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CHAPTER V.

OF THE VOYAGE AND ITS INCIDENTS.

Proceeding on the Voyage-Ports or Places of Call-Deviation.-1. From stress of weather; 2. For want of necessary repairs; 3. From illness of master or mariners; 4. Mutiny of crew; 5. Succouring ships in distress-Change of voyage-Collision. PROCEEDING ON THE VOYAGE.-The loading of the vessel having been fully completed, all the necessary papers and documents on board, the clearance or transire from the customs duly obtained, and the master furnished with copies of the charter-party, or memorandum of charter-party, and of the policies of insurance on both ship and goods, the master must, without delay, proceed on the intended voyage, but not so as to sail in stormy weather, or in an adverse wind. According to the modern practice, the master is the sole judge of the propriety of sailing; and, if a day is fixed in the charter-party or memorandum, for the ship's sailing,-either on or before, or not before, or not after,-the sailing on or before, or not before, or not after, that particular day, admits of a reasonable excuse. But, when similar terms are used in a policy of insurance, whether on ship or goods, these terms must be literally complied with, and the ship must have actually broken ground, and, being completely seaworthy in all respects, must have really proceeded on her voyage, on or before, and must not proceed after, the day named, or she must not sail before the day so fixed, according to the terms used. Here, a substantial compliance with these terms will not do; they must be complied with to the very letter; and, where the warranty or condition is, that the ship shall sail on or before a certain day, should she not sail, from whatever cause, on or before that day, in a fit condition to proceed to sea, and so, over the sea, to her port of destination, the insurances are void; and, in like manner, if the terms of the warranty are, that the ship shall not sail before, or not sail after a certain day—should she sail before that day in the one case, or after that day in the other, the policies, either on ship or goods, in these terms, will not attach. And, to comply with this warranty, the sailing must be a sailing with all things fully complete for the voyage; for, if the vessel is not then seaworthy in all respects for the voyage, as detailed in the preceding chapter, she sails in an unseaworthy state, in breach of the implied warranty of seaworthiness, and, consequently, neither the ship nor cargo is protected by the policies of insurance.

Thus, in a policy on sugar "at and from Tobago to London," the ship was warranted to sail on or before 10th August; on the 9th she took out her clearance for London, and on the 10th had finally completed her loading and got her passengers on board; she was then moored in Tobago Bay, with a bower and stream anchor, and there was no impediment to her sailing, had the wind permitted; in fact, on that day the stream, anchor was raised, some of the sails were set, and she moved forward about thirty fathoms, by heaving in about that length of the cable of the bower anchor; but the bower anchor was not raised, as a heavy swell was seen setting into the bay, and the master was fearful, if he departed on that day, the vessel would be lost in getting out; she therefore lay where she was till next morning, the 11th, and then got under weigh, and finally left the port, having had no communication with the shore after the morning of the 10th; but it was held, that, in order to comply with the warranty, the ship must be actually on her voyage on the day specified (Nelson v. Salvador, M. and M. 359). So also, where the policy was "at and from Portneuf (on the St Lawrence, about thirty miles above Quebec) to London," and a warranty to sail " on or before the 28th October;" on the 26th, the ship, having completed her loading at Portneuf, dropped down the river to Quebec, to obtain her clearance, with a crew not complete for her voyage across the Atlantic: on the evening of the 28th she arrived at Quebec, but the crew was not completed, nor the clearances obtained at the Quebec custom-house till the 29th, and she did not actually leave the port of Quebec till the 30th :—it was held that this was not a compliance with the warranty (Ridsdale v. Newenham, 3. M. and S. 456). And where, in a time policy, the ship was "warranted not to sail for British North America, after the 15th day of August; "the ship was then lying in the custom-house dock, Dublin, and on the 10th was chartered for a back voyage to Dublin; on the morning of the 15th, being then in all respects ready for sea, she was cleared at the custom-house, and, in the course of the same day, was hauled out of dock into the river Liffey, for the purpose of proceeding on her voyage to Quebec; on that day, however, the wind was blowing right up the river, dead against the ship; but, on the same day, she was warped down the river till the tide ebbed, and she took the ground; on the next day, the wind being still right against her, she was warped down to a point, beyond which she could make no further progress in that way, and where, at the ebb, she again took the ground; next day, the 17th, the wind shifted, and the ship immediately set sail, and put to sea on her voyage:-it was held, that the ship was in the prosecution of her voyage on the 15th August, having on that day made a movement

for the purpose of proceeding to sea (though in the river), and over the sea to North America (Cochrane v. Fisher, 5 Tyr. 496).

Where no particular course for the voyage is pointed out in the charter-party or in the policies of insurance, and where the voyage is merely stated to be,-from a port named, as the port of loading, or sailing, to another port named, as the port of destination or discharge, the master is not at liberty to take any course he may think proper, but he is bound to take the shortest and safest, and, at the same time, the usual and customary course, to the port of destination or discharge.

But, if a particular route or course is pointed out for the voyage, in the charter-party or in the policies, that route or course must be adhered to and followed, and any deviation from that route or course, not justified or rendered necessary by any of the causes, or for any of the purposes, to be afterwards mentioned, will render the shipowner liable for any subsequent loss of the cargo, or damage received by it, from whatever cause, and will also vitiate the insurances both on ship and goods. The course of the voyage pursued by the ship must be the course described, or, in other words, in this case the master must be guided in this course by the directions in the charter-party or policies of insurance; and hence the necessity of his being furnished with copies of the charter-party and of these policies.

It may have been agreed in the charter-party or stipulated in the policies of insurance, that the ship is to call, or to have leave to call, at certain ports or places in the course of her voyage; and, hence, the next consideration is-the

PORTS OR PLACES OF CALL.-Here two general rules must be attended to:-If these ports or places of call are enumerated in the charter-party or policies, then these ports or places of call must be taken in the order in which they are so enumerated, whether that be in their geographical order or not: But, if the liberty is general,― with leave to call at all or any ports or places,-then these ports or places must be taken in the geographical order in which they occur in the course of that voyage. And there is another rule applicable to both :-if any one port or place of call is not visited in the due course of the voyage, but the subsequent ports or places of call are duly visited in their order, as named,—or, if not named, in their geographical order, then, the omitted port or place cannot be visited at a subsequent stage of the voyage, without this being deemed a deviation. An example or two will make these rules plain :

Thus, in one case, on the first point, a ship was insured from "Carron to Hull, with liberty to call at Leith,”—the usual practice was for vessels in that trade to call at different places going down

the Forth, and taking in and delivering goods, as at Borrowstonness, Leith, and Morrison's Haven; and, in this case, the broker was instructed to insure the goods, with liberty to call as usual, but the policy was effected in the above terms, "with liberty to call at Leith;" the ship sailed on her voyage, and, passing by Leith, without calling there, put into Morrison's Haven; and, having got safe in and out, again resumed the direct course of her voyage from Carron to Hull, when she was overtaken by a storm, and wrecked on the coast of Northumberland, with a total loss of the cargo:-it was held in the House of Lords, that the ship's putting into a port when she had no liberty to do so, but, on the contrary, express permission was given her to put into a named port, thereby discharged the underwriters (Elliott v. Wilson, 7 Brown's P.C. 459). And, where a ship was insured, "at and from Fisherrow to Gottenburgh, and back to Leith and Cockenzie," and after having performed her outward voyage, she sailed from Gottenburgh on her homeward voyage, having goods on board both for Leith and Cockenzie; in the geographical order, Cockenzie lies nearer Gottenburgh than Leith, and lies about a mile and a half out of the direct course between the two ports; it is a much less convenient harbour than Leith, and there did not appear to be any settled course of trade regulating the order of sailing to the two places, on a voyage such as that insured; without going first to Leith, the ship put into Cockenzie, and, in coming out, was stranded and lost :—it was held that, as the termini of the intended voyage were in terms described in the policy, and as there was no regular and settled course known to all traders, different from that so described, the underwriter was discharged (Beatson v. Haworth, 6 T.R. 531).

So, where a ship was insured "at and from London to Trinidad," with liberty to call at all or any of the West India islands and settlements; it was held, that the liberty of calling must be confined to places taken in the direct and customary course between the termini of the voyage insured, and, therefore, could not be held to protect the ship, after having once sailed southward as far as Demerara, on then sailing northward to Martinique and St Thomas's, unless satisfactory evidence was given that such was the customary course in these voyages as that insured (Gardner v. Senhouse, 3 Taunt. 16). And where a ship was insured from Liverpool to Palermo, Messina, and Naples, the true construction of the policy was held to be, that the insured might drop any of the places named, but that, if he went to more than one, he must take them in the order named in the policy (Marsden v. Reid, 3 East. 572).

It is implied in this liberty to call at ports or places in the course of the voyage, that the so calling must be for some purpose or ob

ject in connexion with the general scope or ultimate termination of that voyage, and not for any purpose or object altogether unconnected. And, therefore, where a ship was insured on a voyage “at and from Para to New York," during her stay there, and at and from thence to Para, with leave to call at all or any of the Windward or Leeward islands on her passage to New York, with leave to discharge, &c., at any ports or places she might call at or proceed to, particularly at all or any of the Windward and Leeward islands, without being deemed any deviation; after sailing from Para, on her passage to New York, the ship put into St Thomas's and St Bartholomew's, two of the Leeward islands, not for any purpose connected with the voyage insured, but in order to obtain information for the shipowner, as to the state of the market in these islands :it was held that, though these islands were within the scope of the adventure, yet putting into them for a purpose wholly unconnected with the voyage insured, and which had reference to a new adventure, to be subsequently undertaken in another ship, vitiated the policy (Hammond v. Reid, 4 B and A. 72).

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DEVIATION.-A deviation from the ordinay and usual course of the voyage, must be distinguished from a change of the voyage-the former being made, voluntarily or necessarily, in the course of the original voyage, while the commencement and termination of that voyage may remain the same; but the latter being the substitution of a new and different voyage or route for the one originally specified or agreed on, and the determination so to change the voyage, must, in the general case, have been resolved upon, previous to the sailing of the ship.

A deviation voluntarily made without any justifying cause, not only discharges the underwriters from the time or point at which the deviation takes place, but it renders the master and owner liable for all the subsequent loss or damage the goods may sustain; and, if there has been a time fixed by the charter-party, for the ship's being ready at an appointed place, to receive her cargo, but, in consequence of a voluntary deviation on the outward voyage, she is not at the port of loading by the agreed on time, the freighter has it in his option to put an end to the contract;, and, in any view, the owner is liable to him in damages.

In reference to this liability of the owner to the freighter, the following cases may serve as an illustration :-A ship was chartered for a voyage from London to the Cape of Good Hope, and thence to Bombay and back; having arrived at the Cape and delivered goods there, (which could have been done in two days,) he remained there ten days, taking in cattle for the Mauritius,

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