
    * Nathan Nickerson and Others versus Nathan Tyson.
    The masts, spars, rigging, and sails of a vessel at sea were carried away by the violence of the weather, and after hanging by the vessel’s side for half an hour, were cut loose for the preservation of the vessel and cargo; afterwards, being met by another ship, part of the cargo was taken out of the wreck, laden on board the ship, and brought into port, the wreck being left; a salvage of one third of the cargo saved was decreed the salvors. — It was held that the owner of the cargo saved was not liable to the owner of the vessel lost for a contribution to the loss of the masts, &c.
    
      This action was assumpsit, to recover a sum of money as contribution, in the nature of general average, upon a loss which happened to the schooner Polly, of which the plaintiffs were owners, on a voyage from Baltimore to Lisbon, the defendant being a freighter on said vessel.
    The action was tried upon the .issue of non assumpsit, before Parker, J., at the last November term in this county. By the evidence at the trial, it appeared that during said voyage, on the 30th of August, 1809, there was a violent gale of wind, which occasioned the carrying away by the board the bowsprit, masts, and yards of the vessel, and the rigging and sails attached thereto, suddenly and without the agency of the captain or crew of the vessel. The bowsprit, masts, &c., remained in the sea, but attached to the vessel by some of the rigging; and the ends of the masts and bowsprit were beating at times against the bow and sides, until it was determined by the master and crew, for the preservation of the vessel and cargo, to free them from the vessel, which was half an hour after they were carried away; and then the rigging was cut, and those articles went adrift. The captain and crew remained on the wreck until the 8th of September, having erected a jury-mast, and patched together some peices of sails; but were unable to make way, when they spoke with the brig Triton, commanded by a Captain Porter, who, being unable to supply them with sails and rigging, took the whole crew into his vessel, and agreed to remain by the wreck until the next morning. On the next day,, they were spoken witli by the ship Reserve, Captain Prior, who, with the assistance of the master and crew of the Polly, except the mate, who remained on board the Triton, took on board his vessel between 800 and 900 barrels of flour and other articles, keeping the schooner in tow six days, after which he was obliged to cast off from the wreck. On the 4th of October, the said ship Reserve * arrived in Boston harbor, with the cargo saved from the Polly, which was libelled in the District Court of the United States for salvage; and by the decree of the judge, one third of the proceeds of said cargo was awarded to the captain of the Reserve, his crew, and the owners of the ship, as salvage.
    A verdict was taken, by consent for the plaintiffs, for a sum as the amount of the proportion of the value of the masts, bowsprit, and rigging lost, which the defendant’s property on board ought to bear, if liable to general average under these circumstances; and judgment was to be rendered thereon with interest, if the Court should be of opinion that the action is maintainable ; subject to have the damages revised and corrected by assessors; otherwise the verdict was to be set aside, and the plaintiffs to become nonsuit.
    
      
      Sullivan, for the plaintiffs, cited 1 Emerig. 622.
    
      Jackson for the defendant.
   By the Court.

The -plaintiffs are not entitled to contribution upon the facts reported. Here was no deliberate act done for the preservation of the whole, except the separating the masts and rigging from the hull, after they were carried overboard by the violence of the weather. At the utmost, all that the plaintiffs could claim would be a contribution proportioned to their value, when thus hanging by the side of the vessel. But in fact the cargo has been held already to pay a salvage to another vessel, which was the means of finally saving it to its owners.

Plaintiffs nonsuit.  