The first question to be considered is, whether the voyage, on which the sloop Eliza set out, was the same or a different voyage from the one insured? By the terms of the policy, it is stipulated, that the Eliza was to sail from Kingston to Alexandria; and it is stated in the bill of exceptions, that she did sail from Kingston, but with an intention to go first to Baltimore, and there deliver 20 hogsheads and 10 tierces of sugar, and then to proceed to Alexandria, which was the port of destination described in the policy. She cleared out at the custom house in Kingston, on the 10th of August, 1801, for Alexandria, and the master signed a bill of lading to deliver her cargo at that place; after which he took in the sugar, to be delivered at Baltimore. It is contended, on the part of the insurers, that the taking in the sugar to be landed at Baltimore, constituted a different voyage from the one agreed upon, and vitiates the policy; or, in other words, that the voyage which was the subject of the contract, was never commenced. From a review of the cases which have been cited, the principle is established, that where the termini of a voyage are the same, an intention to touch at an intermediate port, though out of the direct course, and not mentioned in the policy, does not constitute a different voyage. In the present case the termini or beginning and ending points of 393*] the intended *voyage, were precisely the same as those specified in the policy, to wit, from Kingston to Alexandria, and, in legal estimation, from one and the same voyage, notwithstanding the meditated deviation. The first reported case on this subject is Foster v. Wilmer, in 2 Stra. 1249, in which Lee, Ch. J., held, that taking in salt to be delivered at Falmouth, a port not mentioned in the policy, before the vessel went to Bristol, to which place she was insured, was only an intention to deviate, and not a different voyage. And the Chief Justice, in delivering his opinion, mentioned the case of Carter v. Royal Exchange Assurance Company, where the insurance was from Honduras to London, and a consignment to Amsterdam; a loss happened before she came to the dividing point between the two voyages, for which the insurer was held liable. The adjudication in Strange was in the 19 Geo. II.; and from that time down to the year 1794, we find no variation in the doctrine. A remarkable uniformity runs through the current of authorities on this subject. In Kewley v. Ryan, 2 H. Bl. 343, Trinity Term, 1794, the principle is recognized; and in 2 New York Term Rep. 274, Henshaw v. The Marine Insurance Company, February, 1805, it is fortified and considered as settled by the supreme court of that state. In a lapse of sixty years we find no alteration in the doctrine, which is sanctioned, and has become too deeply rooted and venerable by time, usage, and repeated adjudications, to be shaken and overturned at the present day. It has grown up into a clear, known, and certain rule, for the regulation of commercial negotiations, and is incorporated into the law merchant of the land.

templation; for if the vessel, after she has arrived at the point of separation, should deviate from the usual and direct road to her port of destination, the insurers would be entitled to the premium, and exonerated from responsibility. An intention to deviate, if it be not carried into effect, will not avoid the policy. There must be an actual deviation. The policy being "at and from," the risk commenced; there was also an actual inception of the voyage described; for the Eliza sailed from Kingston for Alexandria, was captured in a *direct course to the latter, before she [*394 reached the dividing point; and, therefore, the underwriters became liable for the loss.

The second point in the cause is, whether the insurers were liable for a total or a partial loss? And here a preliminary question presents itself. Was the abandonment made in proper time? When the Tuckers received information of the loss, it became incumbent on them to elect whether they would abandon or not; and if they intended to abandon, it was incumbent on them to give notice of such intention to the underwriters. Our law has fixed no precise period within which the abandonment shall be made, and notice of it shall be given to the insurer; but declares, that it shall be done within a reasonable time. In the case before us, it appears that John and James H. Tucker received information of the capture and recapture of the Eliza at the same time, in a letter from W. & B. Bryan & Co., dated on the 26th September, 1801; but it does not appear when the letter came to hand. On the 26th of November, 1801, the Tuckers offered to abandon the Eliza to the insurers, which offer was rejected. Can it, under these circumstances, be pretended, that the Tuckers were guilty of neglect, or that the abandonment was not made according to the settled rule? It was made within a reasonable time, and no neglect can justly be imputed to them. We must have some facts whereon to build the charge of negligence, for it is not to be presumed; and the intervening period between the date of the letter and the time of abandonment, after making a due allowance for the passage of the letter, does not afford sufficient ground on which to raise the imputation of neglect. This brings us to the great question in the cause, whether the insurers were liable for a total or an average loss. On the 22d August, 1801, the Eliza was captured by a Spanish armed schooner, in the usual course from Kingston to Baltimore an Alexandria, and a day or two afterwards was recaptured by a British sloop of war, and carried into Kingston on the 26th of the same month. The mere acts of capturing and recapturing are not of themselves sufficient to ascertain the nature and amount of the loss sustained. The loss may be total, though there is a recapture. Hamilton v. Mendez, 2 Burr. 1198; Aguilar and others v. Rodgers, 7 D. & E. 421. Whether the loss be partial or total, will depend upon the particular *circumstances of the [*395 case, which it becomes necessary to take into view. The Eliza was consigned to Bryan & Co. at Kingston, who were authorized to dis

pose of her; they endeavored to sell her, but without effect; and it is stated, that they could get no offer for her before she sailed from Kingston, nor since that time. Bryan & Co. put on board 10 tierces of coffee, of the value of 1,000 dollars, belonging to the Tuckers, to be delivered at Alexandria; and when she was captured, all the seamen, except Bell, the ostensible master, and one man, were taken on board the Spanish schooner. The Eliza was navigated under a British register during the voyage; which register was lost by reason of the capture and recapture, and has never been found. After the recapture, the Eliza and her cargo were libelled in the vice-admiralty court for salvage; a claim was put in by Bryan & Co. as agents for Eli Richards Patton, the real and navigating master and supercargo; and the sloop and cargo were adjudged to be lawful recaption on the high seas, and ordered to be restored, on paying to the recaptors one full eighth part of the value of the sloop and cargo for salvage, with full costs; and to ascertain the value it was further ordered, that the sloop and cargo should be forthwith sold by the claimants, unless the value should be otherwise agreed upon. The sloop was insured for 3,800 dollars, and sold for 915 dollars; the coffee sold for 1,000 dollars; and the costs, charges and commissions amounted to 909 dollars, which almost absorbed the sum for which the sloop was sold. It is not found, that the sloop had sustained no damage by the capture and recapture; and, considering the difference between 3,800 dollars, the value insured, and 909 dollars, the price for which she sold, the jury might, without other evidence, have presumed that she had received considerable injury. From these facts, taken together, the inference is rational and just, that the voyage was broke up and destroyed, and that the underwriters were liable for a total and not for an average loss. To repel this inference, and remove responsibility from the insurers, it has been urged | in argument, that the agents for the Tuckers were guilty of gross neglect and misconduct. If Bryan & Co. ceased to be agents after the 396*] sailing of the sloop, then the captain became clothed with an implied authority to do what was fit and right, and most conducive for the interest and benefit of all the concerned; and, therefore, whether the agency of Bryan & Co. continued, or, being at an end, devolved by operation of law on the captain, is perfectly immaterial; for the question still recurs, whether the actual or implied agent had been guilty of fraud, negligence, or other improper conduct, which will exonerate the insurers. I am not able to discern any misconduct on the part of the agent, that would exculpate the underwriters, and prevent their being responsible for a total loss. And, indeed, this was a point proper for the decision of the jury, agreeably to the case of Mills v. Fletcher, in Doug. 230; and, therefore, the exception taken to the opinion of the court was not well founded. The sloop could not be sold at private sale, and, by reason of the capture and recapture, she might have sustained considerable damage. To sell the coffee, which constituted the cargo for Alexandria, to satisfy the salvage and costs, would have been an imprudent measure; for the redemption would have absorbed the whole

proceeds, and then she would have returned to Alexandria without a cargo, as the captain had no funds to purchase one; and besides, she must have sailed without a register, which would have exposed her to great and unnecessary danger. Prudence dictated the sale as a safe step, and most for the benefit of the concerned.

The error set forth in the third bill of exception is, that the court below refused to instruct the jury that the loss of the register, by means of the capture and recapture, was not sufficient, in law, to defeat the voyage from Kingston to Alexandria, and might have been supplied by special documents. Though the register did not impart any physical ability to the sloop, in regard to her sailing; yet, it was a document which tended to communicate safety, as it designated her character, individually and nationally. It is a necessary paper, and operates as a national passport; for, without it, she might be seized as an unauthorized rover on the ocean, and, in certain cases, would have been liable to confiscation. The register is a document of such a special and important [*397 nature, that its loss cannot be fully made up by other official papers. It would have been a very imprudent step for the captain to have proceeded on his voyage without a register; if he had, he would have been justly charged with improvidence, negligence, and culpable misconduct.

CUSHING, J. I consider this as clearly a case of intentional, not actual, deviation; but not as a case of non-inception of the voyage insured. This is proved by a number of cases cited; and contradicted by none.

What a case of non-inception is, is shown by the case of Wooldridge v. Boydell, Doug. 16, where the ship was insured from Maryland to Cadiz, having no intention at all of going there; but that is totally different from the present case, where the vessel was cleared out at Jamaica for Alexandria, with a cargo taken in for Alexandria, and intended to go there.

It is true sugars were taken in for Baltimore, and the captain intended going there first. That amounts only to an intent to deviate; but no deviation unless executed.

This is proved by divers authorities. Middlewood & Blakes, 7 T. R. p. 162, B. R.; a ship insured at and from London to Jamaica, and the captain had orders (exactly like the case at the bar) to touch at Cape St. Nichola Mole, to land stores, pursuant to charter party. Upon which, one of the judges (Lawrence) gave an opinion, that if the vessel had been captured before she came to the dividing point between the northern and southern courses to Jamaica, the insurers would have been liable.

And the other judges agreeing with Judge Lawrence, to lay the whole stress of the cause in favor of the insurer, upon the captain's not exercising his judgment at the time, upon which was the best and safest of the three courses, (whose judgment the insurers had a right to have the benefit of,) but taking the northern course, merely in pursuance of orders, to land stores at Cape St. Nichola Mole. All this shows that had the captain exercised *his judg- [*398 ment in going the northern course, as being the best and safest, the whole court would have held the insurer liable, as the vessel was cap

Another case, more direct and decisive, is Foster v. Wilmer, 2 Stra. 1248, 1249, where the ship was insured from Carolina to Lisbon and to Bristol, and the captain took in salt to deliver at Falmouth, before going to Bristol, repugnant to the specification of the policy, yet, being captured before arriving at the divid ing point between Falmouth and Bristol, the insurer was held liable, which seems exactly the present case.

The mere taking in goods for another port does not, of itself, make a deviation. It may, however, if it materially vary the risk, and be a circumstance designedly concealed and suppressed, excuse the underwriters. In the present case it does not appear, materially, to vary the risk, any more than in taking in stores to land at Cape St. Nichola Mole, in the case of Middlewood & Blakes, varied the risk, which was not suggested by court or counsel, that it did; or the taking in salt to land at Falmouth, in the case of Foster & Wilmer. It did not delay the voyage in the present case; the vessel sailed with convoy as soon as it was ready, and was afterwards captured in the proper course, before deviating.

The award may be laid out of the case for more reasons than one. I think it void for uncertainty.

As to the loss, whether total or average, the jury, who had the whole evidence before them, have, in effect, found a total loss, and the voyage broken up. It is not certified by the court, that the bill of exceptions contains the whole evidence; and as strong circumstances (I think conclusive ones) are stated, that show the voyage could not be safely pursued, or could not be pursued at all, in consequence of the loss of register and loss of hands by the capture, either of which, it does not appear, could be supplied, I think we are not warranted to overrule the verdict, or reverse the judgment. Judgment affirmed.

compensation of the officers employed in the collection of the duties on import and tonnage;" passed on the 10th of May, 1800, vol. 5, p. 173. The words of which are, "that in lieu of the commissions heretofore allowed by law, there shall, from and after the 30th day of June next, be allowed to the collectors for the districts of Alexandria, Petersburgh and Richmond, respectively, two and a half per centuin on all moneys which shall be collected and received by them," "for and on account of the duties arising on goods, wares and merchandise, imported into the United States, and on the tonnage of ships and vessels."

Breckenridge, (Attorney General,) in behalf of the United States, observed, that the words of the act appeared to him so plain that they could not be elucidated by argument. He understood the language of the act to be, that only two and a half per cent. should be allowed on moneys received after the 30th of June. Although the collector may have done the greater part of his duty by taking bonds for duties, yet they were neither collected nor paid before that day. It cannot be deemed an unconstitutional act as being ex post facto, because the prohibition of the constitution extends to criminal cases only. 3 Dall. 386, Calder v. Bull.

*Col. Heth. Although it is a sound [*400 rule of construction, that when the words of a statute have a plain, distinct and reasonable meaning, no recurrence is to be had to intendment, inference, or implication; yet, when the words of a statute admit of two constructions, (as in the present case they evidently do, or they would not now be under discussion,) it cannot be improper to have reference to similar laws, and to inquire how they have been construed.

The first section of the act of 14th Feb. 1795, vol. 3, c. 88, says, "that in lieu of the commissions heretofore by law established, there shall be allowed to the collectors of the duties on import and tonnage, on all moneys by them respectively received on account of the duties aforesaid, arising on tonnage, and on goods, wares, and merchandise, imported after the last day of March next, to wit," "to the collector of Bermuda Hundred," (which office was then holden by the defendant,) "two per cent." This act raised his commission from one to two per cent.; which two per cent. he charged only on the duties that arose on importations made after the last day of March, 1795; and one percent. only on the money received on bonds, payable after that day for goods imported be fore.

The act of 3d March, 1797, vol. 3, c. 63, raised the defendant's commissions from two to three per cent. in precisely the same language as that of the last act; and of course, it received from him the same construction, and in both instances that construction was acquiesced in by the treasury department.