she captured ; and there being much evidence, from the testimony of the master, mates, and a * passenger, tending to show that there was no chase, but that the Vo• 
      
      lant attempted to avoid the vessel she captured, supposing her to be of superior force and intending to make prize of the Volant; the jury were instructed to determine, from the evidence, whether chase was given or not, and whether there was any other departure from the course, or delay of the voyage, than what was occasioned merely by taking possession of the prize and exchanging the men ; and to find for the plaintiffs or defendant, according as they should determine that fact; it being testified, that the Volant put about when she made the capture, the prize having come under her stern ; and it being also testified, that she was detained from an hour to two hours in exchanging crews.
    Upon the other points, the jury were instructed, that the mere taking a commission, and fitting the vessel under it, and even the capture, did not affect the contract; unless a deviation was caused by it; and that, if they believed the master to have acted with good faith and discretion, and in obedience to the authority of the place, in loading and sailing his vessel, before she struck on the bar, and that the going to Passage was necessary in order to take in the cargo, these facts did not constitute a deviation.
    A verdict was returned for the plaintiffs, to settle the iact, whether there was a chase or not, or a deviation other than what was justifiable by the circumstances of the ship at Bayonne; the other points in the case being intentionally reserved for the consideration of the whole Court; and a new trial was to be granted, if the facts stated in the judge’s report should, in the opinion of the Court, operate a discharge of the contract.
    The cause was argued, at the last March term in this county, by Otis and Shaw, for the plaintiffs, and by Prescott and Ritchie, for the defendant.
    
      For the defendant,
    
    it was contended, that the unlading of the cargo at Bayonne, and transporting it by land to Passage, and the going there with the ship, was a deviation from the * voyage insured which avoided the policy. After the master found that he could not pass the bar with the cargo he had laden on board the ship, it was his duty to have waited for the rising of the tides, or the shifting of the bar, or to have taken out so much of his cargo as was necessary 'to pass the bar in safety. The underwriters never undertook that the ship should bring home a full cargo, nor did they agree to insure the plaintiffs’ goods on land. The occasion did not arise from any accident or marine peril within the policy; but wholly from the fault of the owners of the ship, or their servant, the master, in loading the ship too deeply. On either supposition, the underwriters are not answerable, since, if it was the fault of the owners, they alone are liable to the plaintiffs ; and they, too, are answerable for the conduct of the master.
    
      There was a deviation, also, in capturing the vessel. The shortness of the time employed, or the distance passed over, makes no difference in the case. Whether the taking the commission of itself avoided the contract or not, yet the putting about, or lying to for a prize, was wholly unauthorized. This enterprize was entirely foreign to the voyage insured, and was undertaken solely for the benefit of the assured. A deviation to take property from a wreck is not justifiable, although, where it is to save the life of a man upon a wreck, the law excuses it, from humane considerations. 
    
    But the policy was vacated by the taking on board a commission as a letter of marque. It essentially altered the nature and character of the vessel. It made her less anxious to avoid other vessels, and furnished a powerful temptation to go out of her course.  It was not necessary, as giving her a right of self-defence against an enemy.  In the present case, there was not only a temptation to use the commission, but an actual use of it in capturing.
    
      For the plaintiff's,
    it was argued, that, as to the supposed deviation in unlading the vessel at Bayonne, and the other * transactions connected with it, the verdict of the jury was conclusive for them. But, in fact, the vessel sailed under the orders of the officer of the place, whose authority was binding ; and any impediment or injury, accruing after sailing, was a peril within the policy. After this impediment occurred, there was no choice left, but to lighten the vessel, and then either to wait outside of the bar to receive the goods on board, or to go to the nearest, and a safer place, and have the cargo brought thither. The last measure was adopted, as being the safest and best for all concerned.
    The taking on board the additional men and the guns, after the news of the existence of the war, was merely for the purposes of self-defence, and in this view was as beneficial to the underwriters as to the assured. Having taken the armament on board, the laws of France obliged the master to take a commission.  The case of Denison vs. Modigliani is the only one in the English books which goes its length; and the authority of it is much weakened by the case of Moss & al. vs. Byrom. 
       That case, too, is to be distinguished, in many of its circumstances, from the case at bar. Permission was solicited there to take the commission, and denied ; and much stress seems to have been laid on that fact. There, also, the insurance was effected before the war commenced, but here a full war premium was paid. There being, then, no adjudged case applicable, the ques* lion is, whether, upon equitable principles, the defence on this poin* can be supported ; since it is apparent, that, by means of the additional force given to the vessel, the risk of capture was greatly lessened.
    As to the charge of a deviation in capturing the prize, the verdict seems to have settled it conclusively. Marshall lays it down expressly, that it is no deviation for a ship, having a commission as a letter of marque, to chase a prize in sight ; although to cruise for prizes would be a deviation that would avoid the policy. 
    
    It was suggested by the counsel for the plaintiff, that, if * this fact constituted an unjustifiable deviation, it was an act of barratry in the master, for which the assurers were liable. But this point was not insisted on in the argument, not having been taken at the trial; and it being agreed, that advantage might be had of it, if the cause went to a new trial.
    
      
      
        Marsh. Condy's ed , 211.
    
    
      
      
        Denison vs Modigliani, 5 D & E. 580.
    
    
      
      
        Emerig. c. 12, § 37.—Val. 1. 9, Tit. 3, Art. 1.— Wooddeson, 435.
    
    
      
      
        Ord. de la Marine, Art. 4, 5. — Valin in loc. — 1 Emerig. 570, 571.
    
    
      
       6 D & E. 379.
    
    
      
      
        Marsh., 402, cites Jolly vs. Walker.
      
    
   The opinion of the Court was delivered at this term by

Jackson, J.

The unlading of the ship at Bayonne, and the sending of a part of her cargo to Passage, to be there reladen, would undoubtedly constitute a deviation, if not justified by the occurrences of the voyage. It appears, that the ship was loaded at Bayonne, under the direction of a public officer there, who has, by law, the entire control of all ships in the harbour, and by whose orders this ship sailed. That was the commencement of the voyage, within the terms of this policy. Afterwards, in consequence of one of the perils insured against, the ship was compelled to put back to unlade and repair; and it was found necessary, or mosr for the interest of all concerned, to send a part of the cargo round to Passage, to be there reladen. We must understand, from the direction of the judge, and the verdict of the jury, that these are substantially the facts in the case. If so, it is the same as if she had sailed from Mantes, or any other port in France, and had been driven by storms upon the bar of Bayonne. The master might then have lightened the ship, in order to carry her up to Bayonne to make repairs, and might have unladen the cargo in any manner that the circumstances should have rendered necessary, or most expedient. If he acted, under such circumstances, with good faith and sound discretion, there would be no deviation.

The remaining questions are, whether the taking of the commission as a letter of marque, or the capture made in virtue of it, will discharge the insurers.

The authority of the case of Denison vs. Modigliani has been very much shaken ; and, if the question were now new, it would be difficult to support that decision, upon the *reasons there given, or upon any others that have been suggested in the argument. It is justly remarked by Marshall, on that case, that, as an intention to deviate will not avoid the policy, it is not easy to conceive why a mere temptation to deviate should have that effect.

The other question, as to the capture made by the ship Volant, deserves more consideration. The facts in the case present this question in a manner very favorable to the assured. The commission was taken in a foreign country, and after the policy was written ; so that there is no pretence of concealment, or misrepresentation, in effecting the insurance. Then, in making the capture, the Volant did not chase the prize; nor was there any departure from her course, nor delay of her voyage, except what was occasioned by taking possession of the prize, and exchanging the men. This seems to present the naked question, whether the taking of a prize, under any circumstances, would discharge the underwriters on this policy ; and, on the whole, we are satisfied that this is a deviation, which does discharge them.

If the Volant had cruised for prizes, or had lain to for a month in the track of the enemy’s merchant ships, for the purpose of making captures, no one doubts that this would have been a deviation. The result would have been the same, if she had lain to for that purpose one day or one hour. It is not the increase, but the change, of the risk, that constitutes a deviation. In the case supposed, the ship would, for a time, have abandoned the voyage insured ; she would have been employed in a different adventure and different voyage from that described in the policy. The master, instead of endeavouring to bring home his cargo in the most expeditious manner, would be engaged in seizing another ship and cargo, for the profit of himself and his owners. The ship insured, instead of being employed merely in transporting the merchandise on the voyage described in the policy, would become a ship of war, employed in making prizes.

* In the case of Parr vs. Anderson, the ship was insured “ with or without a letter of marque.” In the course of the voyage, she descried a Spanish ship, and altered her course a quarter of a point, and pursued the Spanish ship about a quarter of an hour, when she abandoned the chase, and continued her voyage. It was not doubted, that this alteration of her course, if it was done for the purpose of capturing the ship in sight, would be a deviation, unless authorized by the expression before quoted from the policy. The judge, who tried the cause, at first thought, that even the liberty to carry a letter of marque would not justify such a deviation, “nor give the assured a liberty of engrafting on a commercial adventure an adventure for hostile capture.” But upon some doubts, which afterwards arose on the construction of that clause in the policy, a new trial was ordered, to ascertain whether it had obtained, in use and practice, any. known and definite import. It does not appear what was the result of the second trial; but it seems very clear that the insurers must have been discharged, unless the liberty expressly given in the policy to take a letter of marque would justify the assured in chasing a ship in sight, for the purpose of capturing her.

In the case of Phelps vs. Auldjo, the policy seems to have been in the common form, and it was held to be a deviation to go out of port, to examine a strange vessel which appeared off the harbour. The only question raised in that case was, whether the conduct of the master was justified or excused by the orders which he received on that occasion from the commander of a ship of war then in the same harbour.

So the case of Lawrence & al. vs. Sydebotham, shows with what strictness the conduct of the assured is considered, when he superadds to the mercantile adventure, which is the principal object of the voyage, any other adventure or project, not expressly authorized by the policy. In that case the ship insured had liberty to take a letter of * marque, and to chase, capture, and man prizes ; but it was held to be a deviation to shorten sail or lie to, for the purpose of convoying a prize.

In the case at bar, there is no intimation in the policy that the ship would take a letter of marque. And, although the taking it on board might furnish only a temptation to deviate, and so not discharge the insurers ; yet, if a deviation takes place, it is not excused by the nature or the force of the temptation.

There is no doubt that the Volant, whether she had a letter of marque or not, might have beaten off any ship that should have attacked her, without prejudice to this insurance. This would have been necessary, to accomplish the objects of the voyage insured. But, in the present case, this purpose was fully answered, as soon as it was ascertained that the strange ship was not strong enough to take the Volant, or that she would not attempt it. All that was done by the master afterwards was, not for the purpose of prosecuting his voyage with more safety or despatch, but with a view to another and distinct object; with a design to acquire gain as a privateer or cruiser, and to derive a profit from her commission and her guns, instead of using them merely to defend the ship and to advance the voyage insured.

If the ship might lawfully put about for the purpose of making this capture, how far is she permitted to proceed in this new course ? If delay for one hour is justifiable, why might she not lay to for one day, or one month, for the same purpose ? The length of time, or space, in a deviation, is not material. If there had been a high wind, or a heavy sea, which prevented the captors, for some days, from exchanging crews, and manning the prize, they might, upon the principles contended for by the plaintiffs, have lain to for that time, although the wind was fair, and they would lose, perhaps, one or two hundred leagues in their passage. There appears to be no principle, which would justify the assured in abandoning the prosecution of the voyage, by * putting about once, lying to one hour, and taking one prize, which would not justify the repetition of the act twenty times, if they should meet so many of the enemy’s ships, and the lying to, with each of them, for any ' length of time that should be necessary to effect the capture.

The only material difference between a privateer and a ship sailing under a letter of marque is in the use to be made of their commissions. The one intends to cruise in search of prizes, and the other intends to attack and take only what may fall in her way. The r’ak is the same, so far as the fighting and the diminution of the crew affect it. Both of them, when attacking an enemy’s ship, are doing the same act, and with the same views ; both are delayed for the same object. The only difference is, that the one is not likely to be ■ so often exposed in this manner as the other. But this is only a variance in degree, and not in kind. The object is not, in either case, a mere mercantile adventure ; but there is also a design _and expectation of deriving a profit from making captures. This last object, or adventure, is not within the voyage described in this policy.

When it is expressed in the policy, that the ship may take a letter of marque, the insurer is understood to agree that she may capture any ship of the enemy that shall fall in her way. But, when the insurance is in the usual form, as on a common mercantile voyage, without any mention of her having a letter of marque ; although the taking of the commission may not vitiate the policy, yet the using of it for the profit of the owners, and the taking of a prize, is a deviation. It can make no difference, whether the ship goes out of her course to seek the prize, or only abandons her course to make the capture, after seeing the prize ; whether this abandonment be by altering her course, or by lying to ; or whether the time devoted to this object be one hour or one month. If the line is not drawn here, it will be impossible to say to what extent a ship, under such circumstances, may depart from the regular course of her voyage ; and the underwriter upon a common mercantile * voyage will be exposed to hazards as great as when he expressly agrees that the ship may take a commission, and may make captures.

Upon the question of barratry, we give no opinion ; as it is said that this point was not gone into at the trial; and as the counsel agreed to waive it on the argument of the cause. As, from the result of our opinion, there must be a new trial, the plaintiffs will have opportunity to maintain the action on that ground, if the evidence will support them in it.

JVew trial ordered. 
      
       6 East. 202.
     
      
       2 Camb. Rep. 350
     
      
       6 East, 45.
     