policy, if she visit more than one, she must proceed according to the order in which the said places are mentioned in her policy; but müst not sail to one place, and then depart retrogressively towards another. -Marsden v. Reid, 3 E. R. 572.

A vessel which is permitted by her policy to chase, capture, and man prizes, is not warranted in shortening sail and lying to, in order to let the prize keep up with her for the purpose of being protected or convoyed into port, although such port be within the limits of the voyage assured.-Lawrence v. Sidebotham, 6 E. R. 45.

But, whenever the deviation arises from necessity and a just cause, the underwriter still remains liable, although the course of the voyage is altered.-Rocus, n. 52.

The ship Mediterranean went out in the merchant service with a letter of marque, and bound from Bristol to Newfoundland, assured by the defendant. In her voyage she took a prize, and returned with it to Bristol, and received back a proportionable part of the premium. Then another policy was made, and the ship set out, with express. orders from the owners, that, if another prize was taken, the captain should put some hands on board such prize, and send her to Bristol; but that the ship in question should proceed with the merchants' goods. Another prize was taken in the due course of the voyage, and the captain gave orders to some of the crew to carry her to Bristol, and designed to go on to Newfoundland; but the crew opposed him, and insisted he should go back, though he acquainted them with his orders; upon which he was forced to submit; and, on his return, his own ship was taken, but the prize got in safe. And now, in an action against the underwriters, it was insisted, that this was such a deviation as discharged them. But the court and jury held, that this was excused by the force upon the master, which he could not resist, and therefore fell within the excuse of necessity, which had always been allowed. So the plaintiff had a verdict for the sum assured.Elton v. Brogden, 2 Stra. 1264.

The first ground of necessity, which justifies a deviation, is that of going into port to repair. If a ship be decayed, or receives material and imminent danger in her voyage, which cannot be repaired at sea, and goes to the nearest place to refit, it is no deviation, because it is for the general interest of all concerned, and consequently for that of the underwriters, that the ship should be put in a proper condition capable of performing the voyage.-Motteur v. the London Assurance Company, 1 Atk. 545; and Guibert v. Redshaw, Sittings in London, Hilary Vacation, 1781.

The next excuse for leaving the direct course is stress of weather. Upon this point the rule is this, that, whenever a ship, in order to escape a storm, goes out of the direct course, or when, in the due course of the voyage, she is driven out of it by stress of weather, this is no deviation. It has also been held, that, if a storm drive a ship out of the course of her voyage, and she do the best she can to get to her port of destination, she is not obliged to return to the point from which she was driven.-Harrington v. Holkeld, Sittings in London, Mich. Vac. 1778.

If a ship be driven out of her port of loading by stress of weather, into another, and then does the best she can to get to her port of destination, it shall not be deemed a deviation, though. she do not return to the port whence she was driven.-Delaney v. Stoddart, 1 T. R. 22.

.. A deviation may also be justified, if done to avoid an enemy, or seek for convoy: because it is in truth no deviation to go out of the course of a voyage, in order to avoid danger, or to obtain protection against it.-Bond v. Gonsales, 2 Salk. 445.-Gorden v. Morley,— Campbell v. Bordieu, 2 Stra. 1265.

. In the case of Bond against Nutt, in which the material question was, whether a warranty had or had not been complied with, the point of deviation for the purpose of procuring convoy also came under consideration of the court. Upon that occasion Lord Mansfield and the whole court held, that, if a ship go to the usual place of rendezvous, for the sake of joining convoy there ready, though such place be out of the direct course of the voyage, it is no deviation.-Cowp. 601.

And, in a more modern case, the only question was, whether there was a deviation or not? Lord Mansfield there directed the jury to find for the plaintiffs, if they believed that the captain fairly and bond fide acted according to the best of his judgment; that he had no other view or motive but to come the safest way home, and to meet with convoy; for, that it was no deviation to go out of the way to avoid danger.-Enderby and another v. Fletcher, Sittings in London, Trin. Vac. 1780.

If, by the usage of any particular trade, it is customary to stop at certain places lying out of the direct course from A. to B., it is not a deviation to stop there, because it is a part of the voyage; but, în order to justify the captain of a ship in quitting the straight and direct line from the port of loading to that of delivery, there must be a precise, clear, and established usage upon the subject, not depending merely upon one or two loose and vague instances.

Where a ship was assured from Liverpool to Jamaica, and had put into the Isle of Man, it appeared that there were some instances of the Liverpool ships putting in there, but it was not the settled, common, established, and direct usage of the voyage and trade; it was therefore held a deviation, and the underwriters were discharged from any loss that happened subsequent to the deviation.-Salisbury v. Townson.

So also if a ship be assured upon a trading voyage, it is incumbent on the parties assured to carry on that trade with the usual and reasonable expedition; otherwise their conduct will amount to a deviation, and discharge the policy.-Hartly v. Buggin, K. B. Mich. 22 Geo. III.

But though an actual deviation from the voyage assured is thus fatal to the contract of assurance, yet a deviation merely intended, bat never carried into effect, is considered as no deviation, and the assurer continues liable. Thus, in the case of an assurance from Carolina to Lisbon, and at and thence to Bristol, it appeared that the captain had taken in salt, which he was to deliver at Falmouth, before he went to Bristol; but the ship was taken in the direct route to both, and before she came to the point where she would have turned off to Falmouth. Lord Chief Justice Lee held, that the assurer was liable; for it was but an intention to deviate, and that was held not sufficient to discharge the underwriters.-Foster v. Wilmer, 2 Stra. 1249.

In the case of Carter v. the Royal Exchange Assurance Company, where the assurance was from Honduras to London, and a consignment to Amsterdam, a loss happened before she came to the dividing point between the two voyages, for which the assurers were held liable to pay.-2 Stra. 1249.

If, however, it can be made appear, by evidence, that it never was intended or came within the contemplation of the parties to sail upon the voyage assured; if all the ship's papers and documents be made out for a different place from that described in the policy, the assurer is discharged from all degree of responsibility, even though the loss should happen before the dividing point of the two voyages. This distinction was taken by the court of king's bench, in Wooldridge v. Boydell, Dougl. 16.

In a still later case the same doctrine was advanced, namely, that if a ship be assured from a day certain, from A. to B., and, before the day, sail on a different voyage from that assured, the assured cannot recover; even though the ship afterwards fall into the course of the voyage assured, and be lost after the day on which the policy was to have attached.-Way v. Modigliani, 2 T. R. 30.

In a modern case in the common pleas, in which there was octasion to reconsider the two preceding cases, it was unanimously determined, that where the commencement and the end of the intended voyage continue the same as those described in the policy, an intention to go to an intermediate port, though that intention should be formed previous to the ship's sailing, will not vitiate the assurance till actual deviation. Kewley v. Ryan, 2 H. Blackst. R. 343.

From this proposition, that a mere intention to deviate will not vacate the policy, it follows, as an immediate consequence, that whatever damage is sustained before actual deviation, will fall upon the underwriters.-Green v. Young, 2 Lord Raymond, 840. Salk. 444.

Policy of insurance from Para to New York, with leave to call at any of the windward and leeward islands on the passage, without being deemed any deviation: held, that the ship having proceeded to two of the leeward islands for a purpose wholly unconnected with the voyage, it was a deviation, and vitiated the insurance.-Hammond v. Reid, 4 Barn. and Ald. 72.

In cases of deviation, the premium is not to be returned; because the risk being commenced, the underwriter is entitled to retain it.

18. NON-COMPLIANCE WITH WARRANTIES.

A warranty in a policy of assurance is a condition undertaking for the truth of a positive allegation, or that a certain thing shall be done, or happen; and, unless that is performed, there is no valid contract. It is perfectly immaterial for what view the warranty is introduced; but being once inserted, it becomes a binding condition on the assured; and unless he can show that it was literally true, or that it was strictly performed, the contract is the same as if it had never existed.— 1 T. R. p. 345.

But as a warranty must be strictly complied with in favour of the underwriter, and against the assured, equal justice demands, that, if a strict and literal compliance with the warranty will support the demand of the assured, the decision ought to be in his favour: especially when, by such a decision, all the words in the policy will have their full operation.

In an action on a policy of goods, dated the 9th of December, 1784; lost or not lost, warranted well this 9th of December, 1784; it appeared, that the warranty was at the foot of the policy; that the policy was underwritten between the hours of one and three in the afternoon of the 9th of December, that the ship was well at six o'clock

in the morning, but was lost at eight o'clock the same morning. Upon a motion to set aside a nonsuit, which has been entered, Lord Kenyon and the other judges were clearly of opinion, that the warranty was sufficiently complied with, if the ship were well at any time that day that the nature of a warranty goes to determine the question; for, as it is a matter of indifference whether the thing warranted be, or be not, material, and yet must be literally complied with, still, if it be complied with, that is enough: and there was good reason for inserting these words, because they protected the underwriter from losses before that day, to which he would otherwise have been liable, as the policy was on the goods from the lading; and thus, too, the words lost, or not lost, have also their operation.-Blackhurst v. Cockell, 3 T. R. 360.

If a ship be warranted to sail on or before the 1st of August, and she be prevented by any accident from sailing till the 2d of August, as by the sudden want of any necessary repair, or by the appearance of an enemy at the mouth of the port, the captain would do right not to sail; but there would be an end of the policy.-Cowper, 607.

In order to make written instructions valid and binding as a warranty, they must appear on the face of the policy itself; even though a written paper be wrapt up in the policy, when it is brought to the underwriter to subscribe, and shown to them at that time: or even though it be wafered to the policy, at the time of subscribing; still it is not in either case a warranty, or to be considered as part of the policy itself, but only as a representation. Both these instances have occurred before Lord Mansfield, in Pawson v. Bornevelt, Dougl. 12; and in Bize v. Fletcher, Dougl. 12.

But, if a policy of assurance refer to certain printed proposals, the proposals will be considered as part of the policy.-Wooley v. Wood, 6 T. R. 710.

It being thus settled, that a warranty must appear on the face of the instrument, it has likewise been determined that a warranty, written in the margin of the policy, was to be considered equally binding, and subject to the same strict rule of construction, as if inserted in the body of the policy itself.-Doug. 10, and 271.-1 T. R. 343; 2 T. R. 186.

The warranties which most frequently occur, and upon which the greatest questions have arisen, may be reduced to three classes: warranty as to the time of sailing, warranty as to convoy, and warranty as to neutrality.

First. As to the time of sailing.—It has been held, that when a ship has been warranted to sail on a particular day; though the ship be delayed for the best and wisest reasons, or even though she be detained by force, the warranty has not been complied with, and the assurer is discharged from his contract.-Hare v. Whitmore, Cowp. 784.

If the warranty be to sail after a specific day, and the ship sail before, the policy is equally avoided as in the former case; because the terms of the warranty are as much departed from in one case as in the other.-Vezian v. Grant, before Mr. Justice Buller, Guildhall, East. Vac. 1799.

But, when a ship is warranted to sail on or before a particular day, if she sail from her port of loading, with all her cargo and clearances on board, to the usual place of rendezvous at another part of the same island, merely for the sake of joining convoy, it is a compliance with

the warranty, though she be afterwards detained there by an embargo beyond the day. The ground is, that when the ship leaves her port of loading, when she has a full and complete cargo on board, and has no other object in view, but the safest mode of sailing to her port of delivery, her voyage must be said to commence from her departure from that port. If, indeed, her cargo was not complete, it would not have been a commencement of the voyage.-Bond v. Nutt, Cowp. 601.

A ship warranted "to sail before a particular day," means "completely equipped for the voyage," and if she leave the place before the day, without her complement of men and clearances, meaning to get them at a port lying in her track, and the day appointed pass by without her having procured them, the warranty has not been complied with.— Ridsdale v. Newnham, 3 M. & S. 456.

A distinction is taken between a warranty to sail, and a warranty to depart, on a policy of assurance. The former is satisfied by the ship's getting under weigh on her voyage however short a distance she may proceed; the latter means that the ship shall be actually out of port.— 3 M. & S. 461.

Goods were insured at and from Demerara to London in a ship warranted to sail from Demerara on or before the 1st of August, 1823. Small ships take in and discharge the whole of their cargoes in the river of Demerara, but there is a shoal off the coast about ten miles out at sea, and large ships usually discharge and take in part of their cargoes on the outside of the shoal. Goods covered by the policy were laden on board a small vessel that completed her cargo in the river, and on the Ist of August the captain having obtained his clearance set sail, proceeded down the river, and about two miles out to sea, and then anchored, the tide being low. On the 3d of August he crossed the shoal, and on the 8th the vessel was lost by perils of the sea. It was held that the vessel sailed from Demerara on the 1st of August within the meaning of the warranty.-Lang v. Anderdon, 3 Barn, and Cress. 495.

In assurances at, and from London, warranted to depart on or before a particular day, it has long been a question, what shall be a departure from the port of London? Or rather, what is the port of London? And, it seems, this point has never yet been judicially determined.

On the one hand it is said, that the moment a ship is cleared out at the custom-house, and has all her cargo on board, if she quit her moorings in the river on or before the day warranted, that the warranty is complied with. On the other side, it is contended, that a ship is not ready for sea till she has got her custom-house cocket on board, which is the final clearance, and which she cannot have till she arrive at Gravesend ;* that, till this cocket is received, the ship dares not proceed to sea under a penalty, and till then she is not entitled to the drawbacks; and that Gravesend is always considered as the limits of the port of London. This view is supported by the decision that a ship is not to be considered as having exported from the port of London, on clearing at the custom-house, nor until she has cleared at Gravesend.--Williams v. Marshall, 6 Taunt. 390.

The second species of warranty, which most frequently occurs in assurances, is that of sailing under the protection of convoy. Upon this subject, something has been already offered in an anterior page. We

It is now the practice for ships to receive the cockets at the custom-house, and to stop at Gravesend only to land the officers. See 6 Geo. IV. c. 107. §§ 74 and 80. pages 465 and 466,