#### Ebenezer Breed and Others *versus*David S. Eaton.

insurance was from *Liverpool,*m *Great Britain,*to *Savannah,*in *Georgia.*The master, after arriving off *Savannah*River, put away for *Amelia*Island, in the *Spanish*dominions, to avoid a seisure, &c., under the non-importation law of the *United States;*and, after learning that he might safely so do, returned to *Savannah.*This was held a deviation which discharged the underwriters

Case upon a policy of insurance subscribed by the defendant, dated December 5, 1810, wherein the voyage and property insured are thus described : — “ Nine hundred dollars on the property on board the brig *Sally,*from *Liverpool*to *Savannah,” &-c.*

(1)

*Cowp.*601, *Bond*vs. *Mutt.*

(2)

 Marsh, c. 3.

(a)

**[Vide *Russell*vs. Degrand, 15 *Mass. Rep.*35. — *Richardson*& *Al.*vs. *The Maine Ins. Co.,*6 *Mass. Rep.*102. — *Cook*vs. *The Essex F. & M. Ins. Co.,*6 *Mass. Rep.*122. — *Wheatland*vs. *Gray,*6 *Mass. Rep.*124. — *Amory & Al.*vs. Jones, 6 *Mass. Rep.*318.— *Lee*vs. *Gray, 7 Mass. Rep.*349. — *Brewer*vs. *The Union Ins. Co.,*12 *Mass. Rep.*170.— *Tucker*vs. *The United M. & F. Ins. Co.,*12 *Mass. Rep.*288. It does not distinctly appear, on which of the points, made by the defendant's counsel, the case finally was decided ; whether on account of a supposed deviation, or a supposed illegality in the insurance. As to the last point, that no insurance can be valid, which is made on property to be transported in contravention of the laws of the country of the assured, as a general rule, it cannot be questioned. But for aught that appears in the report of the case, there was no intention to contravene, or evade any law of the country, at the time of the insurance, or at any time afterwards. Probably there was good reason to suppose that the interdiction had become a nullity, or would become so before the goods could be transported from *England*to this country. Was the insurance, then, illegal ? Was the putting into the nearest port of safety, until the interdiction was removed, as there was a reasonable expectation that it shortly would be, a deviation ? Q,ufere.— Ed.]

In a case stated for the opinion of the Court, it was, among othei *29things, agreed by the parties, that the defendant subscribed the policy ; that the plaintiffs were interested to the amount insured by them; that on the 30th of December, 1810, the ship sailed from *Liverpool,*bound to *Savannah,*and laden with the produce and manufactures of *Great Britain;*that she arrived at *Tyhee*bar, off' *Savannah*River, on the 25th of February following, where the master learned that the non-importation act, so called, was in force, and that all vessels arriving in the *United States** from *Great Britain*and her dependencies, laden with [ * 22 J goods and merchandise such as the said cargo, were liable to seizure and confiscation. Whereupon the master, to prevent such seizure, &c., and the loss of the vessel and cargo to the owners thereof, and for no other cause, bore away for *Amelia*Island, in the *Spanish*dominions, being the nearest port of safety without the *United States,*where he arrived on the 4th day of March following, and after remaining there some time, and having learned that the said vessel and cargo might safely enter the waters of the *United States,*returned to *Savannah.*The master, on his arrival at *Savannah,*filed a claim in the Admiralty for his extra services in going to *Amelia*Island, which claim the district judge allowed, and, in the nature of general average, assessed his extra compensation upon tiie ship, freight, and cargo. The property of the plaintiffs, intended to be insured by the policy in question, was a quantity of cotton bagging, which, in the course of the voyage, and before the arrival of the vessel at *Savannah,*was much damaged.

*Selfridge*for the plaintiffs.

The departure from *Tyhee*bar was intended for the benefit of all concerned, and for the preservation of the ship and cargo, and is, therefore, within the policy.

In cases of departure from the direct course * of the [ * 23 ] voyage, not induced by force or physical necessity, the principle on which the decision ought always to be made is the *30fairness of the motive. (1) The case at bar is not different from that of a blockade, previously unknown to either party; the master may avoid a port of destination blockaded, without affecting the insurance.

*29If the Court should be of opinion that the departure of the said vessel from *Tyhee*bar, and going to *Amelia*Island, as aforesaid, was such a deviation from the voyage insured, that the underwriters were not liable for the damages incurred on the said cotton bagging, the plaintiffs agreed to become nonsuit, and that the defendant should recover his costs. But if the Court should be of opinion that the voyage to *Amelia*Island, under the circumstances aforesaid, was not such a deviation as would discharge the underwriters from the .payment of the loss sustained as aforesaid, then the defendant agreed to be defaulted, and that the Court should appoint one or more assessors to estimate the damages, and judgment to be entered according to their report., and for costs.

*30*Livermore*for the defendant.

This was a voluntary deviation, to avoid a peril not insured against. Had the ship gone to *Savannah,*she, with her cargo, would have been seised and condemned; but the underwriters would not have been chargeable with the loss. No insurance against the laws of our own country can bind the underwriters. (2) And *the Court*being of this opinion, the plaintiffs were nonsuit, *(a)*

ADDITIONAL NOTE.

[See *Groussett*vs. *Sea Ins. Co.,*24 *Wend.*209.— *Lander*vs. Clark, 1 *Hall,*355.— *Hand vs.*Baynes, 4 *Whart.*204. — *Deblois*vs. Ocean, &c., 16 *Rick.*303. — *Davis*vs. *Garrett,*4 *M. Hp P.*540. — *Bottomley*vs. Bovill, 5 *B. & C.*210.

Insurance upon a vessel, “ at and from *Boston*to all ports and places on the globe, and until her return to *Boston,*not exceeding two years." — Held, her destination to *Boston*did not absolutely require that she should actually sail to that port, but, at any time before arriving there, she might make for another port. — *Ellery*vs. *N. E.*Ins. *Co.,*8 *Pick.*14. Held, that putting into *Salem*was no deviation; nor visiting one port more than once. — *Bid.*— F. H.]