C.A 1901.

UNION STEAMSHIP

NEW ZEALAND

V.

have made if she had gone via Auckland. If she had gone viâ Auckland, Napier, and Gisborne, the distance would have been 1,870 miles. There is also to be considered the time she would COMPANY OF have spent at the intermediate ports a time that usually amounts to about two days. I am of opinion that, taking the JAKINS & route she took, and which is laid down on the map put in (Exhibit A), the deviation was not unreasonable, and the purpose is not one that was entirely out of the contemplation of the parties, as there is express provision that she could tow and assist vessels in distress.

BOWER.

There is one other point that I think it necessary to allude to. It was suggested that this was not a deviation, but a new voyage. I do not see how this suggestion can be acceded to. The distinction between a deviation and a change of voyage is thus dealt with in Joyce's Treatise on Insurance(1): “In "the case of an intention to deviate only the usual course "of the voyage is intended to be voluntarily departed from "without necessity, and the intention of going ultimately "to the terminus ad quem of the voyage insured is never absolutely lost sight of and given up. And herein lies the distinction between a deviation and a change or abandon"ment of the voyage insured. In the latter case the terminus "ad quem of the voyage insured is absolutely lost sight of and given up." In Emerigon on Insurance (Meredith's Translation)(2) what can be done under a clause permitting deviation is thus expressed (copied from Pothier): "When the "policy contains a clause that it shall be permitted the master

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of the vessel to navigate to the right and to the left, to make "a port, to go and to return, this clause certainly allows the 'assured to turn aside from the route, to touch at a port on "the right or on the left, to discharge goods there, and to "ship others in their stead, to go and return from one port to "another, even in retrograding, so that the vessel shall return "to its route for the purpose of reaching the destination ex"pressed in the policy; but it does not allow him to entirely

change the voyage: thus, notwithstanding this clause, the "insurers would be discharged if he made another voyage.'

66

C.A.

1901.

As to when the voyage is changed, as distinct from a deviation, Emerigon says(1), "If the vessel sets sail for quite another destination than that of the voyage insured, or if, "arrived in the latitude and view of the place of destination, COMPANY OF 66 she goes to a place more distant, or if, in wandering

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UNION STEAMSHIP

NEW ZEALAND

V.

BOWER.

from the proper route on which she had entered, she JAKINS & "abandons her original destination to go elsewhere, in all "these cases the voyage is changed." And, again(2), “For “the converse reason, the voyage is still presumed the same "when the captain, without losing sight of his first destination, strays from it only in accessories by means of the "different ports he makes in the course of his route." And as to what a deviation is, he says(3), "A vessel changes her route when, in place of following the customary way or that "allowed by her contract, she takes a different one, but still "without losing sight of the place of her destination." See also Kay on Shipmasters and Seamen (4). He says(5), “It is sometimes very difficult to draw the line between a mere 'intention to deviate and an abandonment of the voyage insured. The mere fact of taking in goods and clearing for "a port different from that to which the ship is insured, and

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for which she actually sails, does not amount to a change of voyage, for it is possible this may have been done with the "intention of putting into such port on the way to the original terminus, and with the intention of carrying out the original adventure. In such case it would be a mere intention to deviate, and not a change of voyage.'

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I think it is clear there was not in this case any abandonment of the voyage to Sydney. All that was done was a change of route-a deviation; and that, being reasonable, was, in my opinion, allowed by the contract of affreightment.

I am of opinion the appeal should be allowed, with costs on the lowest scale and as from a distance; also the costs of the action in the Court below on the lowest scale, including witnesses' expenses and disbursements, and the costs of the commission to Sydney.

(1) p. 574. (2) p. 575.

(3) p. 576.

(4) 2nd ed. §§ 175, 184, 185, 186.
(5) Ibid. §. 186.

C.A. 1901.

It is not, in my view of the case, necessary to consider the question of damages, but if that question had arisen it is clear to me that the onions in the eighty-five bags were never COMPANY OF sorted. This being so, these onions were not sound when

UNION

STEAMSHIP

V.

NEW ZEALAND shipped. If the question of damages had to be considered, JAKINS & the damages should be reduced by £15, arrived at thus:

BOWER.

The eighty-five bags contained about 6 tons; the price allowed is £2 17s. 6d. per ton: that would be £17 5s. The sum received would not exceed 7s. 6d. per ton: this would leave £15 to be deducted.

WILLIAMS, J. :—

The respondents (the plaintiffs below), on the 8th of June, 1899, shipped at Lyttelton 724 sacks of onions on board the appellants' steamship "Talune," to be carried to Sydney. The respondents received from the appellants a boat-note acknowledging that the goods had been received for shipment on the "Talune," subject to the printed exceptions and stipulations indorsed on the receipt, to be forwarded to Sydney via intermediate ports, that they were consigned to order, and that freight was payable at Sydney. The boat-note is on a printed form, on which blanks are left for the ship's name, the names of the ports, and the names of the consignors and the consignees, and the place at which freight is payable. These are filled up in writing. Several stipulations were indorsed, the most material of which are those numbered 2, 5, and 9. These are as follows: [His Honour here set out clauses 2, 5, and 9, as above.]

There are two routes from Lyttelton to Sydney—one riâ Wellington and thence direct to Sydney, the other via the east coast and Auckland, touching at intermediate ports, the first of which would be Wellington. The average duration of the voyage by the one route is six days, by the other eleven days. The advertised route of the "Talune" in the present case was via Wellington to Sydney direct. The "Talune," with the onions on board, left Lyttelton on the 8th of June, arrived at Wellington on the 9th, and left Wellington the same day. There was a steamship-the "Perthshire "--which

had left Sydney for the Bluff in the previous April which had
not arrived there, and which was supposed to have broken
down and to have drifted to the neighbourhood of Norfolk
Island. She was, the captain of the "Talune " says in his
evidence, supposed to be a valuable prize. The captain of the
"Talune" telegraphed from Lyttelton to his owners, the
Union Company, at Dunedin, for permission to go in search of
her, and to take additional coal for that purpose. The com-
pany replied to Wellington giving him the permission asked
for. No notice of this was given to shippers of cargo. The
"Talune" left Wellington on the 9th of June, and, after
passing Cook Strait, instead of keeping on her course to
Sydney, she deviated in the direction of Norfolk Island.
Eventually, on the 13th of June, the "Talune " found the
"Perthshire," in latitude 28° 57' S., and longitude 163° 50′ E.,
and towed her into Sydney Harbour, a distance of 710 miles.
The effect of this was to lengthen the voyage of the "Talune "
to Sydney by four days. The "Talune" was due in Sydney
on Thursday, the 15th of June, and did not arrive until day-
light on the morning of Monday, the 19th. The distance
which the "Talune" would have had to travel from Wel-
lington to Sydney if she had followed the ordinary course
was 1,239 miles; the distance she actually travelled was
1,971 miles, or more than half as much again. The nature
and extent of the deviation is best shown on the plan copied
from the Strand Magazine and printed in the case.
The re-
spondents assert that this deviation was not authorised by the
contract, and that, in consequence of the protracted voyage
which it occasioned, the onions were damaged. The first ques-
tion, then, is whether the deviation was justifiable. It was
contended, but not very vigorously, at the hearing that, apart
from any condition, the deviation was justified as being for the
purpose of saving life. Obviously, however, the motive of the
deviation was to secure salvage. Without in the least detract-
ing from the humanity of the Union Company, it is hardly
likely that, if a worthless hulk with a crew on board was
supposed to be drifting about somewhere in the neighbourhood
of Norfolk Island, the company would have ordered a steamer

C.A.

1901.

UNION STEAMSHIP COMPANY OF

NEW ZEALAND

บ.

JAKINS &

BOWER.

C.A.

1901.

UNION STEAMSHIP

NEW ZEALAND

V.

JAKINS &
BOWER.

going from Wellington to Sydney with passengers and goods to depart from its course and set out on a search expedition. In my opinion, if the deviation is justifiable it can only be COMPANY OF justified by the second of the above conditions. The words in the 5th condition, "proceeding by any route, and whether "directly or indirectly, to such port," have a sufficient meaning given them if the word "route" signifies any recognised route, and the words "directly or indirectly" signify "di"rectly, or touching at any intermediate port or ports. The 9th condition makes the goods at the shipper's risk during the voyage contracted for, but not during a voyage or a deviation which is not contracted for. The question, then, is whether the deviation is justified by the 2nd condition. The principles on which conditions permitting deviation are to be interpreted have been discussed and settled in the English Court of Appeal and in the House of Lords in the case of Margetson v. Glynn(1). In that case oranges were shipped at Malaga on board the steamship "Zena," under a bill of lading which stated that the vessel was now lying in the Port of Malaga bound for Liverpool, with liberty to proceed to and stay at "any port or ports, in any rotation, in the Mediterranean, 'Levant, Black Sea, or Adriatic, or on the coasts of Africa, "Spain, Portugal, France, Great Britain, and Ireland, for the purpose of delivering coals, cargo, or passengers, or for any other purpose whatsoever." The last clause of the bill of lading ran thus: "NOTICE. In accepting this bill of "lading the shipper or other agent of the property carried

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expressly accepts and agrees to all its stipulations, excep"tions, or conditions, whether written or printed." The "Zena" left Malaga for Burriana, a port about 350 miles from Malaga, on the east coast of Spain, took in cargo, retraced her course to Valencia, a port a little to the south of Burriana, and thence to Liverpool, thus occupying more days in reaching Liverpool than if she had proceeded there direct from Malaga. It does not appear that she touched at Malaga on her return from Burriana. Owing to the delay the oranges Arrived at Liverpool in a damaged condition. It was held

(1) (1892] 1 Q.B. 337; [1893] A.C. 351.