
    The Union Bank of South Carolina vs. The Union Insurance Company.
    A policy referring to the usages of London, as the standard by which its liabilities are to be fixed, will be construed according to those usages only.
    By the usages of trade in the city of London, the average of provisions and wages of the crew, whilst the vessel is detained in port from any cause, cannot be charged to the underwriters; such also is the custom of the city of Charleston.
    BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1837.
    This was an action on a policy of insurance, made in Charleston, on sixteen thousand seven hundred dollars in gold coin, at and from Charleston to Philadelphia, in the brig Langdon Cbeves. The brig put to sea, and after being some time out, was driven back by stress of weather to Charleston, where she was detained some time, in effecting repairs. She ultimately sailed, reached her port of destination, and the plaintiffs there paid their proportion of the general average, which, according to custom of Philadelphia, included the wages and provisions of the crew while detained in Charleston. The custom of Charleston is to exclude from the general average the wages and provisions of the crew, while detained in making .repairs: and this is also the settled rule in England, to which the policy referred as the standard by which the underwriters were to be liable for damages.
    His Honor stated that if he had been at liberty to construe the term “ detention,” (according to his own notions,) used in the policy, and under which the question arose, he would have thought it more appropriately meant a political detention, than one by the perils of the sea; but the adjudications in England had given it both meanings. To the English rule the policy referred, and the same rule was recognised by the custom in Charleston; and according to it the plaintiffs could not recover for the average of provisions and wages of the crew, while detained in port from any cause. See the case of Power, and another, vs. Whittmore, decided in England in 1815, 4 Maulé & Sel., 141.
    The plaintiffs had a verdict for the average part, excluding that of wages and provisions, and appealed on the following grounds:
    1st. That his Honor erred in law, in charging the jury that the usages of London must prevail in such a case, as the policy expressly alluded to them as the law of the contract: whereas it ds submitted, that the American adjudications on the point are uniformly in favor of the plaintiff’s- claim, and ought to govern the Courts of this State, the English decisions being very contradictory on the matter until of latter years.
    2d. That the written terms of the policy ought to be construed agreeably to the English law, where those terms were fixed, by which law there, such a claim was supported against the underwriters.
    3d. That the amount of general average is governed by the usage of the port of destination, and not the port of departure; and the insured must be presumed to have known the usage of Philadelphia, and to have contracted in reference to it notwithstanding the terms of the usual printed policy.
    
      Lance, plaintiff’s attorney.
    
      Hunt, for defendant.
   O’Neall, J.

This Court is of opinion that the plaintiffs can take nothing by their motion.

The policy, in ascertaining and fixing the liabilities which the underwriters assure, refers to the “ laws and usages of trade in the city of London, and no other.” On such a contract, it would be enough to say, that the general average must be fixed according to the laws and usages of trade in the city of London; what they are is ascertained by the case of Power, and another, vs. Whittmore, 4 M. & S. 141; the average of provisions and wages of the crew while detained in port for any cause, cannot, according to that case, be charged to the underwriters. The custom of the city of Charleston is in exact conformity to this rule.

The case of Wightman vs. McAdam, decided by the Constitutional Court in 1804, and to be found in 3 Brev. M. & S. 134, is an authority to exclude the provisions and wages of the crew from general average.

The motion is dismissed.  