5 Mass. 1 | Mass. | 1809
The opinion of the Court (except of the chief justice, who did not sit in the cause) was afterwards delivered by
[After recapitulating the circumstances of the case as reported by the judge, and his direction to the jury, that they had only to inquire whether the deviation was necessary or not; and in substance that the mistake of the master would be no excuse.] Was this direction correct and legal ?
A general position that the mistake of the captain, under no circumstances, forms an excuse for. a deviation, is certainly not true. The most skilful, discreet and prudent master may, and probably in almost all long voyages does, commit mistakes, by which his ship may be taken out of the most direct and shortest course. Such is not a deviation that will discharge the underwriters. On the contrary, I believe that, in all instances where a captain of ordinary skill and discretion forms the best judgment that he can, under the existing circumstances, for the interest of all concerned, the contract of insurance remains unimpaired by his pursuing that judgment. But in this case, before the charge of the judge was given, of which the plaintiffs complain, it was ascertained by the jury, that the route pursued was not the usual course, and that it was less safe than that which was departed from; and this at the commencement *of a voyage, [ * 10 ] when every necessary information might be easily obtained. I think that such a deviation can only be justified by necessity, and that therefore the charge of the judge, taken as it ought to be in relation to the subject matter, was perfectly correct. In other words, as the case then lay before the Court, as the captain had abandoned the route, which, by the finding of the jury, must be taken to be the usual and safest route, and had pursued one which was neither the usual nor the safest route; and this after evidence had been produced and weighed by the jury for that purpose; and this also done in waters where the most satisfactory evidence as to the best route might be easily obtained, — I cannot imagine that any excuse, not founded in necessity, could excuse the deviation. And I therefore conclude that there is no reason to complain of the direction of the judge.
But even if fault could justly be found with the judge’s direction, I do not think that in this case a new trial ought to be granted. A new trial ought never to be granted, when the Court is perfectly satisfied that on a second trial the same verdict must by law be given, although there might have been some mistake in the judge at the trial. Now, in this case, if the captain had ordinary skill, and was informed, as he ought to have been, as to the voyage he was pursuing, no fact which was exhibited at the trial, or is now pretended to have existed, amounts
If such skill and information were possessed by the captain, the deviation would seem to be merely wanton, or done for the convenience of the captain in landing his wife on the Vineyard. On the other hand, if the deviation happened either from the want of skill or the gross ignorance of the captain, that would doubtless defeat [*11] the claim of the plaintiffs to recover. For among * other things which the law, from the nature of the contract of as surance, imposes as obligations on the assured, is the duty to provide a master of competent skill, prudence and discretion to navigate the vessel; and if any loss takes place, which may be justly supposed to have happened from a master of that character not having been provided, the underwriters are not responsible for it.
If the captain honestly exercised the best judgment he had, and did really believe that the two routes were indifferent, and therefore the deviation is imputable to mistake, it would, in my judgment, when compared with the facts which are established, be such evidence of gross want of skill, or of gross ignorance, or of both, as to afford no excuse for the deviation. In any view, then, of the case, it seems to the Court that a new trial ought not to be granted, but that judgment be entered upon the verdict.
