Hughes v. The Union Insurance Company
ERROR to the circuit court for the district of Maryland.
THIS was an action of assumpsit brought on a policy insuring the ship Henry, and her freight, 'at and from Teneriffe to the Havanna, and at and from thence to New-York, with liberty to stop at Matanzas.' At the trial the plaintiff gave in evidence the representation on which the policy was made, which contained this expression: 'We are to stop at Matanzas to know if there are any men of war off the Havanna.' The vessel sailed from Teneriffe on the 7th of April, 1807, and on the 7th of June following, put into Matanzas, in the island of Cuba, to avoid British cruizers, who were then cruizing on her way to, and off the port of, Havanna, and who were then in the practice of capturing American vessels sailing from one Spanish port to another. On the 6th of July, as soon as the passage was clear, she proceeded to the Havanna, whence, on the 14th of July, she sailed on her voyage to New-York. On the 28th of that month she foundered at sea, and was totally lost. The action was for the insurance on the vessel and freight from the Havanna. The underwriters gave in evidence, that while at Matanzas she unladed her cargo, and insisted that this was a deviation, by which they were discharged. To repel this evidence, the plaintiffs showed that the stopping and delay at Matanzas were necessary to avoid capture, and, therefore, allowed by the policy; that no delay was occasioned by discharging the cargo; that the risk was not increased, but diminished by it; and that an order from the Spanish government had made this act necessary.
The court instructed the jury, that unlading the cargo at Matanzas was a deviation which discharged the underwriters, unless it was rendered necessary by the order of the Spanish government at the Havanna. That in this case the order did not justify such unlading, and that the underwriters were, consequently, discharged. Under these directions the jury found a verdict for the defendants. The plaintiff having excepted to the opinion of the court, the judgment which was rendered in favour of the defendants was brought before this court on writ of error.
Mr. Harper, for the plaintiff, argued, that the unlading at Matanzas was by a mandate, and not a permission from the Spanish government, which being a vis major, excused the master. That in this case the risk was not increased but diminished, by stopping at Matanzas. Neither party is at liberty to vary the risk; but this rule applies to cases where the change may produce some inconvenience to the insurer, not where it does actually produce it merely. Unnecessary deviation always discharges the underwriters, because it may increase the risk. But here the policy permitted the stopping and delay at Matanzas; and the risk not only could not be increased, but was actually diminished by discharging the cargo, and proceeding with the vessel close along the shore to the Havanna. This doctrine is not impugned, in the Maryland Insurance Company v. Le Roy et al.  That case went on the ground of variation from the terms of the policy. The taking on board the jack asses might have increased the risk; but whether in point of fact it did, or not, the court said was immaterial. But in the present case there is no variation from the terms of the contract; the risk neither was, nor could be, increased, by unlading the cargo. In Raine v. Bell,  the court of K. B. determined that a ship may trade at a port where she has liberty to touch and stay, provided this occasions no delay, nor any increase or alteration of the risk. It has also been held in the courts of our own country, that selling a part of the cargo during a necessary detention, does not discharge the insurers.
Mr. Winder, and Mr. Jones, contra, argued, that the proceedings of the Spanish authorities were a mere permission, which the party might use or not at his pleasure, and not an imperious mandate which he was compelled to obey. It is an elementary principle of insurance law, that whether the deviation increase the risk or not, it discharges the underwriters.  The case of the Maryland Insurance Company v. Le Roy et al. illustrates the rule, and the jury there found that taking on board the jackasses did not increase the risk. Discharging the cargo at a place where permission is only given to touch, is a deviation,  It is immaterial whether the risk be increased, or diminished, or remain the same in quantum. In Raine v. Bell, the jury found that the vessel would have otherwise been necessarily detained while she was taking in the cargo; and that case proves nothing more than that, while so detained, the master may take in cargo, but not break bulk. Staying to unlade increases the risk; but taking cargo on board, while necessarily detained, does not increase or alter the risk.
Mr. D. B. Ogden, in reply, contended that the question was whether during the necessary detention of the vessel the master had a right to land the cargo. The authority of Kane v. The Columbia Insurance Company is conclusive to show that he had. If according to cargo at a port of necessity, neither is it a deviation to land the cargo at a port of necessity. The case of the Maryland Insurance Company v. Le Roy, et al. is distinguishable. Where the master deviates from necessity, his subsequent conduct, if bona fide, cannot discharge the insurers. But in this case he acted in good faith for the benefit of all parties.
Mr. Chief Justice MARSHALL delivered the opinion of the court, and after stating the facts, proceeded as follows:
^1 7 Cranch, 26.
^2 9 East, 195. Marshall on Ins. App. No. VIII. 834. a.
^3 1 Emerigon, Des Assurances, 558. 1 Marshall on Ins. 185. et infra.
^4 Marshall on Ins. 208. 275, and the cases there collected.