Crawley Austin. well ascertained, that men might not be entrapped or un- Cross and warily drawn into contracts they could not see the consequences of. That all the writers upon the doctrine of in. Shuliffe and surance 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 Islands, 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? And although in a particular case, it might possibly happen that the risk was lessened by it; yet, 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, 592. 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 ap plication 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 the 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 procuring refreshments and provisions before the vessel proceeded to the coast, if necessary. That this was an indulgence usually given to ships and ves Cross and Shuttle and Austia. sels 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 it, 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 are 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 in 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. Cross and V. Shutliffe and Per Curiam. In the construction of policies of insu Park, 30. rance, 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 Verd 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 voyage. If, then, this is the true construction which should be. given to this policy, it ought to be regarded as a privilege Cross and Shutliffe and Austin. or indulgence, and not as an obligation; that is, if the situa tion of the crew and ship was such in the course of the voyage, as to make it necessary to put in there for necessaries, the captain was at liberty so to 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. Charleston District,1799. A consignee of a ship and cargo has a perty in the L. C. A. SCHEPLER against FREDERICK GARRISCAN and WILLIAM CARPIOIN. CASE on attachment. The sheriff of Charleston district, by virtue of this atqualified pro- tachment, seized the ship Sophia, in Charleston harbour, as same, and a the property of the absent debtors, the defendants, which possession in had been consigned to Mr. John Potter, a merchant in constructive Jaw the mo ment she this city, with a cargo on board, of considerable value. This was therefore a motion for the sheriff to restore the comes into port; for from that moment possession of the ship to Mr. Potter the consignee, and to she is under his power and the master who was part owner of the vessel. direction The sheriff In support of this motion, the affidavit of Thomas Stewart has therefore no right un- (who was Mr. Potter's agent, he being then absent from der the at tachment act Charleston) was read, by which it appeared that the prosuch perty of the ship Sophia was in Carpioin, one of the absent to take such vessel eargo into his possession, but should serve copies of the attachment on the consignee, who has a lien on the whole in the first place, for his just demands as a creditor in possession. debtors, and the master Jacob Jansen; and not in Garriscan and Carpioin, against whom the plaintiff had the demand. It was not intended by this motion, that the right of property in the ship should be tried, or called in question here; only that the ship should be placed in the hands of the consignee, who by the law of merchants had the legal custody of her and the cargo, while in port, as representing the true owners whoever they might be, until that question, if it should be made one, could be determined; or at least, until the cargo on board could be unloaded and disposed of, agreeable to the orders and instructions Mr. Potter had received from the consignors, and that copies of the attachment might be served on Mr. Potter's agent, and the captain Jacob Jansen, calling upon them to come in and de. clare on oath, what property they had in their possession, power or custody belonging to the absent debtors, agreeable to the terms of the attachment act. The same grounds in support of this motion were urged, which had been taken on a similar motion, before the judges, at chambers, in September, 1798, in the case of Noel v. Dubrie, and Gaillard and others v. Dubrie, where a ship had been attached and taken possession of by the sheriff, in the same manner as in the present case; and after argument, had been ordered to be delivered up to the consignees. On the part of the plaintiff in attachment, it was con. tended, that the property of the ship was unquestionably in the absent debtors; and that Jansen's claim, or pretended claim, was only colourable, and that the plaintiff was ready to shew it. That the consignee was only entitled to the possession of the ship, upon his coming in and giving se curity for the debt; in which case he might dissolve the attachment as in other cases; but until that was done, the ship ought to remain in the custody of the sheriff, until sold for the payment of the plaintiff's demand. That the act |