v. Tucker. Mar. Ins. Co. 2 Burr. 1198. There the ship was captured on the 6th of Alexandria of May by a French privateer, and all her hands, excepting two, were taken out. On the 23d she was recaptured by a British ship of war, and sent into a British port, where she arrived on the 6th of June. As soon as the insured heard of the capture, he wrote and offered to abandon to the underwriters. They refused to receive the abandonment, but offered to pay the salvage, and all the losses and charges which the insured had sustained by the capture. The question was whether, on the 26th June, the insured had a right to abandon and recover as for a total loss. The court decided that he had no right to abandon, and that he could recover as for a partial loss only. The principle of that case is, that if the voyage be only temporarily interrupted, the property, upon the recapture, returns to the owner pledged to the recaptor for the amount of salvage. This doctrine is also stated in the case of Mills v. Fletcher, Doug. 219. and Thellusson v. Fletcher, 1 Esp. Rep. 73. 377 The actual loss which the insured sustained, was not a total loss, until rendered so by their own negligence or misconduct, or that of their agents. It only amounted to 909 dollars, including salvage. Even if the vessel had been valued at the price insured, viz. 3,800 dollars, the salvage (which by stat. 33 Geo. III. c. 66. cannot exceed one eighth) would have amounted only to 475 dollars, which, added to the other expenses, would not have exceeded 1,000 dollars. This sum ought to have been paid by the agents of the insured, who had in their possession funds of their principal, out of which it might have been paid. But it does not appear that they made any effort, or offer to pay it, or to prevent the sale; or any proposition to ascertain the value of the vessel otherwise than by a sale. They did not do the best in their power for all concerned, but calmly stood by and saw the vessel sacrificed, when they had the power of preventing it. *The insured, therefore, cannot, by abandonment, turn a partial into a total loss. 1 Esp. Rep. 73. It appears upon the record that the insured were anxious to sell the vessel, and this may account for the want of exertion on the part of their agents to prevent a sale, which would charge the underwriters with the Mar. Ins. Co. full value of 3,800 dollars. 4th. The loss of the register was not equivalent to the loss of the vessel, and was not an event against which the insurance was made. But the loss of the register might have been supplied by another document, such as a consular certificate, stating the circumstances attending the loss, which· would have enabled the vessel to perform the voyage insured. 1 Rob. 184. The Betty Cathcart. 8 T. Rep. 198. Christie v. Secretan. The want of a register would not have occasioned a forfeiture of the vessel, but would only have subjected her to the inconvenience of being considered and treated as a foreign bottom. 5th. The not communicating to the underwriters the intention of going to Baltimore vacated the policy, as the risk was thereby increased. Marsh. 347. 3 Burr. 1909. Carter v. Boehm. 1W. Bl. 594. S. C. Millar, 450. Simms Swann, contra, contended, 1. That the voyage commenced was the voyage insured; 2. That the insured had a right to abandon and recover as for a total loss. 1. A policy of insurance, like every other written agreement, is to be construed according to the intention of the parties. The understanding in this case was, that the underwriter should take all the risk of a voyage from Jamaica to Alexandria; and, consequently, they took the risk of the voyage from Jamaica to the Chesapeake Bay, through which a vessel must pass to arrive at Alexandria. *We admit the intention to deviate after entering the Chesapeake, but we insist that the voyage and risk insured had commenced; and that the vessel was in the actual prosecution of that voyage when the loss happened. In such a case, although there was an intention to deviate, the insured had a right to abandon. Park, 314. Stra. 1249. Foster v. Wilmer. Burns on Insurance, 107. 2 H. Bl. 343. Kewley v, Ryan, 2 New-York T. Rep. 274. Henshaw v. Marine Insurance Company. In the case of Wooldridge v. Boydell, there was no intention of going at all to the place mentioned in the policy. The only point in the case of Stitt v. Wardell, 2 Esp. Rep. 610. is the difference between touching and trading of Alexandria V. Tucker. * 378 Mar. Ins. Co. at a port. In that case there was an actual trading, but here was only an intention to trade. of Alexandria V. Tucker. * 379 In Beatson v. Haworth, 6 T. Rep. 531. the decision was merely that if the voyage described be to B. and C., the vessel deviates by going to C. first, and afterwards to B., although C. be the nearest port. In Way v. Modigliani, 2 T. Rep. 30. the real ground of the opinion of the court is an actual deviation by the vessel having sailed for and stopped to fish on the Banks, instead of sailing directly from Newfoundland to England. The opinion of Roccus, cited in a note to Marshall, 406. is contradicted by that of Emerigon, also cited in the same note; and the latter seems to be the better opinion. If the alteration of the voyage takes place before the risk is commenced, it becomes a different voyage; but if after, then it is only a deviation. Millar, 117. In the present case, the risk commenced at Jamaica, and before the alteration of the voyage was contemplated. *It was to terminate at Alexandria. When the terminus a quo and the terminus ad quem are the same, the voyage is the same. 2. The loss itself was, in fact, total, and unless the insured have been in fault, they ought to recover for a total loss. The loss of the register alone was sufficient to defeat the whole voyage, and if the vessel had sailed without it, and had been lost, the underwriters would have been discharged by that very fact of the vessel sailing without proper documents. It would so increase the risk of loss by seizure and condemnation, as to vacate the policy. If she had been found sailing without a register, she would have been considered by the British laws as an alien vessel, and if found trading from a British colony, would have been liable to condemnation. Reeve on Ship. 46. 379. 429. Bryan & Co. were not the general agents of the defendants in error. Their authority ceased when the vessel was despatched, and had sailed from Jamaica for Alexandria. They were not authorized to sacrifice the property of the insured in their hands, if they had any, to raise money to pay the salvage and expenses. It is true, the master had of Alexandria, V. Tucker. an implied authority to do what was fit and proper for Mar. Ins. Co. the benefit of all concerned; but he was not authorized to send out the vessel without a register, and she could never get a new one unless her owners (the insured) should change their domicil. No document could supply the place of that which itself never could have been obtained, and to which the party was not entitled. The exception is to the refusal of the court to give the instruction prayed. This instruction would have been improper for two reasons: 1. It would have been conclusive of the whole cause; and no such instruction can be given, unless all the evidence is stated, and unless the bill of exceptions avers it to be the whole evidence. This bill of exceptions does not contain the whole evidence, nor such an averment. *2. The instruction prayed involves the decision of a fact, which the jury only were competent to find, viz. whether the damage amounted to more than half the value of the thing insured. Mills v. Fletcher, Doug. 230. This fact is not stated in the bill of exceptions, nor any other fact from which the court can infer it. It contains no evidence that the master had funds to pay the salvage and charges. The evidence shows the loss to be actually total. The information of the capture, recapture, libel for salvage, and sale to a stranger, all came to the insured at the same time; and there is no evidence of fraud or collusion. The only allegation is, that the master did not do every thing in his power to prevent a total loss. But this allegation is unsupported by evidence. Even if, by a sacrifice of the cargo, he had raised money enough to pay the salvage, expenses, costs, charges and repairs, he must have obtained a new crew, and then could not have sailed without a register. The voyage was completely destroyed; and, upon an abandonment, which the insured had a right to make, relief would have been refused to the underwriters, even in equity. 3 Atk. 195. Pringle v. Hartley. Marshall, 485. C. Lee, in reply. There are two bills of exceptions to the opinion of the court. 1st. To the instruction given in favour of the plain * 380 of Alexandria Mar. Ins. Co. tiff below, that there was no deviation from the voyage insured, and that the voyage insured was actually commenced. V. Tucker. 381 2d. To the refusal of the court to instruct the jury, that if the facts stated in that bill of exceptions should be proved to their satisfaction, they ought not to find a verdict for a total, but at most for a partial loss. 1. The voyage insured was a direct voyage from Kingston, in Jamaica, to Alexandria, in Virginia. But the voyage commenced was a voyage from Kingston to Baltimore, and from thence to Alexandria. Baltimore *not being in the direct course from Kingston to Alexandria, the voyage commenced was not a direct voyage from Kingston to Alexandria, and, therefore, was not the voyage insured. There can be no necessity of referring to authorities to show that, in a policy, a voyage from one place to another always means a direct voyage in the usual course; because, upon this principle is founded the whole doctrine of deviation. But the cases of Beatson v. Haworth, 6 T. Rep. 531. Delaney v. Stoddert, 1 T. Rep. 22. and Middlewood v. Blakes, 7 T. Rep. 162. show with what strictness it has been maintained. If the direct voyage was not commenced, the com mencement of an indirect, circuitous voyage, will avail nothing. The voyage insured was not commenced, Doug. 16. Wooldridge v. Boydell. 2 T. R. 30. Way v. Modigliani. Even if the risk is diminished by the circuitous course, it is not a justification of the voyage, and will not support the policy. Millar, 377. 382. The case of Kewley v. Ryan, 2 H. Bl. 343. is relied upon by the defendants in error. But the law of that case is doubted by Marshall, 232. who refers to the case of Stott v. Vaughan, decided in the king's bench, in 1794, and is opposed to the case of Wooldridge v. Boydell. Kewley v. Ryan differs essentially from the present case. The intention in the former was only to touch at Cork, in the way to Liverpool. Whether Cork is not usually touched at in such voyages does not appear; but no cargo was on board to be delivered at Cork. The only port of delivery was Liverpool. In the present case, a considerable cargo was received on freight, deliverable at Baltimore. The intention, |