Dorsey, J.
delivered the opinion of the Court. The right to the appellants to recover in this action, seems to have been resisted in the court below, simply on the ground that the sailing of the schooner Two Brothers from St Barts, to Marguarita, under the circumstances of the case, was a deviation by which the underwriters were discharged from all liability on the policy. But the appellees here contend, that the judgment rendered is correct for various reasons. First. They insist that every deviation to avoid a peril not insured against absolves the assurers. To examine this point independently of decisions on the subject, the court think it stands relieved from all difficulty or doubt. In construing a policy of insurance, the court should give it a fair and liberal interpretation, such as, under all the circumstances of the case, appears most consonant to the intention of the parties at the time the contract was formed. The design of the assured, being to provide for themselves an indemnity against loss, from which the insurers engage to protect them, such a construction should bo placed on their compact as, according to the understanding of the parties and nature of the transaction, will effectuate that object. Mercantile negociations should never depend on subtleties and niceties, but upon rules founded on common sense and justice, a knowledge of which would therefore be readily acquired by the/ community at large. Policies of insurance may be considered " either as universal, embracing all manner of risks, or special, being confined to one or more specified perils. On the latter description of policies only, can the question now under consideration ever arise. As to all risks, not insured against, the owner becomes his own underwriter; when an insurer assumes a responsibility for all losses, for example, arising from sea risks only, can it be presumed to be the understanding or agreement of the parties to the policy, that the insured relinquished all right to escape capture from pirates, or elude other imminent peril, by fly[288] ing for protection to a neighbouring port out of the usual course of the voyage? If such be the operation of a contract of insurance, not universal, Instead of providing for the insured an indemnity against loss, it serves but to paralise his efforts for the safety of his property, and to impose on him new duties and restrictions which enhance his dangers. ' “A deviation is a voluntary departure, without necessity or reasonable cause, from the regular and usual course of the voyage.” How can that digression from the course of the voyage be said to be “without necessity or reasonable cause,” which is made to avoid an imminent peril of capture, or other disaster necessarily resulting in the entire loss of the subject matter of insurance? If not, then such a departure being no deviation, is justifiable, and impairs not the liabilities of the underwriters. Suppose the common case of a general ship, where the cargo is owned by many different persons, each of whom insure against separate risks; upon the occurrence of a peril, insured against by any one owner, the captain becomes the joint agent of such owner and his underwriter, and is in duty bound to avoid the danger even by a digression from the course of the voyage; and yet in such a case, if the doctrine contended for be correct, all the underwriters, upon other parts of the cargo, would be absolved from their engagements — In manifest violation of the intentions of all the parties, and contrary to every idea of common sense and justice. The court think that the insurer must be presumed to be acquainted with the usages and accidents to which the property insured may be subjected in the course of the voyage; that they are contemplated by him at the time of his contract, enter into and become a part of it; and that although he is only answerable for losses flowing immediately from the perils against which he insures, yet that viewing the captain as the agent of the owner, he tacitly assents to all reasonable efforts, which he may make for the safety of the property insured, and its transportation to the port of destination; and consequently authorises the usual means of avoiding urgent danger, whether it be from a peril insured against or not.
This being the view which we have taken of this point in the cause, independently of all adjudications on the subject, let »s examine how far they should prompt us to a change of opi[289] nion. Between cases of physical and moral necessity as justifications for departure from the course of the voyage, the books make no distinction, and in reason and on principle there is none. In support of the principle for which they contend, the counsel for the appellees have referred to three cases; one of which is Breed & others vs. Eaton, 10 Mass. Rep. 21. The policy was signed at Boston, in December 1810, on a voyage from Liverpool to Savannah; the vessel arrived off the port of destination on the 25th of February 1811, but being informed of the non-intercourse law passed by the congress of the United States, the captain, afraid to enter, and apprehending seizure and confiscation, to avoid it sailed to Amelia, Island, to wait until he might lawfully return to Savannah. The underwriters being sued on this policy for a subsequent loss, their counsel insisted that they were discharged by the deviation, in going to Amelia Island, to avoid a risk not covered by the contract of insurance; and also that the policy became void in consequence of the non-intercourse law of the United States; "and of this opinion, (says the reporter,) were the court.” Of what opinion? Whether that the deviation avoided the policy, or that it became void under the non-intercourse law of the United States, we are left to conjecture. But from the manner in which the last position was presented to the court, being deemed too plain to require either argument or authority to support it, and from the promptness and brevity with which their judgment was announced as soon as the last point in the cause was started, it affords a very strong presumption, that upon that only did they botiom their decision. It was not the habit of that enlightened tribunal to decide in a way so summary and laconic, so grave and important a question as that discussed on the principle of deviation, and on which contradictory determinations had taken place. We are aware, however, that in Phillips on Insurance, 211, this case is classed as though it turned on the point of deviation. The other two cases are Roget vs. Thurston, 2 Johns. Cases, 248, and O’Reilly vs. The Royal Assurance Company, 4 Campbell’s Nisi Prius Rep. 246, both of which do sanction this novel and technical distinction relied on by the appellees. But Roget vs. Thurston is in fact overruled by a subsequent decision of .the same tribn[290] nal, in which Chief Justice Kent, with Judges Tompkins, Spencer and Thompson, concurring, decides, that “a deviation from necessity will excuse the assured, in case of an assurance against any particular risk, as well as in case of a general insurance. There is not probably any exception, to be met with, to the application of the general principle, that if the vessel departs from the usual course of the voyage from necessity, and departs no further than that necessity requires, the voyage will still be protected by the policy.” Vide Robinson and Robinson vs. The Marine Insurance Company of New York, 2 Johns. Rep. 89. In this case, the insurance being against “sea risks only,” and a digression quia timet a peril not insured against, the court adjudged it no deviation. The appellees then can only sustain their position by the single nisi prizes decision of Chief Justice Gibbs, in 4 Campbell, in opposition to which is the positive decision of Lord Kenyon in Green vs. Elmslie, Peake N. P. 212, which is approved of and adopted by Lord Ellenborough in Livie vs. Janson, 12 East, 653; and the deliberate opinion of the court of common pleas, delivered by Chief Justice Mansfield, after full argument, in Scott vs. Thompson, 4 Bos. & Pull. 181. In Marshall on Insurance, 204, it is stated, that “necessity will justify a deviation though it proceed from a cause not insured against.” And the same principle is supported by Phillips on Insurance, 214. The weight of authorities, this court conceive, is decidedly in favour of the views they have taken of the case at bar; and in all questions of this ^nature we apprehend the doctrine laid down in Stocker, et al. vs. Harris, 3 Mass. Rep. 417, stands free from objection, that “the captain is the common agent of the concerned, and it is his duty to manage their distinct and separate, as well as their joint interests, according to his best judgment; and whatever is fairly done with this purpose, is within the course of the voyage; and delays, occasioned by such events, are accidents to which the insurers are accidentally, if not directly subjected.” “Fairly done,” being understood to mean, done with good intentions, and upon reasonable grounds. But admitting the law to be otherwise, there is nothing in the bill of exceptions to show that the peril sought to be avoided was one excepted out of the policy. It does not even appear that the Two Brothers. [291] had any cargo on board, or that there could have been the most remote cause or apprehension of danger, “by reason or on account of any Illicit or prohibited trade, or trade in articles contraband of war.”
The appellees’ next object, that the appellantshaving prayed an hypothetical instruction from the court, that they were entitled to recover if the jury believed certain enumerated facts; the, effect of granting such prayer would be, to withdraw from the bands of the jury, the finding of all other facts than those specified ; and would in truth bo a direction, that if the jury should find, the facts enumerated to be true, although they might disbelieve every other fact on which testimony had been offered, yet that the plaintiffs are entitled to recover. If such would be the operation of the instruction prayed for, it surely cannot be contended, that its refusal is matter of error, as all evidence of peril, or apprehension of peril, is excluded from the consideration of the jury, it not being one of the enumerated facts, on the finding of which their verdict is made exclusively to rest. The, departure from the course of the voyage being then without apology or justification, the law affixes to it the character and consequences of deviation. Whether this he the true construction of the appellants’ prayer, is not clear of doubt, and we deem it unnecessary to express any opinion on the subject.
The appellees also insist, that the testimony, offered in this cause, does not disclose any justification for the sailing of the schooner from St. Barts to Marguarita, and that on account of this deviation they are discharged from their policy. And in this we concur with them in opinion. In every contract of marine insurance the law imposes an obligation on the assured to provide a master of competent skill, prudence and discretion, to navigate the vessel; and if in a change of the course of the voyage a loss happen, which may be justly imputed to his not having provided a master of that character, the underwriters are not responsible. The mere apprehension of danger, unless founded on reasonable evidence, does not justify deviation. The court, and not the jury, are the judges whether the deviation be justifiable. Oliver vs. Maryland Insurance Company, 7 Cranch, 493, 4, 5; and Patrick vs. Ludlow, 3 Johns. Cas. 13. The peril apprehended must be such, that if encoun[292] tered, loss or serious injury is the necessary consequence. The danger must be imminent and obvious, not problematical or contingent. Apply these principles to the evidence offered in the case at bar. Upon their arrival at St. Barts, the captain and supercargo “are informed, and had good reason to apprehend, that St. Martha, which at the time of the sailing from Baltimore was in possession of the Patriots, had fallen into the hands of the Royalists, who had, by keeping the Patriot flag flying, decoyed vessels into port, and seized, detained and confiscated them.” Do these facts constitute an “obvious” or “imminent” danger? Is it alleged that on such former occasion American, or neutral vessels, were decoyed into port, seized and confiscated? Not a word of the kind. And this court are not permitted by mere implication, in the absence of all proof, to impute to the agents of a sovereign and Christian nation such acts of lawless outrage and treacherous rapine. The hoisting of the Patriot flag by the captors of St. Marlha can only be viewed as a ruse de guerre to operate on the vessels of the Patriots, not of neutrals. There appears, therefore, to have been no cause for the apprehension of such danger as would justify the sailing from St. Barts to Marguarita. Even suppose that neutral vessels had shared the same fate at St. Martha, on the occasion alluded to, with those of the Patriots; there is no evidence to show, that the recaptor of St. Martha was the same perfidious Royalist robber, into whose hands it had formerly fallen. And there is a total absence of testimony on which to ground an inference, that a similar system of plunder had been practised in recaptured ports by other Royalist commanders. On these grounds the court below were right in refusing to grant the plaintiffs’ prayer that they were entitled to recover.
Their opinion, it is apprehended, may be supported on another ground. “The circumstance that a deviation takes place through the mistake or negligence of the captain, does not prevent its discharging the underwriters, since his mistakes and negligence are at the risk of the assured.” See Phil. Ins. 223, and Phyn and others vs. The Royal Exchange Insurance Co. 7 T. R. 501. The captain is bound to know, as far as the ordinary means of information can afford such knowledge, the va[293] rious ports in the course of his voyage, as well as regards their locality, as the general nature of their trade, and the relief and assistance he may expect to obtain, should he be compelled to visit them on account of any emergency arising in the prosecution of the voyage. A failure, on the part of the captain, to possess such information, is a violation of the implied engagement always imposed on the assured, that the vessels, in relation to which the insurance may be effected, is navigated by an officer of competent skill and judgment for the performance of the voyage. According to the testimony offered by the defendants, Curracoa is in the direct route of the voyage from St. Barts to St. Martha; is an open port, free for the reception of Spanish and Colombian vessels of war, and for the vessels of all other nations, and that constant intercourse is kept up between Curracoa and St. Martha-, and that information, in relation to the last mentioned port, would be heard at Curracoa, in the course of three or four days, that being the usual length of the voyage between those places; and that Curracoa was resorted to by neutrals for intelligence as to the state of the Spanish Main. That Curracoa is a place oi deposit or entrepot for large quantities of merchandize which are intended to be carried to the different ports on the Spanish Main, and which are from time to time placed there and removed according to the state of the market, and the situation of the ports on the Main, whether in possession of the Royalists or Independents; and that these facts, in relation to Curracoa, were well known in Baltimore, previous to and at the time of the sailing of said vessel on the voyage insured; and that it was well known at St. Barts that Curracoa was the nearest place to St. Martha, where correct information was at all times to be obtained of the state and condition of the government of St. Martha. That Marguarita is six hundred miles from St. Martha, whilst Curracoa is but three hundred; and that Marguarita is by one third more distant from St. Barts than Curracoa. That Marguarita is much out of the usual track of a voyage from St. Barts to St. Martha, and was never pursued by a vessel having St. Martha in view as her port of immediate destination. In justification of the conduct of the captain, without proving that Marguarita was a port of [294] more convenient access than Curracoa, was likely to possess the means of giving the information sought for, or for a like purpose was ever visited by any vessel on any voyage, it is proved, that the captain, “learning at St. Barts that Marguarita, a West India island, was the best and safest port or place at which to acquire information relative to the situation of St. Martha, proceeded there.” How, or from what source the captain gained this intelligence does not appear. Of the facts detailed in relation to Curracoa he was bound to have had knowledge. If so, can it be doubted, that it was his duty to have sought-the intelligence he desired at the port of Curracoa, the nearest and most convenient port, and that by proceeding to Marguarita, he committed a deviation which discharged the underwriters.
But the court were justified on another ground in refusing the plaintiffs’ prayer. They could only grant it, provided that from the whole testimony offered in the case, the jury were warranted in finding the facts specially enumerated therein, and all •other facts necessary to support the action; notwithstanding it be admitted that all the evidence offered by the defendants is true, {-except so far as the same may be contradicted by the finding of the specific facts contained in the prayer,) no matter liow strong may be the contradictory testimony produced by the plaintiffs. Upon any other principle the court would have transcended the limits prescribed to their powers, and invaded the undeniable and exclusive prerogative of the jury, viz. the right of deciding on all matters of fact, as to which' contradictory- evidence may be adduced. What is the instruction prayed? 'That'the court direct the jury, “that if they should believe, that upon the arrival of the vessel insured,- at* Si. Barts, it was generally reported that St. Martha was in possession of the Royalists, and that the master and supercargo were informed at St. Barts, and verily believed, that Marguarita was the best and nearest place to obtain information relative to the ■situation of St. Martha, and that the master of said vessel, in the exercise of an honest and sound discretion, went to Marguariia for information, that proceeding thereto was no deviation, and that the plaintiffs were entitled to recover for a total loss.” How could the court authorise the jury to find the [295] fact, that Marguarita was the nearest port to obtain information relative to the situation of St. Martha, without one particle of testimony, on the part of the plaintiffs, to establish that fact; and in opposition to its conclusive refutation by positive proof adduced by the defendants. We conceive it to be the peculiar duty of courts of original jurisdiction, imposed on them for the wisest and best purposes, when applied to, in cases where either no testimony is offered of a fact, or the proof is so vague and indefinite, that by no rational inference can the fact attempted to be proved be deduced, to instruct the jury, that from the testimony offered, it is not competent for them to find such fact. The inconsistency of the court, therefore, would have been most conspicuous, had they by express instruction encouraged the jury to find Marguarita the nearest port, not only without proof, but against that of the most clear and unequivocal character.
The court were right in rejecting the prayer for another reason. The facts being admitted, the question of deviation is a matter of law for the decision of the court. Considering, then, the testimony in the cause in the way in which it is before stated, the court were bound to receive it in reference to this prayer. Is it possible that any court of judicature, (let the intentions of the captain have been never so honest,) would instruct a jury, that under the circumstances of this case, whilst impelled by no imminent peril, but proceeding merely to en-quire into the truth of a public rumour, they were authorised to find, that in going to Marguarita, instead of Curracoa, he acted in the exercise of “a sound discretion?” We think not. His conduct must be imputed to that gro^s ignorance and want of judgment, which discharges the underwriters.
Much stress was laid, in the argument, on the statement iii the bill of exceptions, that the plaintiffs “proved” such and such facts. We receive it as meaning nothing more, than that he offered evidence thereof,
Buchanan, Ch. J. dissented.
JUDGMENT AFFIRMED.