he sailed from Jamaica, to go to Baltimore at all events, Mar. Ins. Co. before he came to Alexandria. The termination of the voyage commenced was Baltimore and Alexandria. The vessel was obliged to come to both places. The termini of the voyage were not those described in the policy. The necessity of commencing and performing the precise voyage described in the policy, is further proved by the opinion given in the case of Beatson v. Haworth, 6 T. R. 531. where it is decided, that if a vessel is insured to several ports, she must pursue the order in which the places are named in the policy. In the case of Way v. Modigliani, 2 T. R. 30. the question was, whether the policy ever attached; and, if it did, whether it was not discharged by the vessel's *not sailing upon the precise voyage insured. The case was this a ship was insured "at and from the 20th of October, 1786, from any ports in Newfoundland to Falmouth, or her ports of discharge in the channel." On the 1st of October the ship left Newfoundland, and went to the Banks, fished there until the 7th, and then sailed from the Banks to England; and on the 30th of November, while in the direct track from Newfoundland to England she was lost. She left Newfoundland for the Banks long before the policy attached, and although on the 20th of October she was in the direct course from Newfoundland to England, and so continued until she was lost, yet, because she sailed from Newfoundland with an intention of going to the Banks, and from thence to England, and actually carried that intention partially into effect, it was determined that the policy did not attach, and that the voyage insured was not commenced. The partial execution of the intent cannot vary the principle, and was not relied upon in that case. BULLER, J. said, "The first is the substantial ground, namely, that the policy never attached at all. Where a policy is made in such terms as the present, to insure a vessel from one port to another, she must have sailed on the voyage insured, and not on any other. The voyage insured is from a port in Newfoundland to England, whereas the vessel sailed to the Banks, which was a different voyage. This point has been already decided by the case of Wooldridge v. Boydell, where it of Alexandria V. Tucker. * 371 of Alexandria V. Tucker. Mar. Ins. Co. was held, that if a ship, insured for one voyage, sail upon another, although in the same track part of the way, and she be taken before the dividing point between the two voyages, the policy is discharged. That was a stronger case than the present, for there the very intention of sailing upon a voyage different from that insured, vacated the policy. *372 The actual sailing to a port is only one mode of proving the sailing with an intention of going to that port. If the intention is proved, it is not material by what means. Marshall, 406. (note.) If the voyage is changed, the policy is vacated. *A voyage may be changed by taking on board a consignment to a different port; and the consignment will be evidence of the change. Or it may be changed by varying the plan of the adventure before the commencement of the risk; but a deviation takes place in the execution of the original plan. Therefore, an intention to alter the voyage will destroy the contract. Millar, 431. To vary in the smallest particular from the original plan of the voyage, constitutes an alteration. Millar, 392. In the present case the plan of the voyage was fixed by the policy, and on the 10th of August the vessel had actually cleared out with an intent to pursue it; after which, she discharged her ballast, and took in 30 hogsheads of sugar, to be delivered in Baltimore. This not only altered the original plan of the voyage, but increased the risk of capture, by increasing the value of the prize. The case of Stot v. Vaughan, cited in Marshall, 232. 4 Williams's Cases, 296. determined by Lord Kenyon, is in favour of the underwriters upon this point. The case of Kewley v. Ryan, 2 H. Bl. 343. is the only one which has the appearance of opposition. But that case will be found to be unlike the present in the following particulars : 1. In Kewley v. Ryan, the vessel sailed from Grenada for Liverpool, which was the voyage insured, but with an intention to touch at Cork, which was in the usual course from Grenada to Liverpool. But, in the present case, the vessel sailed for Baltimore, with an intention to come round to Alexandria from Baltimore, which is not in the course from Kingston to Alexan- Mar. Ins. Co. dria. 2. In Kewley v. Ryan the vessel intended only to touch at Cork; but, in the case at bar, the vessel sailed on a trading voyage for Baltimore. Stitt v. Wardell, 2 Esp. Rep. 610. *3. The Eliza altered the plan of the original adventure, by taking in sugar for Baltimore; but in Kewley v. Ryan it does not appear that the original plan was changed. 4. The risk was increased by taking the cargo for Baltimore, but the intention of touching at Cork did not increase the risk. Independent of these differences between the two cases, it is very questionable whether the determination in Kewley v. Ryan is correct upon principle. It establishes a doctrine which enables the insured to defraud underwriters, by making the evidence of intention to vary the voyage depend upon the single testimony of the master, which is apt to bend to the interest of his employers. It too often happens, that insurance cases depend upon the same kind of testimony. The case of Kewley v. Ryan is also in principle contradicted by that of Middlewood v. Blakes, 7 T. R. 162. Marshall, 406, note b. 2d. The 2d point is, that if the plaintiffs are entitled to recover any thing, they can recover only for a partial loss; for if an actual total loss has happened, it has arisen from the negligence and misconduct of the plaintiffs, or their agents, in not doing the best in their power for all concerned. The consideration of this question will involve that of the right of the plaintiffs to abandon at the time they offered to abandon; which is the third point in the cause. In many instances the practice of abandoning has been extended too far. The insured should in no case be permitted to abandon, where the effects insured, or the greater part of them, still exist, and are in the power of the insured. The general rule is, that the insured may abandon in all cases where, by means of any of the perils insured against, the voyage is totally lost, or not worth pursuing, or where the thing insured is so damaged as to be of Alexandria V. Tucker. *373 of Alexandria V. Tucker. Mar. Ins. Co. of little or no value to the owner, or where the salvage is very high, or where what is saved is of less value than the freight, or where further expense is necessary, and the insurer will not undertake, at all events, to pay that expense. * 375 These principles are declared in the following cases: 2 Burr. 683. Goss v. Withers. 2 Burr. 1198. Hamilton v. Mendez. 7 T. R. 421. Aguilar v. Rodgers. 1 Dall. Rep. 11. Story v. Strettell. Park, 165. 4 Williams's Cases, 373. 376. The capture or arrest of a vessel, or any detention, is prima facie a total loss, and immediately upon the capture, or at any time while the capture continues, the insured may abandon, and give notice, and thereby entitle himself to claim as for a total loss. But this must be done while the insured knows of the continuance of the capture, and not after he has information of the recovery or safety of the vessel. M Master v. Shoolbred, 1 Esp. Rep. 237. Marshall, 494. 501. On the other hand, the recapture does not necessarily deprive the insured of the right to abandon. For, if in consèquence of the capture, the voyage is lost, or not worth pursuing, if the salvage be very high, or if further expense be necessary, and the insurer will not undertake to pay that expense, the insured may abandon. Therefore, the rule is, that if the thing insured be recovered before any loss is paid, the insured is entitled to claim as for a total or partial loss, according to the situation of the case at the time when he makes his claim. For there is no vested right to a total loss until the insured elects to abandon. There are two cases which will be cited for the defendants in error. Pringle v. Hartley, 3 Atk. 195. and Goss v. Withers, 2 Burr. 683. neither of which is like the present. In the case of Pringle v. Hartley, the salvage amounted to a moiety of the value of the vessel insured; and there was no person present to give security, or answer for that moiety. *The case of Goss v. Withers was an insurance on the ship and goods. One fourth of the goods were thrown overboard to preserve the vessel and the residue of the cargo. After this the vessel was captured by the French. The master, mate and all the sailors, of Alexandria V. except an apprentice boy and a landsman, were taken out Mar. Ins. Co. and sent to France. The ship remained eight days in the hands of the French, and was retaken by a British privateer, and, on the 18th of January, was carried into port for adjudication. Immediate notice was given, and an offer to abandon. But before her capture, the ship, in a storm, was separated from her convoy, and disabled for proceeding on her voyage, without going into port to refit. The residue of her cargo was spoiled while she was refitting, after the offer to abandon, and before she could be refitted. The salvage was a moiety; the master and mariners were prisoners; the charter-party dissolved; the freight, except for the goods saved, was lost, and the voyage was not worth pursuing. But the situation of the Eliza was very different. She sailed from Jamaica on the 17th of August, was captured on the 22d, recaptured in less than three days, and on the 26th was brought into Kingston, the very port from which she had sailed only nine days before, and where the agents of the insured were. The salvage was only one eighth, and the coffee on board, belonging to the plaintiffs, would have been more than sufficient in value to pay the whole salvage, and all the charges and costs, which did not exceed 909 dollars, even when attended with the costs of the libel, sale and commissions. If they had rated the vessel at 3,800 dollars, the sum insured, yet the salvage would have been only 475 dollars. The point decided in Goss & Withers was, that a title to restitution cannot take away a vested right to abandon, if the vessel be unfit to perform the voyage. There is nothing in the record which shows that at the time of the recapture, the Eliza was unfit to perform the voyage. The abandonment of a vessel is an extreme remedy, which the insured has in his power, but which he ought *not to be permitted to use, when he has another remedy which will completely indemnify him for the injury he has actually sustained. This case, we contend, ought to be decided upon the principles which governed that of Hamilton v. Mendez, Tucker. * 376 |