Marshall,
Ch. J.
delivered the opinion of the Court as follows:
This was an action brought on a policy insuring the Snow Comet at and from Baltimore to Barcelona and at and from thence back to Baltimore. The Comet arrived at Barcelona on the 25th day of 3 uly, in the yfear 1807, where she was compelled to perform quarantine. On the 28th of November the Comet cleared out from Barcelona for Salou, a port of Catalonia, about sixty miles south of Barcelona, where her return cargo was ready to be taken on board. On the first of December, wlu n in the act of sailing, the officers of the vessel were informed that the Algerine eruizers were out capturing American vessels. They were advised to remain until, they received further information. On the 8th day of January, 1808, they sailed for Salou and arrived on the 10th. They were detained by high winds till the 28th of January, when they sailed for Baltimore. On the 5th of February the vessel was captured by a British cruizer, while on her return voyage* and carried into Gibraltar, where she was condemned under the orders bf council of the 8th of November, 1807. Evidence was given that it was usual for vessels trading to Barcelona to touch at Salou or some other port on the same coast, to take in the whole or part of their return cargo^ and that in some instances vessels had remained in the port of Barcelona four, six, and even eight months, Waiting for a return Cargo.
On this evidence the Counsel for the Defendants hlovéd the Court to instruct the jury that the Plaintiff could not recover in this cause by reason of the length of time the vessel remained at Barcelona. The Court refused to give the direction as prayed, but did instruct the jury that, if they believed the facts stated, the Plaintiff was hot entitled to recover unless from the whole
testimony in the canse they should be of opinion that the vessel did not remain longer at Barcelona than the usage and custom of trade at that place rendered necessary to complete her cargo. To this direction of the Court the Plaintiff, by his counsel, excepted.
This exception was not much pressed at the bar,, nor does it appear to this Court to contain any principle to which he could rightly object.
Unquestionably an idle waste of time,' after a vessel has completed the purposes for which she entered a port, is a deviation which discharges the underwriters. If the Comet remained without excuse at Barcelona an unnecessary length of time while her cargo was ready for her and she might have sailed, she would remain at the risk of the owners — not of the underwriters
There is however some doubt spread over the opinion in this case in consequence of the- terms in which it is expressed. The vessel might certainly remain as long as was necessary to complete her cargo, but it is scarcely to be supposed that this was regulated by usage and custom. The usages and customs of a port or of a trade are peculiar to the pert or trade. But tlie necessity of waiting where a cargo is to be taken on board until it can be obtained is common to all ports and to all trades. The length of time, frequently employed in selling one cargo and procuring another may assist in proving that a particular vessel has ór has not practised unnecessary delays in port, but can establish no usage
by
which the time of remaining in port is fixed. The substantial pax-t of the opinion however appears to have been, and seems so' to have been understood, that the Blaintiff could not recover, unless the jury should be of opinion that the vessel did not remain longer at Barcelona than was necessary to complete her cargo, of which necessity the time usually employed for that purpose might be considered as evidence.
' The Defendants then moved the Court to instruct the jury tiiat if the said vessel continued at Barcelona as long as was justifiable by the usage of trade at that' place for completing and taking in her cargo, and did
not
complete and take in her cai’go there, but after-
wards went to Salou and remained there the length of time as stated in the said protest, in such case the Plaintiff is not entitled to recover.
The Coiirt instructed the jury that if the vessel remained at Barcelona as long as the usage of trade justified for the purpose of taking in a cargo there, that she could not afterwards go to another port and take it jn without vacating the policy.
To this opinion also the counsel for the Plaintiff excepted. Upon this exception there was some difference of opinion in this Court. For myself, I considered the direction as attaching the departure, which would avoid the contract, to the act of sailing to and continuing in Salou for the purpose of completing her return voyage, and am of opinion that although the Comet might have remained at Barcelona long enough to have taken in a return cargo there, for which she might or might hot be blameable, yet that no additional fault was cornmitted by touching at Salou for the purpose of completing her cargo, if to touch at Salou for that purpose was the usage of the trade.
A majority of the Court, however, is of a different opinion, f lie usage to stay at Barcelona for a return cargo, and to touch at Salou for a return caigo; as disclosed in the Plaintiff’s evidence, are considered by them not as independent but as auxiliary usages which are to be taken in connexion in ascertaining whether there was.or was not unreasonable delay in the conduct of the voyage. The assured had a rigl: . under these usages as they aré called, to take in part of the cargo at Barcelona and part at Salon, or the whole at either port. Tiie delay necessary for these purposes would be justifiable at either port; but if the assured exhausted the whole time, at one port, which, according.to the usage, was allowable only for the purpose of taking in the whole cargo, the subsequent delay at another port, for the purpose of taking in the cargo, must be considered as unreasonable. The delay at Barcelona,. under such circumstances, could not be necessary, for the purposes of the voyage, and therefore would determine the policy. But the deviation would rest merely in intention, until the time of sailing for Salou, for until that
time the assured would have a right to lade his cargo at "Barcelona, and'thus retroactively justify his stay there under the usage. The delay could not be a consumpiated deviation until the whole time allowed by the usage was exhausted and the party had definitively abandoned the lading of a cargo which would justify that delay". The opinion of the Court below, appears to the’ majority of this Court to have proceeded on this ground and to be correct.
The Plaintiff then, in addition to the former testimony, gave evidence that it was usual for vessels to remain at Barcelona until their return cargoes or so much thereof as might be necessary for their completion w as provided and collected at Salon, or spine other southern port in Catalonia, and then to sail to suph port, for the purpose of taking in the cargo.es so collected.
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Marshall,
Ch. J.
delivered the opinion of the Court as follows:
This was an action brought on a policy insuring the Snow Comet at and from Baltimore to Barcelona and at and from thence back to Baltimore. The Comet arrived at Barcelona on the 25th day of 3 uly, in the yfear 1807, where she was compelled to perform quarantine. On the 28th of November the Comet cleared out from Barcelona for Salou, a port of Catalonia, about sixty miles south of Barcelona, where her return cargo was ready to be taken on board. On the first of December, wlu n in the act of sailing, the officers of the vessel were informed that the Algerine eruizers were out capturing American vessels. They were advised to remain until, they received further information. On the 8th day of January, 1808, they sailed for Salou and arrived on the 10th. They were detained by high winds till the 28th of January, when they sailed for Baltimore. On the 5th of February the vessel was captured by a British cruizer, while on her return voyage* and carried into Gibraltar, where she was condemned under the orders bf council of the 8th of November, 1807. Evidence was given that it was usual for vessels trading to Barcelona to touch at Salou or some other port on the same coast, to take in the whole or part of their return cargo^ and that in some instances vessels had remained in the port of Barcelona four, six, and even eight months, Waiting for a return Cargo.
On this evidence the Counsel for the Defendants hlovéd the Court to instruct the jury that the Plaintiff could not recover in this cause by reason of the length of time the vessel remained at Barcelona. The Court refused to give the direction as prayed, but did instruct the jury that, if they believed the facts stated, the Plaintiff was hot entitled to recover unless from the whole
testimony in the canse they should be of opinion that the vessel did not remain longer at Barcelona than the usage and custom of trade at that place rendered necessary to complete her cargo. To this direction of the Court the Plaintiff, by his counsel, excepted.
This exception was not much pressed at the bar,, nor does it appear to this Court to contain any principle to which he could rightly object.
Unquestionably an idle waste of time,' after a vessel has completed the purposes for which she entered a port, is a deviation which discharges the underwriters. If the Comet remained without excuse at Barcelona an unnecessary length of time while her cargo was ready for her and she might have sailed, she would remain at the risk of the owners — not of the underwriters
There is however some doubt spread over the opinion in this case in consequence of the- terms in which it is expressed. The vessel might certainly remain as long as was necessary to complete her cargo, but it is scarcely to be supposed that this was regulated by usage and custom. The usages and customs of a port or of a trade are peculiar to the pert or trade. But tlie necessity of waiting where a cargo is to be taken on board until it can be obtained is common to all ports and to all trades. The length of time, frequently employed in selling one cargo and procuring another may assist in proving that a particular vessel has ór has not practised unnecessary delays in port, but can establish no usage
by
which the time of remaining in port is fixed. The substantial pax-t of the opinion however appears to have been, and seems so' to have been understood, that the Blaintiff could not recover, unless the jury should be of opinion that the vessel did not remain longer at Barcelona than was necessary to complete her cargo, of which necessity the time usually employed for that purpose might be considered as evidence.
' The Defendants then moved the Court to instruct the jury tiiat if the said vessel continued at Barcelona as long as was justifiable by the usage of trade at that' place for completing and taking in her cargo, and did
not
complete and take in her cai’go there, but after-
wards went to Salou and remained there the length of time as stated in the said protest, in such case the Plaintiff is not entitled to recover.
The Coiirt instructed the jury that if the vessel remained at Barcelona as long as the usage of trade justified for the purpose of taking in a cargo there, that she could not afterwards go to another port and take it jn without vacating the policy.
To this opinion also the counsel for the Plaintiff excepted. Upon this exception there was some difference of opinion in this Court. For myself, I considered the direction as attaching the departure, which would avoid the contract, to the act of sailing to and continuing in Salou for the purpose of completing her return voyage, and am of opinion that although the Comet might have remained at Barcelona long enough to have taken in a return cargo there, for which she might or might hot be blameable, yet that no additional fault was cornmitted by touching at Salou for the purpose of completing her cargo, if to touch at Salou for that purpose was the usage of the trade.
A majority of the Court, however, is of a different opinion, f lie usage to stay at Barcelona for a return cargo, and to touch at Salou for a return caigo; as disclosed in the Plaintiff’s evidence, are considered by them not as independent but as auxiliary usages which are to be taken in connexion in ascertaining whether there was.or was not unreasonable delay in the conduct of the voyage. The assured had a rigl: . under these usages as they aré called, to take in part of the cargo at Barcelona and part at Salon, or the whole at either port. Tiie delay necessary for these purposes would be justifiable at either port; but if the assured exhausted the whole time, at one port, which, according.to the usage, was allowable only for the purpose of taking in the whole cargo, the subsequent delay at another port, for the purpose of taking in the cargo, must be considered as unreasonable. The delay at Barcelona,. under such circumstances, could not be necessary, for the purposes of the voyage, and therefore would determine the policy. But the deviation would rest merely in intention, until the time of sailing for Salou, for until that
time the assured would have a right to lade his cargo at "Barcelona, and'thus retroactively justify his stay there under the usage. The delay could not be a consumpiated deviation until the whole time allowed by the usage was exhausted and the party had definitively abandoned the lading of a cargo which would justify that delay". The opinion of the Court below, appears to the’ majority of this Court to have proceeded on this ground and to be correct.
The Plaintiff then, in addition to the former testimony, gave evidence that it was usual for vessels to remain at Barcelona until their return cargoes or so much thereof as might be necessary for their completion w as provided and collected at Salon, or spine other southern port in Catalonia, and then to sail to suph port, for the purpose of taking in the cargo.es so collected.
The Defendants then moved the Court to instruct the jury that since it appeared from the protest of the master and others ori board the Comet, and from the sentence pf condemnation producéd by the plaintiff, that all the return cargo, which the said vessel took in at Barcelona, was taken in oh or before the 28th of November, that the said vessel w as then ready for sea, and was actually cleared put on the 1st of December; and that being there, and pbout to sail immediately for Salou, the spid snow Comet, in consequence of a report that the Algerine cruizprs were put. cruizing in the Mediterranean against American vessels, remained at ^Barcelona until (jie Sth of January, 1808, before she sailed from Barcelona, if the jury believed these facts the Plaintiff could not recover. This opinion wa§ given by the Court and the Plaintiff excepted to it.
Had not the'testimony on which this application was founded been spread upon the record the Court would have found some difficulty in deciding on the propriety of the opinion which was given from the terms employed in stating the application to the Circuit Court. It appears however from a comparison of the application to the Court with the testimony on which it was founded, to have been intended to obtain from the Court the opinion that the testimony respecting the report that the Algerines were out capturing American vessels was
not h sufficient justification for remaining at Barcelona from the. 1st of December, 1807, till the 8th of January, 1808.
No doubt is entertained, that the danger of capture - from the Algerines, jf proved to be real and immediate, would justify the continuance in the port of Barcelona.
And the apprehension of such danger, if founded on reasonable evidence, would produce a like effect. But in éach case the danger must not be a mere general danger, indefinite in its application and locality. If it were so, in time of war, any deiay, however long, in a port, wo. id become excusable, for there would always be dauge* of capture from the enemy’s cruizers. Mor is it sufficient that the danger should be extraordinary, for then any considerable increase of the general risk would authorize a similar delay. The danger, therefore, must be obvious and immediate in reference to the situation of the. ship at the particular time. It must be su.ch as is then directly applied to the interruption of the voyage, and imminent; not such as is merely distant, contingent and indefinite, In the present case it is no* shown that there was any. danger in proceeding from Barcelona to Salou.. No Algerine force is shown to be interposed between those ports. Whatever might be the danger elsewhere, if there was hone in proceeding to and remaining in Salou, it was the duty of the captain to have proceeded to that place;, taken in his cargo, and remained there for further information. Thp captain was bound to have gone as far on his voyage $s he could consistent with the general safety.
The judgmént is affirmed with costs,
Livingston,
J.
I concur in the opinion that the judgment of the Circuit Court be affirmed; but in coming to this result ‡ have thought it necessary to examine only the fourth exception which was taken below. It is, according to my view of this cause, very immaterial to enquire whether the Plaintiffs succeeded in establishing the usage, as jt has been incorrectly termed, for a vessel to remain several months at Barcelona for the purpose of obtain
ing a return cargo: or whether at one period the master of the Comet entertained a well grounded apprehension of danger of capture by British vessels $ or whether it Was the course and usage of the trade for vessels - bound from Barcelona to any foreign ports to touch at Salou, or at some other port south of Barcelona, on the coast of Catalonia, in order to.take in their return car-. goes;‘i say; whether these íacts were established, or what opinion the Court gave on them in the course of the trial, are in my judgment, as this case comes up, totally irrelevant in the decision of it, because there are .other facts proved, and that by .the Plaintiffs themselves, which are in the opinion of the whole C°url fatal to their claims. The facts are these: “That after all “ fear from British cruizers had ceased, to wit: on the
**
28th of November, 1807, being ready for.,sea, the ves- “ sel cleared for Salou on the 1st day of December following, and when in the act of sailing, information “ was received that the Algerine cruizers were
out
capturing. American vessels; the 'master was therefore “ a ¡vised
to
remain in port until they received other “ intelligence, and did not sail for Salou until the 8th of “ January, ,1808^’
On this evidence the Circuit Court instructed the jury, that if they believed these facts to be true the Plaintiffs were not entitled to recover. -In giving this opinion the. Court in effect, said, that the information, which was received at Barcelona respecting the Algerine cruizefrs did not-justify a stay there from the 28th of November to the 8th oft January.
To this opinion two objections are made
The one is, that the Court took upon itself to decide whether the delay last mentioned pi’oceedpdfrom a justifiable cause, instead of leaving it. to the jury to determine both th'e law and the fact, In doing so, I think tlxe Court committed no .error. What will excúse a delay, apparently unreasonable, so as to repel the charge of a deviation on that account, must ever be and ought to be a question pf law, to be decided by a Court under, all the circumstances of the particular páse. In tins way only can any thing like certainty he attained j but if it be left tú a jury not only to,find the facts, which is
exclusively within tlieir province, but also.to pronounce what is the law resulting from them, it wU|.' be next to impossible to form a system of rules by which a merchant may safely regulate his conduct.. Nor will it help, the matter to consider it as a mixed, question' of ■ law and fact, because that gives to the jury a right to disregard the opinion of the Court, which they will have no right to do in case it he considered exclusively as a question of law on which the Court alone has a right to decide. In civil cases every man lias an interest in confining a jury as much as possible to their proper sphere, which is to decide on facts 5 ‘while a Court does not encroach on their province, care should be taken not to encourage any improper encroachment on their part by unnecessarily throwing On them any exercise of what are the legitimate, functiops of a Court.’ Among these none appear to me to be better settled, than that it is the exclusive privilege and hounden duty of a Court to decide whether an act, which is to be done within a reasonable time, to entitle a party to maintain his action, has been performed within such time or not. So also, where a party sets up an excuse for an act which will otherwise defeat his right to recover, it appertains exclusively to the Court to decide on the sufficiency or the matter alleged, and if a jury, after deciding on the facts, takcupon themselves the further office of determining the legal effect thereof as to the case under consideration, in opposition tó the declared opinion of the. Court, they forget their duty and act contrary law.
But if this be a question of law, the Plaintiff still supposes that the Circuit Court erred in not thinking that the facts proved constituted a valid excuso for the last forty days’ stay at Barcelona, and in not instructing the jury accordingly.' This1 excuse Was, in my opinion, pi’operly disposed of by'the judge below, but instead of stating at length why I consider the alleged apprehension of capture by 'the Algerines as furnishing no justification for this depiy, it is sufficient to say that I entirely concur, not oiily in the opinion which has already been delivered on this point, but in the whole of the reasoning on which it is founded.
Story, J. concurred with Judge Livingston.
. Marshauu,
Ch. J.
My own opinion was that the jury was to find the fact whether there wrs danger in .passing between Barcelona and Salou; and that they ought to have been instructed that if there was danger justified the delay, otherwise not.