Fernandez v. Great Western Insurance

The application for insurance of the vessel, signed by the plaintiffs' agent, contained a warranty that the vessel was in "perfect order," and also that she would "sail in a few days." On the trial, no attention was called to the first branch of this objection. When the plaintiffs' case was closed, the defendants moved for the dismissal of the complaint upon four different grounds specifically stated. Neither of them contained any reference to this objection, nor was there any allusion to it, when the case was finally closed, at *Page 580 the circuit. Evidence was given to show that the underwriter was informed that the vessel was undergoing extensive repairs, and was being thoroughly remodeled, and that the inspectors employed by the underwriter visited her and made their reports upon her condition. This was expressly denied, on the other hand. It is quite likely that there was a fair question, under this point, to be submitted to the jury, if such submission had been requested. No such request was made, and under the evidence as it stands, and without attention to the point on the trial, we are not justified in saying that there was a breach of this warranty as to the condition of the vessel.

The alleged breach in the other respect, to wit: that she should "sail in a few days," formed one of the grounds of the motion to nonsuit, but there was no request that the jury should receive any instructions in relation to it. The insurance covers the vessel while in port preparing for her voyage. The rule is, that such delay must be for a reasonable time only. As it is expressed in another form, the departure must be in a reasonable time. Were there no excusing facts in the case, a delay of forty-five days in the clearing of a ship, whose intended voyage would occupy only five or six days, would, appear to be unreasonable. Here again the conflict of testimony is important to be considered. If the vessel was in perfect order ready for sailing, but a few days, literally, would be required to load and start her, or should be allowed for that purpose. If, on the other hand, the vessel was in good order for river navigation, but was being remodeled and substantially rebuilt to fit her for an ocean steamer, several weeks might well be exhausted in that duty. Again, this vessel, while under repairs, met with various disasters and calamities, which delayed her completion. I cannot discover such a state of facts as, upon the principles of law laid down by the appellants, would justify the court in saying that, as a matter of law, and necessarily, there was a breach of the warranty that the vessel should sail in a few days. The jury might have so found, but the question was not submitted to them, and *Page 581 neither party asked that it should be. (1 Arnold, 383; 1 Par. Mar. Law, 281.)

The principal point in the case is that arising upon the alleged deviation in visiting the port of Elizabeth, New Jersey, a distance of sixteen to twenty miles, for a trial trip and to procure coal. This occurred on the sixth of April. The port of Elizabeth was not on the route to Havana, and was reached by going down the New York bay, either outside or inside of Staten Island, but in each case inside of Sandy Hook. She returned from Elizabeth to New York within a day or two. When loaded at Elizabeth with seventy tons of coal, it was found that her exhaust pipe was submerged and needed to be altered. The coal was found to be unsuitable and was removed and other coal substituted. Coal could readily be obtained at different places in the port of New York. The defendants offered to prove that, by the custom of New York, trial trips are the subjects of separate insurance and separate premiums, also the usual insurance premium on a voyage to Elizabeth, both of which offers were excluded by the court. The court directed a verdict for the plaintiff for the amount of the loss.

The law is firmly settled that a deviation from the voyage limited in the policy, unless compelled by necessity, avoids the policy. It matters not how short may be the deviation, nor how harmless, nor, indeed, does it aid that it should be shown that the alteration made a shorter and a safer voyage, and thus was of positive advantage to the underwriters. The contract is to insure upon a voyage between the points named, in the regular and customary track. The moment the vessel voluntarily and without necessity departs from the due course of the voyage, the contract is at an end, and the underwriter is freed from responsibility. (3 Kent Com., 312; Smith's Mer. Law, 3d Am. ed., 459; 1 Arnould Ins., 354; Stevens v. Com. Ins. Co., 26 N.Y., 402.)

Brown v. Tayleur (4 Ad. Ells, 241) is in point. The Penrith was insured "at and from her port of loading *Page 582 in North America to Liverpool." The vessel took in a part of a cargo of timber at Cocagne, New Brunswick, in July. In August she sailed to Buktouche, five to seven miles distant, to complete her cargo. Buktouche and Cocagne are situated on different creeks of the same bay. The vessel returned to Cocagne on the 22d of August to get wood, water and provisions. She took on no additional cargo there, unless a few sticks of timber, which was doubtful. She sailed for England on the 31st of August, and was lost on the voyage. Neither of these ports had a custom-house, though there were officers of customs at both places, and both were within the jurisdiction of the custom-house of St. John, N.B. (31 E.C.L.R., 121.)

It was held by the Court of King's Bench, Ch. J. DENMAN presiding, that there was a deviation and the policy was avoided. Justice PATTERSON says: "When she began to take on her cargo at Cocagne, that was her place of loading, and her removal afterward to Buktouche was a deviation." Justice COLERIDGE says: "It makes a difference whether a ship stays at one place to load, or goes on a roving voyage to pick up a cargo."

Vos Lightbourne v. Robinson (9 J.R., 191) is an earlier case in our courts, where the same point was adjudged, and in the same manner. Elliot v. Welmer (7 B. Par. Cas., 459);Kettell v. Wiggins (13 Mass. R., 68), are decisions to the same effect, on facts of quite a similar character.

I find but a single authority which seems to conflict with these general views. In Parsons on Mar. Law (vol. 2, p. 278, § 2), the writer says: "It is perfectly well settled that any deviation whatever discharges the insurers from all further responsibility, leaving them, however, liable for a loss occurring before the deviation, and caused by a peril insured against; nor are they discharged if the change of risk is merely temporary, and when it ceases, all subsequent risks are precisely and certainly the same as they would have been had no deviation taken place. In this case the effect of the deviation is only to suspend the responsibility of the insurers and *Page 583 discharge them from any liability for a loss which occurs during the existence of the deviation. But it is obvious that there are few changes of risks that can be said to leave all the subsequent perils in precisely the same condition as if there had been no change, and this exception, therefore, is seldom applicable." The answer to this authority, as applicable to the present case, is apparent. The rule thus laid down by Parsons is true as to a time policy under certain contingencies, but never as to a voyage policy. The illustration given by the learned writer on this rule is of that character. Thus, he says, if a steamboat makes regular trips between two ports, is insured for one year, and if, after the trip for the day is ended, she should tow a vessel, or do any similar act, the underwriters would clearly be liable if she were subsequently lost on a regular trip or while lying in port, but not if she were lost while engaged in towing. This may be. If so, it would be upon the principle that the time policy operates as a new and separate insurance upon every trip made between the ports designated. Every time she starts from the port of departure a new insurance comes into existence, and it might well be said that the offences committed upon a former voyage, and under a former policy, could not affect the last voyage. (See Day v.Orient, 1 Daley's R., 13; Robertson v. Columbian M. Ins.Co., 8 J.R., 491.)

The qualification imposed by the learned author, "that all subsequent risks shall be certainly and precisely the same as if no deviation had taken place," destroys the rule. No such certainty can exist. If the vessel is delayed an hour, or hastened an hour, it is obvious that she may incur perils which that change of time created or increased. It is impossible to say, with certainty, that every circumstance of time, place, weather, enemies, condition of the captain or crew or vessel, occurring after a change, would have been the same had there been no change. The vessel we are looking after spent three days in going to Elizabeth and returning. The coal there loaded was taken out and other coal put in. How many hours, alteration in the time of her final departure *Page 584 this made, who can tell? Who can tell whether she received a strain not perceptible, a secret injury, some damage to the coal bins, which was connected with her subsequent destruction by fire? These are speculations. They may be well founded. They may be entirely without foundation. They serve to illustrate the danger of departing from the well settled rule of law. I repeat it, as well expressed by Justice SEDGWICK, in Coffin v.Newburyport Mar. Ins. Co. (9 Mass. R., 436): "It is undoubtedly true that the shortness of the time, or the distance of the deviation, makes no difference as to its effect in the contract; whether for one hour or one month, or for one mile or one hundred miles, the consequence is the same. If it be voluntary and without necessity, it puts an end to the contract."

The plaintiffs seek to obviate the difficulty by the argument that the voyage to Elizabeth was a trial trip, and that such experiment was necessary before the vessel could safely proceed on her voyage to Havana. All the cases show that necessity excuses a deviation; such as stress of weather, compulsion of a superior power, or a change for the relief of a vessel in distress. But it must be necessity. Thus in Phelps v. Auldjo (2 Camp., 350), where the master of a vessel went out of a harbor by order of the captain of a frigate lying near, to examine a strange sail, Lord ELLENBOROUGH ruled it to be a deviation, remarking that if he had gone by compulsion, or under threat, or just fear of violence, it would not have been so. No necessity is shown for the vessel in this case to go out of the limits of the port of New York. Apparently she could have been tested as well by going down the bay to Staten Island as by going to Elizabeth. She did not go out into the broad ocean, as it appears that her voyage was inside the Hook. The opportunity to test her fitness for the sea could have been perfectly attained without going to another port, in another State, at a distance of eighteen or twenty miles. On this point, as well as the supplying her with coal, there is not the slightest evidence of a necessity for leaving the port of New York. The contract bound her to remain in the port *Page 585 of New York, "at New York," until she should take her departure "from New York to Havana." (See authorities supra.) This contract was violated by the deviation to Elizabeth, without compulsion or necessity, and the responsibility of the underwriter thereupon ceased.

Judgment should be reversed and a new trial ordered, costs to abide the event.

All concur.

Judgment reversed.