8 Camp. 469; Kingston v. Girard, 4 Dall. 274.

(v) Thus, a vessel damaged by a peril of the sea, may go out of her course to refit. Motteux v. London Ass. Co. 1 Atk. 545; Coffin v. Newburyport Ins. Co.

9 Mass. 447; Coles v. Marine Ins. Co. 3 Wash. C. C. 159; Hall v. Franklin Ins. Co. 9 Pick. 466. But whatever be the necessity, unnecessary delay or waste of time, or wandering under that necessity, will be a deviation. Turner v. Protection Ins. Co. 25 Maine, 615.

(w) Byrne v. La. State Ins. Co. 19 Mart. La. 126; Gazzam v. Ohio Ins. Co, Wright, 202; Stewart v. Tenn. Ins. Co. 1 Humph. 242.

(x) Winthrop v. Union Ins. Co. 2

1 "In a policy 'at and from a port,' it is an implied understanding that the vessel shall be there within such time that the risk shall not be materially varied, otherwise the risk does not attach." Per Blackburn, J., in De Wolf v. Archangel Ins. Co. L. R. 9 Q. B. 451,457.

2 An unexpected failure of bait of the kind ordinarily taken on the fishing ground, will not justify a fishing vessel in going to a port outside of the course of the voyage to procure bait. Burgess v. Equitable Ins. Co. 126 Mass. 70.

* It is quite certain, that a mere intention to deviate is not a deviation. If the intended voyage is wholly abandoned and another substituted, a policy for the original voyage never attaches. But if, for example, a vessel insured from Boston to Rio Janeiro, takes goods on board which she intends to carry to New Orleans, and then returns to her voyage to Rio Janeiro; and the first part of the voyage is precisely the same as if she had not intended to go to New Orleans; the deviation does not take place until she actually changes her course to go to New Orleans. And for a loss occurring before this change of her course takes place, the insurers would be liable. (b) Whether if a vessel sails with the purpose of pursuing her course for a certain time and then of changing her course, this is only an intended deviation, or an entire change of the original voyage, discharging the insurers from the beginning, must always be a question of mixed law and fact. We should say, however, that if a vessel sailed with the original intention of terminating her voyage at some other port or place than that to which she is insured, this would, generally at least, be a change of the voyage. (c) If she sails, intending to go where she is insured to go, a clearance for a different port would not discharge the insurers. (d)

Wash. C. C. 7; Scott v. Thompson, 4 B. & P. 181. See Phelps v. Auldjo, 2 Camp. 860.

(y) At capture. Driscoll v. Bovil, 1 B. & P. 313; Whitney v. Haven, 13 Mass. 178; Reade v. Comm. Ins. Co. 3 Johns. 352; Post v. Phoenix Ins. Co. 10 Johns. 79; Lee v. Gray, 7 Mass. 352; Governeur v. United Ins. Co. 1 Caines, 502. See O'Reilly v. Royal Exch. Ass. Co. 4 Camp. 246; Breed v. Eaton, 10 Mass. 21.

(z) The Sch. Boston, 1 Sumner, 328; Bond v. Brig Cora, 2 Wash. C. C. 80; Ship Henry Ewbank, 1 Sumner, 400; Settle v. St. Louis Ins. Co. 7 Mo. 379; Walsh v. Homer, 10 id. 6; Lawrence v. Sydebotham, 6 East, 45. See Papayanni v. Hocquard, Law Rep. 1 C. P. 250.

(a) In Perkins v. Augusta Ins. Co. 10 Gray, 312, the wife of the captain, who was on board in a pregnant condition, fell down the cabin stairs. To obtain medical assistance and advice, the master deviated from his course and put into port. The court held, that the deviation, if necessary to save life on board, was justifiable. See also Brown v. Overton, Sprague. 462. In Woolf v. Claggett, 3 Esp. 257, Lord Eldon stated, that it was incumbent on the owner to provide against the results of accidents by every proper precaution, as to medicines and necessaries for the voyage, as much as he was bound with respect to the tightness of the ship.

(b) Foster v. Wilmer, 2 Stra. 1240: Carter v. Royal Exch. Ass. Co. id.; Thellusson v. Fergusson. 1 Doug. 361; Kewley v. Ryan, 2 H. Bl. 343; Hare v. Travis, 7 B. & C. 14; Marine Ins. Co. v. Tucker, 3 Cranch, 357; Hobart v. Norton, 8 Pick. 159; Winter v. Delaware Ins. Co. 30 Penn. State, 334; Lawrence v. Ocean Ins. Co. 11 Johns. 241; New York Ins. Co. v. Lawrence, 14 id. 46. See Silva v. Low, 1 Johns. Cas. 184.

1 A deviation for the purpose of saving life is justifiable, but not for the mere saving of property. Scaramanga v. Stamp, 4 C. P. D. 816; affirmed in 5 C. P. D. 295.

Policies of a certain description are commonly called liberty policies. They permit certain changes of course, which would otherwise be deviations. The expressions often used are "with liberty to enter such a port," or "to enter" or "touch at" or "trade" or "stop" or "stay at." The parties may, of course, *make whatever stipulations they please; and the language used, although once construed with perhaps severe technicality, (e) would now undoubtedly be construed with due regard to the intention of the parties. (f) l

It is now often expressly permitted, that intermediate voyages may be made, or intermediate ports visited. These intermediate ports are sometimes named, and sometimes only designated as ports between two termini. (g) In either case, it is quite certain that the ports should be visited in the order in which they are named, (h) unless it is obvious that the order in which they are enumerated was accidental, and not intended to have any effect; or, if not named, then in their geographical order. (i) By geographical order is generally meant the order in which they stand upon the map; but usage and the nature and purpose of the voyage may show a different intention of the parties, and so vary this

(c) Stacker v. Harris, 8 Mass. 409; Merrill v. Boylston Ins. Co. 3 Allen, 247; Marine Ins. Co. v. Stras, 1 Munf. 408. See Marine Ins. Co. v. Tucker, 3 Cranch, 857, per Johnson, J,

(d) Planche v. Fletcher, 1 Doug. 251; Barnewall v. Church, 1 Caines, 217; Talcot v. Marine Ins. Co. 2 Johns. 130; McFee v. S. Car. Ins. Co. 2 McCord, 508.

(e) Thus "to touch and stay " has been held not to authorize breaking bulk. Stitt v. Wardell, 2 Esp. 610, Park, Ins. 388. See also, Sheriff v. Potts, 5 Esp. 96; United States v. The Paul Shearman, Pet. C. C. 104.

(f) Urquhart v. Barnard, 1 Taunt order. (j) The reason for the rule is, that if it were otherwise, a vessel might go to the further port and then return to a nearer, then go again to a further port and return to a nearer, and thus lengthen the voyage indefinitely; and no construction would give this power unless it were expressly given. (k) For the same reason, a liberty to go to any ports without naming them, would be construed with reference to the voyage insured, and would not be held to include permission to visit a port which could not be reached without a distinct change of the voyage. (l)

450; Gregory v. Christie, Park, Ins. 67,3 Doug. 419; Cross v. Shutliffe, 2 Bay, 220; Metcalfe v. Parry, 4 Camp. 123; Ashley v. Pratt, 16 M. & W. 471, 1 Exch. 257; Gilfert v. Hallet, 2 Johns. Cas. 296; Chase v. Eagle Ins. Co. 5 Pick. 51 See an instructive case on the Construction of a Liberty Policy, in Seccomb v. Provincial Ins. Co. 10 Allen, 305.

(g) Thorndike v. Boardman, 4 Pick. 471; Bize v. Fletcher, 1 Doug. 284; Hunter v. Leathley, 10 B. & C. 858; Leathley v. Hunter, 7 Bing. 517.

(h) Beatson v. Haworth, 6T.R. 531.

(i) See Clason v. Simmons, cited 6 T. R. 533.

1 In Foreign Merchants v. British, etc. Ins. Co. L. R. 8 Ex. 154, under a policy "to stay and trade," a delay other than for a trading purpose was held to be a deviation.

Policies on time may contain no termini whatever; and then * they usually add the clause,"wherever she may be," or some equivalent clause. But they may contain termini of place, or specify that certain places may be visited only at certain seasons. A very common insurance is to such "a port and a market;" and it covers the vessel to that port, and while on her way from that port to any other in search of a market. (m) But even to this general liberty, usage and a reasonable reference to the intention of the parties might give some limitation.

The insured is never bound to take advantage of the liberty given him, and a mere omission to exercise the whole or any part of it, would not amount to a deviation. (n)

In reference to all liberties whatever, however wide they may be, they must be so construed, if the language is not precise and clear, and they must also be so exercised as not to bring them into conflict with the proper progress of the vessel towards an ultimate destination, which is declared and defined in the policy. (o) But if there be no designation of an ultimate destination, it would seem that the permitted ports may be visited in any order, if so visited for the purpose of receiving orders or instructions to determine the final destination. (p)

(j) See Gairdner v. Senhouse, 3 Taunt 16.

(k) Hammond v. Reid, 4 B. & Ald. 72; Williams v. Shee, 8 Camp. 409; Solly v. Whitmore, 5 B. & Ald. 45; Clason v. Simmonds, cited 6 T. R. 533; Langhorn v. Allnutt, 4 Taunt 611; Rucker v. Allnut, 16 East, 278.

(l) Bottomley v. Bovill, 6 B. ft C. 210; Hogg 0. Horner, Park, Ins. 394; Ranken v. Reeve, Park, Ins. 627; Lavabre v. Wilson, 1 Doug. 284; Coles v. Marine Ins. Co. 8 Wash. C. C. 169; Winthrop v. Union Ins. Co. 2 Wash. C. C. 7; Lambert v. Liddard, 6 Taunt 480.

(m) Deblois v. Ocean Ins. Co. 16 Pick. 303; Maxwell v. Robinson, 1 Johns. 888; Smith v. Bates, 2 Johns. Cas. 299; Gaither v. Myrick, 9 Md. 118.

(n) Marsden v. Reid, 3 East, 572; Hale v. Mercantile Ins. Co. 6 Pick. 172; Kane v. Columbian Ins. Co. 2 Johns. 264; Cross v. Shutliffe, 2 Bay, 220.

(o) See Bragg v. Anderson, 4 Taunt 229; Perkins v. Augusta Ins. Co. 10 Gray, 812.

(p) Mellish v. Andrews, 16 East, 312; 2 M. & S. 27, 6 Taunt 496; Armet v. Innes, 4 J. B. Moore, 160; Ashley v. Pratt, 16 M. & W. 471, 1 Exch, 257.