to relieve a vessel in distress, was an unjustifiable deviation in regard to the policy.

The courts are exceedingly strict in requiring a prompt and steady adherence to the performance of the precise voyage insured; and, considering the particular state of facts upon which calculations of the value of risks are made, and the uncertainty and danger of abuse that relaxations of the doctrine would introduce, the severity of the rule is founded in sound policy.a

If there be liberty granted by the policy to touch, or to touch and stay, at an intermediate port on the passage, the better opinion now is, that the insured may trade there, when consistent with the object and the furtherance of the adventure, by breaking bulk, or by discharging and taking in cargo, provided it produces no unnecessary delay, nor enhances nor varies the risk. And if there be several ports of discharge mentioned in the policy, and the insured goes to more than one, he must go to them in the order in which they are named in the policy; or if

If a steamboat be lost in an attempt to take a vessel in tow, and there be no clause in the policy allowing it, and no acquiescence of the insurers in such a usage, they are not liable. Hermann v. Western Marine and Fire Ins. Company, 15 Louis. Rep. 516. Taking a vessel or boat in tow on the Mississippi, held to be a deviation and a discharge of the insurers on the steamboat. Stewart v. Tennessee M. & F. Ins. Co. 1 Humph. 242. Natchez Ins. Co. v. Stanton, 2 Smedes & Marshall, Miss. R. 340.

Raine v. Bell, 9 East's Rep. 195. Cormack v. Gladstone, 11 ibid. 347. Laroche v. Oswin, 12 ibid. 131. Urquhart v. Barnard, 1 Taunt. Rep. 450. Kane v. Columbian Ins. Company, 2 Johns. Rep. 264. Hughes v. Union Ins. Company, 3 Wheaton's Rep. 159. Thorndike v. Boardman, 4 Pickering's Rep. 471. Chase v. Eagle Insurance Company, 5 ibid. 51. This liberal construction is also given to the liberty to touch and make port freely, contained in the French policies; and if new goods be taken in at such stopping port, the policy on cargo attaches on them as a substitute for the others. If the policy be on cargo to such an amount, and the ship discharges part of her cargo at the stopping port, but reserves sufficient on board as aliment for the policy, and pursues the voyage, the policy attaches on the residuum of the cargo. Emerigon, tome ii. c. 13. sec. 8. Boulay Paty, Cours de Droit Com. tome iv. 140-147.

they be not specifically named, he must generally go to them in the geographical order in which they *315 *occur, though there may be cases in which he need not follow the geographical order.a This liberty to touch, stay and trade, is always construed to be subordinate to the voyage insured, and to the usual course of that voyage, and for purposes connected with it. It does not extend to ports and places opposite to, or wide of, the usual course, or wholly unconnected with the voyage insured. This principle is as old as the law of insurance, and has accompanied it in every stage of its progress.b

The law requires the voyage, so far as concerns the underwriter, to be performed with reasonable diligence; and every unnecessary delay, in or out of port, or in commencing the voyage insured against, will amount to a deviation. Deviation is always understood to be an after thought, arising subsequent to the commencement of the voyage, and produced by the perception of some new interest, or the influence of some strong temptation. A premeditated intention to deviate, amounts to nothing,

⚫ Beatson v. Haworth, 6 Term Rep. 531. Marsden v. Reid, 3 East's Rep. 572. Clason v. Simmonds, cited in 6 Term Rep. 533. Kane v. Col. Ins. Company, 2 Johns. Rep. 264. Metcalfe v. Parry, 4 Campb. N. P. Rep. 123. Houston v. New-England Ins. Company, 5 Pickering's Rep. 89.

Straccha, Gloss, 14. Casaregis, Disc. 67. n. 23, and Disc. 134. Valin, tome ii. 77, 78. Emerigon, tome ii. c. 13. sec. 6 and 8, passim. Clason v. Simmonds, 6 Term Rep. 533, note. Gardiner v. Senhouse, 3 Taunt. Rep. 16. Langhorn v. Allnutt, 4 ibid. 511. Hammond v. Reid, 4 Barnw. & Ald. 72. Lolly v. Whitmore, 5 ibid. 45. Bottomly v. Bovill, 5 Barnw. & Cress. 210. Rankin v. Reave, Park on Insurance, 7th edit. 445. Rucker v. Allnutt, 15 East's Rep. 278.

• Jarratt v. Ward, 1 Campb. N. P. Rep. 263. Smith v. Surridge, 4 Esp. N. P. Rep. 25 Oliver v. Maryland Ins. Company, 7 Cranch's Rep. 487. 9 Mass. Rep. 447. Earl v. Shaw, 1 Johns. Cas. 317. Mount v. Larkins, 8 Bingham, 108. Fremen v. Taylor, ibid. 124. Grant v. King, 4 Esp. N. P. Rep. 175. Seamans v. Loring, 1 Mason, 127.

unless it be actually carried into execution; and this rule is adopted in England and in the courts of the United States. If the ship quits, from necessity, the course described in the policy, she must pursue such new voyage of necessity, in the direct course and in the shortest time, or it will amount to a deviation. This *was the doctrine as declared by Lord Mansfield *316 in the case of Lavabie v. Wilson, and that case is

C

reported at large in Emerigon, with a liberal and exalted eulogy (pronounced in the midst of war between the two countries) on the wisdom and probity of the English administration of justice: tanta vis probitatis est, ut eam in hoste etiam diligamus. All permissions given by the policy out of the ordinary course and incidents of the voyage, are to be construed strictly. If the vessel have liberty to carry letters of marque, she may deviate for the purpose of defence, but not for the purpose of capture. In Haven v. Holland, an enlarged discretion, and one carried to the very verge of the law, was confided to the captain as to the best mode of defence, and it was held, that the letter of marque might chase and capture hostile vessels in sight, in the course of the voyage, without its being a deviation; and if he captures the vessel, the master may make the victory effectual, and man out the prize, and the delay for those purposes is not a deviation. If liberty be given her to chase and capture, that will not enable her to convoy her prize into port, though she may do it if she be not thereby led out of

Foster v. Wilmer, Str. Rep. 1249. Lord Mansfield, in Doug. Rep. 18. 365. 3 Cranch's Rep. 357. 7 Mass. Rep. 352.

the way; and to cruise for six weeks, means six consecutive weeks, and not at different times.b

The object of the deviation must be considered, in order to determine its effect upon the policy. It must be commensurate only with the necessity that produces it, and that necessity will justify a deviation on account of

a peril not insured against. And when the de*317 viation is governed by that *necessity, as a deviation from stress of weather, or to procure necessary repairs, or to join convoy, or to avoid capture or detention, it works no injury to the policy.d

There has been considerable discussion in the books relative to the identity of the voyage described in the policy, and the voyage actually begun. If the vessel sails on a different voyage, the policy never attaches ; but if she be lost before she comes to the dividing point, between the course of the voyage in the policy, and the course of the new voyage, the change of the voyage often becomes a contested question as to the intention of the party. If the ship really sailed on another voyage, the policy never attached, though the vessel be lost before she came to the dividing point; but if the termini of the voyage described in the policy be the same as those upon which the vessel sailed, it is the same voyage, and a mere intention, afterwards formed, to deviate, is of no consequence, if the vessel be lost before she came to the dividing point. The distinction between

Ward v. Wood, 13 Mass. Rep. 539.

b Syers v. Bridge, Doug. Rep. 509.

Scott v. Thompson, 4 Bos. & Pull. 181. Robinson v. Marine Ins. Company, 2 Johns. Rep. 89.

& Condy's Marshall, 202. b. to 213. Phillips on Insurance, vol. i. 2d edit. 480-576. The latter work has collected and digested all the English and American cases on this very diffusive head of deviation, and to which I must refer for a more particular knowledge of the distinctions and exceptions with which the books abound.

an alteration of the voyage, and a mere deviation in the course of it, is very reasonable and solid. The one is adopted previous to the commencement of the risk, and shows that the party had receded from his agreement, but the other takes place after the risk has commenced, and relates only to the execution of the original plan.* It has, however, been held, in one case, after much discussion, and suggested in another, in opposition to the established *rule, that the identity of *318 the voyage does not always consist in the identity

of the termini; and that though the terminus ad quem be dropped, and another substituted in the course of the voyage, it may be still the same voyage; and if the vessel be lost before she comes to the dividing point between the course to the original, and to the substituted port of destination, it is an intention to deviate, and nothing more.d

III. Of the rights and duties of the insured in cases of loss. (1.) Of abandonment.

A total loss within the meaning of the policy, may arise either by the total destruction of the thing insured,

Woolbridge v. Boydell, Doug. Rep. 16. Kewley v. Ryan, 2 H. Blacks. Rep. 343. Middlewood v. Blakes, 7 Term Rep. 162. Silva v. Low, 1 Johns. Cas. 184. Henshaw v. Marine Ins. Company, 2 Caines' Rep. 273. Marine Ins. Company v. Tucker, 5 Cranch's Rep. 357. Boulay Paty, tome iv. 56, 57.

Lawrence v. Ocean Ins. Company, 11 Johns. Rep. 241. S. C. 14 ibid. 46.

• Johnson, J., in 3 Cranch's Rep. 385.

The foreign jurists distinguish between the voyage insured, and the voyage of the ship. Independenter se habet assecuratio a viaggio navis. If a ship sails on a voyage from Saint Malo to Toulon, and is insured from Saint Malo to Cadiz, the latter is the voyage insured, but the former is the voyage of the ship, and the voyage insured is known by its two extremes, or the terminus a quo, and the terminus ad quem. Casaregis, Disc. 67. n. 5. 31. Boulay Paty, tome iii. 416, 417.