Patrick v. Ludlow.

PATRICK against LUDLOW.

The words at and from, in a policy on goods, means from the time the goods are laden on board the vessel.

Insurance from Surinam to New York. The master of the vessel being informed that French privateers were cruising in the windward passage, and in the usual route from Surinam, determined to take the leeward passage, and touched at Demarara to take the protection of a British convoy then about to sail, but a few hours after anchoring there, was driven to sea in a gale of wind, and afterwards continued her voyage, without convoy, and was captured by a French privateer. This was held not to be a deviation, the master having acted bona fide, and with the sole view to avoid danger, and to seek the safest course to New-York.

THIS was an action on a policy of insurance on goods, on board the schooner Sally, at and from Surinam to Fredericksburgh, in Virginia, beginning the adventure from the lading of the goods on board at Surinam. The policy was dated the 27th September. 1799. The cause was tried at the New York sittings, in June, 1801, before Mr. Justice Lewis. On the 26th August, 1799, the schooner sailed from Surinam on the voyage insured. About five days before she sailed, the master was informed by a Danish captain, that on his passage from St. Thomas's, he had met with French privateers, and the master, accordingly thought it unsafe to go to windward, as that would lead him in the track of the privateers, and hearing there was an English convoy about sailing from Demarara, he thought it advisable to get under its protection, and so determined to touch at Demarara. On the 29th August the Sally arrived at Demarara, and anchored off the port. [*11] About four hours after, she parted *her best bower cable, in a violent squall of wind, and was forced to sea without waiting for the convoy. On the 3d September, she was captured by a French privateer, and carried into Guadaloupe, where the vessel and cargo were condemned. The route the Sally took from Surinam homeward, and which the convoy would also have pursued, to wit, the leeward passage, and through the Sail Rock passage, was a route very frequently taken by American masters, on their return from Surinam to the United

Patrick v. Ludlow.

States; and in particular situations of wind and currents, it is necessarily taken. The schooner left Fredericksburgh in April, 1799, and arrived at Surinam in June. The master, finding the markets low at Surinam, went, by direction of the supercargo, to Demarara, where the supercargo died, having sold the greater part of the cargo. The master received payment for the cargo in specie, and returned to Surinam to obtain a homeward cargo. The passage from Surinam to Demarara aud back occupied about six weeks. The schooner continued at Surinam until the 29th August, when she sailed on her homeward voyage, as above mentioned. About two days before the schooner left Demarara, there was a British sloop of war cruising off the coast, and sailed from thence with the few vessels there, to join a convoy at Martinique, for England. The master of the Sally did not know whether there was any armed vessel at Demarara, when he arrived there the second time, to serve as convoy. He intended to wait to be informed by boats, without going up the river. There was no public notice at Surinam of any convoy being at Demarara, when the Sally left Surinam. The only information the master had was from the captain of a British schooner from Martinique. There was a British fleet at Surinam when the Sally left it, but no British merchantmen, except such as came with troops.

To this evidence, on the part of the plaintiff, there was a demurrer; and the question was, whether, in judg ment of law, it was sufficient to entitle the plaintiff to [*12] recover. The cause was argued, at the last term, by B. Livingston, for the plaintiff, and

Pendleton and Harison, for the defendant.

RADCLIFF, J. Two points are insisted on by the defend

ant.

1. That the policy commencing at and from Surinam reaches back to the first arrival of the schooner there, and attached before the intermediate voyage, which was manifestly a deviation, and that, therefore, the policy was discharged.

2. Admitting that the policy did not attach till the last departure of the schooner from Surinam, the voyage to the lee

Patrick v. Ludlow.

ward, and particularly the touching and stay at the port of Demarara, were also deviations, and discharged the policy.

1. The first objection would only apply to a policy on the ship. A policy on goods, for any voyage, from the nature of the subject, cannot attach till they leave the shore to be laden on board. The risk on goods, according to the form of our policies, usually commences from the loading on board. In this instance, the language of the policy, in one respect, is double. The insurance is expressed to be at and from Surinam, and yet, as in other policies, describes the adventure to begin from and immediately following the loading thereof on board. It, however, manifestly cannot apply to the period during which the intermediate voyage, with the outwardbound cargo to Demarara, was performed. That voyage cannot therefore constitute a deviation.

2. It remains to be considered whether the route to the leeward, or the touching and stay at the port of Demarara, [*13] *will amount to a deviation. In determining on a de

murrer to evidence, it was rightly admitted that the evidence, and its legal results, must be received as true. From the testimony in this case, there is nothing to impeach the motives of the captain. He appears to have acted bona fide, and for the security of all concerned. It is well known that those seas were infested with privateers at the time. The captain was informed, by the master of a Danish vessel immediately from St. Thomas's, that he had been twice boarded by French privateers, in the windward passage, and saw them in possession of two American vessels. This information induced the master to take the leeward passage, which, it is proved, is very frequently taken by American vessels, and, at certain times, is necessarily taken. The resolution to take this passage, if not at all times proper, was, I think, under those circumstances, justifiable, to avoid danger, and ought not to be deemed a deviation.

As to the touching and stay at Demarara, for the purpose of convoy, I think it also justifiable upon the evidence, if the captain had that object and no other in view. It is no deviation to depart from the usual course of a voyage, to meet

Patrick v. Ludlow.

with convoy, in case of real danger, or to seek the safest way home. If this position wanted authority it is supported by Lord Mansfield, in the case of Enderby v. Fletcher, (Park, 309, or 410, 6th ed.) The inquiry in such cases, therefore, ought to be, whether the captain acted bona fide and on reasonable grounds. In this instance, he did not know of there being a convoy at Demarara, but he was so informed by the captain of a British schooner from Martinique, who came down with the British fleet which took Surinam, and a brig had actually gone to Demarara for convoy. It further appears, that the expected convoy was to pursue the route intended by the captain. On this evidence, and considering the relative situation of Demarara, I think there was reasonable cause to stop there to look for convoy, and sufficient ground for the jury to believe that in doing this, the captain acted with [*14] good faith and ex justa causa. If the jury would be authorized to make this conclusion, we must consider it as admitted by the demurrer, and, of course, their ought to be judgment for the plaintiff.

KENT, J. The loss, in this case, was considered as sufficiently established by the capture. The only question is, whether the defendant was not discharged by reason of a deviation, arising, first, from going to Demarara by direction of the supercargo to sell the outward cargo; and secondly, from going there, on the return voyage to seek for

convoy.

1. The first charge of deviation is of no avail, because, the policy had not then attached. The policy was on the homeward cargo, beginning from the lading of the goods on board at Surinam. As soon as the goods were on board, the policy attached, as well while the vessel was at, as on her return from Surinam. But we cannot intend from the proofs, that the homeward cargo was laden on board until the return of the vessel from her first visit to Demarara, for she went there to sell her cargo, and the greater part was sold there, and VOL. III.

3

Patrick v. Ludlow.

the proceeds thereof received in cash, when she returned to Surinam to obtain a homeward cargo.

The true rule on this subject is that at and from, when applied to a ship, includes the period of her stay in the port from the time of her arrival there. But at and from, when applied to goods, means from the time those goods are put on board the vessel.

2. With respect to the other charge of deviation the question is, was the going to Demarara to seek for convoy, a departure, without necessity or any reasonable cause, from the regular and usual course of the voyage insured?

It is in proof that the master had reason to fear he should meet with French privateers, if he pursued the windward [*15] passage home, and that the leeward passage, *which

he took, was very frequently adopted by American vessels, on their return from Surinam, and in particular situations of winds and currents, was necessarily taken.

So far, I think, the jury might well have inferred, that taking the leeward passage was no deviation. The touching at Demarara, which must be considered a small deviation from the regular course, was for the purpose of seeking the protection of an English convoy, as the master had heard from the captain of a British schooner from Martinique, that such a convoy was about sailing from Demarara. A deviation, if done to avoid an enemy, or to seek for a convoy, is justifiable.

It is no deviation to go out of the way to avoid danger. It is in every such case a matter of fact whether the captain acted fairly and bona fide, according to the best of his judgment, and had no other motive or view but to come the safest way home, or to seek for convoy. I think the testimony offered led to this conclusion, and that the jury might well have made it from the testimony; and on a demurrer to evidence, every such conclusion is to be admitted.