In neither of these cases, perhaps, could any question arise; but it is obvious, that in other cases, which come as it were, between these, there might be much difficulty in determining, whether the vessel sailed on the voyage proposed but with the intention to deviate, or upon a different voyage. We know of no rule or principle, which could always answer this question. It seems to be one of mixed law and fact. We should say in general, that if the proposed change in the voyage, was sufficient in extent, quantity, and importance, to make it a change of the whole voyage from the beginning, then there was an abandonment of the voyage intended and the substitution of another; for it is quite certain that if a vessel sails from the place at which the insurance should attach and the risk commence, but not on the voyage

ceed to Anholt or Memel. The vessel was lost before she arrived at Gottenburgh, The underwriters were held liable on the ground that there was a good inception of the voyage from H. to M., subject to be changed according as circumstances might require. A similar question was presented in Lawrence v. Ocean Ins. Co., 11 Johns. 241, under circumstances somewhat more favorable for the underwriters, but they were nevertheless held liable. The risk was "at and from New York to Gottenburgh, and at and from thence to a port in the Baltic." On arrival at G. the assured elected St. Petersburg as the ultimate port of destination, and sailed for the same, but being compelled to go into Carlsham, the vessel wintered there, and before leaving, the supercargo determined to go to Stockholm instead of to St. Petersburg, and sailed for that port. While on the route common to the two, the vessel was captured. The Supreme Court held that this was but an intended deviation, and not an abandonment of the voyage. Of the five judges who at that time constituted the court, one dissented, and one gave no opinion, not having heard the arguments. On appeal to the Court of Errors, in a case against another company, depending on the same facts, the decision of the Supreme Court was affirmed, Chancellor Kent, dissenting. New York Firem. Ins. Co. v. Lawrence, 14 Johns. 46.

In Stocker v. Harris, 3 Mass. 409, the ship, cargo, and freight were insured from Boston to the Canaries, at and from thence to any port or ports in Spanish America, in the Atlantic or Ethiopic Ocean, at and from thence to her port of discharge in the United States. After performing her outward voyage, the vessel cleared with a cargo for the Havana. On the passage, but before she had left the track she must have taken if coming to the United States, the vessel was captured. The underwriters were held not to be liable.

The case of Silva v. Low, 1 Johns. Cas. 184, where the voyage was from Wilmington to Falmouth, and the master before the vessel sailed declared his intention to put into New York for seamen, and the underwriters were accordingly discharged, is not in conflict with the cases above cited. It was so decided, not on the ground of a deviation, but because this intention was considered as showing either that the vessel was unseaworthy when she left Wilmington, or that the seamen were not shipped for the whole voyage.

insured, the policy does not attach. But, if the change be not enough for this, then it must be regarded only as an intention to deviate, which has no effect whatever upon the rights or obligations of either party, until it is carried into effect.

If the vessel sails with the intention not to go to the terminus to which she is insured, but to some other port or place, it would seem to be very difficult to construe this as a mere intention to deviate, or as any thing less than another voyage, although the vessel sail through much the larger part of her course in the direction which led to the proper terminus; although, perhaps even here, if the change took place only at a very short distance, the two ports being very near to each other, this might be construed as the same voyage, with an intention to deviate; but we should prefer the former construction even in this case.2 If the ship actually sails on the voyage intended, the fact that she cleared for a different voyage does not discharge the insurers.3

1 Sellar v. M'Vicar, 4 B. & P. 23. So, in Lippincourt v. La. Ins. Co., 2 La. 399, an insurance for six months trading between New Orleans, and any port in the West Indies, United States, or Gulf of Mexico, was held not to protect a voyage between the West Indies and a port in the United States other than New Orleans.

2 In Marine Ins. Co. v. Tucker, 3 Cranch, 357, Mr. Justice Johnson said: "The ordinary rule for ascertaining the identity of a voyage insured, is by adverting to the termini. A rule which is certainly correct as far as it extends, but in the rigid application of which, it is easy to conceive that cases may occur, in which it would bear injuriously upon the insurer. If it has any defect, it is in not extending far enough, the claim to indemnity, as the terminus ad quem may, in many instances, be relinquished without any possible increase of risk, or even without varying the risk, excepting only as to lessening its duration. I will instance the case of an insurance from America to St. Petersburg, when the vessel, in fact, is to terminate her voyage at Copenhagen; or the case of an insurance to Alexandria, in Virginia, when the vessel is to terminate her voyage at Georgetown, in Maryland." But see Marine Ins. Co. v. Stras, 1 Munf. 408, where the taking a return cargo to Norfolk, in Virginia, instead of to Richmond in the same State, which latter was her port of destination, was held a deviation.

* Planché v. Fletcher, 1 Doug. 251; Barnewall v. Church, 1 Caines, 217; Talcot v. Marine Ins. Co., 2 Johns. 130; McFee v. South Carolina Ins. Co., 2 McCord, 503. In Winter v. Delaware Mut. Ins. Co., 30 Penn. State, 334, the vessel was compelled to put into an intermediate port for repairs, and the master could only obtain money for that purpose by giving a bottomry bond payable on the arrival of the vessel at a port, other than that to which she was insured. She accordingly was repaired and sailed for the substituted port. It was held, that while she was still on the track to the original port of destination, there was merely an intention to deviate, and not an abandonment of

It may be added, that after a deviation has taken place, the forfeiture incurred by it may be waived by an agreement to that effect.1

the original voyage, if the jury should find that the intention was, after leaving the substituted port, to proceed to the original port of destination.

1 Warren v. Ocean Ins. Co., 16 Maine, 439; Crowningshield v. New York Ins. Co., 3 Johns. Cas. 142. In Glidden v. Manufacturers' Ins. Co., 1 Sumner, 232, the vessel was insured from Newcastle, Maine, to her port of discharge in Martinique, and at and from thence to her port of discharge in the United States. The vessel went to Mariegalante, took on board a return cargo and sailed for Damariscotta, Maine. She touched at St. Eustatia, and was afterwards lost on the way to Damariscotta. After it was known that the vessel had been at St. Eustatia, the following memorandum was added to the policy by consent: "It is now understood that the within insured vessel has been to St. Eustatia, and sailed thence for Boston about twenty-five days since, which deviation shall not prejudice the within insurance." Story, J., said: The question is, whether this memorandum helps the plaintiff's case. I am of opinion it does not. In the first place, it waives nothing more than the deviation from the voyage, by going to St. Eustatia, and not that by going to Mariegalante and not going to Martinique. In the next place, this waiver is only upon a statement in the memorandum, that the voyage was from St. Eustatia to Boston; whereas, it was in fact, to Damariscotta." It has been held, that if a vessel is insured after the voyage has commenced, but the risk is to begin from the commencement of the voyage, the underwriters are discharged by a deviation, although they knew of it when the policy was made. Redman v. Lowdon, 5 Taunt. 462, 1 Marsh. 136, 3 Camp. 503.

CHAPTER IX.

OF THE TERMINI OF THE VOYAGE, AND OF THE RISK.

SECTION I.

THAT THESE TERMINI MUST BE DISTINCTLY STATED.

IN the preceding chapter, we have seen the importance of ascertaining the termini of the voyage, because, on this, may sometimes depend the question of deviation. A more frequent reference to the termini is required for the purpose of deciding whether a loss has happened before, after, or during the voyage insured, or the risk insured against.

The first rule on this subject is, that the policy must state specifically what these termini are. Thus, a policy from

to

or from

and never attaches.

to A., or from A. to

is incomplete, So it would be, if the termini are named and described, but in such a way as has no meaning, or leaves a substantial doubt as to what is meant by the description.

1 Molloy, book 2, c. 7, § 14. See also, Manly v. United M. & F. Ins. Co., 9 Mass. 85, 89, per Sewall, J. In Folsom v. Merchants' Mut. M. Ins. Co., 38 Maine, 414, insurance was effected "on the outfits of schooner Pilot, for a fishing voyage to the Banks and back to a port of discharge in the United States." It was held, that though the commencement and termination of the risk were not distinctly stated, yet the policy was valid, if the intention of the parties could be satisfactorily gathered from its provisions, and that any obscurity could be removed by reference to the situation of the parties, and evidence that the vessel was at a certain port when the policy was executed, and there took on board the property insured and sailed from thence on the voyage, was admitted to determine the terminus a quo. In Cleveland v. Union Ins. Co., 8 Mass. 308, it was contended that the description "at and from Salem to any port or ports, place or places, backwards and forwards, round the globe, one or more

SECTION II.

OF THE COMMENCEMENT OF THE RISK.

To determine when the risk begins, the date of the policy is sometimes important; for it takes effect from that date, although the insurers do not deliver it to the insured until afterwards, if the contract were fully made at the time of the date.1

The insurers can, if such be the intention and agreement, make themselves responsible for a loss which has already happened when the policy is made, and even if that loss be total, so that the subject-matter of the insurance is then non-existent. This is usually done by the words, "lost or not lost," which are introduced into most policies; 2 but any language indicating the same purpose, would have the same effect. Nor is there any sufficient reason why this already existing loss should be wholly unknown to both parties. If known to the insured, he must of course communicate it; but then, if neither the amount, nor any circumstances which would determine the amount, are known, the insurers may, if they please, take this risk upon themselves.3 So, too, if insurance is effected on goods "lost or not lost," the underwriters are liable for a partial loss which took place before the insured acquired any interest in the goods. If a policy is to take effect on the occurrence of a certain event, it will attach, although the event has taken place before the date of the policy, if at the time of the date, the subject insured is in the condition described in the policy.5

times, during her stay and trade at all such places, until her return to her port of discharge in the United States," was too loose and indefinite, but the court held it to be sufficient.

1 See ante, p. 21, n. 2; p. 28, n. 5.

2 See ante, p. 77, n. 4.

3 Mead v. Davison, 3 A. & E. 303.

4 Sutherland v. Pratt, 11 M. & W. 296, Parke, B., said: "It operates just in the same way as if the plaintiff having purchased goods at sea, the defendant (the insurer), for a premium, had agreed, that if the goods had at the time of the purchase sustained any damage by perils of the sea, he would make it good."

5 Cobb v. New England Mutual M. Ins. Co., 6 Gray, 192. The insurance in this