A WILFUL deviation from the due course of an insured Voyage is a determination of the insurance; and it is immaterial from what cause or at what place the subsequent loss arises, the insurers being in no case answerable for it.

But the deviation, even although intended at the commencement of the voyage, does not vitiate the policy ab initio; and the insurer is liable for a loss incurred in the course of the voyage before actual deviation.

A wilful deviation from the due course of an insured voyage is in all [470] cases a determination of the policy; from that moment the contract between the insurers and insured is at an end; and it is totally immaterial from what cause or at what place the subsequent loss arises, the insurers being in no case answerable for it.

The harbour of Carron, situate near the head of the Frith of Forth, is chiefly resorted to by ships in the service of the Carron Company, who have a great iron work and considerable collieries. in the neighbourhood. From thence vessels, intended principally to convey the manufactures of the company, their coal and such

No. 1. - Elliot v. Wilson, 4 Bro. P. C. 470, 471.

goods as may be offered them on freight, sail periodically for Hull, and other places on the eastern coast of England. This is a coasting or carrying trade, the vessels in going down the Frith touching at different places to take in additional loading, or to discharge part of what they have received at places higher in the river. Particularly, it is usual for these vessels to call at Borrowstoness and Leith, and at Morrison's Haven, a port six miles further down the Frith, and on the same side with Leith, in the bay of Prestonpans.

In February, 1774, the respondents had occasion to ship fourteen hogsheads of tobacco on board one of these vessels for Hull, and desiring to insure them, gave the following instructions in writing to Hamilton and Bogle, insurance brokers in Glasgow:

"Please to insure for our account by the Kingston, George [* 471] Finley, master, * from Carron to Hull, with liberty to call, as usual, fourteen hogsheads of tobacco;" and these instructions were entered in the broker's books for the perusal of the underwriters, as is the practice at Glasgow.

Upon the 9th of February, the appellants underwrote a policy of insurance in these terms: "Beginning the adventure of the said tobacco, at and from the loading thereof on board said Kingston, at Carron wharf, and to continue and endure until said Kingston (being allowed a liberty to call at Leith) shall arrive at Hull, and there be safely delivered.'

"

The respondents were not privy to the allowance to call at Leith being thus substituted in the policy for the more general term, as usual, mentioned in their instructions to the broker. The premium agreed on was £1 5s. per cent, a rate equal, at least, if not higher than was in use to be given on the voyage, in cases where it was understood or expressed in the policy that the vessel might touch at the customary ports. And in particular, some of these appellants, in February, 1772, underwrote a policy upon this very vessel, and for the same voyage, with liberty to call at Leith and Morrison s Haven, at a premium of £1 per cent only.

The vessel thus insured had sailed from Carron five days before the date of the policy, that is, on the 4th of February, 1774; it did not call or touch at Leith, but put into Morrison's Haven; set sail from thence on the 9th; got safe into the direct course from Carron to Hull; cleared the Frith of Forth, and proceeded with a

fair wind, till, on the evening of the 10th, the vessel, being overtaken by a storm at Holy Island, on the coast of Northumberland, was wrecked, and the cargo totally lost. All these were facts admitted; nor was it alleged by the appellants that the ship received the smallest damage in going into or coming out of Morrison's Haven.

Intelligence of this misfortune reached Glasgow on the 14th of February, when the respondents for the first time saw the policy of insurance, or understood that it differed in terms from their instructions to the broker in whose hands it remained. It did not, however, occur to them that this slight variation would afford a handle to the underwriters for refusing payment; nor does it seem to have then occurred to these gentlemen, who immediately wrote to the respondents, desiring they would request the Carron Company to give the necessary orders for preserving the tobacco, and forwarding it to Hull, promising to contribute towards the expense so far as they were interested.

After this seeming acquiescence, the respondents were not a little surprised, when, upon the 24th of February, a protest was taken against them by all the underwriters in person, attended by a notary public and witnesses; in the instrument which they caused the notary to draw up and sign on that occasion they were pleased to give the following account of the matter: "Upon Wednesday, the 9th of February current, a policy was offered to the said James Coulter, Alexander Elliot, [* 472] Robert Carrick, Andrew Dunlop, and Henry Ritchie, in the office of Archibald and Gilbert Hamilton, insurance brokers in Glasgow, for their underwriting as insurers on goods, for account of the said William Wilson and Company, on board the ship Kingston, Captain Finley, from Carron shore to Hull, with liberty to touch as usual. Upon requiring the broker to explain what he meant, by touching as usual, he said he meant a liberty to stop at Leith Road or Harbour for a short time, in case any passengers or goods were expected from that place; and upon inquiring the advices about the time of sailing, he said that he was informed the vessel had sailed the Saturday before, being the 6th of February current. In these circumstances, the said James Coulter and the other persons aforesaid were satisfied with the conditions of the voyage, and signed the policy, which contains a liberty to touch at Leith, and nowhere else; and as the wind and weather VOL. IX. - 23

No. 1. Elliot v. Wilson, 4 Bro. P. C. 472–474.

were favourable from the Sunday to the Wednesday, they had good reason to conclude the vessel would make a safe and speedy passage to Hull. But being now well informed that, instead of prosecuting the voyage described in the policy, the said ship Kingston was designedly carried into the port of Morrison's Haven near Prestonpans, where she staid four or five days, having really sailed on Friday, the 4th current, taking in a large quantity of a very dangerous commodity, viz., sulphur; and from which port of Morrison's Haven she did not depart till the 9th of the month, and was the next day wrecked near Holy Island on her way to Hull; which misfortune was entirely owing to her stay in that harbour, whereby she lost many days of the most favourable winds and weather, which would have completed her voyage in safety, in place of meeting with a change of wind and storm of snow, which occasioned her shipwreck; and the said underwriters would not have underwritten upon the said policy if they had known the vessel had been to call at Morrison's Haven, and take in an additional cargo; wherefore the said James Coulter, Alexander Elliot, Robert Carrick, and Andrew Dunlop, for themselves, and as procurators for the said Henry Ritchie, did and do protest, that this plain deviation, contrary to the express stipulation in the policy, must, according to the constant practice of merchants, render the policy null and void; and therefore they hold themselves to have no further concern in the goods insured."

The respondents having brought an action upon the policy against the appellants, and the appellants having put in defences setting up a deviation by putting into Morrison's Haven under the circumstances above mentioned, the Judge Admiral pronounced a judgment to the effect that the facts stated did not avoid the

insurance.

The appellants brought this judgment under review of the Judge, and ultimately of the full Court of Session in Scotland, by proceedings which in effect raised the abstract question, whether the vessel touching at Morrison's Haven, when not allowed by the policy, discharged the underwriters? The Judge Admiral adhered to his original judgment, and this was affirmed by the Court.

[474]

The present appeal was then brought; and on behalf of the appellants it was contended, that a wilful deviation from the due course of an insured voyage is in all cases a deter

mination of the policy; from that moment the engagement between the insurers and insured is at an end; and it is immaterial from what cause, or at what place, a subsequent loss arises, the insurers being in no case answerable for it. The going into Morrison's Haven was a wilful deviation from the due course of a voyage from Carron to Hull; and though it may be true, as contended on the part of the respondents, that ships sailing through the Frith of Forth, have sometimes been permitted by the terms of a policy underwritten at the same premium as the present, to go into this port, it would not avail them in the present case, since this policy gave no such permission. The respondents appeared by their instructions to their broker to have been aware, that the going without permission into any port but that of their destination, would be a deviation; and the broker, finding it difficult to get a policy underwritten on any other terms, thought fit to restrain the liberty of calling to the port of Leith. But indepen

dent of what passed between the broker and the underwiters before their signing this policy, it was submitted that a policy, penned like the present, giving liberty to call at one port, excluded every claim to a liberty of calling at any other.

On behalf of the respondents it was said, that what the appellants called a deviation in this case could not have the effect of vacating the policy, there being neither an increase nor a difference of risk; for the voyage, as actually made, was one and the same chance with that insured against, even taking the policy in the strict sense contended for. The appellants, indeed, to give a colour to their plea, by the appearance of a different risk, argued that the loss was occasioned by going into Morrison s Haven; for had there been no interruption of the course from Carron to Hull, the vessel would have escaped the storm which overtook it at Holy Island. But as the vessel was allowed to call at Leith, without any limitation of the time of staying there, the risk of the voyage being prolonged by calling at a port in the course of it, was clearly undertaken by the insurers; and it made no difference of hazard, whether that port was Leith or Morrison's Haven; policies of insurance are to be construed largely, and for the insured; a rigid adherence to literal terms has been deservedly reprobated in Courts of Law, and among merchants. Every voluntary deviation from the direct line has not the effect

to discharge the underwriters, it

*

being sufficient if the [* 475]