OF ALEXAN

DRIA

V.

MA. IN. Co. plaintiffs received that letter. On the 26th of November, they offered to abandon the vessel to the underwriters, who refused the offer. Upon this state of facts, the J. AND J. H. defendants moved the court, to instruct the jury, not to find a verdict for a total, but, at most, for a partial loss, which instruction the court refused to give, and the defendants took their bill of exceptions.

TUCKER.

The second bill of exceptions, did not vary the material facts above stated, but alleged that the vessel sailed from Kingston, with an intention of going to Alexandria, but, also, with an intention of touching first at Baltimore, and there delivering part of her cargo, and from thence to Alexandria. That while prosecuting her voyage, with that intent, and while in the direct course, both to Baltimore and Alexandria, and before she arrived at the dividing point, between Baltimore and Alexandria, she was captured, &c. Whereupon, the plaintiffs prayed the court to instruct the jury, that there was no deviation at the time of the capture, and that the voyage insured, was actually commenced; which instruction the court gave as prayed, and the defendants took their second bill of exceptions.

The third exception was, to the refusal of the court to instruct the jury, that the loss of the register, by means of the capture, and recapture, was not sufficient, in law, to defeat the voyage; but that the loss of that document, might be supplied by special documents of public officers, setting forth the circumstances of the loss, so that the vessel might have prosecuted that voyage, without seizure and confiscation, under the laws of Great Britain, for want of a British register.

E. J. Lee, for the plaintiffs in error.

1. The voyage insured was never commenced; and the vessel was not in the prosecution of that voyage, at the time of her capture.

2. The plaintiffs cannot recover for a total loss. If there was, in fact, a total loss, it was caused by the misconduct, or neglect, of the plaintiffs, or their agents, in not doing the best in their power, for all concerned.

3. The plaintiffs had not a right to abandon at the MA. IN. Co. time when they offered to abandon. OF ALEXANDRIA V.

4. The loss of the register was not equivalent to the J. AND J. H. loss of the vessel.

5. The not communicating to the underwriters, the intention of going to, or touching at, Baltimore, was such a concealment as vacated the policy.

1st. Was there an inception of the voyage insured?

The contract of insurance is founded on good faith, and must express the intention of the contracting parties. The object of a policy is, to reduce to certainty, and to preserve unaltered, what each party engages to perform. The voyage insured, must be truly and accurately described, as to the time and place at which the risk is to commence, the place of departure, and the place, or places, of destination.

Every circumstance relating to the voyage must be stated with the greatest regard to truth. When, therefore, it is intended that the vessel shall touch at an intermediate port, or ports, it must be stated in the policy. Marshall on Insurance, 227.

This minuteness of description must have for its object the protection of underwriters, from those frauds to which they are exposed, by their unfavoura ble situation for obtaining correct information. But this object will be defeated, if the insured are not bound to commence and prosecute the voyage described in the policy.

The voyage insured was from Kingston to Alexandria. The vessel was bound to sail directly to Alexandria, as her only port of destination, with all convenient dispatch, in the regular and usual course from the one place to the other. If she sailed with a determination to go first to Baltimore, and there deliver a cargo of 30 hogsheads of sugar, and afterwards to come from Baltimore to Alexandria, she did not com.

TUCKER.

OF ALEXAN

MA. IN. Co. mence, and was not lost in the prosecution of the voy. age described in the policy. If the voyage commenced was not in every respect the same with that insured, the J. AND J. H. underwriters are not liable. TUCKER.

DRIA
V.

The voyage commenced was not a voyage from Kingston to Alexandria, but a voyage from Kingston to Baltimore, and from Baltimore to Alexandria.

It is an uncontroverted principle of marine law, that if the voyage is changed, or not performed in the manner described in the policy, the policy does not attach. This principle is established hv the case of Wooldridge v. Boydell, Doug. 16.

This is not a case of deviation, but of non-inception. In cases of deviation the termini are the same. But it is immaterial whether the termination of the voyage commenced is the same with that insured, when the vessel, in fact and in truth, sails directly for a port not mentioned in the policy, nor contemplated by the parties at the time the insurance was made. If the vessel in this case had commenced a voyage for Baltimore, but with an intention to touch at Alexandria, in her way to Baltimore, it would not have been the voyage insured. So if the captain was under an engagement, when he sailed from Jamaica, to go to Baltimore at all cvents, before he came to Alexandria.

The termination of the voyage commenced was Baltimore and Alexandria. The vessel was obliged to come to both places. The termini of the voyage were not those described in the policy.

The necessity of commencing and performing the precise voyage described in the policy, is further proved by the opinion given in, the case of Beatson v. Haworth, 6 T. R. 531, where it is decided, that if a vessel is insured to several ports, she must pursue the order in which the places are named in the policy.

In the case of Way v. Modigliani, 2 T. R. 30, the question was, whether the policy ever attached; and, if it did, whether it was not discharged by the vessel's

DRIA
V.

TUCKER.

not sailing upon the precise voyage insured. The case MA, IN. Co. was this: a ship was insured" at and from the 20th of OF ALEXANOctober, 1786, from any ports in Newfoundland to Falmouth, or her ports of discharge in the channel." J. AND J. H. On the 1st of October the ship left Newfoundland, and went to the Banks, fished there until the 7th, and then sailed from the Banks to England; and on the 30th of November, while in the direct track from Newfoundland to England, she was lost. She left Newfoundland for the Banks long before the policy attached, and although on the 20th of October she was in the direct course from Newfoundland to England, and so continued until she was lost, yet because she sailed from Newfoundland with an intention of going to the Banks, and from thence to England, and actually carried that intention partially into effect, it was determined that the policy did not attach, and that the voyage insured was not commenced. The partial execution of the intent cannot vary the principle, and was not relied upon in that case.

BULLER, J. said, "The first is the substantial ground, namely, that the policy never attached at all. Where a policy is made in such terms as the present, to insure a vessel from one port to another, she must have sailed on the voyage insured, and not on any other. The voyage insured is from a port in Newfoundland to England, whereas the vessel sailed to the Banks, which was a different voyage. This point has been already decided by the case of Wooldridge v. Boydell, where it was held, that if a ship, insured for one voyage, sail upon another, although in the same track part of the way, and she be taken before the dividing point between the two voyages, the policy is discharged. That was a stronger case than the present, for there the very intention of sailing upon a voyage different from that insured, vacated the policy."

The actual sailing to a port is only one mode of proving the sailing with an intention of going to that port. If the intention is proved, it is not material by what means. Marshall, 406, (note.) If the voyage is changed, the policy is vacated.

V.

MA. IN. Co. A voyage may be changed by taking on board a conOF ALEXAN- signment to a different port; and the consignment will DRIA be evidence of the change. Or it may be changed by J. AND J. H. varying the plan of the adventure before the commencement of the risk; but a deviation takes place in the execution of the original plan. Therefore, an intention to alter the voyage will destroy the contract. Millar, 431.

TUCKER.

To vary in the smallest particular from the original plan of the voyage, constitutes an alteration. Millar,

392.

In the present case the plan of the voyage was fixed by the policy, and on the 10th of August the vessel had actually cleared out with an intent to pursue it; after which, she discharged her ballast, and took in 30 hogsheads of sugar, to be delivered in Baltimore. This not only altered the original plan of the voyage, but increased the risk of capture, by increasing the value of the prize.

The case of Stot v. Vaughan, cited in Marshall, 232, 4 Williams' cases, 296, determined by Lord Kenyon, is in favour of the underwriters upon this point.

The case of Kewley v. Ryan, 2 H. Bl. 343, is the only one which has the appearance of opposition. But that case will be found to be unlike the present, in the following particulars:

1. In Kewley & Ryan the vessel sailed from Grenada for Liverpool, which was the voyage insured, but with an intention to touch at Cork, which was in the usual course from Grenada to Liverpool. But, in the present case, the vessel sailed for Baltimore, with an intention to come round to Alexandria from Baltimore, which is not in the course from Kingston to Alexandria.

2. In Kewley v. Ryan the vessel intended only to touch at Cork; but, in the case at bar, the vessel sailed on a trading voyage for Baltimore. Stitt v. War dell, 2 Esp. Rep. 610.