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ALBANY of the voyage, and therefore, neither this, nor the former August 1803.

decision, apply to the case of a loss of voyage from injuries Magrathand distinct from those happening to the perishable articles, such, for

instance, as an irreparable damage to the vessel. That John B Church

would be a loss of voyage in a case not within the memoran dum, and liable to be regulated by other rules..

As the plaintiff is not entitled to recover as for a total loss, the next point that arises for consideration is, whether the plaintiff be not entitled to recover a general average, as fixed by the verdict.

A question here preliminarily arises, and that is, whes ther the verdi&t be contrary to evidence in stating, that the whole of the damage sustained by the corn, was eccasioned by, or in consequence of the cutting away the mast of the vessel, for the general preservation."

To support this finding, the evidence was; that in cutting away the mast, it splintered off at and below the parte ners, and tore away a piece of cloth which was nailed 'to the deck and mast; and, by means of the splintering, and the removal of the cloth, vast quantities of water continued to rush into the hold of the vessel, until the stump of the mast was cut off and a new coat nailed over the same, which occupied about an hour and a half; during all which time, and for several hours afterwards, the water made a free passage over the decks, and one pump was continually going, the other having been carried away, and become to tally disabled by the fall of the mast. In addition to these facts, there is the deposition of a witness, who heard the captain, mate, and crew say, that the damage the cora sustained, was principally in consequence of cutting away the mainmast, &c.

Upon these facts, I am not dissatisfied with the conclusion drawn by the jury. No other cause of direct injury to the corn is found. The one stated must have essentially injured the corn. The injury was inevitable, and the cause was sufficient to have produced the whole effect. I think the conclusion a reasonable one. We are, therefore, to consider the mast as sacrificed for the general safety of the ship and cargo, and that in the act of sacrificing the mast GT, as A NECESSARY CONSEQUENCE of it, the corn was da- ALBANY,

August 1803. mages, and this damage must be included in a general contri, bution. The corn being damaged by the cutting away of the Magsrath, and

Higgins mast, is to be considered equally with the mast, a sacrifice

John B Church for the common benefit; a piece of safety to the rest: and it is founded on the clearest equity, that all the property and interest saved, ought to contribute their due proportion to this sacrifice. The plaintiff is therefore entitled to recover Abbott, 278.

East. Rep. 228 as for 4 general average, for the loss sustained by the injury by Lawrence,

J. Park 124. done to the corn, and two remaining questions are next to, be settled.

The one is, whether, in the adjustment of average, the freight of the cargo to Madeira ought to have been estimated, and not the freight only paid at Philadelphia. In this case, I think the adjustment, as settled by the award, ought to stand; for that the freight a&tually gained or earned

Abbott 291. 2. in the voyage, and not what the vessel would have earned if Marshall 467." she had gone to Madeira, ought to be the rule of contribua tion.

The other question is, whether the totality of the contribution due to the plaintiffs, for the loss of his corn, is recoverable in the first instance from the insurer.

I am of opinion that it is, because the loss arises wholly from a peril within the policy, and the plaintiff has a right to look for his indemnity from the person who has engaged to indemnify him from the peril. This argument appears to me to be conclusive. This will not lead to a multiplicity of suits, any more than a different rule, for if the plaintiff could recover only a contributory share from the defendant, he would be compelled to resort to the owner of the ship for the residue ; and this suit over, may as well be brought by the insurer as the plaintiff, for one great object of insurance is, promptly to re-invest the assured with his capital, lost by the perils of the sea, and thereby enable him to continue his commercial enterprises.

In addition to this, it appears to be the English practice for the insurer to pay, in the first instance, the adjusted ave- Abbott 296. rage.tu;

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ALBANY, I am accordingly of opinion, that the plaintiff is entitled August 1803.

☺ to recover a general average. That in adjusting this aveMaggrath and Higgins

ad rage, the freight has been properly estimated, and that the John B Church

plaintiff is not bound to look to the owner of the vessel for the proportion to be borne by the vessel and freight, and these points being established, the loss is to be considered as total, according to an agreement of the parties at the foot of the case.

Lewis, chief justice observed, he had delivered the opinion of the court in the case of Le Roy, Bayard and M-Evers, against Governeur, on the same policy, and that as far as the present decision turned on the import of the exception, free from average unless general, when applied to the corn, he fully assented to it. That the other questions arose upon an argument between the counsel, subjoined in a note at the foot of the case, which had been omitted in copying the case delivered to him. He therefore had not considered them. He saw no objection, however, in concurring with the adjustment as to the quantum of freight to be charged with contribution to the general average : nor with the principle that the underwriters, and not the owners and shippers, were to respond, in the first instance, to the assured for the general average receivable on the corn, if entitled to any within the terms of the contract of indemnity. But that he had great doubts on the other point, viz. Whether the injury received by the corn from the jettison of the mast, and the consequent irruption of the sea water, could entitle it to a general average as between insurer and insured. He was strongly inclined to think it within the spirit and meaning of the terms of the exception: the object and design of which is, to avoid and shut out, between the parties to the policy, every question on the cause of injury to the corn, where it might equally arise from the perishable nature of the commodity, as from external causes. This was a case of that description, and actually involved the question, the assured intended to steer clear of. For that the evidence is, that the injury sustained by the corn was principally cwing to the sea water getting in thro' the partners, before the coat could be replaced. That it appeared to him rather an ingenious contrivance on the part

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of the assured to obtain under the form of a general, what he could not under that of a particular average. He, however, gave no opinion.

Livingston, justice, having been concerned in the cause, gave no opinion. :

Maggrath and

Higgins John B Church

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George Barnewall against John B. Church..
This was an action for a total loss by perils of the sea, A general poli-

cy.unaccompaunder a policy of insurance on the ship Hape, valued at nied with any 8000 dollars, and dated the 28th of December, 1799, “ at

warranty, cov

ers war risks of s and from Kingston, in Jamaica, to Honduras, during all kinds and of

all countries. “ her stay there, and at and from thence to New-York.” Under suchcir

cumstances, a It appeared, that in April 1789, the plaintiff, wishing to false clearance

is immaterial, purchase the vessel in question, employed two ship carpenter; to examine her, which they did in every part.

e disclosed. Seay pause

They

my worthiness is bored her timbers fore and aft, near and between the always impli

ed, and not at chains, bends, transom, breast hooks, apron, and in other the risk of the

underwriter. places, found her perfectly sound, and very strong. They Weight of evi

dence. reported her bottom to be of English elm, which never decays under water. That she was collier built, about nine or ten years old, and would last 40 or 50 years. That she seemed as sound as a Connecticut vessel of two years old. Her iron work was good, her bottom perfectly sound, her bends doubled, the first at least five inches thick, her knees not started, but well fastened, and the chain bolts forelocked.

On this representation, the plaintiff bought her, and expended about 600 pounds in repairs. Whilst these were completing, some of her timbers were perceived to be tainted, and some of the planks in her wait defective ; the first were mended, and the latter removed.

After this the ve sel sailed from New-York, where she was purchased, to Kingston, in Jamaica, from whence she sailed on the voyage insured, and arrived safely at Honduras. On her passage from thence to New-York, she sprung a leak, was obliged to bear away for Honduras, which she reached in a very disabled state, and was, after a survey on her duly held, condemned as not seaworthy, From two protests of the captain, which were read in evi, dence, by consent, it appeared that the vessel, soon after

Barnewall

ALBANY, she left Honduras, experienced some heavy gales, but not August 1803

such as to oblige him to strike top-gallant-masts, and hand

his top-gallant-sails, though she, at this very time, sprung Church. the leak which forced him, by advice of his crew, to bear

away. It was not, however, alleged, that any extraordi-
nary press of sail had been necessarily carried to avoid a lee
shore. The captain had, in his first protest stated, that he
had sailed from Honduras for Falmouth : in his second he
explained it, by saying that he had cleared out for Falmouth,
but actua lly sailed for New-York. This, it was proved in
evidence, had been done to avoid duties to the amount of
105 pounds per ton, which must have been paid had the
vessel cleared for any other than a British port: it was,
however, established, that the thus clearing made no alte-
ration in the premium, for the New-York insurance compa-
ny, after being acquainted with the circumstance, continu-
ed the risk on the policy they had underwritten, without
demanding any thing additional.
• The state of the vessel, at the pericd of her survey and
condemnation, was shewn to the jury, from the return of a
commission, containing the evidence of the same persons,
whose testimony, given on the survey, had been relied on
by the plaintiffs, for proof of loss, and constituted a part
of what had been adduced to the underwriters, in support
of the claim against them. By this, it was proved, that
above two-thirds of the ship's timbers were rotten, in con-
sequence of whicb, and the decay of the fastenings, her
planks had started, and several of them were also rotten;
the bends in the same situation, and loose, particularly aft.
That the defects in the timbers and upper works appeared
to be of a considerable standing; the bends, in particular,
were so bad that they might have been ripped up with a
crow bar, for twenty feet aft. Many of the trunnels, chain
bolts, and other fastening bolts, started ; the bends totally
so from the transom, and very much decayed. That the
starting of the bolts and bends arose from the rotten state
of the planks and timbers, which could not hold a nail.
That the upperworks, inside and out, were mostly decayed,
her water ways open. That she could not have been 2
staunch, tight, strong and seaworthy vessel, fit for the voy-

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