
    [Philadelphia,
    April 5, 1824.]
    WALKER against The United States Insurance Company.
    If a vessel lying at anchor, be in danger of being driven ashore in a dangerous place by a storm, and the captain, in order to avoid the danger, after consultation, cut the cables and hoist sail for the purpose of getting out to sea, or if that be im. . practicable, of going ashore elsewhere, but in consequence of .the sail being carried away, the vessel becomes ungovernable, goes ashore, and founders, it is not a case of general average, except so far as respects the cables and anchors; and the insured is entitled to recover for a total.loss.
    This cause was tried before hiá honour Judge Gibson, at Nisi Prius, on the 11th December, ISIS. It was an action upon a policy of insurance on the schooner Priidence, in which the plaintiff claimed for a total loss. A verdict was found for him for 4,245 dollars 70 cents, subject to the opinion of the court, whether upon the evidence, he was entitled to recover for a total loss.
    All the evidence in the case was embraced in the protest of the captain, made in conjunction with two seamen, at Gibraltar, on the 6th January, 1813, and his deposition, subsequently made in Philadelphia. ' From the former, it appeared that the Prudence sailed from Fredericksburg, Virginia, with a cargo of flour and corn, bound to Cadiz. She left the capes on the 27th October, and arrived in sight of Cadiz on the 30th November, when she was boarded by a British brig of war, who sent her into Gibraltar. She was afterwards released, and while waiting for a wind to proceed on her destination, it began on the 28th of December to blow very hard. At day light, all hands were called to attend to the cables and-sails. The gale having encreased, with heavy squalls of wind and rain, accompanied with thunder and lightning, the sea making a breach over the vessel fore and aft, she began to start about eleven o’clock, and was going stqrn foremost upon a reef of rocks. The jib was then hoisted to make her pay round, but the sheets having parted, this was found impossible, and they were obliged to haul it down again, by wjaieli the vessel became wholly ungovornahle. The master then put the helm hard up, in order to get her into the best place for the preservation of the lives of the crew, the vessel and cargo; and both cables were cut. At half past eleven o’clock site struck, and fastened on the landing place, called the Ragged Staff. About twelve o’clock, the sea being very heavy, and the vessel labouring much, she bilged, and every thing was afloat fore and aft. On the -following day, the 29th, the masts were cut away to prevent their working through the bottom during the continuance of the gale; very little could be saved that day. On the 30th, lighters, with about thirty hands, were employed to save as much as possible. Many of the barrels of flour were found stove, the heads and staves lying about the hold in all directions; and the corn was loose in the hold, the bags having been destroyed.
    The captain’s deposition set forth substantially the same facts, with the addition, that it was his intention to endeavour to get out to sea, which he probably would have effected, if the sheets had not parted, which deprived him of all power to govern the vessel. A survey was held on her on the 3lth of December, when the surveyors reported, that the expense of an attempt to get her off, even if successful, added to the cost of the necessary repairs, would considerably exceed the value of the vessel, and the captain was decidedly of opinion, that it would have cost twice her value. On his cross examination he stated, that he hoisted the jib before the cables were cut, for the purpose of making her pay round. After the jib' sheets parted, and the cables were cut, she immediately made for the shore. She did not go ashore within a quarter of a mile of the place on which she was previously going stern foremost. If she had gone ashore in that place, the vessel, cargo, and lives of the crew would all have been lost. After the cables were cut, and the helm put up, she went broadside some distance, arid struck She then got off and went head foremost ashore. The captain and mate consulted together before the helm was put up,- the cables cut, or the jib hoisted. They said they were going ashore then, and therefore, it was best to cut the cables, and do what they after-wards did, to try in the first place to go to sea, .and if they could not do that, to go ashore elsewhere, as they might lose their live;! where they were going. ■ ■
    
      J. Sergeant, for the plaintiff,
    stated the question to be, whethei the evidence presented a case of total loss, or of general average; The principle of contribution is, that’a certain danger, is substituted for one that is uncertain. But if the danger be certain either way,' and the master merely choose between them, a case of contribution does not arise. In a case that occurred some years ago, the vessel was driving on a lee shore. The captain hoisted all sail to carry her off, and the pails were carried away; but as they were destroyed while in their usual employment, it Was held, that they were not entitled to contribution. In this case there wap no voluntary sacrifice for the general good, which is the essential principle of general average. It was the duty of the captain to keep the vessel off the rocks, and in pursuance of that duty, his effort was to get out to sea. There was no election to run her ashore in -order to save the cargo and crew, but when it became obvious, that she must go ashore, if she did not get out to sea, a strenuous effort was made for that purpose. This was the leading object, and her going ashore afterwards, was purely the effect of the sheets having parted, which rendered her unmanageable. There is little analogy between this case and that of Sims- v. Gurney, 4 Binn. 513. There the ship was saved; here she was' lost — there, there was a consultation, and a selection of the place at which to' run the vessel a ground; here, there was only the negative resolution, not to go ashore at a particular place. The effort was to go to sea, and all that followed was accident. In Powers v. Whitman, 4 M. <§> S. 141, the ship, to avoid impending peril, stood out to sea, and hois.ted a press of sail, by which great injury was suffered, but the ship and cargo were saved, and it was held not to be a ease of general average. This is not a case of contribution, because there was no selection of a peril; because the loss ivas not voluntary, and because the determination that was' formed,- was frustrated.
    
      Binney and Rawle, contra.
    This case falls within the reason of Sims v. Gurney, and that case is supported by principles’previously well established. If, in endeavouring to escape from an enemy, or avoid foundering, the vessel be stranded, it is general average. 1 Emerigon, 408. Gray v. Wain, in this court, 2 Se/r-g. <§* Rawle, 229, and Gaze v. Rily, 
      in the Circuit Court of the United States, Id. 238, note, in which it was held, that whether the ship was lost or saved, did not alter the rule, go on the same principle. In the present case, there was a voluntary cutting of the cables, hoisting of the jib, &c. in order to get to sea; and during that attempt, an accident happened to the sheets, which made the loss inevitable. There was imminent danger of going on the rocks where all would have been lost. A consultation took place, when the cables were cut; in consequence of which, and the carrying away of the jib sheets, the ship went ashore, and the cargo was saved. This was clearly voluntary. The principle decided in Sims v Gurney, is, that if a voluntary attempt be made to encounter a peril, in order to escape a greater one, though the loss do not happen precisely by the peril sought, and therefore, is not strictly the effect of volition, yet if a loss take place, which may be traced back to the voluntary act, it is a case of general average. It need not, therefore, be purely voluntary throughout. It is said that there was no affirmative intention of going ashore at any particular place. This is not necessary. In Sims v. Gurney, the vessel went ashore at a spot not contemplated by any one. It is not practicable to reaeh a particular spot. It is also said, that the intention was to go to sea, which was frustrated, and the vessel went ashore involuntarily. But the captain states a, double intention; either to go to sea, or, to' go ashore, and one of these things was the only result which could take place after cutting the cables. The captain must, therefore, be considered as having exercised his will in relation to both. The masts and cables are without doubt general average. They cited in argument. Emerig, 621. Targa, 31S. Le Guidon, Oh. 8Art2\. Covington, v. Roberts, 5 Bos. 8,' Pull. 378.
    
   The opinion of the court was delivered by

Gibson, J.

Leaving the authority of Sims v. Gurney and Smith, untouched, it is sufficient to say, that case does not go as far as the case at bar. I cannot discover in the facts submitted by the jury, any settled determination to run the vessel ashore at all. The protest of the master and his officers at Gibraltar, and the deposition of the master here, comprise all the evidence in the cause; and in the protest it is said, that when the schooner began to start from her moorings, the jib was hoisted to make her pay round, which was found to be impracticable, as the jib sheets instantly parted, and the sail was hauled down. The cables were at the same time cut, and the helm was put hard up, “in order,” as it is expressed, “to get into the best place for the preservation of their lives, vessel and cargo.” What that best place was — whether a' particular part of the shore, or the open sea, is not stated. In the deposition, the master swears, in his direct examination, “that his intention was to get out to sea, which he probably would have effected, if the sheets had not parted.” This undoubtedly gives a claim to general average, for the loss of the cables and anchors, but for nothing else, as nothing else was deliberately sacrificed to the attainment of the object; for an accidental loss which happens in an endeavour to bring about a very different event, is not a subject of compensation; and such, according to this part of the evidence, would be the casualty of stranding in an endeavour to get out to sea. It is true, however, that it came out in the cross examination, that in a consultation between the master and his officers, before any act was done, it was said, “they were going ashore then, and therefore, it was best to out the cables, and do what they after-wards did, to try in the first place, to go to sea; and if they could not do that, to go ashore elsewhere, as they might lose their lives where they where going.” But even this will not make out the plaintiff’s case. If there were, in fact, an intention to run the vessel ashore, there was no act done in. pursuance of it, for the vessel became ungovernable the instant the cables were cut, and was driven bn the rock's exclusively by the agency of the wind and thé waves. All the acts were done in furtherance of the intention to get out to sea; for it was only when that should be found to be impracticable, that the subordinate intention of running ashore was to be'put in execution. It never was put in execution; and a mere intention to sacrifice a part for the good of the whole, without an act done in pursuance of it, is insufficient: it is necessary that the loss arise from the direct agency of some one acting for the general benefit. But if the acts done are not particularly referrable to either intention, the consequence is, they were done in pursuance of no settled intention; and it is not enough that there be a deliberate intent to do an act that may or may not lead to a loss; there must be a deliberate purpose to sacrifice the thing at all events, or at the very least, to put it in a situation in which the danger of eventual destruction would be increased; and it is this deliberate purpose combined with a view to the general welfare, which is the distinguishing feature between general and particular average.- But how can it be said, that the vessel' was devoted to destruction by the master and crew, when at the period material to the question, every arm was nerved and every yard braced, to escape from the very destruction which ensued ? I readily concede, that the chances between getting out of the harbour and going ashore, were equal or nearly so, although the master thinks they were in favour of the first, and that the catastrophe was occasioned by the accidental parting of the jib sheets; nor do I esteem it of any importance that the master and crew thought their situation would, in any event, be bettered by the measures afterwards taken: both are equally remote from a deliberate intention to sacrifice the ship, or to increase the risque of it; and without that, there can be no claim to general average. I am, therefore, of opinion, that the plaintiff is entitled to judgment as for a total loss, leaving to the defendant the right to pursue, against the cargo, or those who are responsible in re* spect of it, for contribution for the loss of the cables and anchors, and, of the masts which were cut away while the vessel was on the rocks; as well as for any other sacrifice of the rigging or hull, which can be shown to have'been made for the common benefit.

Judgment for plaintiff.  