
    [Philadelphia,
    Saturday, July 18, 1812.]
    *Sims against Gurney and Smith.
    To constitute general average, it is necessary that the ship should be in distress, that a part should be voluntarily sacrificed to save the rest, and that the sacrifice should be conducive to the saving; but it seems that previous consultation between the officers and crew is not necessary; nor is it necessary that the part sacrificed, should be exposed to greater danger by encountering the loss, than it would otherwise have been. As if, from the violence of the winds, a ship must go ashore somewhere, and she chooses a place, where she will be at least as safe as she could be any where else, still if she selects her place', and incurs a certain loss thereby for the common benefit, it is general average.
    This was an action of assumpsit to recover the contribution of the defendants to a general average. The cause was tried before his Honor Judge Yeates, at Nisi Prius in January last, when a verdict was found in favor of the plaintiff, for his whole claim ; and now upon a motion for a new trial, the facts were reported as follows:
    The plaintiff was the owner of the ship "Woodrop Sims, which sailed from Philadelphia on the 28th of March 1807, bound for Canton, having on board in specie 251,149 dollars, and in ginseng, brandy and wine 15,383 dollars, making an aggregate of 266,532 dollars, of which about 70,000 dollars belonged to the plaintiff, and the residue to other shippers: the defendants having on board 20,000 dollars. The ship and outfits were estimated at 50,000 dollars,
    By the testimony of the pilot, the only material witness, the ship proceeded to Reedy Island on the 29th of March, and on the 30th in the evening anchored to the eastward of the Brown. The weather here began to threaten; and by the next morning it blew a violent gale, and the ship pitched with such force, as to carry away her small bower.. The best bower, which the pilot had previously let go under foot, was then veered away about a hundred fathom, and the ship rode by it some time, the gale still increasing. A few minutes before the best bower parted, as the pilot and Captain Heath the commander, were sitting on the fiferail aft the mainmast, Captain Heath asked him “ what will you do with the ship if she parts her best bower?” The answer was, “If it does part, I can do nothing with her, but run her ashore to the eastward.” The pilot observed to him that he did not think it was possible for her to break the cable, as it was large and nearly new. In a few minutes however, the best bower parted. The pilot ordered the crew to hoist the fore topmast staysail, and mizen staysail. The ship was then heading up the bay, and the wind was blowing a hurricane nearly across the bay. After she had gone a short time -'up the bay, the captain said to the pilot, “ do you think we can fetch to sea?” He answered “I think not, but we will try.” He ordered the mizen staysail down, and to keep the helm hard up to veer the ship, and while in the act of veering, he set the light-house by a compass, found that she would not fetch out, and ordered the helm hard a starboard to put her head up the bay again. She stood up the bay some time, when the weather broke away to leeward, and the land became visible. Captain Heath asked the pilot what land it was; he told him it was Cape May. The captain then said, “ as she must go on shore somewhere, had we fiot better put her on Gape May?” The pilot answered that he did not believe the ship would go there, that there was not water enough for her to go there, but he would try.. They then altered her course, and ran before the wind six or seven miles, with no sail but the foretopmast staysail, when about half a mile ahead there was an appearance of breakers, and the pilot said to the captain, “there is where the ship will fetch up,” and she accordingly did fetch up there, and came round with her broad side to the wind. The mizenmast and mainmast were then cut away, and went overboard with all their sails and rigging. The rudder was unshipped and lost. The jib was then hoisted, and in a short time she fell off before the wind, and thumped over the ridge. After she got off, she took her own course, and ran directly for Cape May, until she got within a mile of- the shore; she then came round with her head up the bay, went in that course about a mile, and brought up broadside upon the beach.
    The pilot stated, that when he was asked, what he would do if the best bower should part, his idea was that all were in one common danger. His opinion was, that the nearer he could get to shore, the better it would be for the ship and materials. He knew nobody in the business but his- employer Mr. Sims.. His motive for running the ship ashore on Cape May, was to get the most convenient place to save the ship, crew and property. At the time her head was put towards Cape May, she was going in a direction for Egg Island flats, where she would have fetched up in twenty-five minutes. Those fiats are about twenty-five miles from Cape May, and they lie from one to five miles from the island, which with full * tides is covered at high water, and is distant from the nearest land five or six miles. If the ship had been left to drift, instead of being steered for the cape, she would have gone ashore in Morris’s river cove, between Egg Island and the cape where she would have laid in an open bay, on the mud or sand flats. Assistance might have been there procured from craft going up and down, but not from the land. He was of opinion she had a better chance for getting near the land, by going before the wind to Cape May ; and at the time they put her for that point, they concluded the nearer they could get to any shore, the better chance they should have to save themselves, the ship and all. He believed the conclusion to run her ashore there was for the general benefit.
    On his cross-examination, he said that all the men in existence could not have prevented the ship from going on shore. They must either have run her ashore, or she would have drifted there. That when he put her head toward Cape May, he had not an idea she would go there, as he told Captain Heath at the time. He knew the ridge where she stopped. He had been aground on it at high water with a vessel drawing nine feet and an half water; the W oodrop Sims drew fifteen feet and an half, and by calculation it was low water. The ridge was five or six miles from Cape May, and he thought she would stay there. The difference between the ridge and the shore as to safety, was that assistance could be had more readily near the shore. Such was the ship’s strength, he was not afraid of her going to pieces any where. The cutting away of the masts was to make the vessel lie more quietly on the ridge, and to give her a better chance to get over, and had they not been cut away, she would have staid there. When she got to the shore, she beat with as much violence as she had done on the ridge. On the third day after her getting there, the specie was taken out in a pilot boat, and forwarded to Philadelphia, and by great exertions and expense the ship was ultimately gotten off and repaired. Three of her boats, which were in good order when she went ashore, were damaged in consequence of subsequent weather and accidents, and were charged in the estimate, of average which the jury sanctioned by their verdict. The estimate also included the expense of taking the *speeie up to Philadelphia, and.the sum of 8000 dollars given by Mr. Sims to a Captain Towers, to get off the vessel, upon an agreement that if he did not succeed, he was to have nothing.
    His Honor, after stating the rule of law upon this subject to the jury, in a manner which neither party was disposed to question, told them, that if they were satisfied from the testimony that there was such a consultation as might reasonably be expected under the circumstances of the case, a determination formed thereon for the preservation of the ship, cargo, and crew, find acts done in.pursuance thereof for the common benefit, and conducing thereto, he inclined to think it a case of general average throughout. He stated to them however, that upon the facts as they were affected by the rule of law, his mind had been in a painful dissatisfied state during the trial; and now, after reporting the case to the court, he remarked that he could not say he was either satisfied or dissatisfied with the verdict, and that-he should have said the same thing had the verdict been the other way.
    The reasons for a new trial were, that the verdict was against evidence. 1. As it was in evidence that the loss which the plaintiff set up as a ground for general contribution, was not produced upon or after any consultation or deliberation by the captain of the vessel, his officers or crew, or the pilot who had charge of her, or any of them. • 2. As the jury have allowed 'the plaintiff a sum of money for bringing the defendants’ specie from Cape May to Philadelphia, whereas there was no evidence of a previous request, or of a subsequent promise by the defendant. 3. As the jury have allowed the plaintiff a compensation for the injury done to his vessel by her going on shore, and for the loss of her boats while on shore, as well as for cutting away her masts on the ridge on which she first struck. And that the verdict was against law, fis the vessel’s going on the ridge, and also her going ashore, was not a voluntary act by the captain, pilot, or officers, but the inevitable consequence of the gale then blowing,' and therefore not. a ground of general average.
    
      J. S. Smith, Binney and Hopkinson for the defendants.
    
      B. Tilghman, Dallas, and Tilghman for the plaintiff.
    
      ''-'-For the defendants.
    
    To constitute a general average, it is essential that the ship and cargo should be in common danger, that a part should upon consultation be voluntarily sacrificed to preserve the rest, and that the sacrifice should conduce to such preservation, average being the price of safety. This definition or description may be extracted from a great number of treatises and decisions, beginning with the law of Rhodes, and ending with the latest modern authority; and it is perfectly consonant with reason and equity. In the first place, a common danger must exist. Beawes 148 ; Park 178; 1 Emerig. 603, 620; Birkley v. Presgrave, 1 East 220; 1 Magens 55 ; 2 Marsh. 537. If the cargo alone be menaced or assailed by a pirate, who disregards the ship,—if only the ship would be good prize to a captor, and the cargo must be restored as belonging to a friend,—a sacrifice made in either case-to attain the preservation of the object that is threatened, does not form an item of general average. Omnium contributione scarciatur, quod pro omnibus datum est. It cannot be given or sacrificed for all, where all is not in danger. In the next place it should be a voluntary act, after some consultation. The mind and agency of man must be employed. Abbot 218. Le dommage n’est avarie grosse, que dans les cas ou il a été operé volontairement pour le salut commun. 1 Emerig. 603. This is an ingredient in general average, that is universally required. Beawes 148, 164; Park 173 ; 2 Malloy 6, 11; 2 Marsh. 535, 542. If the loss be involuntary, it will not make any difference that the manner of incurring it is voluntary; for if the damage, the suffering, the sacrifice in its substantial seuse, be inevitable, it is wholly insignificant whether an axe or a saw, or any other mechanical aid be used in coincidence with this necessity. If a cable will certainly part, cutting it will not make it general average. If no course is left but to encounter'an evil, it is a case of necessity not of will, and the evil is not the less involuntary, because the party does not struggle against it, but chooses a certain mode of meeting it. In fact no sacrifice is voluntary, which the agent cannot prevent. The question is, what is the efficient cause of the loss ? If it is the agency of man, it is voluntary; if otherwise, then in a legal sense certainly it is involuntary. *There must also be consultation to a certain exteut. The rash act of a captain in cutting away a mast or cable, will not answer. Forms may be dispensed with; but where opportunity exists, so much consultation as is requisite to show a choice, is necessary. The interest of all concerned in the-adventure requires it. If it is not necessary per se, it is necessary to prove that the act is voluntary and deliberate. The sacrifice must also conduce to the safety of the rest. If the rest were safe as well without as with the sacrifice, or if the whole adventure never was in jeopardy, there is no general average. 2 Marsh. 537 ; Park 122; Show. Pari. Ca. 18, case 20 ; Nesbitt v. Lushington, 4 D. & E. 783; Sansom v. Ball, 4 Dall. 462.
    The present verdict then is against evidence and law, because the requisites of general average do not appear in the case.
    1. There was neither consultation nor deliberation in the act of going ashore. On the side of the captain it was a casual question that directed the attention of the pilot to Cape May; on the side of the pilot it was an act of despair to attempt going there, as he had the strongest evidence that she could not reach the land in that direction. The conversation on the fiferail was not a consultation upon what was best, but upon what was necessary to be done; in addition to which, the course then suggested was not pursued, but an effort made to run the vessel to sea, and that proving useless, she was suffered to go as the wind might carry her, until the inquiry of Captain Heath.
    2. The items of expense incurred for carrying up the specie, are not general average, nor was any assumpsit as to them proved to the jury. But their amount is too small for an argument.
    3. The jury have plainly erred in allowing a charge for the boats which were lost on shore, a loss in no manner occasioned by the stranding of the ship, and by not distinguishing between the damage done on the ridge, and that which was done on shore. All the injury sustained after leaving the ridge, was in every sense involuntary. The ship was without rudder and sails. She took a course contrary to *the expectations of her officers, and such as they were wholly unable to explain. If the sacrifice on the ridge was voluntary, such as cutting away the masts, still'from the moment she got off and ceased to be under command, all subsequent loss was involuntary, because it could not be prevented. It is true, it may be said that the loss on shore was the consequence of the voluntary sacrifice on the ridge, and therefore was itself voluntary. But this will not answer. If a vessel cuts her mast to escape an enemy, and afterwards is stranded, it cannot be said that the stranding is voluntary, because if the mast had not been cut away, the stranding would not have happened. The remote consequences are not willed, merely because the prime cause is' voluntary. It should appear that the injuries following the sacrifice were its necessary consequences, which therefore must have been in the contemplation of the party; they do not otherwise deserve the name of voluntary.
    4. But in truth no part of the injury sustained by the "Woodrop Sims deserves that name. . It was impossible to prevent the ship from going on shore somewhere. It ought therefore to appear that there was a selection of place, attended with less danger to the cargo, or greater danger to the ship, or that the consequence of not going on shore would have been an absolute foundering in the bay. Now the evidence unequivocally shows, that the pilot and captain had it not in view to avoid any particular place, but merely to embrace the first that offered. Nay, the first that offered was not embraced with the least expectation of reaching it, for the pilot had every thing but demonstration that it could not be reached. He had no idea that she would go over the ridge. Then the ridge was his ultimate object. And with what did he compare it? Nothing, because no other object was in his mind at the time. He now says he would have gone on Egg Island flats; but he does not say he thought so or said so then ; and if he did, by his own statement they were as good as the ridge. As to foundering in the bay, it was impossible; the vessel was strong and staunch, and the only difficulty was that she could not get to sea. Had she been in danger of na.ufrage absolu, as it is called by Emerigon, or foundering, going on shore without regard to place. *would have given rise to general average; 1 Emerig. 408; but no instance is to be found in which stranding on a certain spot, has heen held general average, if stranding somewhere was inevitable; still less if no comparison and selection between the places was made at the time. Did the ship in the present case encounter a greater danger to herself by going to the ridge? No. It was the same thing as the flats to which she was going. "Was the cargo likely to be in greater safety by the course that was taken ? No. For the pilot had not a doubt it would remain on the ridge five or six miles from land. Did the ship even encounter a certain danger, and surrender a chance of safety, for the general benefit ? By no means. The pilot’s evidence even at this day does not show it. He thought the nearer she got to shore the better it would be for all; but this is decisive of the question, because then the better it must have been for her, and she encountered no certain danger, nor surrendered any chance of escape, by putting herself near to the shore. Thus much for the case as it stands with respect to the ridge. After striking there, every thing that occurred was either done for the benefit of the ship alone, or it was purely involuntary. The pilot who directed every thing, knew nobody but his employer the plaintiff. For the benefit of the ship the masts were cut away, that she might lie quiet on the ridge. The safety of the cargo wras not consulted. It was safe any where, as much so on the ridge as on the shore, for the ship could not go to pieces, and if she merely filled, the specie would not have suffered. The ship indeed beat with more violence on the shore than on the ridge; and the relief at last obtained, instead of coming from the land, came from boats. It was the ship then, and not the cargo, whose safety was consulted by cutting the masts ; and to whose safety alone the cutting them conduced. The rudder was unshipped by the waves and the shoal, and the government of the vessel was therefore not given away, but lost. Of course the subsequent events, however they may have sprung from loss of masts and rudder, still arose from an event that was brought about for the benefit of the ship by the act of the crew, or by the violence of the waves without any human interposition.
    It follows, therefore, that there was neither common danger, consultation, nor voluntary sacrifice, nor did any thing that was done, conduce to the saving of the cargo.
    
      For the plaintiff.
    
    The first inquiry is whether under the circumstances reported by his Honor who tried the cause, this Court will interfere. ' As to the law, there was little or no dispute. The sole difficulty was in so ascertaining and arranging the facts, that the law could be applied to them ; and this the jury have done, at least not to the dissatisfaction of the judge. In such a case it should be made out clearly there has been an error, before the Court defeat the finding of the jury upon mere matters of fact.
    Every ingredient that enters into general average, even according to the defendants’ argument, is to be found here. If consultation was necessary, there was consultation hoth before the best bower parted, and before the ship’s head was turned towards Cape May. In each instance it is the captain' who addresses the pilot, proposes to him a certain event or act, and asks his judgment. When in the first instance the pilot said he could do nothing but run her ashore to the eastward, he plainly meant it was the best thing to be done; for beyond doubt he knew that he might run her on Egg Flats to the northward, or let her drift into Morris’s Cove. It was then a declaration that it was best to run ashore in a certain direction ; and the opinion was never changed, notwithstanding an effort was made to get to sea, in order that it might be said every exertion had been made for the genera] safety. "When the weather cleared up and discovered Cape May, the first opportunity occurred for running her ashore, and it was instantly embraced, though still with doubt on the part of the pilot. There was then a perfect consultation; but if there had been none in a moment of confusion and terror, the case would be in no respect the worse. It is nowhere said that consultation is essential; and in many cases which it is easy to imagine, consultation would be inevitable ruin.
    The sacrifice of the ship was voluntarily made for the common benefit. That it was optional to go or not to go on the ridge, to steer for Cape May instead of steering for another point, is most manifest. That it was thought to be for the common benefit at the time to go in this direction, is ^equally clear. That it was for the beuefit of the cargo, and was the encountering of a certain evil to the ship, to avoid an uncertain and greater danger to her and all concerned, was proved to the satisfaction of the jury, and it is out of the power of man to prove the contrary. These circumstances make the present a case of general average throughout, for they establish that the act was voluntary, that it was intended for, and that it conduced to, the common benefit.
    In what sense was the going on the ridge involuntary? Certainly in none that will notin every case make the choice of one of two evils involuntary. If a ship is run ashore to avoid a storm or enemy, it may be as well said there is no exercise of the will, inasmuch as the loss of the'vessel is in one way inevitable. Running on Egg Flats is no more' the same peril or evil that running on Cape May is, than stranding is the same evil with sinking; because, notwithstanding there is a shore or bottom in both cases, yet how the common concern will be affected by it, does not depend upon there being a shore or bottom, but under what circumstances the ship will encounter them. To strike in one place may be absolute perdition, in another it may be a partial loss. In point of principle, there is not a conceivable difference between electing to strike in the less perilous place, for the purpose of avoiding destruction in the other, and electing to strand the ship to avoid foundering at sea. Yet the latter, is an admitted case of voluntary sacrifice, and general average. Bo indeed is the former according to the plain language of Emerigon. “ II arrive quelquefois, que pour se debrober á l’ennemi, ou pour eviter un naufrage absolu, on fait echouer le navire, dans Vendroit qui paroit le moins dangereux. Le dommage souffert á ce sujet est avarie grossé, parcequ’il a eu pour objet le salut commun.” 1 Emerig. 408. It is precisely the case put by Mr. Abbot in page 219, (281) of his treatise.
    Was it not intended for the common safety? This is equally clear. The nearer they could get to shore, the better they thought it would be for all concerned, the greater the chance of saving ship, cargo and crew. It is true the ridge was in the way, and the pilot entertained doubts of her getting over; but the very circumstance of his saying he loould try, shows that he did not think it impossible, but that ^ was worth the '^experiment. Eor whose sake was the experiment tried ? It is said for the sake of the vessel, and it is not to be questioned that it was so. But that does not alter the case. It is not the less a general average, because the vessel is benefited by the sacrifice. She is benefited by the stranding, instead of sinking. She is benefited by running on a sandy beach, instead of striking on rocks. In all cases the intention is to benefit the whole, and of course the ship. The characteristic circumstance is "that the vessel certainly incurred a partial injury, to avoid a greater possible injury to the whole, but which at the same time might have been no injury at all. She met a danger that was seen, and which must inevitably injure her, to avoid a danger not seen and therefore not susceptible of an estimate, but which might be much greater or less than the one before her. Where this certain evil is encountered to the sacrifice of a part of the adventure, instead of taking the chance of more or less in another direction, it matters not that perhaps the thing sacrificed is in the same or a better situation than it would have been, it is still that kind of sacrifice that satisfies every definition of general average.
    Bid it not conduce to the common safety ? The opposite argument supposes that the vessel could not founder, could not go to pieces on the shoal, could not fill and sink so as to endanger the specie. In other words it supposes the pilot to have been infallible in his opinions. Yet he was more than once mistaken. He thought the best bower would not part. He thought the ship would never get off the shoal. In both cases he erred in judgment. It is beyond the power of man. to say with certainty that she would not have foundered in the bay, or gone to pieces on the ridge. Erom the evidence the latter supposition is highly probable; and in that event there would have been a total loss of ship and cargo. One thing is perfectly clear, that by the course - pursued all were saved. Can it be permitted, after such a sacrifice, that a party shall escape from an equitable contribution, by making a plausible speculation to show, that possibly if the sacrifice had not been made, still the adventure might have escaped unhurt ?
    A distinction has been made between the loss on the ridge, and that on the shore, supposing the former to have ■"been general average. It all depends upon the in- [-*^04 teution in first going towards the ridge. If that *- direction was taken voluntarily for the common safety, all that followed was a necessary consequence. The rudder was lost by accident, but it was an accident resulting from a voluntary running on the beach. If the ship became ungovernable, it was the result of losses intentionally incurred. Besides, as the pilot and captain originally intended to reach the shore by going over the ridge, and the acts performed by them had always this result in view, it matters not that the ship was finally ungovernable, because she had been made so in prosecution of their design. In the way the wind blew, it was the same as to their object, whether she had a rudder or not.
    Upon the whole, it was all matter of fact, whether there was deliberation, whether there was a voluntary sacrifice for the good of the whole, and whether it conduced to the saving of the whole. The jury were of opinion with the plaintiff on all the points, and there is nothing to showT that they were not right in their conclusions. As to the loss of the boats on shore, it is an inconsiderable item, which the evidence did not distinctly explain ; but it was left to the jury by his Honor, that if their loss was not occasioned by the stranding, they were to strike the item out. They have retained it, and of course were satisfied that the loss, proceeded from the stranding.
   Tilghman C. J.

In order to make a case of general average, it is necessary that the ship should be in distress, and a part sacrificed in order to preserve the rest. It is necessary also, that this sacrifice should be conducive to the saving of the rest, and that it should be voluntary; for if the loss is occasioned by the violence of the tempest, there is no reason for. contribution. Nothing can be more equitable than that all should contribute towards the reparation of a loss, which has been the cause of their safety; and nothing more politic, because it encourages the owner to throw away his property without hesitation in time of need. It has been said that there must be a previous consultation, but this may be doubted. Consultation indeed is a demonstrative proof that the act was voluntary. But I should think that if it appears, that the act occasioning the loss was the effect of judgment, it is sufficient. Eor in time of imminent danger, immediate action may be necessary, and consultation "may be destruction. But even supposing consultation to be necessary, it w’as a fact submitted to the jury. I must suppose they were of opinion, that there was a consultation, and I see no cause to quarrel with the verdict on that account. But it is contended on the part of the defendants, that there was neither consultation, will, nor judgment in the case; that the ship was driven on shore by the violence of the storm, which no efforts of man could resist. Granting, however, that the storm was irresistible, it does not follow that there was no exercise of judgment, for there may be a choice of perils when there is no possibility of safety. The case seems to have been this, that after a fruitless attempt to fetch to sea, it was the opinion of the pilot, that the ship must go ashore somewhere, and it was thought best to take that course which would bring her nearest to the Jersey shore. If she had kept her course, the pilot supposes that in about twenty-five minutes she would have gone on Egg Island flats. To prevent that, the course was altered, and they stood for Cape May, the most desirable place to run on shore. The captain wished to get to Cape May, and the pilot said he would try for it, although he did not expect to effect it, but supposed they should stick on a ridge about four miles from the cape. On this ridge the ship struck according to the pilot’s expectation. She lost her rudder, and labored very hard on the ridge; the mizzen and mainmast were cut away to save her, and at length contrary to expectation, she beat over, and got into deep water between the ridge and the Jersey shore. Being then quite ungovernable, she was at the mercy of the winds and currents, which most fortunately and unaccountably brought her on the shore near to Cape May, the object of their wishes. The damage was very considerable both on the ridge and at the cape, and in the course of the argument, the damage at these two places has been the subject of separate consideration. I think there cannot be a doubt, but the injury sustained on the ridge must be a subject of general average, because the masts were cut away by order of the pilot, manifestly for the benefit of ship, car&° an<l crew. *It is very easy for persons who are in perfect safety, to make light of dangers which in fact were great. It is now said that the cargo, which was principally specie, was in no danger. The pilot indeed in his evidence, said that he was not afraid of the ship’s going to pieces; but the pilot was not infallible; he thought there was no danger of parting their best bower cable, he thought the ship would not beat over the ridge; but he was mistaken in both. In such a storm as has been described, it is too much to say, that the cargo was in no danger. But supposing the damage on the ridge to be general average, what are we to say to the subsequent damage ? To decide this, we must go back again to the time when the course was altered, in order to avoid the flats of Egg Island. It is said for the defendants, that the ship must have gone ashore somewhere, and it made no difference where that shore was; that there was no advantage in taking the course that was taken, and that the ship was exposed to no greater danger than she would have been, if the course had not been altered. It is not necessary that the ship should be exposed to greater danger than she otherwise would have been, to make a case of general average. It is sufficient if a certain loss is incurred for the common benefit. It seems at first view not very reasonable, that contribution should be asked for damage occasioned by an act, which in fact was for the benefit of the ship. But the law is certainly so, provided the act which occasioned the damage, was conducive to the common safety. In truth if we go to the bottom of the thing, almost every damage to part of a ship, which can be the subject of general average, is for the benefit of the ship. A mast is cut away, in consequence of which the ship is saved; this is clearly a general average, because the cargo is also saved, which would otherwise have been lost. So with regard to the cargo, if part is thrown over to lighten the ship, although the remainder of the cargo is saved by it, yet the ship and freight shall contribute, because they also were saved. In the case cited from Emerigon, the ship was run on shore to avoid foundering, by which she was placed evidently in a better situation, yet it was held to be general average. It is no objection, therefore, to general average in this case, that the ship was exposed to no greater danger, *than she would otherwise have been in. But did the standing towards Cape May conduce to the common benefit? It is extremely difficult to say whether it did or did not. One thing however is certain, that as the matter turned out, the crew and cargo were entirely saved. Whether that would have been the case, had any other course been pursued, it is impossible to decide with absolute certainty. It was a question however very properly submitted to the jury, and they have found in the affirmative. Taking it then, that the ship was run upon the ridge with a view to the common good, and that it was conducive to the common good, it follows, that not only the damage sustained on the ridge, but also at Cape May must be the subject of general average, because the damage at Cape May was the necessary result of running on the ridge. The ship lost her rudder and masts on the ridge, in consequence of which she was driven by the winds and waves on the shore near the cape. The same reasoning applies to the boats. For it was left to the jury to decide, whether the damage done to them was in consequence of running on the ridge. Upon the whole it appears to me, that it was a nice point on which the jury had to decide, but there is no sufficient cause for setting aside the verdict.

Yeates J.

The commercial law respecting gross average, was not disputed on the trial. The difficulty rested in its application to the facts of the case. The captain was dead, and his protest was overruled on the ground of its not being the original taken by the justice of the peace. The pilot and carpenter were examined; the former was intelligent and collected, the latter was much otherwise.

The legal principles of general average which I gave in charge to the jury, have not'been questioned on this argument. I submitted to them the questions of fact, on which I thought their decision ought to depend. "Was there a voluntary act done by the captain for the safety of the crew, the ship and her cargo, which though it endamaged the ship, contributed to the benefit of all concerned? Was not the specie on board rendered more secure by the vessel being cast on shore near Cape May, than when exposed to marauders a shoal in the bay ? As to the expense of bringing up the specie to this city, I thought it just and reasonable that the defendants should bear their proportion thereof, and that the plaintiff was entitled to recover the same under the count for money paid, laid out and expended. A reasonable sum ought to be allowed for the services rendered by Captain Towers in bringing up the ship, which the jury were to judge of; the shippers were not concluded by the amount of the sum paid to him ; and as to the boats, if they were lost by the misconduct of the crew, the defendants were in nowise responsible therefor.

In my conclusion I informed the jury, that if they were satisfied from the testimony, that there was such a consultation as might reasonably be expected under strong circumstances of impending danger from the storm, a determination formed thereon for the preservation of the crew, ship, and her lading, and acts done in pursuance thereof for the common benefit and conducing thereto, though the ship after working off the ridge would not obey the helm, and was at the mercy of the winds and waves, I inclined to think it a case of general average, as well as to the damage accruing after leaving the ridge, on which she had struck, as to what had happened upon the ridge. The jurors have found those facts by their verdict, and so far am I from thinking that their verdict was against evidence, I have already declared that I was not dissatisfied therewith, and my mind retains the same impression at this moment. After a full and fair hearing, and the decision of an intelligent jury, it lies not with the members of this Court to say, that it did not tend to the common safety to cut away the masts while the ship was beating violently on the ridge of rocks, or that it was more eligible to run her on shore on Egg Island fiats, than to attempt passing the ridge, and strand her on Jersey shore near Cape May.

I concur in opinion that the motion for the new trial be denied.

Brackenridue J. concurred.

Motion denied.

[In Walker v. The United States Insurance Co., 11 S. & R. 64, the Court refused to be guided by the principles laid down in Sims v. Gurney, and in Meech v. Robinson, 4 Wh. 362, Kennedy, J. declared its authority shaken, at least, if not overruled.]  