
    Albert Hobart et al. versus Ariel Norton et al.
    
    Where a master of a vessel insured from one port to another, intends to deviate by putting into an intermediate port and actually puts in there, the assured may nevertheless give evidence that necessity, and not the original intention, was the im mediate cause of putting in, and that consequently there was no deviation.
    A vessel being advertised for a voyage from Boston to Charleston, took goods for the latter port, which, by the bill of lading, were to be delivered there, and which the shipper caused to be insured for such a voyage. She took other goods for Edgartown in the island of Martha’s Vineyard, it being the original intention to put into that port. The vessel did in fact put into Edgartown, but the course of the wind and tides were such that she must have so put in, had there been no such intention originally. The goods were afterwards damaged by perils of the seas in the course of her voyage to Charleston, and sold at a loss. Held, that the owners of the vessel were not answerable to the shippers for this loss.
    Thé intention, at the commencement of a voyage, to put into an intermediate port out of the course of the voyage described in the bills of lading and advertisements, the termini being still the same, is not the substitution of a different voyage, but is only an intention to deviate.
    Assumpsit on a bill of lading, dated October 15th, 1827, against the owners of the sloop Hero, one of whom, Ephraim Ripley, was then master. The bill of lading was signed by Ripley, and was In the common form ; stating that the goods were shipped in good order by the plaintiffs, on board the sloop then u lying in the port of Boston and bound for Charleston, South Carolina ; ” for which voyage she had before been advertised. The plaintiffs had effected insurance to the amount of 2584 dollars on their shipment, “ from Boston to Charleston.” Goods had been taken on board of the sloop for divers persons, to be delivered at Edgartown, in Martha’s Vineyard, and the master intended, at the time of sailing, to put into that • port for the purpose of delivering such goods. The master did m fact put in there on the voyage, and remained there , about three days, and delivered the goods shipped for that port. He then proceeded on the voyage to Charleston, in the course of which he encountered bad weather, and was stranded on the coast of Virginia, whereby the plaintiff’s goods were wet and damaged, and, in consequence of the disaster and damage, were sold by auction at considerable loss : to recover which loss this action was brought; on the ground, that the taking goods for Edgartown and stopping to deliver them, dis charged the underwriters from any liability under the policy.
    
      At the trial, the defendants offered evidence, that though there was an original intention to put into Edgartown, yet, in fact, the sloop went in on account of the wind and tide, and that as these were at the time, she would have gone in, though there had been no such original intention; and that she was not detained by the delivery of the freight there, but proceeded on the voyage as soon as the wind permitted. Wilde J. allowed this evidence to be given, and instructed the jury, that if they were satisfied that the sloop went into Edgartown on ui count of the state of the winds and tide, and that they were such as to render it expedient to go in there, and that she was not detained by the delivery of the freight, they should find a verdict for the defendants ; whereupon the jury found a verdict for the defendants. If this evidence was improperly admitted, or if the instruction was erroneous, the verdict was to be set aside.
    
      Fletcher and Willis, for the plaintiffs.
    If the defendants have done acts by which the plaintiffs’ right to indemnity under the policy was defeated, they are liable. Gilchrist v. Ward, 4 Mass. R. 692; 2 Holt on Ship. 57; Peele v. Price, 4 Camp. 243. This was such a deviation as avoided the policy. Petty v. Royal Exch. Ass. Co. 1 Burr. 343; Phil, on Ins. 191. The vessel sailed on .a different voyage from that insured by the plaintiffs and described in the advertisement and bill of lading. 4 Campb. 243. The question as to what shall be considered the same, and what a different voyage, is not very definitely settled. The rule laid down in New York seems to be the best, namely, if a vessel touch at an intermediate port for the purposes of the voyage, it does not change the identity of the voyage, but if for a distinct purpose, and in pursuance of an original intention, this makes it a different voyage. Here it was originally intended to put into Edgartown. Stott v. Vaughan, Marsh. Ins. 232; Wooldridge v. Boydell, 1 Doug. 17; Way v. Modigliani, 2 T. R. 30; Robertson v. Columbian Ins. Co. 8 Johns. R. 383; Silva v. Low, 1 Johns. Cas. 184; Bond v. Mult, Cowp. 601. The master being bound to put into Edgartown and not having liberty to use bis discretion in the choice of harbours, changed the risk. Middlewood v. Blakes, 7 T. R. 162. In this - voyage there were two courses, one through the Vineyard Sound, which the mas. ter was obliged to take, the other outside of Nantucket. This brings the case within the principle of Middlewood v. Blakes. Sailing with an intention to stop at Edgartown and actually stop ping there, was a deviation. Solly v. Whitmore, 5 Barn. & Ald. 45. The act is, in such case, coupled with the original intention.
    
      
      Mara 1 Gift
    
      S. Hubbard and Dunlap, for the defendants,
    contended that the circumstance of the plaintiffs’ having got insurance could not affect the liability of the defendants, who are answerable only to the same extent to which they would have been, had no insurance been made ; and in such case they woiild have been liable, at the most, only for the actual damage, if any, directly consequent upon touching at the Vineyard. There is no stipulation in the bill of lading to perform the voyage without any delay or deviation. There are only two cases in which any attempt has been made to sustain an action like the present, viz. Max v. Roberts, 12 East, 89, and Gray v. Thorndike, Phillips on Ins. 207. This was not a case of the substitution of a different voyage ; the termini were the same, and this is considered to be the criterion. Phil. Ins. 215, 217; and see Hare v. Travis, 7 Barn. & Cressw. 14 It does not appear that the» underwriters are discharged; the making a port of necessity is no deviation ; they have no ground of defence. The vessel was owned in part at the Vineyard, and.it is proved to be a very common practice, and all but an established usage, for such vessels to go through the Vineyard Sound on this voyage, and to put into the Vineyard,- and deliver freight taken for the owners and their families. Suppose the vessel had arrived in Charleston, would not the plaintiffs have been obliged to take their goods and pay freight ? Could they in such case have alleged, in defence against the claim of freight, that the vessel had not sailed by the shortest route ? To bring this case within that of Max v. Roberts, a promise to sail by the shortest route ought to be proved. That the touching at the Vineyard is not mentioned in the bill of lading, is no proof that the voyage was intended or agreed to be direct from Boston to Charleston. An intermediate port is never mentioned in the bill of lading.
    
      
      April 2d
    
   Per Curiam.

We think the facts in this case do not show that a different voyage from that described in the policy was undertaken. The voyage, as described in the bill of lading, was from Boston to Charleston. The vessel left Boston for Charleston, but with intent to stop at Edgartown on the way there, and discharge freight. It was a voyage to Charleston, with intention to deviate. The cases in 2 T. R. 30, and 1 Douglas 17, are where the voyage set out upon was different from that insured. In the first, it began from a wrong place ; in the second, it was intended to terminate at a wrong place ; so the voyages were entirely different. Here the place of start mg, and the final object, were the same as in the voyage described, but there was an intention to go into a port on the way. This intention alone would not defeat the voyage contracted for.

The vessel however actually went into Edgartown and stayed there three days. This, unless there were sufficient cause for t, would discharge the underwriters and make the defendants table. But the defendants say that the vessel went there from necessity, and so the underwriters are not liberated. It was manifestly the intention of the master to put into Edgartown, though from the advertisement the plaintiffs might suppose that he was to sail direct for Charleston ; but the defendants said that he did not go to Edgartown in pursuance of his original intention, but that a supervening necessity led to the act, and that so they are excused. The jury were instructed, that if the vessel did not put in from necessity, there was a deviation, but that otherwise they would return a verdict for the defendants. The jury having found that there was a necessity, we are to decide whether that question was properly referred to them, there being a previous intention to stop at Edgartown. To determine this we must recur to the principles which regulate insurance. It is well known, that an intention to deviate, is not a deviation. There is always locus pee nit entice. This master might possibly have been informed just before he put in, that he would defeat the insurance, and have determined to proceed direct to Charleston, when this overpowering necessity supervened. Therefore, although this is a strong case and may tend to the raising of fictitious storms, yet we think it was rightly left to the jury to decide what was the reason for put ting into Edgartown. They will of course require stronger evidence in a case of this sort than in ordinary cases. They are to look to the immediate cause of putting in, and not to the remote cause; and if they are satisfied that the violence of the winds and waves was the immediate cause, it will be a justification to the master.

Judgment according to verdict 
      
       See 2 Phillips on Ins. 168; Winlhrop v. Union Ins. Co. 2 Wash. Ciro C. R. 7.
     