In that case the insur

mous determination of the court of king's bench, upon a case reserved on the very point in question. ance was upon a cargo of fish from Newfoundland to a port of discharge in Portugal, and which was Figara. On the passage the crew threw 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 upward of one hundred miles from her port of discharge. It was there found upon survey that the fish was 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 than 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." Buller, 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 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, I have been the more particular in explaining the former decision, and giving it my full acquiescence, from an impression which I received from the argu

ment 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 McAndrews 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 Cocking v. Fraser, and cannot be received as 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 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 general 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

AM. DEC. VOL. II-12

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 afterward, the water made a free passage over the decks, and one pump was continually going, the other having been carried away and 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.

Upon these facts we are 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. 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 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 Maderia 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 Maderia, ought to be the rule of contribution: Abbott, 291, 292; Marsh. 467.

The other 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 reinvest 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, 296.

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, C. J., concurred, except as to the question whether the injury received by the corn from the jettison of the mast, and the consequent irruption of the sea, could entitle it to a general average as between insured and insurer, upon which he expressed no opinion.

LIVINGSTON, J., having been concerned in the case, gave no opinion.

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

This case is extensively noticed by writers on marine insurance. In his second volume, page 103, Parsons notices it as establishing the rule in New York, that if goods mentioned in memorandum articles exist in specie at an intermediate port, the insured cannot recover as for a total loss. It is cited on this point in Moreau v. U. S. Ins. Co., 3 Wash. C. C. 259; Potter v. Providence Ins. Co., 4 Mason, 301, Marcardier v. Chesapeake Ins. Co., 8 Cranch, 48; Hugg v. Augusta Ins. Co., 7 How. 606.

In the same volume, page 233, he notices it as holding that where the direct and immediate cause of the damage to perishable articles is some act done for the general preservation, the owner would have the same right to claim for general average as if the goods had not been in their nature perishable. On this point it is cited in Griswold v. Union Mut. Ins. Co., 3 Blatchf. 234. Parsons, 2 Mar. Ins. 290, again cites the case as showing that the insured may claim of the insurers the whole amount of his loss in the first instance, transferring to them his claim for contribution; but in Lapsley v. Pleasants, 4 Binn. 602, a different rule is laid down. See 2 Phillips, sec. 1348.

On the point that the freight should be contributed for a case of jettison, it is cited in Mutual Safety Ins. Co. v. The George, Olcott, 168, and also 2 Parsons, 309, where it is laid down: "The ship earns the freight only by carrying its cargo to its destination. It is obvious, therefore, that if goods be jettisoned, it is not only the owner of the goods who loses thereby, but the owner of the ship loses the freight which he would have earned by carrying the goods. There would seem to be, therefore, no reason whatever why he should not have a claim for contribution for the freight thus lost. This is in practice adjusted as an average loss, and the authorities sustain this view."

Barnewall v. CHURCH.

[1 CAINES, 217.]

RISKS COVERED BY GENERAL POLICY.-A general policy, unaccompanied with any warranty, covers war risks of all kinds and of all countries. Under such circumstances a false clearance is immaterial, when the vessel actually sailed on the voyage intended, and the assured is not bound to disclose it.

SEAWORTHINESS.-Seaworthiness is always implied in a policy of insurance, and is not at the risk of the insurer.

ACTION on a policy of insurance on the ship Hope, valued at eight thousand dollars, and dated December 28, 1799, “at and from Kingston, in Jamaica, to Honduras, during her stay there, and at and from thence to New York." It appeared that the plaintiff purchased the vessel in question, relying upon the representations of two ship-carpenters in his employ, who reported that, after a thorough examination, they found the vessel to be perfectly sound and very strong, with a bottom of English elm, which never decays under water, and that she would last forty or fifty years; that plaintiff expended about six hundred pounds in repairs, during which some tainted timbers were mended and defective planks removed; that the vessel sailed on the voyage insured, and arrived safely at Honduras; that on her passage from thence to New York, as appeared from the captain's protest, she experienced heavy gales, though not such as to oblige him to strike topgallant-masts, and hand his topgallant-sails, and sprung a leak, and was forced to bear away to Honduras, where she was condemned as unseaworthy, upon the report of the surveyors that two-thirds of her timbers and several of her planks were rotten, and that much of her iron work had started.

The protest of the captain also stated that though he sailed for New York from Honduras, he cleared for Falmouth, in order to avoid a duty of one hundred and five pounds per ton, which must have been paid had the vessel cleared for any other than