1

1810.

Mar. Ins. Co.

V.

Stras.

Indies, or any one port on the Spanish Main, and at and OCTOBER,
from thence to Richmond; that so the contract, though a
little vaguely expressed, was to be understood among mer-
cantile men; that the going to St. Thomas's, without ever
going to Curraçoa, was therefore a deviation from the voy.
age, and a breach of the contract on the part of the insured;
on account of which there was, by the terms of the policies,
to be no return of premium. "The defendant did not ad-
mit that the said schooner while on her direct course to
Curraçoa was chased by an armed vessel, so as to make it
necessary or prudent to put into the island of St. Thomas,
or to excuse the said schooner from proceeding to Curraçoa;
or that any other sufficient cause for the deviation from
Curraçoa did exist. If any such sufficient cause existed,
the usage of trade, for the purpose of obviating frauds, re-
quired that the same should have been stated in a regular
protest at St. Thomas's immediately after the arrival of the
vessel there. And the said protest should have been sub-
scribed by the master and mate, or master and some of the
seamen, and duly sworn or affirmed to. Such an instru-,
ment would have been entitled to credit; but the protest pro-
duced was not entitled to any; having been made at Nor-
folk, and at a considerable distance of time after the alleged
cause of deviation had happened." Neither did "the defend-
ant admit that the said vessel returned empty from St. Tho-
mas's; but saith she brought, in money, 592 dollars; so that
a deduction of the premium upon the whole sum home, (viz.
6,000 dollars,) cannot, upon any principle, be correct."

The protest exhibited was the only document (except the
two policies) filed in the cause; no depositions being taken.
In that instrument, the captain sets forth the circumstances
which induced him to put into St. Thomas's, much in the
same manner as alleged in the bill; but does not say whether
any return cargo was taken on board at that place; though
he mentions that it was his intention, when he went thither,
"to take, on freight, a cargo for the port of NORFOLK." He
farther says that he sailed from St. Thomas's, and arrived

1810.

OCTOBER, at NORFOLK; but says nothing about returning to RICHMOND, at which place, according to the policies, the voyage Mar. Ins. Co. was to be ended.

V.

Stras.

The cause was heard on the 8th of March, 1804, and the late Chancellor was of opinion that the true construction of the policies was that the schooner Sophia, and goods and merchandise laden or to be laden on board of it, were insured in a contemplated voyage from Norfolk to Curraçoa, or some other island in the West Indies, and any port on the Spanish Main and back again; that therefore the diversion to St. Thomas's was no deviation from the voyage. He was also of opinion that the phrase "goods and merchandise laden or to be laden" was to be construed as applying to a return cargo; and that, as no return cargo was taken on board, there ought to be a deduction of premium on that account. He therefore made the injunction perpetual; except as to the 1-2 per cent. which the company, by a clause in each policy, was authorized to retain: from which decree the defendants appealed.

Call and Williams, for the appellants, relied on two points; 1. That the vessel was bound to go to Curraçoa, before she was authorized to go to any other island in the West Indies. Without this construction, that part of the policy which mentions a second port (after going to Curraça) would be senseless. The general course of decision is that, where several ports are mentioned to which the vessel may go, but the order in which to take them is not prescribed, their geographical position furnishes the rule; but, where a particular order is prescribed in the policy, it must (a) Beatson be pursued.(a)

v Haworth, 6·

Term Rep. 2. The protest of the master, even if made at St. Tho551. Marshall mas's immediately on his arrival, would not have been evidence;(b; the person who made it being living. But if any

on Ins. p. 395,

596.

(b) Senat v. Porter, 7 credit should be given to any protest, none is due to the

Term Rep.

158. Marsh protest in this case, which was not recent; nor immediate;

1810.

but since this controversy began. Even the deposition of OCTOBER, the master, taken ex parte, would not be evidence.

Mar. Ins. Co.

V.

Stras.

Wickham, contra. The vessel's going to St. Thomas's was no deviation. The contract did not require that she should go to Curraçoa first; and, that being silent, she had a right to touch at St. Thomas's, which is in the direct route to Curragoa. But, indeed, she was not bound to go to Curraçoa at all; and, upon failing to do so, might claim a return of the premium. There are different opinions, whether the insured has a right not to proceed on the voyage: but the law is laid down that he has such right; and, in case he chooses to exert it, the premium ought to be returned; for risk is the essence of the contract;(a) and it is not ne- (a) Marshall, cessary to stipulate for a return of premium, where ex æquo 563, 564. et bono it ought to be

returned. (b)

(b) Marshall,

565 568. S 1237. Stevenson v.

As to the evidence. The protest was read at the hearing, Burr and not excepted to. If an objection had been made, we might have regularly taken the deposition of the captain. The protest, therefore, ought to be received. But if it be not evidence, the only effect should be to open the cause, and give the parties leave to take their testimony again. As the case now stands, rejecting the protest, there is no proof of the deviation; for the policies prove nothing; (c) and (c) Marshall, then there is nothing to prevent a return of premium.

Argument in reply. The principle, that, where there is no stipulation to the contrary, and the risk is not run, the premium shall be returned, does not apply to this case: for here the stipulation is express, that, in case of deviation, there should be no return of premium.

The plaintiff sta tes in his bill that he went to St. Thomas's from necessity. The answer admits that he went there but denies the necessity. The plaintiff then must prove it: the burden of proof does not lie on the defendants. The evidence on the part of the plaintiff being altogether illegal, it was not necessary for us to make an objection in the Court below for the rule is that, where à party means to object

611.

1810

V.

Stras.

OCTOBER, to a paper which on the face of it appears to be evidence, he must shew his objection: but that is not necessary as to Mar. Ins. Co. a paper which, on its face, is no evidence. Mr. Wickham's position that the cause should be sent back, and leave given to the parties to take new testimony, would produce an endless circle of litigation. Where the parties are prepared and go to trial, this Court must take the record as it stands, and, if no evidence appears in support of the decree, it must be reversed.

Friday, October 26. The Judges FLEMING and TUCKER (Judge ROANE not sitting in the cause) pronounced their opinions.

Judge TUCKER. This was a bill brought by the appellee Stras, for a return of premium on the schooner Sophia and her cargo "at and from Norfolk to Curraçoa, with liberty of going to any other island in the West Indies, or any one port on the Spanish Main, and at and from thence back to Rich. mond."

The bill suggests that the schooner, while on her direct course to Curraçoa was chased by an armed vessel, which overtaking her fast, the Captain, to escape being captured, put into the island of St. Thomas, then not far to the leeward, where he arrived in safety; that he was deterred from proceeding to Curraçoa from information that the way thither was greatly infested with privateers, so as to render it almost impossible to escape capture. He therefore sold his cargo at St. Thomas's, and took a return cargo on freight to Norfolk, where he arrived on the 30th of December, 1799, without touching at any port or place in the West Indies, other than St. Thomas's. There was a condition in the policy for a return of premium in case the Sophia should not proceed to a second port; and also for a further return if the property (the cargo) should return in the vessel, and no loss should happen. The policies contain two other material clauses ; “ first, that it shall and may be lawful for the said vessel in her

OCTOBER,

1810.

V.

vovage to proceed and sail to, touch, and stay at any port or
places, if thereunto obliged by stress of weather, or other
unavoidable accident, without prejudice to that insurance." Mar. Ins. Co.
Secondly; "it was mutually agreed by the parties that no
part of the premium should be returned, or abated, on ac-
count of any deviation which shall be made by the owner,
or their factors, from the present voyage."

The sole question then is, was, or was not, the going into
St. Thomas's a deviation?

Stras.

If the case stated in the bill be made out, there is no ground to call it a deviation; the first recited clause in the policy expressly providing, that if thereunto obliged by stress of weather, or other unavoidable accident, she might lawfully go into St. Thomas's (or twenty other different places, under the like circumstances) to avoid the danger.(a) (a) See MarThe case is expressly within the terms of the policy.

shali on lusu. rance, 409.

surance, 308.

But what is the proof of this danger, and necessity? Not Park on In the complainant's bill surely! So much of it as relates to this necessity is expressly denied by the answer. There remains then no shadow of proof of such necessity but a pa per purporting to be the copy of the Captain's protest, made in NORFOLK (not St. Thomas's, nor corroborated by the oaths of his mate and seamen, as is usual when a vessel is forced out of her course into a different port) on the 5th day of February, 1800, near six weeks after his arrival in Norfolk. Whatever may be the effect of a protest taken in a foreign country, to which not only the master but the mate and mariners of the vessel may make oath immediately after their arrival in a port into which they have been driven by stress of weather, or by an enemy, according to the ordinary usage in such cases, (on which I mean not to give any opinion,) such a protest as this, taken at so remote a period of time, and in a different port and country from that where the vessel first arrived, after the insurance upon her could operate, appears to me to be entitled to no more respect as evidence, in a case of this nature, than any other voluntary affidavit, made by a person respecting any controversy which