2.
From the moment this happens, the voyage is changed, the contract
determined, and the insurer discharged from all subsequent
responsibility. By the contract, the insurer only runs the risk of the
contract agreed upon, and no other; and it is, therefore, a condition
implied in the policy, that the ship shall proceed to her port of
destination by the. shortest and safest course, and on no account to
deviate from that course, but in cases of necessity. 1 Mood. & Rob.
60; 17 Ves. 364; 3 Bing. 637; 12 East, 578.
3.
The effect of a deviation is not to vitiate or avoid the policy, but
only to determine the liability of the underwriters from the time of the
deviation. If, therefore, the ship or goods, after the voyage has
commenced, receive damage, then the ship deviates, and afterwards a loss
happen, there, though the insurer is discharged from the time of the
deviation, and is not answerable for the subsequent loss, yet he is
bound to make good the damage sustained previous to the deviation. 2
Lord Raym. 842 2 Salk. 444.
4.
But though he is thus disebarged from subsequent responsibility, he is
entitled to retain the whole premium. Dougl. 271; 1 Marsh. Ins. 183;
Park. Ins. 294. See 2 Phil. Ev. 60, n. (b) where the American cases are
cited.
5.
What amounts to a deviation is not easily defined, but a departure from
the usual course of the voyage, or remaining at places where the ship
is authorized to touch, longer than necessary, or doing there what the
insured is not authorized to do; as, if the ship have merely liberty to
touch at a point, and the insured stay there to trade, or break bulk, it
is a deviation. 4 Dall. 274 1 Peters' C. C. R. 104; Marsh. Ins. B. 1,
c. 6, s. 2. By the course of the voyage is not meant the shortest course
the ship can take from her port of departure to her port of
destination, but the regular and customary track, if such there be,
which long us usage has proved to be the safest and most convenient. 1
Marsh. Ins. 185. See 3 Johns. Cas. 352; 7 T. R. 162.
6.
A deviation that will discharge the insurer, must be a voluntary
departure from the usual course of the voyage insured, and not warranted
by any necessity. If a deviation can be justified by necessity, it will
not affect the contract; and necessity will justify a deviation, though
it proceed from a cause not insured against. The cases of necessity
which are most frequently adduced to justify a departure from the direct
or usual course of the voyage, are, 1st. Stress of weather. 2d. The
want of necessary repairs. 3d. Joining convoy. 4th. Succouring ships in
distress. 5th. Avoiding capture or detention. 6th. Sickness of the
master or mariner. 7th. Mutiny of the crew. See Park, Ins. c. 17; 1
Bouv. Inst. n. 1187, et seq.; 2 John. Cas. 296; 11 Johns. R. 241; Pet.
C. C. R. 98; 2 Johns. Rep. 89; 14 Johns. R. 315; 2 Johns. R. 138; 9
Johns. R. 192; 8 Johns. Rep. 491; 13 Mass. 68 13 Mass. 539; Id. 118; 14
Mass. 12 1 Johns. Cas. 313; 11 Johns. R. 241; 3 Johns. R. 352; 10 Johns.
R. 83; 1 Johns. R. 301; 9 Mass. 436, 447; 3 Binn. 457 7 Mass. 349; 5
Mass. 1; 8 Mass. 308 6 Mass. 102 121 6 Mass. 122 7 Cranch, 26; Id. 487; 3
Wheat. 159 7 Mass. 365; 10 Mass. 21 Id. 347 7 Johns. Rep. 864; 3 Johns.
R. 352; 4 Dall. R. 274 5 Binn. 403; 2 Serg. & Raw. 309; 2 Cranch,
240.
DEVIATION,
contracts. When a plan has been adopted for a building, and in the
progress of the work a change has been made from the original plan, the
change is called a deviation.
2.
When the contract is to build a house according to the original plan,
and a deviation takes place, the contract shall be traced as far as
possible, and the additions, if any have been made, shall be paid for
according to the usual rate of charging. 3 Barn. & Ald. 47; and see 1
Ves. jr. 60; 10 Ves. jr. 306; 14 Ves. 413; 13 Ves. 73; Id. 81 6 Johns.
Ch. R. 38; 3 Cranch, 270; 5 Cranch, 262; 3 Ves. 693; 7 Ves. 274; Chit.
Contr. 168; 9 Pick. 298.
3.
The Civil Code of Louisiana, art. 2734, provides, that when an
architect or other workman has undertaken the building of a house by the
job, according to a plot agreed on between him and the owner of the
ground, he cannot claim an increase of the price agreed on, on the plea
of the original plot having been changed and extended, unless he can
prove that such changes have been made in compliance with the wishes of
the proprietor.
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