SECTION 4.-EFFECT OF DEVIATION

CONSULATE OF THE SEA, c. 165: "If a merchant or mariner or any one else, who accepts a commission for a given voyage or to a known place, loses all that which is committed to his charge without any fault on his part, he is not bound to replace anything nor to compensate him who has entrusted him with the commission.14 But nevertheless, if the said commissioner shall carry the goods committed to his charge upon another voyage or to another place from that which was agreed upon with him who entrusted the commission to him, if the goods entrusted to him are lost, the commissioner is bound to make good everything to him who has entrusted him with the commission, since he has carried the goods to another place and upon another voyage which had not been agreed upon. * * *"" Chapter 166: "If * an occasion for reprisals arises, or for an embargo of the authorities, or armed ships of the enemy come there, * * the commissioners may arrange with the managing owner of the ship or vessel in which they are to go to another place where they have no fear of the circumstances above mentioned; provided it be to preserve the goods and for no

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other reason, and this should be done without any fraud." Chapter 167: * * "And accordingly our predecessors of olden time saw and adjudged that managing owners of ships or vessels who * * carried commissions from others, ought not to be in a worse condition than another commissioner. * * * Nevertheless, if there be in his ship goods of merchants, and there be no one in charge of them, and the managing owner of the ship has no commission respecting them, further than that he ought to deliver them to

their ports in the Mediterranean, and the trading cities of the Baltic incorporated their provisions into their own maritime law." Id. vol. II, p. xlvii. "On peut très légitimement attribuer, ainsi que l'ont fait sir Travers Twiss et le professeur hollandais Pols, la paternité de ces jugements de la mer aux juges de la mer d'Oleron, qu'on y voie des sentences rendues dans des procès réels ou des déclarations sur le droit, fruit d'une longue experience, et consignées par ces hommes rompus aux affaires maritimes dans un registre ou sur des rôles pour en perpétuer la mémoire.” Desjardins, Introduction Historique à l'étude du Droit Commercial Maritime, p. 33.

CONSULATE OF THE SEA, c. 46: "If a managing owner of a ship or vessel shall be in any place, and shall accept on freight goods of merchants to carry to another place, which place shall have been agreed upon between the said managing owner and the merchants, he is under the necessity of conveying the goods to the place, to which he has agreed with and promised to the merchants to carry them, in his own ship. And if the managing owner of the ship shall put them on board of another ship or vessel without the consent or knowledge of the merchants, although that ship or vessel may be larger or better than his own, if the goods shall be lost or shall be spoilt, or he to whom the

14 Compare Woodlife's Case, post, p. 312.

some person in the port where he ought to discharge, if the conditions above said exist so that he dare not enter the port, the managing owner of the ship or vessel ought not to carry them afterwards to another port, since he has no commission to enable him to sell them, consequently he ought to restore them to those merchants who delivered them to him. And if the managing owner of the ship or vessel carries them to another port, and the goods are lost, the managing owner of the ship or vessel is bound to replace and make good the whole of them."

DAVIS v. GARRETT.

(Court of Common Pleas, Trinity Term, 1830. 6 Bing. 716.)

The declaration stated that plaintiff at the special instance and request of defendant delivered to defendant on board the vessel Safety, and defendant received, a certain quantity of lime to be carried upon said vessel from Bewly Cliff to Regent's Canal, the act of God, the king's enemies, fire and all and every other dangers and accidents of the seas, rivers and navigation excepted, for certain reasonable reward; that the vessel sailed on the intended voyage with the lime on board, and that it then became the duty of the defendant to carry said. lime to Regent's Canal, the perils above mentioned excepted, by the direct, usual and customary way, course and passage, without any voluntary and unnecessary deviation or departure from or delay or hindrance in the same, but that defendant, though not prevented by any of the excepted matters, did not so carry the lime, but by John Town, his master and agent, without the knowledge and against the will of the plaintiff, voluntarily and unnecessarily deviated and departed and navigated the vessel from and out of such usual and customary course, to wit to East Swade and to Whitstable Bay, and delayed the vessel for twenty four hours, and that by reason of such deviation and delay she was out of her course and was exposed to a great storm, and thereby wrecked and the lime destroyed to plaintiff's damage.

At the trial before Tindal, C. J., it appeared that the master of the defendant's barge had deviated from the usual and customary course of the voyage mentioned in the declaration, without any justifiable cause; and that afterwards, and whilst such barge was out of her course, in consequence of violent and tempestuous weather, the seal communicated with the lime, which thereby became heated, and the barge caught fire; and the master was compelled, for the preservation of himself and the crew, to run the barge on shore, where both the lime and the barge were entirely lost.

goods belong shall sustain any loss or incur any expense, the managing owner of the ship is bound to make compensation for the goods which shall be lost, and all the interest which he to whom the goods belong may have incurred, and he shall be believed on his oath."

A verdict having been found for the plaintiff,

Taddy, Serjt., obtained a rule nisi for a new trial, or to arrest the judgment, on the ground, first, that the deviation by the master of the barge was not a cause of the loss of the lime sufficiently proximate to entitle the plaintiff to recover, inasmuch as the loss might have been occasioned by the same tempest if the barge had proceeded in her direct course; and, secondly, that the declaration contained no allegation of any undertaking on the part of the defendant to carry the lime directly from Bewly Cliff to the Regent's Canal, an allegation which, it was contended on the authority of Max v. Roberts, 12 East, $9, was essential to the plaintiff's recovery.

TINDAL, C. J.15 * * * As to the first point,

the objection taken is that there is no natural or necessary connection between the wrong of the master in taking the barge out of its proper course and the loss itself; for that the same loss might have been occasioned by the very same tempest, if the barge had proceeded in her direct course.

But if this argument were to prevail, the deviation of the master, which is undoubtedly a ground of action against the owner, would never, or only under very peculiar circumstances, entitle the plaintiff to recover. For if a ship is captured in the course of deviation, no one can be certain that she might not have been captured if in her proper course. And yet, in Parker v. James, 4 Campb. 112, where the ship was captured whilst in the act of deviation, no such ground. of defense was even suggested. Or, again, if the ship strikes against a rock, or perishes by storm in the one course, no one can predicate that she might not equally have struck upon another rock, or met with the same or another storm if pursuing her right and ordinary voyage. The same answer might be attempted to an action against a defendant who had, by mistake, forwarded a parcel by the wrong conveyance, and a loss had thereby ensued; and yet the defendant in that case would undoubtedly be liable.

But we think the real answer to the objection is, that no wrongdoer can be allowed to apportion or qualify his own wrong; and that as a loss has actually happened whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss, if his wrongful act had never been done. It might admit of a different construction if he could show, not only that the same loss might have happened, but that it must have happened if the act complained of had not been done; but there is no evidence to that extent in the pres

ent case.

Upon the objection taken in arrest of judgment,

* * we cannot but think that the law does imply a duty in the owner of a vessel,

15 The statement has been shortened, and parts of the opinion omitted.

whether a general ship or hired for the special purpose of the voyage, to proceed without unnecessary deviation in the usual and customary

course.

We therefore think the rule should be discharged, and that judgment should be given for the plaintiff. Rule discharged.10

** If the said

CONSULATE OF THE SEA, c. 49: managing owner of a ship shall make the said agreement or promise [to tow another vessel] without the knowledge and assent of the merchants who shall be on board the ship or shall intend to put or shall have put goods on board, if any accident supervenes the merchants are not responsible for anything. On the contrary, if the said merchants sustain any damage the said managing owner of the ship is bound to make full restitution, even if the ship shall have to be sold.

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16 In Lilley v. Doubleday, 7 Q. B. D. 510 (1881), an action against a warehouseman for loss by fire, Grove, J., said: "The defendant was entrusted with the goods for a particular purpose and to keep them in a particular place. He took them to another, and must be responsible for what took place there. The only exception I see to this general rule is where the destruction of the goods must take place as inevitably at one place as at the other. If a bailee elects to deal with the property entrusted to him in a way not authorized by the bailor, he takes upon himself the risks of so doing, except where the risk is independent of his acts and inherent in the property itself. That proposition is fully supported by the case of Davis v. Garrett, which contains very little that is not applicable to this case."

See, also, note in 26 L. R. A. 366 on liability of one who drives a hired horse beyond the place agreed. A mere deviation, though willful and without excuse, does not constitute a conversion, So. Pac. Co. v. Booth (Tex. Civ. App.) 39 S. W. 585 (1897); and see an article by Professor G. L. Clark on The Test of Conversion, 21 Harv. Law Rev. 408, 410.

A carrier guilty of unexcused departure from the agreed route or method of transportation is liable for loss, though from a cause excepted in the bill of lading. Merrick v. Webster, 3 Mich. 268 (1854), goods carried by steamer instead of sailing vessel; Bazin v. S. S. Co., Fed. Cas. No. 1,152 (1857); Goodrich v. Thompson, 44 N. Y. 324 (1871), by another vessel than that named; Maghee v. Camden R. Co., 45 N. Y. 514, 6 Am. Rep. 124 (1871), by water instead of by rail; The Delaware, post, p. 426, on deck instead of below; Robinson v. Merchants' Despatch, 45 Iowa, 470 (1877), breach of contract to carry without transfer to cars of another company; Chicago, etc., Co. v. Dunlap, 71 Kan. 67, 80 P. 34 (1905), goods inadvertently carried beyond destination, agreement as to value held unenforceable. But see Foster v. Gt. Western Ry. Co., [1904] 2 K. B. 306. In Joseph Thorley, Ltd., v. Orchis S. S. Co., [1907] 1 K. B. 660, a deviation during the voyage was held to render inapplicable an exemption from liability for negligence in discharging at destination.

In Internationale Guano en Superphosphaatwerken v. MacAndrew, [1909] 2 K. B. 360, deviation increased damage due to unfitness of the cargo for a long voyage. No recovery was permitted for so much of the damage, though it happened during deviation, as would have happened in the same way without deviation.

CROCKER v. JACKSON.

(District Court, D. Massachusetts, 1847. 1 Spr. 141, Fed. Cas. No. 3,398.)

This was a libel, on behalf of the owners of the bark La Grange, against the respondent, a consignee of part of the cargo, to recover a contribution for damage sustained by the voluntary stranding of that vessel, near Provincetown, during a gale. The respondent was insured by the Merchants' Insurance Company, and the defense was made in their behalf. The defense principally relied upon was that La Grange had previously committed a deviation, in going out of her course, to speak, and then taking in tow, a vessel in distress.

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SPRAGUE, District Judge,17 in delivering his opinion, said, in substance: Delay to save life is not a deviation; but delay merely to save property, is.

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In this case, when the brig was seen in distress, it was the duty of the La Grange to run down to her, to ascertain whether the persons on board needed relief; and upon learning that they did, she was bound to take the necessary measures to afford it; and this constitutes no deviation. As the sea and wind were such, that the crew of the brig could not be transferred to the La Grange, and both vessels were fast drifting out of their course, the taking of the brig in tow was the proper mode of relief.

The only serious question is, whether the towing was continued too long. It is urged in behalf of the respondents, that the object of the captain of the La Grange was pecuniary gain, by earning salvage. But the crew of the brig needed assistance, and it must be presumed that the master was also actuated by a desire to afford them relief. Now there being a double motive, to relieve distress and to save property, does not render the delay a deviation, nor impair the merit of the act. The law, so far from discouraging the union of these motives, enhances the amount of salvage compensation, where the saving of property is accompanied by relief to passengers or crew. But if this towing was continued after it had ceased to be necessary to relieve the distress of the crew, and merely to save property, then it was a deviation; but I am not satisfied that it was so continued. * * *

We should not look at the conduct of a master, in such cases, with a jealous scrutiny, nor give such a construction to doubtful acts, as would admonish him that, in order to be safe from judicial condemnation, he must harden his heart, and stint the measure of relief to danger and distress. The humanity and morals of the seas require a more liberal doctrine.

17 The statement has been shortened, and parts of the opinion have been omitted.