*310

and no longer; though if the cargo be temporarily landed from necessity, during the voyage, it is still protected by the policy. If the policy, as is usual, covers the risk upon the goods until safely landed, then the risk continues during their passage to the shore, and until all the goods are landed. Policies of insurance. are construed according to the usages of trade; and therefore if it be the ordinary course of the trade for the owner to employ a common public lighter to remove the goods from the ship to the shore, the policy covers them; though if he was to employ his own lighter, or take the goods under his own charge, the insurer would be discharged. There are usually distinct policies on the outward and on the homeward voyage, and if the ship perishes in the harbour abroad, after having discharged part of her outward, and received part of her homeward cargo, there may arise questions as between the different policies on the cargo. It is stated in the French law, that the policy on the outward cargo does not end but by the total, or almost total discharge of the outward cargo; and I should presume the risk on the homeward cargo attaches as fast as it is received on board, and that the case may happen in which there was aliment sufficient to sustain both policies concurrently in point of time. If the policy be on the voyage out and home, on cargo to such a value, or on a trading voyage, the policy will attach on every successive cargo taken on board in the course of the voyage, and the amount of property on

Boulay Paty, tome iii. 427.

Tiernay v. Etherington, cited in 1 Burr. Rep. 348. 1 Johns. Cas. 141.

Gardiner v. Smith,

Rucker v. London Assurance Company, cited 2 Bos. & Pull. 432, in notis. Hurry v. Royal Exchange Assurance Company, ibid. 430. Matthie v. Potts, 3 ibid. 23. Strong v. Natally, 4 ibid. 16. Coggeshall v. American Ins. Company, 3 Wendell, 283. See supra, 260, as to usage.

board to the sum mentioned, remains covered, without regard to the fact, that part of the original cargo was landed at an intermediate port, and the cargo on board at the time of the loss was the proceeds of the outward cargo. The policy attaches on goods taken in exchange, or substituted, in the course of a trading voyage, as often as the goods may be changed.a But if the policy be on goods outward, and upon their proceeds home, and the same goods are brought back in the same vessel, without having been changed or landed at the port of destination, they are not covered by the policy on the homeward voyage. The policy had reference to a change of cargo at the port of destination, and meant a substituted cargo for #311 the one carried out, and not the cargo itself. The homeward cargo, procured by money or credit advanced on the outward cargo, may, and has been deemed, by a reasonable construction, as the proceeds of the outward cargo; but it would be too extravagant a departure from the terms of a written contract, to make the issues and profits of a cargo stand in this case for the original cargo.c

In insurances on freight, the risk usually begins from the time the goods are sent on board, and not before.d But if the ship, sailing under a contract, be lost on her way to the port of lading, or at the port of lading to which she had arrived in ballast, before any goods are put on board, or when part of the cargo is on board, and

Mansfield, Ch. J., in Grant v. Paxton, 1 Taunton, 474. Columbia Ins. Company v. Catlett, 12 Wheat. 383. Coggeshall v. American Ins. Com

pany, 3 Wendell, 283.

Haven v. Gray, 12 Mass. Rep. 71. Whitney v. The American Ins. Company, 3 Cowen, 210.

• Dow v. Hope Ins. Company, 1 Hall's N. Y. Rep. 166.

Tonge v. Watts, Str. Rep. 1251.

preparations are making to receive passengers, the insurer on freight and passage money is liable; because an inchoate right to freight, which is an insurable interest, had commenced, and there was an inception of the risk, which attaches on the whole freight for the voyage.a

If the policy be an open one, the recovery is limited to the actual amount of freight which would have been earned; and it is necessary to prove that goods were on board from which freight was to arise, or that there was some contract, under which the ship owner would have been entitled to freight, if the peril had not occurred. In a valued policy, if the insured has done something to

wards earning the freight, and there was nothing *312 to prevent earning it but the occurrence of the

peril, his interest in the whole freight has commenced and been put at risk; and the weight of authority is, that he is entitled to recover the amount of the valuation, though only part of the cargo be on board. In the case of De Longuemere v. Fire Insurance Company, the court did not question the decision in Forbes v. Aspinall, where a valued policy on freight was opened, and a recovery allowed only as to the portion of the cargo on board when the peril occurred; and they rather concurred in it, on the ground that the residue of the cargo, which was to be the aliment for the freight, was

Thompson v. Taylor, 6 Term Rep. 478. Mackenzie v. Shedden, 2 Campb. N. P. Rep. 431. Horncastle v. Stewart, 7 East's Rep. 400. Truscott v. Christie, 2 Brod. & Bing. 320. Riley v. Hartford Ins. Company, 2 Conn. Rep. 373. Hart v. Delaware Ins. Company, Condy's Marshall, 281,

note.

Montgomery v. Eggington, 3 Term Rep. 362. Davidson v. Willasey, I Maule & Selw. 313. Livingston v. Columbian Ins. Company, 3 Johns. Rep. 49. De Longuemere v. Phoenix Ins. Company, 10 Johns. Rep. 127. Same v. Fire Ins. Company, ibid. 201.

10 Johns. Rep. 201. 13 East's Rep. 323.

not in that case ready to be shipped, and the vessel was, in fact, a mere seeking ship, and for aught that appeared, the residue of the cargo might never have been obtained.

(2.) Of deviation.

The policy relates only to the voyage described in it, and to the route proper for the voyage insured; and if the vessel departs voluntarily, and without necessity, from the usual course of the voyage, the insurer is discharged, for it is a variation of the risk, and the substitution of a new voyage. The meaning of the contract of insurance for the voyage is, that the voyage shall be performed with all safe, convenient and practicable expedition, and in the regular and customary track. In the case of an unjustifiable deviation, the insurer is discharged; not indeed from loss occurring previous to the deviation, but from all subsequent losses. These are elementary principles in the law of insurance, and pervade the institutions of every country on the subject.a

*The shortness of the time, or of the distance *313 of a deviation, makes no difference as to its effect on the contract; if voluntary and without necessity, it is the substitution of another risk, and determines the contract. So strictly has this doctrine been maintained, that where a vessel, having liberty in sailing down the Frith of Forth to touch at Leith, touched at another port in its stead equally in her way, it was held to be a

• Roccus, de Ass. n. 20. 52. Emerigon, tome ii. 28. 59, 60. 9 Mass. Rep. 447. Condy's Marshall, 184, 185. 1 Phillips on Insurance, 181, 1st edit.

Fox v. Black, and Townson v. Guyon, cited in Beawes, vol. i. 306. 9 Mass. Rep. 449. Martin v. Delaware Ins. Company, 2 Wash. Cir. Rep. 254. 1 Doug. 291. 7 Cranch, 30.

fatal deviation, though neither risk nor premium would have been increased, if it had been permitted.a

The great cause of litigation in the courts, on this subject of deviation, is as to the facts and circumstances which will be sufficient to justify it on the ground of usage or necessity, or of the true construction of the policy; and these are mostly questions of law for the determination of the court.

Stopping, or going out of the way to relieve a vessel in distress, or to save lives or goods, may, perhaps, under certain circumstances, not be considered as a deviation which discharges the insurer. Mr. Justice Lawrence intimates, in one case, that it might be justifiable; but Judge Peters observed, that such deviations were justified to the heart on principles of humanity, but not to the law. If, however, the object of the deviation was to save life, Judge Washington afterwards observed, that he would not be the first judge to exclude such a case from the exception to the general rule, though he could not extend the exception to the case of saving property.

The Chief Justice observed, in the case of Mason *314 *v. Ship Blaireau, that the Supreme Court of the United States had great doubts whether stopping

Elliott v. Wilson, 7 Bro. P. C. 459.

b6 East's Rep. 54.

< 1 Peters' Adm. Rep. 40. 64. 2 ibid. 378. Bond v. The Brig Cora, 2 Wash. Cir. Rep. 80. This distinction was sustained by Mr. Justice Story in the case of Foster v. Gardner, Am. Jurist, No. 21, and in the case of The Henry Ewbank, 1 Sumner, 400; and he agreed that any stoppage on the high seas, except for the purpose of saving life, would be a deviation, and discharge the underwriter. The Schooner Boston and Cargo, 1 Sumner, 328. S. P. But in Williams v. Box of Bullion, U. S. District Court in Mass. 1843, it was held not to be an injurious delay to deviate so as to speak at sea to a vessel with a signal of distress, or to delay three hours to take in shipwrecked mariners. 6 Law Reporter, 363.

42 Cranch's Rep. 257, note.