Hobson v. Lord
ERROR to the Circuit Court of the United States for the Southern District of New York.
The facts and the assignment of errors are stated in the opinion of the court.
Mr. William G. Choate for the plaintiffs in error.
The law of general average obviously and confessedly had its origin in jettisons. 3 Kent's Com., 12th ed., p. 233; Lowndes on Average, 2d ed., App. A, pp. 305-309, 316, 317.
In England, the wages and provisions of the crew during a detention for the repair of the ship, even when she is compelled for the common safety to bear away to a port of refuge, are not general average. Plummer v. Wildman, 3 M. & S. 482; Power v. Whitmore, 4 id. 141; Hallett v. Wigram, 9 C. B. 580.
According to the American decisions, wages and provisions during a detention to repair (unless the cause of the injury be itself a general average loss) are not general average, except when the vessel, in a proper case of imminent peril to ship and cargo, or to the voyage, voluntarily, and to escape the peril, leaves the proper course of her voyage, and bears away to a port of refuge; because, except in that case, the wages and provisions during the detention are not given or sacrificed for the common benefit, but are bought and paid for by the stipulated freight for the voyage, and the ship, in her delay for repairs, has only complied with her contract with the shipper. Jones v. Ins. Co. of N. America, 4 Dall. 246; Kingston v. Girard, id. 274; Leavenworth v. Delafield, 1 Caines's Cas. 574; Walden v. Le Roy, 2 id. 263; Henshaw v. Marine Ins. Co., id. 274; Penny v. N. Y. Ins. Co., 3 id. 155; Padelford v. Boardman, 4 Mass. 548; Wightman v. Macadam, 2 Brev. 230; Ross v. Ship Active, 2 Wash. C. C. 226; McBride v. Marine Ins. Co., 7 Johns. 431; Barker v. Phoenix Ins. Co., 8 id. 307; Dunham v. Commercial Ins. Co., 11 id. 315; Spafford v. Dodge, 14 Mass. 66; Thornton v. Ins. Co., 12 Me. 150; Hause v. N. O. Ins. Co., 10 La. O. S. 1; Potter v. Ocean Ins. Co., 3 Sumn. 27; Bixby v. Franklin Ins. Co., id. 46, note; Giles v. Eagle Ins. Co., 2 Met. 40; The Brig Mary, 1 Sprag. Dec. 17; The Star of Hope, 9 Wall. 203; Peters v. Warren Ins. Co., 3 Sumn. 400.
It was no departure from the course of the voyage to haul the vessel to the storeship for the discharge of her cargo, or from there to the dry dock to be repaired, or back again to the hulk to receive her cargo.
The custom proved is not sufficient to justify the allowance of the expenses of the special agent sent out by the owner of the ship.
Mr. Edwin B. Smith, contra.
MR. JUSTICE CLIFFORD delivered the opinion of the court.