BRIG

2.

itude and longitude of the vessel when she bore away, J's. WELLS given in evidence so as to enable the Court to judge. In short, had the original destination been to the WestU.STATES. Indies, and this known to the crew, it would be difficult to fix perjury upon any one of those who have given evidence in this cause.

In such a case, where no presumption can, or ought to be made in favor of the owner of the vessel, and with so strong a temptation as he had to violate the law-her condemnation is inevitable.

The discharge

on board an

Absent.....Marshall, chief justice.

ERROR to the Circuit Court for the district of of underwrit of Maryland, in an action of covenant brought by Le ers from their liability, in Roy and others, against the Maryland Insurance Company, case of taking upon a policy of insurance upon the Ship John, from additional car- New York to five ports on the coast of "Africa, bego, not autho- tween Castle D'Elmina and Cape Lopez, including those rised by the "ports, and at and from them, or either of them, back to policy, depends, not up- New York with liberties as per order for insurance."

on any suppos-
ed increase of
risk. but whol-

ly on the de-
parture of the
insured from
the contract
of insurance.
The conse-
quences of

such a violation

of the contract

are immaterial

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 MARY'D. “John, valued at this sum; and eleven thousand eight INSU"hundred dollars on cargo by said ship consisting of RANCE CO. ❝ wine, rum, beef, geneva, dry goods, tobacco, mo

V.

LE ROY &

and the law

attaches no im

cases of volun

lasses, &c. at and from New York to five ports on the OTHERS. "coast of Africa, between Castle D'Elmina and Cape. "Lopez, including those ports, with liberty of touching to its legal ef"and trading at all, or any of said ports, backwards feet, as it is, “and forwards, and at and from her last port on the Perse, at the charge of the "coast, to New York, with liberty of touching at the underwriters; "Cape de Verds on her return passage, for stock and "take in water. It is understood that the captain re- portance to “turning to one or more ports that he had touched and the degree, in "traded at before, shall not be considered a deviation. tary deviation. “The John was ready and expected to sail the 13th Necessity "inst. There are no cantraband goods on board, and tion a deviation "the ship is armed with eight carriage guns, with am- in any case; "munition in proportion, and is an excellent vessel and and that devicaptain Lawrence, who commands her, is a native of strictly com"New York, well acquainted on the coast of Africa, mensurate "and has been at most of the places it is intended the major produc"vessel is to stop at, and is a careful experienced sea- ing it. "man."

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

alone can sane

ation must be

with the vis

INSURANCE CO. 0.

MARY'D. 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 LE ROY & 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.

OTHERS.

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.

MARTIN, for Plaintiff's in error,

As to the 7th exception, contended, that the liberty to touch at the Cape de Verds to purchase stock and take in water, did not authorize the taking the jack-asses on board. The natural tendency was to increase the riskand it was immaterial whether the risk was in fact in creased.

WINDER, Contra.

The question upon the 7th bill of exceptions is only whether the Court did right in leaving it to the jury to decide whether the risk was increased by taking in the jack-asses. It is like the case of Livingston and al. v. The Maryland Insurance Company, 6, Cranch 274, where this Court decided that the question whether a fact was material to the risk was a question to be decided by a jury under the direction of a Court.

HARPER, on the same side.

As to the 7th bill of exceptions, contended, that it was a question of fact to be decided by the jury, whether the taking in the jack-asses increased the risk. This Court has so decided in the case already alluded to of Livingston v. The Maryland Insurance Company. The principle of the case of Rayne v. Bell, is, that there was no increase of risk and no delay. The case of Sheriff v. Potts, is overruled by that of Rayne v. Bell. But the license to take in stock included jack-asses.

PINKNEY, Attorney General in reply,

The 7th bill of exceptions states in effect that the Court refused to say that the taking in of the jack-asses discharged the underwriters, although it might produce delay. It is not stated that it did not produce delay; and the evidence shows that it did. The principle of deviation is not increase of risk, but delay. If therefore here was any delay, the policy was void from that time.

But it is said they had license to take in jack-asses, because they were stock. But the order for insurance upon the vessel refers to the preceding order for insurance on the freight, which was written on the same paper, and connected by the word "also." In the order for insurance upon the freight, the stock is particularly stated to be "such as hogs, goats and poultry." They could no more take jack-assess under this license, than they could take plows, horses, carts, or goods and merchandize, which are also stock.

The ship had a special license to touch for a special purpose, and Expressio unius est exclusio alterius. The contract of insurance is upon a voyage specific as to its nature, destination, &c. If the act done be calculated to tend to encrease the risk, it is immaterial whether the risk be actually increased. The case of Rayne and Bell, in 9 East, 195, in some respects is not law-but in this respect it is good law and supported by analogy. It goes on the ground of delay or risk. The case of Sheriff and Potts, cited in the late editon of Marshall, is not overruled by Rayne and Bell, although Stitt and Wardell is.

MARY'D. INSURANCE CO. v.

LE ROY &

OTHERS.

Feb. 22, 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 inade 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.