Graham v. Commercial Insurance

11 Johns. 352 | N.Y. Sup. Ct. | 1814

Thompson, C. J.

delivered the opinion of the court. The going to Revel Avas no deviation. It Avas a port of necessity; and the course of conduct pursued by the master Avas justified by the state of the Aveather and the obstruction of the navigation in the Gulf of Finland by the ice. It is no deviation to go ©ut of the way to avoid danger, or when compelled by neceE&it.y. It is, therefore, laid down as a general principle, which runs through all the cases on this point, that if the captain, in departing from the usual course of the voyage, acts fairly and bona fide, and according to his best judgment, to avoid the threatened rlanger, and thereby promote the benefit of all parties concerned, and has no other view but to conduct the ship and cargo to the port of destination, the policy still continues. His having pvt into Port Baltic as a port of necessity did not oblige him to remain there during the winter. And although the supercargo received such information there ás to induce him to believe that they should not be able to reach Cronstadt or Peteisburgh, the port of destination, yet both he and the captain swear it was their intention to go on, if not prevented by the ice. And it was not until they arrived off the bay of Revel that they ascertained with certainty that they could not proceed to Cronstadt by reason of the ice. It was prudent and discreet in thé captain to go on to Revel. It was only about twenty-five miles from Port Baltic. The weather was fine and the wind fair, and there was every reasonable prospect of a speedy and safe arrival ; and if he found it impracticable to go on, Revel was a much more safe and secure place to winter.in than Port Baltic; the latter having no storehouses for storing the cargo in case it should become necessary to unload the vessel, nor is it a port of entry or delivery.

The jury have found that the captain acted in good faith, and that the necessity and circumstances of the case justified his going to Revel; and this finding is fully warranted by the evidence. Although there is good anchorage in Port Baltic, and vessels occasionally winter there, yet, from the testimony, it appears that they do not, when they can get into Revel. Besides, the case furnishes very strong evidence of a usage or custom for vessels bound to Si. Peiersburgh to put into Revel, and deliver their cargoes there, when the navigation of the Gulf of Finland is interrupted by ice. A number of American vessels had, at that time, put in there for that purpose. From the lateness of the season when 'this voyage was undertaken, it was reasonable to presume the navigation would be obstructed by ice, and underwriters must have calculated that the usual course of the voyage would, in such case, be pursued. Under these circumstances, it Would be carrying the doctrine of deviation to an extravagant length to apply it to a case like the present.

The motion for a new trial must accordingly be denied.

Van Ness, J.

If this case had been left to the jury, to say whether, by the tisage of trade, the master had not a right .to go to Read, and they had found for the plaintiff, I should have been better satisfied. It was not put to the jury on that ground; and I think it very doubtful, whether any such usage •exists, notwithstanding the evidence stated in the case. I do not, however, mean to be considered as dissenting from the opinion of my brethren ; though, at the same time, I am not perfectly clear as to the right of the plaintiff to recover.

Judgment for the plaintiffs.