author: Kent, J., Lewis, Ch. J. Livingston, J.

text:
    Maggrath and Higgins against Church.
    All damage immediately arising from a jettison is to be contributed for, though it happen to perishable articles, which are enumerated in the memorandum, and remain in specie.
    Freight and vessel are to be estimated in a general average, as they then are.
    This was an action on a policy of insurance, in which, on a special verdict, the following facts were found.
    “ That Le Boy, Bayard and M’Evers, of Hew York, as agents for the plaintiffs, who were merchants in Madeira, by a policy of assurance, dated the 10th of September, 1798, insured 5,414 bushels of Indian corn, 4,000 pipe stoves, 4,000 hogshead stoves, and 2,500 quarter cask stoves, from blew York to Madeira, on board the snow Ann and Mary, Peter Murphy, commander. That the prime cost of the corn was 2,982 dollars and 98 cents, of the pipe stoves, 170 dollars and 31 cents, of the hogshead stoves, 95 dollars and 50 cents, of the quarter cask stoves, 31 dollars and 12 cents. That the freight for the corn was to be 650Z. sterling, for the stoves, 148Z. and that the plaintiffs had an interest on board, to the amount covered by the policy. That there was a memorandum in the policy, by which it was agreed that salt, grain of all kinds, Indian meal, and all other articles perishable in their own nature, should be warranted by the assured free from average, unless general. That the vessel, being well fitted for sea, sailed on the voyage insured, on the 17th of the same month; on the 21st encountered squally weather and heavy seas, which continued till the 26th of the same month, when about 1 o’clock P. M. the wind blowing violently, suddenly chopped round from E. S. E. to W. bT. W. and laid the vessel on her beam ends, in which situation it became necessary for her preservation, and that of the cargo and crew, [*197J to cut away the mainmast. That in doing *this, it splintered off at, and below the partners, tearing away the piece of cloth called the coat, which is nailed to the deck and mast, for the purpose of keeping the water from running into the hold. That in consequence of this, as the sea made a free passage over the snow, a vast quantity of water continued to rush into the hold till the stump of the mast was cut off, and a new coat nailed over it. That this occupied about an hour and a half, when there were found four feet water in the hold, though one pump was continually going, the other having been carried away in the fall of the mast, and totally disabled. That the vessel laboring much with a heavy sea, it became necessary, on the 27th, to ease her, by throwing overboard about half the stoves, which was accordingly done. That the weather having moderated, the snow was found to be in so disabled a situation, that she was obliged to bear aw'ay for the nearest port, three of the crew being crippled and sick, and the captain’s leg very much bruised. That on the 13th of October following, the vessel got into the capes of Delaware, and on the seventeenth of the same month, arrived at Newcastle. That there were not to be procured there any stores in which to unload the cargo, nor any assistance to obtain repairs, and that the yellow fever then raged both at Wilmington and Philadelphia. That on the 25th or 26th of the same October, Le Roy, Bayard and M‘Evers received information of the vessels being at Newcastle, and of all the antecedent circumstances, which they instantly communicated to the underwriters, and abandoned. That the vessel lay at Newcastle till the yellow fever abated, and on the 30th of October went up to Philadelphia. That on the abandonment, it was agreed that Le Roy, Bayard and M'Evers should send a clerk to Newcastle, to take charge of the cargo belonging to the plaintiffs, for account of whom it might concern, without prejudice to the rights of either party. That the vessel arrived at Philadelphia on the 30th of October, the day she left Newcastle. That on unlading the cargo, it was found so damaged as to be wholly unmerchantable, and that all the damage sustained by the corn was occasioned by, or in consequence of the cutting away the mast, which was done for the preservation of vessel, cargo *and crew. That the articles [*198] insured, excepting such as were ejected, were, by consent of parties, sold at Philadelphia, for the benefit of those who might be concerned, and produced, after deducting charges, 924 dollars, which sum was paid to the owners of the vessel, for freight, in pursuance of an award made by arbitrators chosen for that purpose, but the defendant was not a party to the submission. That the Ann and Mary was repaired at Philadelphia, and ready to take in a cargo on the 28th of November, but as no corn of the kind oí that before purchased could be obtained, it being flint Jersey corn, the voyage was given up, and the vessel returned to New York.”
    If, on the above facts, the court should be of opinion, that the plaintiffs were entitled to recover as for a total loss, the jury assessed the damages at 1,231 dollars and 54 cents; if for a general average for the loss sustained by the injury done to the corn, then at 909 dollars and 61 cents; if for a particular average, at 237 dollars and 51 cents.
    It was agreed that if, in estimating the general average the freight of the cargo to Madeira ought to have been taken into account, and not the freight actually paid at Philadelphia only, then an alteration was to be made accordingly in the sum to be recovered: and that if the assured were not bound to look to the owners of the vessel for the proportion to be borne by the vessel and freight, then the loss to be considered as total.
    In a former trial on the same policy, in which Le Boy & Oo. were plaintiffs, the abandonment was, by the special verdict then given, found to have been made whilst the vessel lay at Philadelphia, where she could have been repaired for less than half her value, and the question at that time agitated between the parties was, whether the corn, being damaged more than one half of its value, was susceptible of abandonment, and the underwriter responsible; or whether he was protected by the words of the memorandum ? It was contended that he was not, because they applied only to average losses, and not to those which were, like the present, total.
    In support of this idea, the authority of the French writers was relied on ; but the bench decided, if the subject insured be in existence, there cannot be a recovery.
    However, there being still an average, occasioned by the jettison, for which the assurer was bound, it be-[*199] came ^necessary to settle that; but. before it could be adjusted, the defendant died.

      This induced the present action.

      Harrison,

    for the plaintiffs, disclaimed all intention of impeaching the former determination, but distinguished the case now before the court from that which they had formerly adjudged, by remarking on the diversity of the verdicts, as to the periods of abandonment. He now made two points.
    1st. That the plaintiffs had a right to abandon, whilst the vessel was at Newcastle, and had exercised that right.
    2d That even if they had no such right, still the loss being occasioned by the jettison, it was to be paid for by a general average, and, therefore, the underwriter answerable.
    It is, said he, a settled and acknowledged principle in the law of insurance, that whenever the voyage is lost, the assured has a right to abandon, though the article remain in specie. Manning v.Hewnham, Park, 168,169; 2 Marsh. 505.
    This exists as well in cases of perishable articles, as in any others. MlAndrews v. Vaughan, 1 Marsh. 150. For the warranty “ free from average,” &c. does not destroy or impair the right to abandon. It only regulates the cases in which compensation for average shall be claimed. Upon these principles, it will be barely necessary to examine the circumstances, and see how fully they apply. The vessel is driven, with her cargo, into a port foreign to, and out of the course of, her destination ; on hearing of this, and her disabled state, an abandonment instantly takes place. The right of the parties was then complete; the voyage could not be prosecuted, and it was impossible to know how long the incapacity to pursue it would continue. This would justify the abandonment then, and then the right of the assured was ascertained. This did not depend on the memorandum ; the court, therefore, will see this is a case where the effect of the memorandum could not apply. In all cases there is a memorandum, yet it was never heard to work a difference in a loss, arising from a peril of the sea, in de • fearing the voyage.

      *The vessel arrived at Wilmington, where there were no stores, no possibility of repairs, or of prosecuting the voyage. Safely, then, may we say, with Lord Mansfield, “ if, by a peril insured against, the voyage be lost, the assured may abandon.” Because the cargo is composed of perishable articles, is it to remain forever at the risk of the underwritten ? Has he no right to abandon, and call for indemnification ? It is presumed that he has, and that the court will say he is not bound to wait for an eventual change of circumstances. If, in the case of an embargo, which may be taken off in two or three days, the right now contended for exists, and the assured, immediately on receiving advice, may abandon, will he not be entitled, in a case like the present, Avhere the voyage is broken up ? Surely this will be considered as a case within the spirit and letter of all the rules of abandonment. But admitting (which is not to be supposed) that the court should be of a contrary opinion, we have still to rely on the second position Ave have taken. That this is a loss arising from a general average, and we, therefore, in that point of view, entitled to recover. The special verdict finds, that the vessel met with gales of wind, which laid her on her beam ends, in consequence of which she was obliged to cut away her mast. That in doing this, the cloth round it called the coat was torn aAvay, and considerable quantities of water rushed into the hold. That from this arose the inj ury to the corn, and that it was in consequence of cutting away the mast for the preservation of all. What is this but saying in so many ■ words, that it was a loss arising immediately from the jettison ? If so, we are entitled to recover for the whole of the injury attributed to it.
    It is not the mere article thrown overboard that is to be made good, but everything is to be compensated for, that receives injury in consequence of the act done for the preservation of all. Abb. on Ship. 278; (See 1 Lex Mer Amer. 231, 286.) Therefore, the finding is conclusive on the fact, and the law is but a necessary consequence. But this very circumstance is to be urged as a reason for a new trial at least, and a question is to be made, in the present discussion, whether the jury, from *the testimony [*201] given, were justified in finding the effect of the jettison. It was no doubt proper for them, because facts must be submitted to their determination. There is no other cause stated in the evidence, which can account for the damage, but the jettison itself. The vessel was not leaky, nor was there any injury before. There is, then, sufficient stated to ascertain the origin of the damage. Having that before them, and nothing else, to which to attribute the loss, they had a right to infer the whole occasioned by the jettison, made for the preservation of vessel and cargo. That there was evidence adduced, that there was a person who had spoken to the captain, who had told him the damage was principally owing to the jettison, is immaterial. They ought not to have been influenced by mere hearsay. The captain himself ought to have been examined as to other causes; and what does he say ? That, in his opinion, the jettison was the principal. It is impossible to discriminate between the same damage occasioned by other causes, and that which arose from the jettison. These declarations ought, therefore, to be laid totally out of view. The court may well imagine the captain mistaken; they will be warranted in saying there is no adequate cause assigned for the damage but the jettison, and that the jury have expressly found. The court will do well to consider if they ought to enter into nice disquisitions, where cause sufficient is suggested. There is no rule of discovery in these cases. If the party show sufficient cause, the jury ought to say they cannot examine every trifling injury; it is sufficient that this is the greatest. Will the court, on mere hearsay, open this cause, having no document to discriminate what part was injured under the policy and what not ? Why was not the other side prepared to show the quantum ? They had equal opportunity with the plaintiffs : we have given absolute evidence to satisfy the jury that the injury arose from the jettison exclusively; they rely on mere hearsay alone. If, then, the loss is the result of a jettison, this must be a general average, and, according to the statement in the verdict, the court will be of opinion that the parties are entitled to look for their proportion to the underwriters, and not to the owner. This, then, [*202] amounts to a total loss, *for it appears from the sales at Philadelphia, that the parties have lost the whole of the subject matter of the insurance.
    Another question will then be made, as to the manner in which the average is to be computed. It will be contended, that if the average is general, another rule than that by which we have been guided, ought to be adopted. It has been settled, by estimating the articles according to the invoice; the ship on her value as it then was; and the freight on the amount to be then paid. It could not be taken at the sum due in Madeira, for she had not arrived. It is, therefore, to be charged with average on the amount then earned. That the arbitrators gave, and is the sum to be paid; they had no regard to what ought to have been received in Madeira. They, say what the articles sold for in the market, is your right, and that you are to have. But this was under an agreement that what was done should work no injury, and not to be as if taken on account of the proprietor of the cargo, but left with the owner of the vessel, merely to pay freight, and, therefore, as if on his account. In settling the average, he is allowed what he would have been entitled to where the corn was sold. On this ground the calculation was made, and this is to be considered as the just rule. For these reasons, we conclude that the party had a right to abandon, and that there was a total loss. If the court see the matter in the same light, there will be no need to consider it in any other point of view. Should they deem this not to be a case of abandonment, and that we are obliged to take to the subject; then the average, as fixed by the jury, ought to prevail, by rating the freight as received and the corn at the invoice price, not as it would have been at the place of destination. If the freight is thus to be estimated and averaged, why not the corn ? If not so, the cargo would contribute more than the freight. But, at all events, as the loss of the corn is clearly a general average, the court will say we are entitled to recover as for a total loss.

      Pendleton and Hamilton, contra.
    Before it can be known whether the case which was argued on a former ■occasion is not the *same as that now before the [*203] court, they will advert to it. If they will only take a short review of it, they will perceive that now agitated presents the very same subject, as to the right to abandon, with some slight differences, and a trifling variation in the arguments and points. The special verdict of this day only states the abandonment to be a little earlier, and in all other respects the testimony is totally alike. The defendant contends that this is not such a case of total loss as will warrant an abandonment. For this he relies on the former decision of the court, in Le Boy, Bayard & MlBvers v. Gouverneur. Tho next question is, whether the plaintiffs are not entitled to recover the whole amount of the subject insured as for a total loss. Admitting that they have a right to recover for a general average, the inquiry will be what is it to be made for ? General average is the contribution for that which sacrificed for the preservation of all. ' If the loss be applicable only to one, it is a particular charge. It must have been for the general benefit, and have had the effect of saving; for if by ejecting, goods be saved from one storm, and lost in another, they will not pay average, because they have not been saved. The question is whether the whole value of the com is to be brought into the general average. The facts stated in evidence, as connected with the special verdict, do not warrant the conclusion that all the damage arose, as an inevitable consequence, from cutting away the mast. May not the injury be attributed to another cause? Did not a witness expressly testify, from the confession of master, mate and crew, it was only principally, and not exclusively owing to the cutting away, that the corn was injured? He was examined for no other purpose than to prevent the conclusion of the jury as to the source of damage. On the former argument it was never contended that the corn was to be made a subject of general average. This was an afterthought ; an ingenuity of counsel to add the value of the corn to the general average, because it could not [*204] be recovered in any other way. ^Therefore, the injury is now made an immediate consequence of cutting away the mast, and then the rule of law applies as to consequential loss, and right to contribution. But the verdict shows the storm had been making a breach over the vessel long Before the mast was sacrificed, and there is no evidence that the vessel did not then ship some water: it is impossible she should not. But if the injury had arisen from and in the manner stated, does it come up to the position of counsel ? According to this, every possible consequence of cutting away is to be a matter of general average; and, if. so, every thing, however consequential, will be a loss within the meaning of the term. Should a captain, after a necessity to eject, be obliged to remove part of his cargo, if he place it where it receives damage, there would be a loss and it must be considered as general average. But supposing the corn to be considered as general average, it is doubtful how the calculation ought to be made. The whole value is now considered as lost. This surely is not correct. Goods, even that are lost, are to contribute ; not all, however, in the present case were so because there was to the amount of 900 dollars saved. This must be deducted from the amount to be brought into average, and ought to be taken from the costs at the port of shipment. And though this was given for freight, yet it was no more than might be due, for the vessel was found to be able to proceed on her voyage; and surely the underwriter is not obliged' to pay the amount of freight as a loss under the policy.
    It is objected that the testimony, which goes to controvert the conclusion of the jury as to the cause of damage, is only hearsay. It will be well worth while to consider by whom it was adduced. It was by a clerk of Le Roy & Go. sent by them as an agent, who related what their othei agent, the captain, had said; he himself did not testify This, therefore, was the declaration of their own agent, produced by themselves, and certainly from them at least, entitled to credit. He says the damage was principally owing to the cutting away the mast; the inference, therefore, is, it was not wholly. The two ideas are not convertible the one into the other. They are contradictions *in terms; the jury, having no other data from [*20o] whence to infer, must ceftainly have given their verdict against all evidence in the cause; it is impossible the jury could have drawn an inference from any facts there. Principally, it must be acknowledged, is a vague term, but it negatives the idea of wholly. It permitted the adoption of some loss from the cause alleged, but did not allow attributing the whole. A bare majority of the.subject, a little more than half, could be intended under that view. How, then, would this operate ? It is incumbent on the plaintiff to render the subject precise. Where he cannot, it turns to his own disadvantage. There is no criterion of facts. Principally is, in law, the greater part. There is no criterion for the jury to decide, except the word principally, which leads to no conclusion except something more than half. It is of considerable importance in the'investigation of causes, as it relates to truth and justice, that too much latitude be not allowed to vague inferences. This often creates a disposition in the mind to draw conclusions from uncertin premises, and is a reason why we should confine it to strict deductions, and adopt a rule for it to govern itself. Inasmuch as there is no datum to determine the fact of how much, beyond half, was injured, the law will intend just more than hall; and nothing less. It will not be permitted in the face of evidence that it was not wholly, that it was a little more than half, damaged, to say that it was wholly and entirely so. When a person who knows how much, pronounces principally, shall a jury say wholly? Are there any facts in the special verdict, from whence the jury can draw such an inference? From the 21st of the month to the 26th, the vessel was in a course of storms. (Ian this have produced no injury? A duration of five days’ bad weather? Though possible, it is not probable such should have been the case. Then comes the jettison; and then the witness says.he believes the principal part of the damage took place. But was there not something subsequent, from which the injury might be supposed to proceed? There was another storm, from whence it is impossible the injury should not have been increased: it [*206] could *not have been repaired. If what took place the next day was the consequence of cutting away the mast, within their word principally, it may perhaps, be questionable whether some of this injury be not a subject of compensation. That which was immediate, is to be contributed for, 1 Mol. b. 2, c. 6, s. 7, not however, to go further than what directly ensues. But as there was another tempest immediately supervening, it is impossible to calculate the quantum of damage in one, and the quantum in the other, so as to ascertain the consequence which was immediate. In an interior view of this case, the jury appear to nave lumped too much; to have added together what might be attributed to precedent and to subsequent causes; it is impossible to say the jury did not value the second tempest. The facts do not warrant their conclusion, and, therefore, they had no sufficient basis to overrule the captain’s own declaration, that the whole injury was not from the jettison. He had. every thing under his eye, and, therefore, must be the best j udge whether all the damage arose from the first tempest. If the court think thus, the matter must be reviewed; they certainly will not say all, when the party, by his agent, says the reverse. In every case like this, the master is agent for every one concerned. It is not a case of total loss, in which he is the agent of the underwriter: in average losses he is the representative and deputy of each party insured. He has a duty to. perform, and is responsible to them for its discharge. He is to collect the proportion to be contributed, from each his contributory share. He is bound to make this collection, and then distribute according to the general average : he is liable if he parts with the cargo before the contribution is settled. The result, then, necessarily is, that the party having a claim on him, must have recourse to him for the average, and call on the underwriter for the ultimate loss. That is, the difference between the injury sustained, and the sum he is entitled to receive from the defendant in this suit. On the one hand, the owner of the cargo had to receive for the injury done to the corn; on the other, the owner of the ship, for the injury done to that. It was a complicated fact of mutual contribution. The owner of the goods was ^obliged to discount so [*207] much of his demand against the owner of the ship as the owner of the ship was entitled to receive from him and cannot ask the whole loss from us. Suppose he had a right to receive more for the corn lost, than he was bound to contribute for the injury done to the ship? He cannot come against the underwriter for the whole of what would be due for the damage, without this set-off. What he was to receive might be less than what he had to pay; can he have recourse to the underwriter for more than he did pay ? On a total loss the underwriter is to pay a total loss; on a partial loss; and when there is a general average, the quantum ascertained on a just calculation among all the parties; for the assured ought to recover only the amount of the loss occasioned by the jettison, or other disaster, after de. ducting what he was entitled to receive in contribution from the other parties concerned in the voyage. The underwriter ought not to pay, when the assured has a subject on which he has a right to claim. From the insurer he ought not to recover, when his agent has in his hands a pledge, from whence .it is to be taken. As to the arbitration, the defendant was no party to the submission, and, therefore, was not bound by it. The right to abandon must on the principle of Le Roy and others v. Gouverneur, be denied. As the value of the corn was not less than the freight, there could not, for that reason, also, be any ground for abandoning, especially as the vessel was repaired, and the owners willing to proceed.
    Harison, in reply.
    The former decision in a case acknowledged to be under this policy is greatly insisted on. Did this not essentially differ, the court would not now. be addressed. When that was considered, the point now in contest, as to a total loss, never arose. The question then raised was, whether an abandonment could be made under circumstances very different from those which now present themselves ? Here the act was justified from the local situation of the subject. There the ground was, that being injured to more than half the value, the party was entitled to abandon. The court must recollect that in Le Roy v, Gouverneur, the plaintiffs could not give in evidence the time when the abandonment was made, they only [*208] being able *to do it, and as parties to the record, inadmissible. The time is not unimportant, as on it may depend the right of the party to a total or an average loss. For instance, suppose a capture, and the assured a day before he hears of the vessel’s safety, abandon ? It will be good. If he delayed till after receipt of the information, it would be nugatory. The court will never say that an abandonment, made when the party had a right to abandon, shall be impeached by the memorandum. It is not contended that when the vessel was at Newcastle, she could have been repaired, or stores had, or that the cargo could have been conveyed to its.place of destination. At that period, then, it clearly was a total loss. Had the assured lain by, it would have been otherwise, but they did not; .they took immediate advantage of their right, which did not rest on the memorandum, but on the right to abandon. Goss v. Withers, 2 Burr. 694.
    The principle now contended for is, that whatever the cargo may be, or its situation, the right to abandon turns the loss on the insurer, and this point is not the one decided by the court.
    The former consideration was, whether a deterioration, to more than half the value, authorized an abandonment ? The consideration then turned on the distinction between the laws of England and France on that right. On this point both parties are agreed. But one question now is, whether this case ought to be sent back for examination to another jury ? They were not to be bound by the relation of hearsay causes, said to have been acknowledged by the captain and others. They had facts before them, and from them they were justified in attributing the damage to either one cause or the other. Are there not facts in the case from whence a jury might "say the loss arose from the jettison ? There is nothing from whence they could infer it antecedent to the cutting away the masts. Allowing all that has been said respecting the word principally; that it means exactly a little more than half, the jury have decided on the credit due to it, and they have not thought it enough to outweigh the evidence of the damage, arising solely from the jettison. They find the cutting away the mast necessary *for the preservation of all, and the in- [*209] jury was an immediate direct consequence of that cutting away. This, then, is clearly a loss within the meaning of general average; and being of the whole, is a total loss. But here it is said we have no right to look in the first instance to the insurer: we must take from the captain and others, and then apply to the underwriter for the ba lance. Is it not, however, a loss from the perils of the sea, from a general average arising out of those perils ? And will the court turn us round from the words of our policy to the captain, because it is said he has a lien on what was to pay us, and being our agent ought to have thus applied it? ’ Can he justify holding the ship till the owner of goods ejected be paid ? If he has not this power over the vessel, neither can he detain the cargo. Suppose my goods thrown overboard, the owner of the vessel a bankrupt. The captain does not perform this duty, and she sold by his assignees on her arrival, can the underwriters say you must look to the owner, the casus foederis has not taken place ? All that can be done is to substitute the underwriter in our place, and he will have a right to use our names in the prosecution. It is from him we have to expect satisfaction. The court will find the principles on which the contribution has been settled to be correct; as our loss is of the whole, and as that is to be contributed for, we contend, both on the right to abandon, and on the settled rule of law in cases of general average, that we are entitled to resort to our policy, and leave the assurer to reimburse himself from the others.

         If the goods be saved from the second peril, they shall contribute for an ejecting which has saved from a first danger, though the ship be lost in the second. See 1 Lex Mer. Amer. 230, and the authorities there.

      ío) Though consequential, it would not ha immediately so.

   Kent, J.,

(after stating the facts,) thus delivered the opinion of the court.

This cause comes before the court upon a special verdict.

*Two questions have been made :

1. Whether the plaintiffs be not entitled to recover as for a total loss?

2. If not, then by what rule is a general average to bo liquidated.

The first point was settled by this court, in the case of Le Roy, Bayard & M'Evers v. Gouverneur. That case arose upon this same policy, and upon facts substantially the same. The question was on the construction of the *words in the memorandum, free from aver- [*212] age unless general; and the court decided, that to make the insurer liable, there must be an actual destruction of the article specified in the memorandum, and not merely such a technical loss of the article as would authorize an abandonment. Consequently, as the corn existed in that instance, the insurer was not liable for it, however deteriorated it might have been by the perils of the sea.

This decision was warranted and governed by the casa of Cocking v. Fraser; which was a strong and .unanimous) determination of the court of king’s bench, upon a case reserved on the very point in question. In that case tho insurance was upon a cargo of fish from Newfoundland, to a port of discharge in Portugal, and which was Figara, Oh the passage the crew hove overboard part of the fish, for the general preservation of the ship and cargo, and the ship was obliged to put into Lisbon, which was upwards of one hundred miles from her port of discharge. It was there found upon survey that the fish were rendered of no value, through sea damage, and the ship did not proceed on her voyage. The court held the insurer liable for no more thp.n what he had paid into court as a general average on the cargo, and a particular average on the ship. Lord Mansfield observed, “ that the insurer was liable only for a total loss, and that the total loss here was the loss of the thing itself, and not any damage, however great while it exists. That in common cases, when the voyage is obstructed and not worth pursuing, it is a- total loss.' But the memorandum goes on the idea that the insurer is not to be liable for any damage however great.” Fuller, J., observed also, “ that the voyage being defeated, might be very material in cases not within the memorandum.” This decision, therefore, goes the whole length of settling that, although in certain cases a total loss may be in whatever defeats the voyage, and will authorize an abandonment, this will not hold in the case of perishable articles within the memorandum. The insurer there is secure against all damage to them, whether great or small; whether it defeats the voyage, or only diminishes the price of the goods.

The memorandum prevents the loss from being [*218] *total, unless the article be burnt, sunk, captured, or otherwise completely destroyed; and, considering the difficulty of ascertaining how much of the loss arose by the perils of the sea, and how much by the perishable nature of the commodity, and the impositions to which insurers would be liable-in consequence of that difficulty, the rule of construction, as now settled, is the most salutary, by reason of its simplicity and certainty. This difficulty would remain in full force, if the.law was otherwise, and the insurer was to be held for damage to the perishable articles, when that damage was so great as to occasion a loss of the voyage. One great object of the rule would, in such case, be defeated.

In delivering our judgment, x have been the more particular in explaining'the former decision, and giving it my full acquiescence, from an impression which I received at the argument of this cause, that the decision was not sufficiently understood, or that it did not give all desirable satisfaction. The observation of Lord Kenyon, in the cause of M' Andrews v. Vaughan, 1 Marsh. 150, would seem also, as it stands at present without explanation, to be opposed to the rule we have adopted ; for, he said the insurer was liable not only when the article was actually destroyed, but when the voyage was lost. If by this observation was meant that the insurer was held when the voyage was lost, by some cause or peril not arising from the condition of the articles in the memorandum, it is not contrary to the rule contended for; but if it is to be understood- as extending to a loss of voyage, in consequence of damage, however great, to the articles in the memorandum, it is directly contrary to the decision of Clocking v. Fraser, and cannot be received at law.

It is to be observed that it is not stated in the verdict that no other vessel could be had at Newcastle to carry the cargo, but that the vessel in question could not there be repaired ; and it is found that she was speedily repaired at Philadelphia, and was ready for the voyage, but that it was given up and deemed lost in consequence of the unmerchantable condition of the cargo, and because no other cargo of the like kind (it being Jersey flint corn) could be there obtained. This was evidently the real cause of the loss *of the voyage, and, therefore, neither [*214] this, nor the former decision, apply to the case of a loss of voyage from injuries distinct from those happening to the perishable articles, such, for instance, as an irreparable damage to the vessel. That would be a loss of voyage in a case not within the memorandum, 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 genaral average, as fixed by the verdict.

A question here preliminarily arises, and that is, whether the verdict be contrary to evidence in stating that "the whole of the damage sustained by the corn was occasioned 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 partners, 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 totally 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 corn sustained, was principally in consequence of cutting away the mainmast, &c.

Upon these facts we are not dissatisfied with the conclusion drawn by the jury. Ho 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. _ We 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, *or, as a necessary consequence of [*215] it, the corn was damaged, and this damage must be ’included in a general contribution. The corn being damaged by the cutting away of the mast, is to be considered, equally with the mast, a sacrifice for the common benefit: a price 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 as for a general average, for the loss .sustained by the injury done to the corn, and two remaining questions are next to be settled. Abbott, 278: 1 East’s Rep. 228, by Lawrence, J„; Park, 124.

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, we think the adjustment, as settled by the award, ought to stand: for that the freight actually gained or earned in the voyage, and not what the vessel would have earned if she had gone to Madeira, ought to be the rule of contribution. Abbott, 291, 292 ; Marsh. 467.

The o’ther question is, whether the totality of the contribution due to the plaintiffs, for the loss of their corn is recoverable in the first instance from the insurer.

We are 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 conclusive. This will not lead to a multiplicity of suits any more than a different rule; for if the plaintiffs could recover only a contributory share from the defendant, they 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 plaintiffs, 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 average. Abbott, 2-96.

*We are, accordingly, of opinion, that the plaintiffs are entitled to recover a general average. That in adjusting this average, the freight has been properly estimated, and that the plaintiffs are 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, Ch. J.

observed, he had delivered the opinion of the court in the case of Le Roy, Bayard & M' Evers against Gouverneur, 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 stronly inclined to think it within the spirit and meaning of the terms of the exception: the object and design of which was to avoid and shut out, between the parties to the policy, every question on the cause of injury to the corn, w'hcre 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 assurer intended to steer clear of. For the evidence was, that the injury sustained by the corn was principally owing to the sea water getting in through the partners, before the coat could be replaced. That it appeared to him rather an ingenious contrivance on the part *of the assured to obtain under the [*217] form of a general, what he could not under that of a particular average. He, however, gave no opinion.

Livingston, J.

having been concerned in the cause, gave no opinion.

Judgment for the plaintiffs, according to the agreement on the case, as for a total loss.

         Since; reported, 1 Johns. Cases, 226.

       Park, 114; 1 Marsh. 144; Millar, 359; S. C. East. 25 Geo. III.

        а) See Burnett v. Kensington, 7 D. & E. 222.

       Antecedently to the introduction of the memorandum, the insurer was responsible for any partial loss individually sustained by the subject of the insurance, under the words of the policy. To abridge this liability in the case of perishable articles, was the intention of the clause, “warranted free from average unless general;” because such commodities carrying within themselves the seeds of deterioration, it was very difficult to discriminate the partial injury induced by inherent causes, from such as might arise within the risks undertaken. If the words are construed as containing a warranty against all partial losses except that of gt reral average, then the underwriter will be exempted from every partial loss which is not a general average. Of this opinion were Lord Mansfield and Mr. Justice Buller, (Wilson v. Smith, 3 Burr. 1550. Mason v. Skurry, Park, 160, and Cocking v. Fraser,) cited in the decision of the court in the text. If the words are to be taken as creating a condition, by which the insurer is warranted free from partial individual loss, “unless," or “if there be not" a general average, then on a case of general average happening, the policy will be restored to its original generality, and the assured let in to recover for the whole of his partial loss. Such was the construction first given in the English courts, (Cantillon v. Loud. Ass. cited 3 Burr. 1553,) and since confirmed on solemn argument in the last case on this question. Burnelt v. Kensington, 7 D. & E. 210. The effect of considering the words an exception, is to reduce the memorandum to two risks; general average and stranding. Upon this latter event the whole of the embarrassments the clause was designed to obviate would present themselves; for it would perhaps be impossible to apportion the damage so as to separate the quantum arising in consequence of the stranding (for which the underwriter would be liable) from that proceeding from inherent causes, for which he would not be liable. If the principles of Cantillon v. Lond. Ass. and Burnett v. Kensington, be adopted, this difficulty is removed; for on the event of a general average, or a stranding, the whole amount of the partial loss is imputed to the perils insured against; if neither of these events takes place, it is attributed to inherent causes. The rule, however, which is laid down in Cocking v. Fraser, is that acknowledged by the case of Maggrath v. Church.

         So under the clause of “ laboring, travelling,” &c. the insurer on the ship is liable to the owner, for whatever charges and expenses he is in the first instance obliged to bear and pay, though the cargo be incidentally benefited. Aliter, if the expenditure be totally for the cargo after the charge of the ship has ceased. Watson v. Marine Insurance Company, 7 Johns. Rep. 57. But where the insured on the vessel is also owner of the cargo, which and the freight are uninsured, the recovery from the underwriter, in case of a gonerai average, can be for no more than the proportion due from the ship. Eor it would be an absurdity to give the assured a right of action against the underwriter, merely to create one against himself Jumel v. Marine Insurance Company, 7 Johns. Rep. 412.

       See Nelson v. Columbian Insurance Company, 3 Caines’ Rep. 110, n.