Delany and Another against Stoddart
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1785 |
| Date | 01 January 1785 |
| Court | Court of the King's Bench |
English Reports Citation: 99 E.R. 950
IN THE COURT OF KING'S BENCH
delany and another against stoddart. 1785. If a ship be driven out of her loading port into another port, and being there, she does the best she can to get to her port of destination, she is not obliged to return to the port from whence she was driven. Neither is it a deviation if she complete her lading at the port into which she is driven. In the principal case however, there was a custom to warrant this. Upon a motion for a new trial by Bearcroft, Buller, J. reported the following facts as they appeared upon the trial before him at Guildhall. This was an action upon the case to recover a loss upon the ship "Friendship," which the plaintiff, who was a merchant in the West Indies, had ordered the defendant, who was his correspondent in England, to get insured "at and from St. Kitts to London," and which the defendant had neglected to do. The following extracts from letters were read in evidence : From the plaintiff to the defendant, dated St. Kitts, 30th April 1711, saying "he should purchase a ship, and offering the defendant a share." From the plaintiff to the defendant, dated St. Kitts, 4th May 1781, saying, "he had purchased the ship, but had only a share in it himself ; the residue being divided into three or four more shares, one of which he had reserved for the defendant, in case he would wish to be concerned; and directing an insurance upon the ship 'at and from St. Kitts to London,' warranted to sail with convoy." From the plaintiff to the defendant, 14th June 1781, St. Kitts, "The ship is loaden and will sail on or before the first of August; you will therefore have the insurance prepared. She is called the 'Friendship.'" From the defendant to the plaintiff, London, 28th June 1781. "If you purchase the ship you mention, I have no objection to have a fourth, or a share equal to yours." From the plaintiff to the defendant, St. Kitt's, 3d July 1781. "I now inform you that the ship left port to take in her cargo. She let go an anchor at Sandy Point; but as the wind blew fresh, [23] she drove out and could not come in again : she was obliged to go to St. Eustatia; I hope you have not neglected to make the insurance for fear of accidents." From the defendant to the plaintiff, London, 19th July 178L. "The insurance you ordered shall be done; but though you mentioned the ship being ready for sailing, you do not mention her name, nor whether I am a part-owner; so that I am entirely in the dark." From the plaintiff to the defendant, St. Kitts, 25th July 1781 (received in London on the 14th September 1781). "As the ship 'Friendship' did all in her power to get up from St. Eustatia but could not, therefore I thought proper to sell her, which...
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