Graham v. Commercial Insurance 11 Johns. 352

J. Graham, and others, against The Commercial Insurance Company.

ALBANY,

August, 1814.

Insurance on cargo, “ at and from Carlskam to St. Petersiurgh.” The vessel sailed from Carlskam the 9th of Nop member, 1813, and meeting with adverse winds, &c. attempted to get into jRevel, as a place of safe ty; but finding it impracticable, she put into Port Baltic, on the 22d November Being informed that it would be impossible to reach Croncount °óf athe wind a.nd wcafavourab?™she oTthf htendiíw to go to Revet; but after suddenly the' ^weather anT'whiie’enl gir°ntonfhet0 thisMpstawk’ was list.1’3 ¡ft was held, that the captain, having acted bona fide, and according to his best judgment, his going into Port Baltic, and afterwards attempting to get into favelt was justifiable, and not a tieviaiion.

THIS was an action on a policy of insurance on cargo, on board of the American brig African, “ at and from Carlsham to St. PetersburghThe plaintiff claimed a total loss, which was averred to have happened, by the perils of the sea, while the vessel was in the due prosecution of her voyage to St. Petersburgh. The cause was tried at the New-York sittings, in November, 1813, before the Chief Justice.

The plaintiff’s counsel having read the depositions of the master and supercargo, the defendants’ counsel stated their defence to be, that the African ought to have wintered at Port Baltic ; and that the voyage from thence to Revel, in which she was. lost, was a deviation.

The master deposed, that he sailed from Carlsham, in Sweden, x r* on the 9th November, 1810, m the African, bound to (St. Peters-burgh. When he sailed from Carlsham he took on board a pilot for Petersburgh. The ship encountered adverse winds, frequent falls of snow, and heavy squalls, until the 20th November; the next day he made the Dangarot, and afterwards the lights on Odesholm, and at midnight the light on Surp ; but the weather becoming so cold, and the sails and rigging so much covered with ice, .and the wind gro wing unfavourable, that it was thought prudent to make a port for shelter, and several tacks were accordingly made, to gét into the bay of Revel; but finding it impossible to get in before night, it was thought most prudent to bear away for Port Baltic, distant about 10 miles, *353off which they came to anchor on the 22d November. The supercargo went on shore, and learning, on inquiry, that it would be impossible to get to Cronstadt, on account of the obslruction of the ice, it was determined to proceed to Revel, which is about 25 miles from Port Baltic, and in the route to Cronstadt. On the 23d of November, there being a moderate breeze from the southwest, and fine weather, the ship got under weigh, and stood out to sea. In the afternoon of the next day, the wind began to blow fresh, so as to oblige them to close reef their top-sails, and increased till four the next morning, with hard squalls, attended with snow and sleet. The gale continued to increase, and about seven A. 3VL, by the direction of the pilot, they wore the ship, and stood in for Revel bay. Being deceived, by the thickness of the weather, as to the distances, the ship got aground on a shoal running off Surp point.. Exertions were made to get off the ship ; but the gale increasing, with heavy seas, she filled with water, and the crew, with some difficulty, left her in the boat. The master deposed, that the sole reason for proceeding to Revel, was because the supercargo had ascertained that she could not get to Cronstadt that season, on account of the ice; and had"not that been the case, it was the intention of the supercargo to proceed direct from Port Baltic to Cronstadt. That when the ship left Port Baltic, it was determined to go to Revel, and there deliver the cargo, that it might be transported from thence to St. Peters-burgh ; but if there had been no obstructions to the navigation by the ice, the vessel would not have lauded the cargo at Revel, but have proceeded to Cronstadt. Thai there is no port or place of delivery for Petersburgh, nearer to Cronstadt than Revel; and that it is very common for vessels bound to St. Petersburgh to deliver their cargoes there, when the navigation of the Gulf of Finland is obstructed by ice. That at the time the African was there, six American vessels, bound to Si. Petersburgh, put into Revel, and discharged their cargoes. That when the African arrived at Revel, the Gulf of Finland was closed by the íce, so as entirely to interrupt the navigation as far down as the eastern part of the island of Narjou, which forms the boundary of the bay of Revel. There is good anchorage at Port Baltic, which is used as a king’s port, and vessels occasionally winter there, but never when they can got into Revel, which is a port of entry, and the usual place;*354of landing cargoes. The little settlement bearing the name of port Baipic contains no more than ten or twelve small houses ; but no stores or warehouses; nor is it a place of delivery.

The deposition of the supercargo was substantially the same as that of the master.

The defendants’ counsel read in evidence the depositions off two masters of vessels, who had been in the Baltic and Gulf of Finland, who said,that at the time the African entered Port Baltic, had they gone there on account of the ice, they should have wintered there. One of them said, a vessel proceeding from Port Baltic for Cronstadt, would not stand in for Revel, and that if she did, she would be entirely out of the track for Cronstadt, and that the place' where the African went aground was out of the usual track; that Revel is a dangerous port to enter, but when entered, is the best port in the Gulf of Finland.

The chief justice charged the jury that if-they believed that the captain acted in good faith, in leaving Port Baltic for Revel, he was justifiable in doing so; and then the passage thither, on which the vessel was lost, would not, under the circumstances of the case, amount to a deviation ; and the jury, thereupon, found a verdict for the plaintiffs for a total loss.

A motion was made to set aside the verdict, and for a new-trial.

Wells, for the defendants.

The only question is, whether there was a deviation. Revel was not a port mentioned in the policy, nor a port of necessity. In order to justify stopping at an intermediate port, there must be either a necessity for doing so, or a usage of trade. When the vessel arrived at Port Baltic, which we admit was a port of necessity, it was ascertained that it was impracticable to reach Cronstadt, the port of delivery, and the cargo might then have been landed at Port Baltic, and sent on to St, Petersburgh, or the vessel, after wintering at Port Baltic, might have proceeded, in the spring, when. the navigation was safe, to St. Petersburgh, her port of destination. The cause or necessity which forced the Af rican to seek safety in Port Baltic, continued, and she ought not to have left it merely to seek another port of necessity. If this should be allowed, a vessel might, without any justifiable cause, encounter the same perils, a second or third time, and, under the pretext of a port éf neeessity, go in search of a market. R&tlel *355was not a port or place in the voyage insured, and there was no reason for going there, unless for the sake of disposing of the cargo.

In Parkin v. Tunno, * the vessel was insured at and from Bristol to Montevideo, and any other port or ports in the river Plata, in possession of the English. On arriving in the Plata, all the places there, except Maldonado, were in possession of the enemy, and the English commander, on account of the situation of the English, ordered the vessel immediately away, and being short of Avater, and wanting repairs, she bore aAvay for Rio Janeiro, as the nearest friendly port of safety, and in going there rvas lost; ,the court of K. B. held that the policy could not be extended, by implication, to cover the ship in her voyage to Rio Janeiro, though it was necessary tojgo there.

So here, the specific voyage insured is from Carlsham to St. Petersburgh ; and the ship cannot be alloAved to coast along the Gulf of Finland, from port ,to port. If she is allowed to go to Revel, because it is near to •St. Petersburgh, she might afterwards go, for the same reason, to Narva; and thus, instead of a direct voyage to St. Petersburgh, she might go, from port to port, along the coast of the Gulf of Finland, and thereby greatly enhance the risks of the voyage. This loss has arisen, not on the voyage insured, but on a voyage from Port Baltic to Revel.

Suppose a vessel insured from Charleston to Philadelphia, and, on arriving at the mouth of the Delaware, should find the river so stopped with ice, as to render it impracticable to reach her port of destination, and should put into New-York, Avould she be covered by the policy, in afterwards going from New-York to New-London, or Baltimore ?

Colden, contra.

Port Bailie is a small place, and not a port of entry or delivery; there are no warehouses there to receive cargoes. Revel is the best port in the Baltic, though somewhat difficult to enter. It is the nearest port to St. Petersburgh; and in case a vessel cannot get to St. Petersburgh, she may deliver her cargo there. If driven by a storm into Port Baltic, and the winds and Aveather afterwards became favourable to proceed on her voyage to St. Petersburgh, she would be justified in leaving Port Baltic, for that purpose.

*356If the African had remained at Port Bailie until spring, and afterwards had been lost in going to Pctcrsburgh, the defendants would then have objected that there was a deviation, by reason °f the delay, and that she ought to have gone to Revel, and there delivered her cargo. She did, in fact, attempt to reach Revel first, but Avas compelled to go into Port Baltic. The captain acted Avith good faith ; and had he reached Revel, in the first instance, Avould it have been pretended that it Avas a deviation ?

Again, the situation of Revel, and the usage of the trade, in regard to that port, as Avell as Port Baltic, justifies the conduct of the master.*

The cage of Parkin v. Tunno is very different from the present. The vessel, in that case, did arrive at Maldonado, a port in the Plata, and she afterwards attempted to prolong her,voyage by going to a place entirely out of its route. But here Revel is in the usual route to St. Petersburgh.

Take the case put by the defendants’ counsel, and suppose a . vessel bound to Philadelphia, stopped by the ice, should go to Wilmington, as a place of. necessity, and finding afterwards that she could go on to a place much nearer to Philadelphia, should leave Wilmington to go to Newcastle, and should be lost, Avould not the insured be entitled to recover ?

Wells, in reply,

said that if a map or chart of the Gulf of Finland Avas examined, it Avould be found that a vessel going into Revel is as much out of the direct and proper route to St. Petersburgh, as a vessel, bound from Charleston to Boston Avould be, if she put into Nem-Yorh or New-London.

There is a difference between a port of entry and a port of delivery, and the insured might have entered the vessel at Revel, Avhile at Port Baltic, and obtained a permit to land her cargo at the latter place. But the defendants did not insure the entry or delivery of the cargo.