Dunham v. Commercial Insurance

Thompson, Ch. J. delivered the opinion of the court. This was an insurance upon the ship Orbit, at and from New-York to Liverpool, and at and from thence to a port of discharge in the United States. On the outward voyage the ship sustained considerable injury, so that, after having arrived and discharged her cargo at Liverpool, she was obliged to go into dock to repair, and was detained for that purpose from the 1st of December, 1810, to the 24th of March, 1811; and the questions which arise in the case are, whether the underwriters are chargeable with the wages and provisions of the master and crew, during this [321] time, and, also, whether the underwriters are entitled to a deduction of one third new for old on the repairs of the ship, this being her first voyage. In the case of Leavenworth v. Delafield, (1 Caines' Rep. 573.) wages and provisions, during the detention of a vessel captured and carried in for adjudication, were considered proper expenses to be brought into general average; and in the case of Walden v. Leroy, (2 Caines' Rep. 263.) the principle was extended to expenses incurred for wages and provisions during the detention of the vessel for repairs. But in these cases the expenses were incurred before the vessel had arrived at her port of discharge, and were necessary for the prosecution of the voyage; they were, therefore, incurred as well for the benefit of the cargo and freight, as for the vessel; and expenses only of this description can properly be brought into a general average. Each subject is bound to contribute, because it derives a benefit from the expenditure. A loss which does not conduce to the preservation of ship and cargo, is not a proper ground for an average contribution, according to the rule as laid down by Marshall, (560. 562.) and which is recognised and sanctioned by all the cases on the subject. According to this rule, it is clear that the expenses for wages and provisions during the time the ship was detained at Liverpool, cannot be brought into general average. They were not incurred for the benefit of cargo or freight. The cargo had arrived at its port of discharge, and had been delivered, and freight earned, before the expenses in question were incurred; and if these expenses cannot be brought into general average, I do not see how the underwriters on the ship are to be made liable for them. No case was cited on the argument, nor is there any, I believe, to be found in the books to warrant such a charge. The insurance is upon the ship, tackle, and furniture; and the wages and provisions of the crew are no part of the thing insured. The court only look to the thing itself, which is the subject of insurance. (1 Term Rep. 132.) The underwriters are entitled to a deduction of one third new for old. We have never recognised any rule making a distinction as to the age of the vessel; and admitting such a custom to exist at Liverpool, it cannot be presumed to have [322] been in the contemplation of the parties when they entered *nto contracb for it could not have been known that any repairs would be necessary. The proof of a custom is admissible for the purpose of explaining the probable intention of the parties, and it is more reasonable to suppose the parties had in view our own rule on this subject, than that of any other place. The rule ought to be general and uniform. The repairs might have been in a port where a different custom prevailed. If, therefore, we were to be governed by the custom of the foreign port where the repairs are made, the rule might be continually fluctuating. It is in this, as in many other cases, of more importance to have a settled rule on the subject, than what the rule itself may be. The account, therefore, between the parties must be settled on the principles here laid down; rejecting the claim for wages and provisions at Liverpool, between the 1st oí December, 1810, and the 24th of March following, and allowing to the' underwriters a deduction of one third new for old on the repairs. Judgment for the plaintiffs accordingly.