
    Cross and Crawley against Shutliffe and Austin.
    
      Charleston District,
    
    
      1799.
    
    In the construction of •policies of insurance, the intent and meaning of the parties are to be regarded more than • the strict letter. Not touching at a port in the' course of a •voyage, where a vessel has a privilege to call at,is node* viation within the meamug of the policy, because it is a privilege intended for the benefit of the insumí,which he may waive for the general interest of all concerned, if lie pleases.
    CASE on a policy of insurance.
    The vessel in this case was insured on a voyage from Charleston to the Cape de Verd Islands, and from thence to the coast of Africa, at the rate of eight per cent, for ,->ni months, and one per cent, a month after that time, during her stay on the coast. Instead of going to the Cape de Verd Islands, the vessel proceeded directly to the coast of Africa, the point of her ultimate destination, at once, and arrived in safety, where she lay four months, during which time her bottom was eaten out with worms, in consequence of which she was condemned as unfit for sea.
    The jury, under the direction of the presiding judge, found a verdict for the plaintiffs, to the amount of their demand.
    This was, a motion for a new trial, on the ground of misdirection.
    Mr. Desaussure, for the underwriters, and in support of this motion,
    stated, that the ground upon which he meant to rest his case, was deviation in the course of the voyage. This, he said, was a very important principle in mercantile law, and ought to be well understood and settled in our couits of justice. For if it was once admitted that a ship or vessel which was insured to one port or place, or on a certain specified voyage from port to port, &c. had a right to go to any other port or place, or on any other voyage than the one specifically mentioned in the policy of insurance, wherever the master or owners might choose, it would place all the underwriters in the world at the mercy of the insured or their agents, and would render all commerce uncertain, as no insurer could tell where such vessel might go, or what risks he had to insure against. It was, therefore, of great moment to commerce, that this principle should be fixed and well ascertained, that men might not be entrapped or unwarily drawn into contracts they could not see the consequences of. That all the writers upon the doctrine of insurance were agreed upon this point, namely, that if a ship or vessel deviates from the course of the voyage insured upon, the underwriters were discharged. In the case under consideration, he said, the vessel was insured to go to the Cape de Verd Island,y, and from thence to the coast of Africa ; whereas, she did not go to the Cape de Verd Islands, but proceeded directly to the coast, which was not the voyage mentioned in the policy, but another one. It was no matter whether the risk was increased or diminished by the deviation; that was not in this case the grand question, but whether there was actually a deviation or not t And although in a particular case, it might possibly happen that the iisk was lessened by it; ye,, in establishing such a principle, it would be ruinous nineteen times out of twenty ; and in support of his positions, he quoted Park, 294, 295. 298. Durnf. East, 59c. West. 574. the principles of all which cases, he said, fully confirmed the doctrine he had laid down.
    The Attorney-General, for plaintiffs, in reply,
    admitted that all the principles laid down by the defendants’ counsel, and the cases quoted, were good law ; but denied the application of them in the present case. He did not mean to contend that a deviation from the true course of a voyage, as a general principle, ought to be allowed. But there were cases, he said, where it was very much for the advantage of all tUe parties concerned ; and where no exception could, or ought to be taken to it; and the present was a remarkable one of this kind. He said, that it should be remarked in this case, that touching at the Cape de Verd Islands, was a privilege intended to be given by the underwriters to the insured, for the purpose of pro( uring refreshments and provisions before the vessel proceeded to the .coast, if necessary. That this was an indulgence usually given to ships and ves» seís in that trade, and was no further obligatory than the necessities of the ship and crew required. This privilege was only auxiliary to the voyage, and was no essential part of it, which every man acquainted with trade of that part of the world, was perfectly conusant of. But if the vessel did not stand in need of those supplies or refreshments which were usually procured at those islands, where, he asked, was the necessity of going there ? None. It would only have unnecessarily protracted the voyage, and consequently increased the risks the insurers were to run ; besides, beating up to the Cape de Verds at that season of the year, would have required at least thirty days ; so that independent of the wear and tear of the ship, that difference' of time in the voyage would have been inevitable ; whereas, by bearing away before the wind for the coast, the voyage was shortened, the risk lessened, and the vessel arrived in safety at her port of destination, in the river Gambia on the coast of Africa< This case, therefore, he contended, clearly proved the position he had laid down, and took this'Case entirely out of the rule of deviation. Indeed so far from if* that she pursued the best, and most direct course possible to the place of ultimate destination ; and instead of going round the bow, she had gone along the line or string to the direct point,- at the end of it; and by that means arrived thirty days at least sooner at her destined port, than she would have done had she gone to the Cape de Verd Islands,
    
    These kind of clauses, giving liberty to touch at certain places in the course of a voyage, agreeable to the usage of trade, is very common in policies of insurance ; but they áre always considered as subordinate to the voyage insured; which is the principal object of the contract, and not as obligatory, unless the insured choose to make use of the indulgence. The great object of the voyage should be kept constantly xii view, 1 Marshall, 398. and if this is accomplished, the underwriters surely ought not to complain. Besides, it was evident, that the loss on the present occasion was not owing to any thing that happened in the course of the voyage on the high seas, but owing to worms which eat out her bottom while in port in the river Gambia, after her outward voyage was completed.
    
      Park, m.
    
   Per Curiam.

In the construction of policies of insu-ranee, the intent and meaning of the parties are to be regarded, more than the strict and literal sense of the words. They are to be construed largely, for the benefit of the insured, and the advancement of commerce ; and in this construction, the usage of trade on particular voyages ought always to be taken into consideration. In the wording of the policy under consideration, the vessel was to proceed on a voyage from Charleston to the Cape de Vcrd Islands and from thence to the coast of Africa, the ultimate point of destination. But the intent and meaning of all the parties must have been, that this vessel was insured on a voyage to the coast of Africa, with liberty to touch at the Cape de Verd Islands ; and the usage of trade in that part of the world will warrant this construction ; for it is well known, that it is usual and customary for vessels trading to the coast of Africa, and to the southern parts of the eastern world, to call at those islands for water, provisions and refreshments which are not elsewhere, on or near that coast, to be procured, but are there in abundance ; and if there had been no clause in the policy for that purpose, it would have justified the captain in calling there for those supplies if he had wanted them, under the sanction of this usage. The clause in this policy, therefore, only gave in express words, a permission to touch at the Cape de Verds, which the course of trade in that quarter of the world would have warranted without it. Under these circumstances, therefore, it appears to the court, that the true intent and meaning of this policy was, that the vessel should sail on a voyage from Charleston to the coast of Africa, with liberty to touch at those islands, should it be necessary in the course of the voy~ age. If, then, this is the true construction which should be given to this policy, it ought to be regarded as a privilege or indulgence, and not as an obligation ; that is, if the situation of the crew and ship was such in the course of the voyage, as to make it necessary to put in there lor necessaries, the captain was at liberty so lo do ; but if not, then it was his duty to make the best of his way to the end of his voyage., which he did, We are all, therefore, of opinion, there was no deviation from the true course of the voyage, but on the contrary, a direct sailing to her destined port, agreeable to the intent and meaning of the policy, with as little delay as possible.

Let the rule for a new trial be discharged.

Present, Burke, Grimke, Waties and Bay.  