US SUPREME COURT DECISIONS

If a vessel be insured "at and from Kingston in Jamaica, to Alexandria" and take in a cargo at Kingston for Baltimore and Alexandria, and sails with intent to go first to Baltimore and from thence to Alexandria, and before she arrives at the dividing point, is captured, it is a case of intended deviation only, and the assured are entitled to recover.

An intent to do an act can never amount to the commission of the act itself. That an intended deviation will not vitiate a policy, and that the vessel remains covered by her insurance until she reaches the point of divergency and actually turns off from the course of the voyage insured is a doctrine well understood among merchants, and has universally governed the decisions of the British courts.

The ordinary rule for ascertaining the identity of the voyage insured is by adverting to the termini -- a rule which is certainly correct as far as it extends, but in the rigid application of which it is easy to conceive that cases may occur in which it would bear injuriously upon the insurer.

It depends upon the particular circumstances of the case whether, if the vessel be captured and recaptured, the loss shall be deemed total or partial. chanrobles.com-red

Page 7 U. S. 358

This was an action of covenant by John and James H. Tucker on a policy of insurance dated Sept. 1, 1801, upon the sloop Eliza at and from Kingston in Jamaica to Alexandria in Virginia.

The defendants pleaded 1st, that the vessel never sailed on the voyage insured, and was not prosecuting the voyage insured at the time of the capture, and 2d, a general performance of the covenants contained in the policy, upon which pleas the issues were joined and verdict and judgment for a total loss.

At the trial the defendants took three bills of exceptions.

The 1st presents the following case:

The execution of the policy was admitted. The vessel was of the value insured, and belonged to the plaintiffs (the defendants in error), who were British subjects resident at Alexandria. The vessel was navigated under a British register, and had sailed from Alexandria for Kingston in June, 1801, with a cargo consigned to Bryan & Co. in Jamaica, who were instructed by a letter from the plaintiffs to sell the vessel and remit the proceeds. The vessel was commanded ostensibly by Boaz Bell, but really by Eli R. Patton, who also went as supercargo, with orders to sell the vessel at any rate, but if not sold, to return to Alexandria, with the proceeds of the outward cargo. Bryan & Co. used their best endeavors to sell the vessel, but without effect, and chanrobles.com-red

Page 7 U. S. 359

could get no offer for her either before or after she sailed from Kingston. Having taken in ten tierces of coffee, the property of the plaintiffs, to be delivered at Alexandria, she cleared out at the custom house in Kingston on 10 August, 1801, for the port of Alexandria, with intention to sail on that day with convoy then lying at Port Royal, but which convoy did not sail until the 17th.

While waiting for convoy, freight was offered to Baltimore, and the master, having obtained a permit and made a port entry, discharged his ballast and took on board twenty hogsheads and ten tierces of sugar for that port, and signed bills of lading accordingly, but this caused no delay as to the time of his sailing, as he waited for convoy, it being known that several Spanish cruisers were hovering on the coast of Jamaica. On the 17th, she sailed for Baltimore, with intention to go first to Baltimore and from thence to Alexandria. On the 22d, whilst sailing in the usual course from Kingston to Baltimore and Alexandria, she was captured, by a Spanish vessel as prize, and all her men were taken out by the Spaniards excepting Bell and one other. In less than three days she was recaptured by a British sloop of war and carried back to Kingston on 26 August, where she was libeled for salvage. chanrobles.com-red

Page 7 U. S. 367

The rate of salvage in cases of recapture is fixed by British statutes, and does not exceed one-eighth of the value at the port of adjudication.

Bryan & Co., as agents of Patton, put in a claim in behalf of the underwriters, alleging that the vessel had been abandoned to them.

The vice-admiralty court decreed restoration on payment of one-eighth for salvage and full costs, and directed the vessel to be sold to ascertain the true value, unless it could be otherwise agreed upon.

The claimant used no endeavors to agree with the captors as to the true value of the vessel and cargo otherwise than by a sale, and on 1 October she was sold for $915, and the ten tierces of coffee were purchased by Patton for the plaintiffs at the price of $1,000. The costs, charges, and commissions amounted to $909, and the salvage to $239. The agents of the plaintiffs were content and satisfied with the mode of ascertaining the value by sale, and did not apply for an appointment of appraisers to ascertain the value.

On 24 September, 1801, when the abandonment of the vessel was made by Bell and Patton, she was safe in the harbor of Kingston, but liable for salvage, and the value of the ten tierces of coffee was sufficient to pay the salvage and all costs and charges.

The register was lost by the capture and recapture, and has never been found. The plaintiffs could not, according to the laws of Great Britain, obtain a new British register while they continued to reside out of the British dominions.

Baltimore is not in the direct course from Kingston to Alexandria after a vessel has entered the Chesapeake Bay.

The plaintiffs received information of the capture and recapture at the same time in a letter from Bryan & Co. dated 25 September, 1801, which also mentions the sale, but it did not appear at what time the chanrobles.com-red

Page 7 U. S. 368

plaintiffs received that letter. On 26 November they offered to abandon the vessel to the underwriters, who refused the offer. Upon this state of facts, the defendants moved the court to instruct the jury not to find a verdict for a total, but, at most, for a partial loss, which instruction the court refused to give, and the defendants took their bill of exceptions.

The second bill of exceptions did not vary the material facts above stated, but alleged that the vessel sailed from Kingston with an intention of going to Alexandria, but also with an intention of touching first at Baltimore and there delivering part of her cargo, and from thence to Alexandria. That while prosecuting her voyage with that intent and while in the direct course, both to Baltimore and Alexandria and before she arrived at the dividing point between Baltimore and Alexandria, she was captured, &c. Whereupon the plaintiffs prayed the court to instruct the jury that there was no deviation at the time of the capture and that the voyage insured was actually commenced, which instruction the court gave as prayed, and the defendants took their second bill of exceptions.

The third exception was to the refusal of the court to instruct the jury that the loss of the register by means of the capture and recapture was not sufficient in law to defeat the voyage, but that the loss of that document might be supplied by special documents of public officers setting forth the circumstances of the loss, so that the vessel might have prosecuted that voyage without seizure and confiscation under the laws of Great Britain for want of a British register. chanrobles.com-red

Page 7 U. S. 384

MARSHALL, Ch. J. did not sit in the trial of this cause.

The other judges, except CHASE, J. whose ill health prevented his attendance, gave their opinions seriatim.