perilous voyage, the adventurous and enterprizing spirit of commerce could suggest. I do not wish to be understood as giving any opinion, that it is essential to the validity of seamen's articles, that there should be an insertion of the name of every port to which a vessel may proceed in the course of trade; but that there must be some equivalent specification, such as to ą port or ports, island or islands in the West Indies, or to the Mediterranean, or the like. The legal termination of such a voyage is ascertained by the most solemn decisions and able opinions.

master,

But for a moment let us adopt the construction of the respondent's counsel, and admit the words "and elsewhere" to be understood in the alternative, as wished by the respondent, and apply the same rule in favour of the libellants. The clause in the articles runs thus: "We the undersigned have shipped as "mariners on board the schooner "for a voyage from the port of Baltimore to the port of Curra"coa and elsewhere, at the monthly wages, &c." Admit that the respondent was not bound to proceed on the voyage to Curracoa by reason of the words and elsewhere, which shall be construed to give him an election to go to St. Domingo. The right then is commensurate with the whole case, and considering the word and in its disjunctive character and importing the the same as OR, it must be construed throughout as a disjunctive; and the articles must then be read thus, for a voyage from Baltimore or elsewhere, to Curracoa or elsewhere; for the port of Baltimore is not more positively described as the port of departure, than Curracoa is as a port of destination. The term voyage is the antecedent to which the disjunctive relates. It would then be open to the libellants to argue and prove that he did not mean to sail from Baltimore but another port, as NewYork for instance, and not to Curracoa but Cuba. This would be opening the door to all the dangers and inconveniences so wisely guarded against by the act of Congress, which requires an insertion of the voyage or voyages contemplated.

And I would put it to the consideration of the respondent's counsel, whether, (supposing there was no rule of law binding

in this case, and it rested upon the sound discretion of the Court, and considering the characters who usually foment and conduct disputes in favour of seamen, and the character of the witnesses frequently produced to establish their claims when resting wholly on parol evidence,) the interest of merchants and ship owners and public morals as well as private justice will not be more effectually subserved, promoted and secured, by the rule I have taken, than the one for which he has argued.

It was decided by my predecessor, that the words "and elsewhere," annexed to a specified voyage, did authorize the proceeding to one other port, but still that the ports must be proceeded to in the order of their specification. I never was satisfied with the first part of that opinion, as I have often incidentally mentioned, but the point has never been directly brought before me until in this case. I have long combated with my impressions on this question; but on the fullest consideration, I do hold myself bound to declare, that the words " and elsewhere," used as they are in this case, cannot authorize a new voyage, unless such an intent is fairly deducible from some relative expression, and that their true construction is subordinate to the principal voyage. It is due to the memory of Judge Paca, as well as myself, to state briefly the reasons of my opinion.

It has been argued, that these articles are to receive such a construction as will comport with the usual course of the West India trade; which is stated to be, to seek the best market without regard to the particular ports specified. I do not know whether such be the usage, nor is it material to inquire, for as applied to the construction of a written contract, and to control legal rights, it is at direct war with every principle of law and policy. The argument from the admission of evidence to explain the course of a voyage does not justify the inference analogically drawn by the respondent's counsel. The duty of a captain is to proceed in the usual route of the voyage to his place of destination. There is a plain distinction between the voyage itself and the route of the voyage. The voyage is characterized by its termini. No evidence is admissible in any case to substitute other termini; but of two routes, it is lawful

to show that either is equally safe and common. Distinguitur iter a viaggio.

In the case before the court, the voyage, for which the seamen shipped, never had any commencement. The vessel sailed direct for St. Domingo, and not for Curracoa.

In 2 Emerigon 34, 35. the construction of these general and indefinite clauses is ably investigated, and unless I had found myself supported by very respectable authority, the decision of Judge Paca would have been adhered to by me until reversed by a superior court. This respectable author declares that these vague and indeterminate clauses are to be interpreted by the principal object spoken of, and in case of doubt are to be understood relatively to law and the usages of

commerce.

Thus an insurance for time, with permission to trade where ever the captain shall think fit, does not protect against a loss occasioned by smuggling. The assurers answer for no loss arising from the fault of the assured, although smuggling in a foreign court is not considered a crime or legal fault. These clauses, however general in their wording, are always expounded according to good faith, and admit neither of fraud nor surprize; generaliter probandum est, ubicumque in bona fide judicis confertur in arbitrium domini vel procuratoris ejus, conditio; pro boni viri arbitrio hoc habendum esse.*

In the opinion of the court, the words of the statute "what port, harbour or creek," were considered very express and equivalent to licensing for a voyage.

If this determination does not exactly run on all fours with the case to be decided, its principles are so nearly similar as

[* A very important decision bas taken place in England before the honourable Chief Justice, Baron Eyre, on the construction of the tenth sect. of the stat. 24 Geo. 3. c. 47. (1 Anstr. 23.) regulating the coasting trade, and licensing vessels, and providing that such licence shall specify the tonnage, &c. of the vessel licensed, and for what port, harbour or creek, she is about to sail. A licence was granted, "to be employed in the coasting trade," generally. In support of this licence it was argued that it meant to include all the ports in England, which is the same thing as if it specified every one; and it was agreed that such was the common form of licences to coasters.]

to render an accurate discrimination very difficult, if not impossible. The voyage or voyages for which seamen ship are required by the statute to be specified in their articles. The term voyage imports navigation from one port to another, and perhaps, if not otherwise expressed, back again. In the plural it imports, a commencing at more than one port, or in other words, at several specified places. The commencement and termination of a voyage or voyages are ascertained by the ports or harbours from and to which a vessel is destined. The terms, "to trade along the coast," or "to every port, harbour or creek," include all the ports, harbours and creeks of a nation, in which a vessel is licensed for coasting trade. But it is not a compliance with a statute which enjoins that the particular ports shall be inserted. To require the insertion of the voyage, is neither more nor less than the insertion of the ports or harbours from and to which the vessel navigates. Of consequence, the unqualified term "elsewhere," applied to a specified voyage, is not designatory of any port or place, nor is it relative to any voyage in the legal sense of the term; it has no specific relation to any port or place whatever; and to apply it to all ports or places in the world would be as inconsistent with justice, as it would be unauthorized by law.

This decision is not different from old determinations. The rules, which apply to a right to a private way at land, cannot materially vary from those which are applicable to a contract for service in a voyage at sea. A prescription for a way is not good if it does not say a quo termino ad quem the way goes. Resolved Tel. 164. and this not indefinitely but certainly, 2 Leo. 10. As from A to a rectory, the terminus ad quem is uncertain, for the rectory consists of glebe, tithe, parsonage, &c.

So, that he is seised of B. and has a way through the close of the plaintiff to the Thames, for he ought to say that he has a way from B. through the close, &c. to the Thames. Mod. Cas. 3.

If this case should still be considered doubtful, let the argument ab inconvenienti be applied, and what will be the result? The construction I have adopted can never produce inconvenience to the ship owner, since in almost every case he does order the route and destination of her voyage previous to her

departure; and it is easy and just to make his agreement with the seamen conform to such orders. If there is a discretionary authority confided to the captain to proceed to other ports, such authority will at least be limited by some bounds; and the articles should be drawn to meet such an alternative voyage, and to conform to the real object of the owner; and this object, so far as the rate and wages would be influenced by it, ought to be communicated to the sailors; or if it is not thought expedient to do so, they should be hired for a term or terms of time, as authorized by the act of Congress. While the shipowners are thus fairly secured against inconvenience, no more than justice is secured to the seamen. Adopt a different rule, and they may unjustly be entrapped into voyages of greater length, more hazard, peril and labour, and of course for which they ought to receive greater wages and greater advance; and of which increased compensation they would be deprived under such general words, too often improperly and most frequently thoughtlessly introduced into their articles.

The considerations of policy and the general rules of law, before stated, have great weight with me. Indeed I think it more desirable, that the principles of mercantile law should be referred to general axioms, than to the unbending authority of particular decisions: and it is therefore my custom not to refer so much to cases or opinions, as to universal principles. But on this occasion I shall add the weight of some opinions from a source to which we resort habitually for our judicial direction.

It is stated by Parke (title Deviation)" that it is necessary to insert, in every policy of insurance, the place of the ship's departure and also of her destination;" and in a preceding part of his work, page 23. ed. 1787, when referring to the same rule, he remarks, "this has always been held to be necessary in policies, at least for upwards of two hundred years; and must be so, on account of the evident uncertainty which would follow from a contrary practice, as the insurer would never know what the risque was he had undertaken to insure." Molloy 6. 2. c. 7. § 14. has laid down this doctrine, that if a ship be insured from London to (a blank being left by the lader of the goods to prevent her surprize by an enemy,) if she