Hughes v. The Union Insurance Company/Opinion of the Court

At the trial the cause seems to have turned principally on the necessity to unlade the cargo at Mantanzas produced by the order of the Spanish government at the Havanna. As this court concurs with the circuit judge in the opinion that this order was obtained under circumstances which take from it the character of a force imposed on the master, and compelling him to discharge his cargo, and is, therefore, no excuse for such discharge, it will be unnecessary farther to notice that part of the case. The question to be considered is, that part of the opinion which declares that unlading the cargo at Matanzas, although it occasioned no delay and did not increase, but diminish the risk, was a deviation which discharged the underwriters.

In considering this question, it is to be observed that the termini of the voyage were not changed. The Henry did sail from Ten eriffe to the Havanna, and was lost on the voyage from the Havanna to Baltimore. The policy permitted her to stop at Matanzas, and the purpose of stopping was to know if there were any men of war off the Havanna. It would be idle to stop for the purpose of making this enquiry, if it were not intended that the Henry might continue at Matanzas so long as the danger continued. The stopping and delay at Matanzas is then expressly allowed by the policy.

But, admitting this, it is contended, that unlading the cargo is a deviation.

And why is it a deviation? It produced no delay, no increase of risk, and did not alter the voyage. The vessel pursued precisely the course marked out for her in the policy. In reason nothing can be found in this transaction which ought to discharge the underwriters. If, however, the case has been otherwise decided, especially in this court, those decisions must be respected.

In Stitt v. Wardel, (1 Esp. N. P. Rep. 610.) it was determined that liberty to touch and stay at any port did not give liberty to trade at that port; and in Sheriff v. Potts, (5 Esp. N. P. Rep. 96.) it was decided that liberty to touch and discharge goods did not authorise the taking in of other goods. These cases certainly bear considerable force on that under consideration, but they were decided at nisi prius, and seem to have been in a great degree overruled by the court in the case of Raine v. Bell, reported in 9th East. In that case, under a policy to touch and stay at any place, goods were taken on board during a necessary stay at Gibraltar. The court was of opinion that as this occasioned no delay nor any increase or alteration of the risk, the plaintiff was entitled to recover. Between the case of Raine v. Bell, and this case, the court can perceive no essential difference.

In the supreme court of Pennsylvania, (Kingston v. Gerard, 4 Dal. 274.) a similar question occurred, and it was there held, that unlading and selling part of her cargo by a captured vessel during her detention, would not avoid the policy.

But it is contended, that this point has been settled in this court, in the case of the Maryland Insurance Company against Le Roy and others. In that case, a liberty was reserved in the policy 'to touch at the Cape de Verd Islands for the purchase of stock, such as hogs, goats, and poultry, and taking in water.' The vessel stopped at Fago, one of the Cape de Verd Islands, and took in four bullocks and four Jackasses, besides water and other provisions, unstowed the dry goods, and broke open two bales, and took 40 pieces out of each, for trade. The vessel remained at the island from the 7th to the 24th of May, although the usual delay at those islands for taking in stock and water, when the weather is good, is from two to three days. The weather was good during this delay; and the bullocks and jackasses encumbered the deck of the vessel, more than small stock would have done. The court left it to the jury to determine, whether the risk was increased by taking the jackasses on board, and directed them to find for the plaintiffs, unless the risk was thereby increased. The jury found for the plaintiffs; and this court reversed the judgment rendered on that verdict, because the taking in the jackasses was not within the permission of the policy.

It is perfectly clear, that the case of the Maryland Insurance Company v. Le Roy and others, differs materially from this. In that case, articles were taken on board which encumbered the deck of the vessel, and which were not within the liberty reserved in the policy. In that case too, the insured traded, and the delay was considerable and unnecessary; the risk, if not increased, might be, and certainly was varied. The judge, therefore, ought not to have left it to the jury on the single point of increase of risk by taking in the jackasses. Although the risk might not be thereby increased, the unauthorised delay and unauthorised trading during that delay, connected with taking on board unauthorised articles, discharged the underwriters according to the settled principles of law; and the court does not say in that case that these circumstances were immaterial or without influence. The court does not feel itself constrained by the decision in the Maryland Insurance Company v. Le Roy et al. to determine that in this case also, which differs from that in several important circumstances, the underwriters are discharged. The Judgment is reversed, and the cause remanded, with directions to issue a venire facias de novo.