
    Robinson and Robinson against the Marine Insurance Company of New-York.
    A vessel was gainst sea risk oniy from N. Nicola Mole ó" St. Domin file nce^ t o'one other port,say Port Rcpubli. O'an, Cape Francois or St. Thomas. During the voyage she ex. pciienced heavy gales wind which
    This was an action on a policy of insurance, on the schooner SuJcey and Polly, on a voyage “from New-Or-jeans ¡;0 Cape Nichola Mole, and from thence to one other port, say Port Republican, Cape Francois, or the island of St. Thomas, against sea-risks only.” The policy was in t^ie usua' printed form. The plaintiff declared for a total loss by sea-riskr. The interest, loss, and abandonment were proved. The vessel sailed from New-Orleans on the voyage insured, on the 17th day of August, 1803, with a cargo of tobacco, wine, and rice. Nothing material occurred until the 18th day of September following, when the vessel experienced a heavy gale of wind, in which she laboured and strained very much, and, after the gale had abated, several pieces of her sheathing were seen floating near her. The vessel became leaky, and made considerable water, so that it was necessary to pump her every half hour. ■ On the 23d day of September, the vessel passed through Turks-Island passage, and came in sight of the highlands of the island of Hispaniola between Cape Francois and Cape Nichola Mole, to which place she was proceeding, when she was ordered j, -, . . . ‘ away trom that island by a British ship or war, the commander of which told the master, that all the ports of that island, in possession of the French, were blockaded by a British squadron ; the British officer also made-an indorsement on the register of the Sukey and Polly, that. she had been boarded by the Vangiiard, ship of war, and ordered away from the ports of St. Domingo. At the time she was so turned away, the Sukey and Polly was within 60 or 70 miles of Cape Nichola Mole, with a fa-.vorab!e wind, and would have probably arrived at Cape Nichola Mole that evening, or the next,morning; but on being turned away from that port, she directed her course for St. Thomas. In the evening of the same day, she experienced another heavy gale of wind, and leaked so much, that on the 24th' day of September, in the evening, discovering land, the master, at the request of the crew, bore down and reached Kingston, in the island of Jamaica, on the 27th or 28th day of September. During this gale, more of the sheathing of the véssel came off; and a heavy sea, which made her labour and strain very much, it was supposed, occasioned her to leak. — She was surveyed at Kingston, nnñ pronounced not worth repairing, as the cost of repairs would exceed her value. It appeared that these repairs were such, as would be necessary on account of the injuries she had received from the perils of the sea.' It appeared also, that as the cost of. materials and workmen for repairs, were extravagantly high at Kingston, the vessel was sold at auction for 50?, 
      Jamaica cui’rency, and the purchaser repaired her at the expense of $1800'; but the same repairs might have been made in New-York, for about $600, and she would have béen well worth repairing, if the cost of materials ancj worfcmen at Kingston had been reasonable. '
    
      made her leak, and being in sight of St. Domingo, at t),e distance of about 70miles from Cape Nichola Mole, she WO.S 'turn. ed away from the ports in that island, by a British ship' of war, on account of its being blockaded by a British squadron* While procee* ding to ,St. Thomas, she met with bad weather^ which com» polled her to go to Kingston in Jamaica, where on a survey she was found not worth repairs ing* In an ac« tion on the a* bandonraent for a total loss it was held that the devi, ation was ex. cased by ne. cessity, and that tjie loss atferivards was occasion, ed bytheperils of the sea, for which the in* surera wer«j* liable*
    
      The declaration stated the loss to have been occasioned by the perils of the sea, and made no mention of her being turned away from hel* port of destination.
    The jury found a verdict for the plaintiff. The fol lowing question was reserved, for the consideration of the court, namely, whether the loss was occasioned by sea-risk, within the meaning of the policy ?
    
      Johnson, for the defendants.
    It was clearly the intention of the defendants to insure against sea-risks only ; and by expressly confining the policy to those risks, they meant to exclude every other peril usually inserted in policies of insurance. The peril insured against, is the cause of loss or damage; it is, therefore, necessary to inquire, whether the loss in the present case, happened from the perils of the sea, or from some other cause. It is admitted by the case, that the vessel would have reached her port of destination in safety, had she not been turned away by a belligerent force. Now, had it not been for this restraint, the loss Would not have happened ; the peril insured against, would never have occurred. The restraint, therefore, without which the loss would not have happened, must be considered as the cause of the loss; but this was not a peril insured against by the policy. Can it be said that an event, without which a loss would not have happened, is not a cause of that loss ? It will be answered, that the restraint in this case was a necessity which excused the deviation, and, therefore, the insurance continued. The genéral doctrine as to deviation is not denied; but, in this mode of reasoning, every peril not insured'against, may become the ground of necessity ; and thus, when the insurers expressly stipulate to be answerable only for one peril, they may be made liable for the consequences of every other. The cases which have been decided, as to what shall excuse a deviation, do not go thus far: they arose on general policies. against all risks, and are clearly distinguishable from the one before the court. The necessity which occasioned a deviation in.those instances, arose from some one of the perils insured against in the policy. In the present case, the necessity urged as an excuse for a deviation, arose from a-cause for. which the insurers, could not, in any event, be liable. I am aware of a recent decision, the case of Scoit v. Thompson;
      
       .but the court appear to have been governed by the doctrine relative to deviation, in case of a general insurance, without particularly examining the objections to the application of this doctrine, and its consequences, in cases where the policy is confined to a particular risk.
    iS. Jones,.jun. for the plaintiffs.
    The vessel was insured to three ports, specified in the policy, of which,' the island of St. Thomas was one, and being prevented, by causes which the insured could not control, from going to the first port, she continued her voyage tor wards the next port, until she was compelled by the perils of the sea, to put into Kingston. When a vessel is insured for a voyage round, that is, to.two or more ports in succession, if by any necessity she is prevented from going to the first, she may proceed to the second port, and the necessity will excuse the deviation. The voy- , , . , .» , . , , age insured here must, therefore, be considered as con? tinuing after the vessel was forced away from the first . . , port, and the vessel, as protected by the policy, against the subsequent sea-risk* The restraint, if insured against, might have been a good, cause of abandonment, and so have occasioned a technical total loss. But. the insured, in that case, would not be obliged to abandon ;■ they might continue the voyage, and the insurers would remain liable to all subsequent risks. But, it is said, that the restraint was a risk expressly excepted by the policy;. and that the insufers cannot be liable for a loss which is caused by restraint. There is, in fact, no particular, exception made in the policy; it is against sea-risks only. The true meaning is, that the insured shall not abandon or recover for any loss not happening from sea risk ; but he is not, therefore, to be deprived of the benefit of a justification from necessity, for deviating from the order of the ports designated in the policy. In the case of Green and others v. Elmslie,
      
       which was an insurance against capture only, from Exeter to London, and the vessel was driven by a gale of wind on the coast of France, and there captured, it was contended, that the loss was occasioned by perils of the sea ; but Lord Kenyon said it was clearly a loss by capture. An event, not insured against, will excuse a deviation from necessity, as well as an event within .the policy. Thus, where the master of a vessel was compelled by the crew, to go out of the course of the voyage, it was held to excuse the deviation, though not barratry, or a loss within the policy. But in the case of Scottv. Thompson,
      
       this point came expressly before the court of C. B. iii England. It was an insurance against “sea risks and fire only;” the vessel was carried out' of her voyage, by a king’s ship, but being released, proceeded on her voyage, and was afterwards lost by the perils of the sea, and Sir James Mansfield, and the rest of the court, held the insurers to be liable;
    
      
       jjos d Puller, JVcw
      
    
    
      
      
         puuer,^\l^ DrUcol'v.Bo-vil,and 1 Bos. and Puller, 2ol> h)riscol v. Passmore,
      
    
    
      
      
        Peake's Case,at N.P
      
    
    
      
      
         Ellon v. Brogden. 2 £fc--'.'g',1264 Mars. 413.
    
    
      
       1 Bos. and Pullerj Mew Mep. 181.
    
   Kent, Ch. J.

I am of opinion that a deviation from necessity will excuse the assured, in case of an insurance against a particular risk, as well as in the case of a general insurance. This is so understood and settled in the English law,.as appears from the case of Green v. Elmslie, decided before Lord Kenyon at Nisi Prius, (Peake’s N. P. 212.) and especially from the case of Scott v. Thompson (1 Bos. & Pull. New Rep. 181.) in which Sir James Mansfield gave the opinion of the court of C. B. upon this very point. There is not, probably, any exception to be met with to the application of the general principle, that if the vessel deviates from the usual course of the voyage from necessity, and deviates no further than that neeessity requires, the voyage will still be protected by the policy. Objections have been made to the application of this rule to insurances against a particular riskbut 1 think the reason of the rule, and the influence of the above decisions ought to prevail. If so, there is no doubt but that the deviation was indispensable in the present case-. The vessel was compelled to change the order of the places to which she was insured. Being excluded from all the ports in St. Domingo, she was proceeding to the only remaining port mentioned in the policy, when the storm met her, and produced a total loss. The plaintiffs are accordingly entitled to judgment.

Tompkins, J.SpenceR, J.and Thompson, ¿.concurred.

Livingston, L

It will be assumed as a-fact, in determining this case, that the Sukey and Polly might have reached Cope Nichola Mole in safety, if she had not been turned away by a British ship of war ; and as a principle of law, that every departure from the course of a voyage, unless occasioned by a peril insured against, or the apprehension of such a peril, is a deviation. If the plaintiffs intended to rely for breaking up the voyage, on damages sustained previous to this interruption, that shouldhave been made a distinct point with the jury; before whom, however, thei-e was no ground on which such an inference could be raised as the vessel never, reached the Cape, it must ever remain.difficult to ascertain what would have' been her condition, if she had arrived there on the day she was ordered away.

The only important question, then, to be settled, is, whether an insurance against sea-risks, only, covers a loss which happens in that way, after a vessel has been forced from its route by a ship of war ? or, in other words, whether a departure thus produced be a deviation within such policy?

, . , , On this case, which is not without its difficulties, English precedents, if we except a very recent one, and therefore, not binding, throw no light. The cases cited from Strange and from Bosanquet & Puller, bear no similitude to it. In the one where every risk was covered, it was only decided, that if a crew force a master to go ou{. jjjg C0U1.se> js no deviation. In the other, where the policies were also general, the court thought the voyage performed was substantially the same with the one underwritten, and that it was sufficient, if the representation were true and fair when insurance was made. From neither of these cases then, can any information be derived, as to the operation of a limited policy, where a deviation is the immediate effect of & peril not specifically assumed. The one of Scott and another v. Thompson, is the first case we meet with at all bearing on this question, and here the court of common pleas, instead of meeting and examining the difficulty, cut the knot, by saying, what generally cannot be denied,-that “a deviation necessary “ and unavoidable, does not cancel an insurer's obliga- “ tion.” This is so in ordinary insurances, because comprehending every peril, all accidents which produce deviations must necessarily be embraced by them. On such policies if a- vessel be forced out of its way by enemies, pirates, a storm, or the crew, or go into port to repair damages occasioned by lightning or fire, it is no deviation, because the assurers mdst have borne the .loss, if she had been captured, carried away by the mariners, or perished in a tempest, or by fire or lightning. It would seem, indeed, that the only reason why leaving the course of a voyage can be excused, is its proceeding from some hazard insured against, or from a reasonable apprehension of encountering such peril. Otherwise, within however narrow limits his responsibility may be confined, an insurer will still be answerable, consequentially at least, for every loss, without any regard to its cause. Is it not rather the express contract, as well as fair understanding, in all restricted policies of this nature, that for injuries proceeding directly or indirectly from the enumerated risk alone, and no other, shall an indemnity be asked ? If not, great injustice must frequently arise, or nearly the same premium will be required for a single as for all risks. When dangers of the sea are alone insured against, the principal matter taken into the estimate, in settling the rate of premium, is the ordinary length of the proposed voyage; but a risk, which it was fairly imagined would terminate in less than a month, may be protracted for years, by repeated captures, or other accidents not insured against. The case from Peake's Nisi Priiis is hot in point; it was an insurance against capture, which must necessarily protect a vessel while pursuing a voyage, whether she run aground, encounter tempests, or be dismasted, so long as she continues in the course ofit} because, in the first place, she may be got off, and in the other, proceed under jury-masts. Every one must agree with Lord Kenyon, that where a capture intervenes in this way, it is clearly a loss within such limited policy. It will at once be perceived, that in an insurance against capture alone, the risk must always depend more or less on the state of the winds and weather. Two vessels in performing the same voyage, and at the same time, may Save different weather, and different passages. One may arrive in a month, and the other not in double that time, and yet a capture of the last, although delayed by bad winds and storms, would be a loss within the policy as well as the first. Suppose a vessel insured against capture only, from Albany to New-York, who can doubt if shé grounded on one of the bars in Hudson’s river, and were taken while there waiting for the tide, that the as-surer would be responsible f But suppose she were carried to sea, by the barratrous conduct of the master, and afterwards resuming her course to New-York, were taken.' before her arrival, then it Would bear some analogy to the present case; and we should hardly say, that after such a departure from her track, an underwriter would be answerable without first determining that barratry wag one 0f risks he had assumed. ' My opinion is* that the deviation here being to avoid capture, (which Would have been the consequence of going on, and for which, if it had ensued, the defendants were not answerable) put an end to any liability thereafter, even for misfortunes arising from the sea, and that, therefore, judgment ought to be given for the defendants.

Judgment for the plaintiffs. 
      
       Scott v. Tnompson, Bos. & Pul. 1 vol. New Rep. p. 161.
      
     