country had not assented; in such cases the sentence is not conclusive evidence against the warranty of neutrality. It is to be observed also, that the sentence of a foreign court, where it is conclusive, is conclusive only as to the grounds of the sentence, and not as to the premises which led to the conclusion". The preceding remarks, as to foreign sentences of condemnation, being conclusive evidence against the warranty of neutrality, must be confined to legal sentences, that is, sentences of a prize court, acting and exercising functions either in the belligerent country, or in the country of a co-belligerent or ally in the wars; for sentences of condemnation, pronounced by the authority of the capturing power, within the dominions of a neutral country, to which the prize may have been taken, are illegalt, and consequently inadmissible. And that is to be considered as a neutral country for this purpose", in which the forms of an independant neutral government are preserved, although a belligerent may have such a body of troops stationed there as in reality to possess the sovereign authority. Free of Capture in port.-If a vessel is taken at her moorings, being neither within the caput portus, nor within that part of a haven where ships unload, the underwriter is not discharged by a warranty against "capture in the ship's port of destination a." Whether a vessel warranted free of capture in port, be in a port or not at the time of her capture, is purely a question of fact for the jury. See further Oom v. Taylor, 3 Campb. 204. and Maydhew v. Scott, ib. 205. The assured upon a policy on ship, not having leave to carry simulated papers, cannot recover for a loss by capture; if it appear by the sentence of the foreign prize-court that one of the causes stated for the condemnation was the carrying of simulated papers. Implied Warranty. 1. Not to deviate.-Another condition implied in the contract of insurance is, that the ship shall not deviate. Hence arises another ground of defence, on which the underwriter may insist, viz. that there has been a deviation, by which term is to be understood a wilful and unnecessary departure from the due course of the voyage in q Bird v. Appleton, 8 T. R. 562. r Christie v. Secretan, 8 T. R. 192. t Havelock v. Rockwood, 2 T. R. 268. a Keyser v. Scott, 4 Taunt. 660. 15 East, 364. sured, either with or without the consent of the assured, for any, even the shortest space of time. The effect of a deviation is not to avoid the contract ab initio, but only to determine it from the time of the deviation, and to discharge the insurer from all subsequent responsibility. Hence, damage sustained before the actual deviation must be made good by the underwritersd. From the moment of deviation, however, the contract is at an end, and it is immaterial from what cause the subsequent loss arises. If two ports of discharge are named in the policy, and the ship intends going to both, she must take them in the order named in the policy. Hence, where a ship insured for A. and B., meaning to go to both, went first to B. in her way to A.; it was holden to be a deviation from the voyage insured, not being in the order named in the policy. Upon a policy from London to Trinidad or the Spanish Main, with leave to call at all or any of the West India islands or settlements, and with liberty to touch and stay at any ports or places whatsoever and wheresoever, the assured must take all the ports at which he touches, in the same succession in which they occur in the course of his voyage insured. A policy at and from Martinique and all and every West India Islands, warrants a course from Martinique to islands not in the homeward voyages. A ship having liberty to put into one port, put into another equally in her way; this was holden to be a deviation, and to avoid the contract though neither the risk nor the premium would have been greater, if the putting into such other port had been allowed by the policy. A ship was insured from Lisbon to England with liberty to call at any one port in Portugal; it was holden', that under such a policy the party had only a liberty to call at some port in Portugal, in the course of the voyage to England. Where a ship insured to Martinique and all or any of the Windward and Leeward Islands, landed the greatest part of her cargo at Martinique, and sailed with the residue to Antigua, where she was wrecked while stopping partly to dispose of the residue of the outward cargo, and partly to obtain a homeward cargo; it was holdenk that the underwriters were not liable; for, per Lord Ellenborough, C. J., when the disposal of the outward cargo ceased to be d Green v. Young, 2 Raym. 840. Salk. e Beatson v. Haworth, 6 T. R. 531. i Hogg v. Horner, Marsh. 197. but see Leathly v. Hunter, 7 Bingh. 528. k Inglis v Vaux, 3 Campb. 437. Ld. Ellenborough, C. J. Moore v. Taylor, 1 Ad. and Ell. 25. 3 Nev. and M. 406. S. P. the sole reason for the stay at Antigua, the underwriters were discharged. A policy of insurance on goods at and from London to the ship's discharging port or ports in the Baltic', with liberty to touch at any port or ports for orders, or any other purpose, does not warrant the assured, after having touched at C. for orders, and gone on to S., a more distant port, in retouching at C. for orders: but if the policy be to any and all ports and places in the Baltic, forwards and backwards, and backwards and forwards, it is otherwise. Under a liberty to touch and stay at all ports for all purposes whatsoever, the stay must be for some purpose connected with the furtherance of the adventurem. Whether the purpose is within the scope of the policy, is a question for the court solely and not for the jury. If the policy does not limit the time of stay, whether a ship has staid an unreasonable time, is purely a question for the jury. A policy of insurance "at and from London to Berbice," was effected upon the receipt of a letter from the captain, (which was shewn to the underwriter), stating that he had passed Barbadoes, and the words "at sea" were inserted in the policy after the printed clause describing the beginning of the adventure on the goods. It was holdenP, nothwithstanding, that the policy was vacated by a deviation at Madeira, in a former part of the voyage. A ship was insured from London to the southern whale fishery and back again, "with leave to carry letters of marque, and to cruise for, chase, capture, man, and see into port, any ships of the king's enemies." It was holden, that although the ship insured might be authorized under the terms of this policy, in accompanying prizes to any convenient port consistently with the main adventure, seeing them safely moored there, and perhaps stopping a reasonable time to give directions for their proceeding on their final destination, yet remaining in port until a prize was repaired, could not be considered as warranted by those terms. A deviation never puts an end to the insurance, unless it be the voluntary act of those who have the management of the ship. Hence, where a policy was effected on a ship carrying letters of marque, from Bristol to Newfoundland, and the orders of the owners were to put a few hands on board any prize that might be taken, and send her to Bristol, but that the ship should proceed to Newfoundland; notwithstanding which the crew obliged the captain to 1 Mellish v. Andrews, 16 East, 312. m Langhorn v. Alnutt, 4 Taunt. 511. n Ib. o Ib. p Redman v. London, 3 Campb. 503. C. B. per Sir J. Mansfield, and afterwards confirmed by the court. q Jarratt v. Ward, 1 Campb. 263. go back to Bristol with a prize, taken during the voyage, and in so doing the ship was captured, it was holden", that this deviation was justifiable, and that the underwriter was not discharged from his obligation to indemnify the assured. The owner of a ship (which was about to sail on a voyage from Lisbon to Madeira, from Madeira to Saffi, on the coast of Africa, in ballast, and thence to Lisbon, with a cargo,) was desirous of having the insurance effected on part of the freight from Saffi to Lisbon. The underwriters objected, on account of the distant period at which the risk was to commence; however, on a representation some time afterwards by the owner, that he had received intelligence of the ship's arrival at Madeira, and that she was about to proceed immediately on her voyage, the insurance was effected. When the ship arrived at Madeira, all the crew, except two, being alarmed by reports of some Moorish cruisers being off Saffi, and of their having captured and ill-treated a Dane and an American, quitted the ship, and refused to return to it, unless the captain would promise to sail immediately for Lisbon. Under these circumstances, the captain carried the ship back to Lisbon: but on his arrival there, the charterers insisted on his proceeding directly from thence to Saffi, which he accordingly did, and was captured in his return from Saffi to Lisbon. It was in evidence, that the difference of season, arising from this delay, did not vary the risk. It was holdens, that the deviation was justified by the special circumstances. And this rule holds as well in the case of a limited as a general policy. Hence, where a policy was effected on goods on board a ship for a certain voyage, "against sea risk and fire only," and the ship was forcibly carried out of the course of her voyage, and detained by a king's ship, but afterwards was released, and permitted to proceed on the voyage insured, during which the goods insured sustained sea-damage; it was holdent, that the deviation having been occasioned by force, and without any consent on the part of those who had the management of the ship, the underwriter was liable, although the voyage was made longer than it otherwise would have been, by the detention of the king's ship. An unreasonable delay in performing the voyage insured, is equivalent to a deviation"; as where a ship insured "at and r Elton v. Brogden, 2 Str. 1264. s Driscol v. Passmore, 1 Bos. and Pul. 200. See also Driscol v. Bovil, 1 Bos. and Pul. 313. t Scott v. Thompson, 1 Bos. and Pul. N. R. 181. u Hartley v. Buggin, M. 22 G. 3. Park, 468. S. C. 3 Doug. 39. recognised in Mount v. Larkins, 8 Bingh. 121. from the coast of Africa to the West Indies, with liberty to exchange goods and slaves," stayed several months beyond the usual stay of ships in that trade. It is immaterial whether the risk has or has not been thereby increased. So a delay in the commencement of the risk, by the interposition of an intermediate voyage not communicated to the underwriters, will discharge the policy; unless such intermediate voyage was one, which was made usually and according to the trade in which the ship was then engaged, which would be equivalent to notice to the underwriters. So where the delay before the ship arrived at the port where the policy was first to attach was unreasonable and unjustifiable; it was holdene, that the underwriter was discharged. So where the insurance was effected on January 28th, on a vessel afloat "at and from Bristol to London;" and the vessel (a yacht) did not sail until the 17th of May; it was holden that the delay unaccounted for was unreasonable, and that the underwriter was discharged, although the vessel was one which did not usually sail in the winter. In a subsequent trial on the same policy, the jury found that the delay was sufficiently accounted for, and plaintiff obtained a verdict. Grounds of necessity, which will justify a deviation, are, 1. Going into port for the purpose of refitting or repairingf. 2. Stress of weathers. 3. Avoiding an enemy, or seeking for convoy. A vessel may deviate somewhat from the straight line of her track to seek for convoy; and the captain unless expressly prohibited by the terms of the policy, may always do what is necessary for the safety of the ship. A vessel insured may do whatever it would be expedient for the common security to do if uninsured. But where a ship was insured from London to Berbice, with an extensive liberty of touching and trading at all places; it was holdenk that by putting into Madeira, and voluntarily staying there for the purposes of trade, after the convoy, with which she sailed had pro b Admitted Vallance v. Dewar, Campb. 505. Ougier v. Jennings, ib. n. c Mount v. Larkins, 8 Bingh. 108. re- f Admitted by Lord Hardwicke, Ch. in Motteaux v. London Ass., 1 Atkyns 545. g Delany v. Stoddart, 1 T. R. 22. i D'Aguilar v. Tobin, 1 Holt's N. P. |