
    Henshaw against The Marine Insurance Company.
    Where tho termini of the voyage insured are preserved, it is only a deviation to toueli at any intermediate port; and though it be resolved on before the voyage commence, it is not on that account an altered, or different voyage from tho one described in the policy, and the insurer will be liable for any loss before arriving at the dividing point. Wages and provisions are subjects of general average from the time of being obliged to bear away to a port of necessity in consequence of injuries received, and recoverable, under a policy on tho ship. If the points intended to be relied on in argument have not been subjoined to the case made, service of a copy of them on the judges and adverse party at the time of bringing on tho argument is sufficient.
    On a policy of insurance upon the body of the brig Friendship, “ at and from Newry, in Ireland, to New York.”
    Previously to the sailing of the vessel, the master, in conjunction with the agents of the assured, entered into a written contract to land some passengers at Halifax, in Nova Scotia, under a penalty of five hundred pounds. The vessel, however, cleared out at Newry for New York, but in proceeding down' the St. George’s or Irish channel, and before she bad readied the dividing point to turn off tc Halifax, she struck on a rock, in consequence of which it was, after consultation, deemed necessary to bear away for Dublin, in order to refit. For the expenses, it became indispensable to take up money on bottomry. After doing which, and completing ber repairs, the vessel sailed on her voyage by the way of Halifax, where she landed her passengers, and afterwards arrived safely at New York, the port of her ultimate destination.-
    A relicta having been given, a case was made, subject to the opinion of the court whether the plaintiff was entitled to recover the amount of the money taken up on bottomry, and whether the wages and provisions from the time of bearing away until she was in condition to proceed, and the expense of loading and reloading the cargo, and all others occasioned by that necessity, should, or should not, be a subject of general average?
    Hoffman, for the defendants,
    objected to the cause being brought on, because the points, on which the plaintiff meant to rety, were not added to the case served upon him.
    
      * Jones, contra,
    then tendered to him a statement of the points, and at the same time served the judges with copies. This he contended was sufficient.
    Hoffman, in reply.
    The rule ordering points to be subjoined to the cases made, was intended as much for the case of the opposite counsel as of the court.
    
      Per Curiam. It is sufficient to serve the points on the opposite party at the time when the case is delivered to the court, and when the motion is made to bring on the argument.
    
    
      Jones, for the plaintiff.
    Our first position is, that the voyage insured, and that on which the vessel sailed, are the same; therefore, as the loss took place before arriving at the dividing point of the two voyages, the insurer is liable. The contract to touch at Halifax, was no more than an intended deviation, and did not amount to a different voyage. It is not denied that a deviation avoids a policy, but then it is only as to subsequent, and not as to previous losses. For these last the underwriter continues chargeable. These principles are of long standing, and to be found well settled in the cases of Foster v. Wilmer, and Carter v. Royal Ex. Ass. Co., 2 Stra. 1249. In Murdoch v. Potts, (Sitt. at Gr. II. after Trin. 1795, before Lord Kenyon,) which may be relied on by the defendants, the decision turned on the fact of the ulterior voyage being concealed. And in Wooldridge v. Boydell, Doug. 16, Buller, J. recognizes the law as settled by the authorities referred to. In that case the voyage insured was never intended. The termini were not the same. This, according to Lord Mansfield, is the criterion to determine whether the voyage pursued be only a deviation, or a different voyage. When the termini are the same, any intermediate course is only a deviation. Kewhy v. Ryan, 2 H. Bl. 343, reviews all the former determinations, and confirms them. In Middlewood v. Blalces, 7 D. & E. 162, the decision went on the ground of a positive order, previous to the voyage, depriving the captain of a right to pursue it in the most advantageous manner. This was held to increase the risk by taking away the right, which the insurer had, to the master’s judgment and discretion. This very case, however, acknowledges all the others, and Lord Kenyon says, he would not have determined as he did, could he have been brought to suppose the decision in Kewhy v. Ryan would be at all affected. The question as to general average has already been determined by the decision in Walden v. Le Roy, as against owners of goods, and it'is conceived that *the same principles must govern against underwriters on a vessel.
    Hoffman, contra.
    The determination in Kewhy v. Ryan was evidently contrary to Lord Kenyon’s opinion, as expressed in the subsequent case of Middhwood v. Blokes. He does, indeed, avail himself of a distinction, but which amounts to nothing. This, therefore, shows that the law is not settled even in England; we may then be allowed to investigate this point on principle. If so, the English adjudications cannot be supported. Millar, when speaking of the reasons on which insurance law should proceed, is deserving of the highest consideration. In page 392, he says, “ to vary in the smallest particular from the original plan of the voyage, constitutes an alteration.” The reasoning in this: a deviation arises after the voyage is begun; an alteration when the original plan is previously departed from. In 431, Millar puts this question: “ Suppose the assured owners have taken on board a consignment to a different port than that specified in the policy; will it free the underwriter?” He thinks it ought, because it is “a variation in the plan of the adventure adopted previous to the commencement of the risk.” He argues that an intention to alter the voyage destroys the contract. The agreement by the policy is to pursue the voyage in the most direct course. When it is to be prosecuted in another, it takes away the option of the captain and comes within the distinction, refined as it is,, of Middhwood v. Blalces. The distinction, however, is purely fanciful; for, a voyage from Newry to Halifax, and from Halifax to New York, can never be the same voyage as one from Newry to New York. It is incongruous to say that wages and provisions are subjects of general average, when the owner is bound to have his vessel in such a situation as to carry her loading, and his compensation is in his freight.
    Jones, in reply.
    The policy here is at and from. The risk, therefore, was commenced. Allowing, then, the distinction taken as to previous and subsequent alterations, we are still entitled to recover within the words of the policy.
    
      
      
         In every ease the party who is to open the argument must deliver to the court and to the opposite counsel the points he means to rely or Main v. Newson, 3 Johns. Rep. 542.
    
   Kent, Ch. J.

delivered the opinion of tne court. The court are of opinion that the previous intention to touch at Halifax did not make it a different voyage, as the termini, as well as the substantial object of the voyage described in the policy, and of the voyage upon which the vessel sailed, were the same. This point is considered as settled in the English law, by the cases of *Carter v. Royal Ex. Ass. Co., 2 Stra. 1249; Thellusson v. Ferguson, Doug. 346, (361 of 3d ed.;) Kewley v. Ryan, 2 H. Bl. 343, and Middlewood v. Blakes, 7 D. &. E. 162. The same question arose in this court in the case of Silva v. Low, decided in October term, 1799. The voyage there, as described in the policy, was from Wilmington, in North Carolina, to Falmouth; but, previous to sailing, the captain declared his intention to touch at New York for seamen ; and one question in the cause (which was twice argued) was, whether the sailing under that declared intent was a distinct voyage ? All the above cases were reviewed and considered, and upon that question the majority of the court were of opinion that it was to be deemed still the same voyage. The second point was decided this very term in the case of Walden v. Le Roy. The only difference in the two cases is, that this is an insurance on the ship, and that was an insurance on the cargo. But this makes no difference in the application of the rule for contribution. The opinion of the court accordingly is, that the plaintiff is entitled to recover, and that the wages and provisions of the crew during the necessary detention, at Dublin, to repair, go into a general average.

LiyiNGSTON, J.

As to the first point, whether this were anything more than an intended deviation, I concur in tha opinion just delivered. Both in England and in this coum try it is well settled that an intention, however strong or well ascertained, to touch at an intermediate port, not mentioned in the pohcy, does not constitute a different voyage, but only an intention to deviate. Were this res integra, doubts might reasonably be entertained ; but it is no reason for shaking tbe authority of several adjudged eases, merely because a better rule might possibly have been adopted. Underwriters, at any rate, cannot complain of a rule which is evidently calculated to diminish their risk, for the moment the separating point is past, which may be at a very small distance from the port of departure, the whole premium is earned, and there is an end of all further peril. But, without further speculation, it is enough to say, that it has been ajdudged more than once, that where the termini of a voyage are the same, an intention to touch at some other place, out of its usual course, does not constitute a deviation or a different voyage.

In the case of Foster v. Wilmer, (2 Str. 1249,) Lord Chief Justice Lee held, that taking in salt to deliver 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. So, where the captain had taken a consignment of goods to Amsterdam, and the insurance was from Honduras to London, the underwriters were held liable for a loss before the vessel had ' reached the dividing point. It is true these are decisions at nisi prius, but they have been long practised op, ana have received the sanction of the whole court of common pleas in England, in the case of Kewley v. Ryan and yet this is one of the cases to which .Marshall refers, to induce a belief that the law is different. A vessel insured from Grenada to Liverpool, had sailed for the latter place, but was to touch, as appeared by her clearances, at Cork in her way thither. The whole court, after argument and advising, determined that “ where the termini of the intended voyage were the same, it was to be considered as the same voyage.” Nor is the case of Middlewood v. Blakes, (7 D. & E. 162,) which happened three years after, at all opposed to the one last cited. All the judges, on the contrary, recognize the law as there settled; and Lord Kenyon declares, that he would abandon the opinion. he had given at the trial, if he thought it tended to shake that decision. The whole court, how correctly is an immaterial inquiry at present, determined against the assured, because his captain was positively instructed to take one of three courses, instead of being left at liberty to exercise his judgment, when he canae to the dividing point.

But, were the law doubtful in England, the case of Silva v. Low, (1 Lex Mer. Amer. 324,) decided in this court, would be conclusive. That was a voyage from Wilmington to Falmouth. The captain, previons to sailing, had expressed a determination to touch at Sandy Hook, to obtain seamen from New York. Three of the j udges thought that where the termini of the voyage were the same, the sailing with an intention to touch at a place not in the direct course, was not a deviation, but one and the same, and not a different voyage.

Whether the wages and provisions from the time of bearing away until the brig were in condition to proceed, and the expense of unloading and reloading the cargo, and all others occasioned by that necessity, are to be borne as a general average, is also made a question in this cause ?

From tbe opinion delivered on this point, I dissent. In tbe ease of Walden v. Le Roy, decided this term, my reasons were assigned at large, why an owner or underwriter of goods, ought not to contribute towords a reimbursement of '^expenses of this nature. For the . same reasons, underwriters on vessels can have nothing to do with extra wages and provisions. So it has been settled in England, and the practice both there and in this country is in conformity thereto. As these expenses ■occasion a diminution of freight only, that subject alone must be considered as loser, and its underwriter, if there be any, called on for an indemnity. An insurer of a vessel might as well be applied to for a contribution towards a loss occasioned by an extra consumption of provisions, 'or an extra charge for wages during violent storms or contrary “winds, which had protracted the voyage three or four months beyond the usual period.

We now go much further than in Walden v. Le Roy. We there only said, that wages and provisions expended during a detention to refit, after a storm; should be brought into a general average. But here we determine that “ all other expenses occasioned by this necessity,” are to become a general average including (for the expression is sufficiently broad) materials for repairs, as well as for the hire of carpenters and laborers. An owner of goods will, therefore in future, be bound not only to pay and feed the mariners, but if every expense occasioned by a storm must be paid as a general average, and so we are now determining, he will have to purchase materials and find workmen to repair a ship in which he has no interest. This, if it be intended to go thus far, is introducing an entire new principle into the law merchant, which will be mischievous and unequal in its effects, and which no advocate for the doctrine of general average, excepting Bicard alone, has ever before maintained. Gertain it is, that no owner or underwriter of goods, with us, has-ever yet paid towards the repairs of a vessel injured by storm, but hereafter this as well as every other expense (for there is no exception in this case of anything) must be borne by him in proportion to his interest on board. This innovation in practice, however beneficial to the owners of ships, will not be much relished by the great body of merchants, who, besides paying large sums, for which they have hitherto not deemed themselves liable for real and necessary reparations, will be exposed to many frauds, on the part of those who will now have a right and an interest to repair their vessels at the expense of others.

My opinion is, that the plaintiff is not entitled to recover the wages and provisions of the crew, from the time of bearing *away until the vessel was repaired and in a condition to pursue her voyage, and that none of the expenses occasioned by that necessity are to be borne as a general average.

Upon these principles judgment should be entered only for the sum of 650 dollars ; but the opinion of the courtis, that the verdict is right, and the plaintiff must have judg ment accordingly.

Judgment for the plaintiff according to the verdict. 
      
       S. P. Marine Ins. Co. v. Tucker, 3 Cranch’s Rep. 351. Therefore, where ail insurance is to several ports of destination, and it appear that the vessel sailed with an intention of going only to that lastly named, it is a sailing on the voyage insured. Marsden v. Reid, 3 East, 512. But where a vessel is insured from one port to another, and sails for an intermediate port, in prosecuting the voyage from whence for the port insured to she is taken, tho voyage insured is deemed never to have commenced. Way v. Modigliani, 2 D. & E. 30; Wooldridge v. Boydeil, Doug. 16. So where an insurance is from several ports of departure, to a particular port of destination, and the vessel sail from one of the ports of departure to another, the policy never attaches. Sellar v. M‘Vicar, 1 N. Rep. 23. A clearance for a different port than that to which insured is not proof that the vessel did not sail on the voyage for which underwritten. Talcott v. Mar. Ins. Co., 2 Johns. Rep. 130. But where all the papers show a different voyage than that insured to, and there be not any evidence of sailing on that mentioned in tho policy, though the vessel be taken on tho iter to be pursued in prosecuting both voyages and before she reaches the dividing point, it is not a sailing on the voyage in tlie policy. Wooldridge v. Boydell, ubi sup. See Dennis Willams v. Ludlow, ante, 111.
     