Absent. . . . . Marshall, chief justice.
ERROR to the Circuit Court for the district of of Maryland, in an action of covenant brought by Le Roy and others, against the Maryland Insurance Company, upon a policy of insurance upon the Ship John, from New York to five ports on the coast of "Africa, between " Castle D'Elmina and Cape Lopez, including those "ports, and at and from them, or either of them, back to "New York with liberties as per order for insurance."
The order of insurance was as follows, viz: "At "what rate will you insure three thousand five hundred "dollars upon freight of the ship John of New York, "valued at that sum, at and from New York to Castle "D'Elmina, on the gold coast of Africa, with liberty "for the vessel to touch at the Cape de Verd Islands for "the purchase of stock, such as hogs, goats and poultry "and taking in water?
" Also, nine thousand dollars on the American ship "John, valued at this sum; and eleven thousand eight "hundred dollars on cargo by said ship consisting of "wine, rum, beef, geneva, dry goods, tobacco, molasses, "c. at and from New York to five ports on the "coast of Africa, between Castle D'Elmina and Cape "Lopez, including those ports, with liberty of touching "and trading at all, or any of said ports, backwards "and forwards, and at and from her last port on the "coast, to New York, with liberty of touching at the " Cape de Verds on her return passage, for stock and "take in water. It is understood that the captain returning "to one or more ports that he had touched and "traded at before, shall not be considered a deviation. "The John was ready and expected to sail the 13th "inst. There are no cantraband goods on board, and "the ship is armed with eight carriage guns, with ammunition "in proportion, and is an excellent vessel and "captain Lawrence, who commands her, is a native of "New York, well asquainted on the coast of Africa, "and has been at most of the places it is intended the "vessel is to stop at, and is a careful experienced seaman."
The declaration was for a total loss by the perils of the sea. The cause was tried upon the issue of non infregit conventionem, and the verdict and judgment were for the Plaintiffs with 5476 dollars damages.
Upon the trial of this issue the Defendants (the Plaintiffs in error) took twelve bills of exceptions, but as the opinion of this Court was given upon the 7th only, it is deemed unnecessary to state the others.
1. The first bill of exceptions stated not only the facts which the Plaintiffs and Defendants offered to prove, but detailed at great length the testimony, and circumstances tending to prove those facts, or from which they might be inferred. Among other facts it stated that the ship, in the prosecution of her voyage arrived at the island of Fogo, one of the Cape de Verd Islands, on the 7th of May, 1805, where the captain received on board four bullocks and four jack-asses, besides water and other provisions, and unstowed the dry goods and broke open two bales and took out 40 pieces of each for trade. That the ship remained there until the 24th of May. That the time generally employed by a vessel in taking in stock and water at the Cape de Verd Islands is from two to three days unless the weather should be very unfavorable; that the weather was good; and that the bullocks and jack-asses incumbered the deck much more than small stock would have done.
7. The 7th bill of exceptions stated that the Defendants gave in evidence all the facts detailed in the preceding bills of exceptions, and thereupon prayed the Court to direct the jury, that if they believe the same, then the taking the said jack-asses on board the said ship John, while she lay at the Island of Fogo, was not within the privilege allowed to the Plaintiffs in this cause to touch at the Cape de Verd Islands in the performance of the voyage insured for the purchase of stock and to take in water, and therefore vitiates the policy, which direction the Court refused to give; but the Court was of opinion, and accordingly directed the jury that the taking in the four jack-asses at the Isle of Fogo as aforesaid, did not avoid the policy, unless the risk was thereby increased; whereupon the counsel for the Defendants excepted.
All the Judges being present, JOHNSON J. delivered the opinion of the Court as follows:
In deciding on this cause the Court will confine itself to the case made out on the 7th exception. Its decision on the point presented by that exception disposes of the case finally.
The opinion prayed for was, that, by taking in, at Fogo, an additional cargo, not sanctioned by the contract of insurance, the insurers were discharged from their liability under the policy. The charge, delivered by the Court, was, that the subsequent liability of the underwriters must depend upon the question, whether any increase of risk resulted from the shipping of that additional cargo.
In this charge, this Court are of opinion, that the Court below erred.
The discharge of the underwriters from their liability in such cases, depends, not upon any supposed increase of risk, but wholly on the departure of the insured from the contract of insurance. The consequences of such violation of the contract are immaterial to its legal effect, as it is, per se, a discharge of the underwriters, and the law attaches no importance to the degree in cases of voluntary deviation; necessity alone can sanction a deviation in any case; and that deviation must be strictly commensurate with the vis major producing it. The case of Rayne and Bell has been cited as supporting a contrary doctrine.
Without being understood to acquiesce in the correctness of that decision, it may be remarked that the question was not, in that case, whether the lading, taken in at Gibralter, was within the terms of the policy, as in the present — but what acts were lawful to be done during the delay occasioned by a justifiable cause of deviation. On the contrary, the case of Sheriff and Potts was a case of voluntary departure from the stipulations of the policy, and the decision supports the opinion we now give. It may also be remarked, that, in the case of Rayne and Bell the notice which Lord Ellenborough takes of the case of Sheriff and Potts, virtually admits the doctrine upon which this Court founds its decision.
The terms of this policy so far as connected with this decision, are, "with liberty of touching at the Cape de "Verd Islands, on her outward passage, for stock, and "to take in water." Touching, in its nautical sense, is known to be the most restrictive word that can be adopted in such a case. Construing the license according to the subject matter, and in its necessary connection with the offer on the freight, it could mean no more than permission to provision the vessel with live stock, such as is usual on a voyage, and may be, procured at the Cape de Verds.
It might, indeed, admit of a doubt whether any of the larger animals used for food, were included within the policy. The words of the first offer certainly were intended to confine the permission to the smaller animals. Stock is a term of the most general import: In its present extended application, it would include a great variety of subjects that never could have entered into contemplation of the parties.
In what sense was the term used? Is the question to be decided: not what uses it might have been applied to in other contracts, or between other parties. The general want of precision in the language of maritime contracts, is an endless source of litigation among mercantile men. Courts of justice are therefore obliged to resort to such reasons as the nature, object and terms of the contract present, to determine the precise extent of the obligation of the parties.
We feel no inclination to add to the number of causes which vitiate a policy; but the amount of the premium depends upon such a variety of considerations, (as often suggested by caprice as by judgment,) that the contract, whatever it is, must be substantially adhered to.
Judgment reversed.