
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1808.
    William Wightman v. Macadam, Survivor of Reilly.
    Wages and provisions for the crew, not subject to a general average where a vessel has been forced by stress of weather to take refuge in a port short of the port of delivery, and during delay for repairs.
    Only such charges are to be brought into general average, as are necessarily incurred for the safety of all concerned.
    Present, Grimke, Waties, Bay, Brevard, and Wilds, Justices..
    Special verdict, found before Wilds, J., in Charleston, as follows: “ We find that the schooner Polly, was chartered by the plaintiff to the defendant, and Charles Reilly, whom he hath suri vived, on the 4th August, 1800, on a voyage from Charleston to the Havana, and back from the Havana to Charleston. That the plaintiff covenanted that the said vessel was tight, stanch, well fitted, tackled, and provided, with every requisite, and both men an<i Pro-Visions .fitting for the said voyage. And the said defendant, and Charles Reilly, covenanted that on the' performance of the said voyage, and the arrival of the said schooner, and delivery of the return cargo in good order at the port of Charleston, the dangers of the seas excepted, to pay for her use and hire $1200. Each party bound under a penalty of $3000’. That the vessel when she sailed from Charleston was tight and staunch, and as in the charter party mentioned. That the schooner arrived at the Havana, and sailed from thence, bound on her return voyage to Charleston, on the 6th. November, 1800, having the said 'Charles Reilly on board, and two hundred and twenty.five boxes sugar, the property of the said defendant, and the said Charles Reilly, and encountered the various perils set forth in the two protests annexed, and made part of this special verdict, one of which is tho protest of the said Charles Reilly. That in consequence of damage to the said ves-" sel by the said perils of the seas, as in the protest mentioned, she was compelled to bear away for the port of Savannah on the 16th November, where she arrived on the 26th, in the same year, 1800. Thai the cargo was immediately landed and delivered to the de. fendant, who paid on the same a pro rata freight, and sold the same in Savannah. That the plaintiff deducted $85 69, for an allow, anee of freight of the said. cargo from Savannah to Charleston. That the said vessel was afterwards detained at Savannah for re. pairs of damages which she had suffered from storms, as mentioned in the protests, from the 26th November, 1800, to 14th January, 1801. That the usual voyage from Charleston to Savannah is from one to two days. That the vessel at Savannah underwent repairs to the amount of $1032 64, as per bill annexed, which, as particular average, was paid by the underwriters on the vessel; and paid for port charges, wages and provision of crew, which accrued as per bill annexed, the sum of $675 50. That the value of the vessel per policy, she being insured, was $2000 ; the value of the freight $500 ; and the cargo of ,the defendant, and Charles Reilly, consisting of two hundred and twenty-five boxes of sugar, when shipped at th'e Havana, $11,250. That a loss accrued on sugars by the said perils of the seas, as in the said protests mentioned, of five per cent, a part of which has been paid to the defendant by the only underwriter, on his policy, in proportion to the sum insured by him. The defendant paid part of the charges. And if the court shall be of opinion that any other item in the account annexed, or the whole of them, should be considered as charges under the cir. eumstances of the case constituting general average, and that the defendant is liable in law to Contribute to the payment of the same, we find for the plaintiff a rateable proportion of the said charges, agreeably to the mode adopted in the statement annexed, with costs of suit; and if not, we find for the defendant.”
    statement referred to in the verdict, contained the following charges, viz: Paid attendance on the schooner coming into Savannah river, $30 ; pilotage up to Savannah, $13 56 ; harbor master, 107 cents ; health officer, 100 cents; custom house bill, $17 58 ; wharfage during repair, fifty-two days, $26; sailors and negro laborers, $15; pilotage out of Savannah river, $9 56; notary for protest,-$8 50; captain’s wages; wages of seamen'; provisions for crew, during detention, &c.
    Argued 5th January, 1808. All the judges present,- except Winns, and Teezevant, Justices, absent, sick.
    J. Waed, and M’Cau., for the defendant,
    cited Park. 121.- Abbott, 281. 3 Robin. 104. 1 Robin. 293. Park. 140. 1 Robin.They insisted that the defendant was not liable to contribute a pro', portion of the above mentioned expenses as general average: 1. Because the expenees were not incurred by any necessary sacrifice' for the benefit of all concerned: and, 2. Because the plaintiff, by the acceptance of freight pro rata itineris, discharged the defends ant from all further liability. Except the charge for pilotage into' Savannah, there are none of the charges which can be considered as necessarily incurred for the mutual safety of the parties con»-cerned in the vessel and cargo.
    PARKER, contra.
    
    Cited 1 East. 128. 2 D. and E. 4Í3. All extraordinary expenees incurred by any act done for the benefit of the whole, are subjects of general average. The deviation was a necessary act for the safety of all. All the charges in question! were charges incurred in consequence of the deviation. Many of the charges were for expenees directly proceeding from the act of deviation, and were mutually beneficial to the parties, or necessary to the preservation of vessel and cargo. The acceptance of freight pro rata could not divest a vested right. The right to contribution? had previously attached. The goods were disposed of at Savannah without the plaintiff’s consent. But admitting the plaintiff had no' right to freight for the whole voyage, which is not contended for, yet-the defendant is liable for his proportion of the expenees of wages- and maintenance of the crew, during the time the vessel was repair, ing. The repairs were necessary to the further prosecution of the' voyage; and it was for the mutual advantage of all that these repairs should be made. The defendant could not by his act, without tfi©' Consent of the plaintiff, avoid a contribution. At any rate, the de. fendant is liable to contribute' to all the charges incurred prior to the safe arrival of the goods in the port of Savannah. Park. 126. Abb. 221, 281.
    
      Note. The goods were received and sold in Savannah. It was not necessary to the safety of the goods, that the mariners should be retained. The freight that was carried was paid prior to the charges incurred for expences of the crew in question. ' -
   Grimke, J.,

delivered the opinion of the court» The principle laid down by the court was, that whatever charges are necessarily incurred, where a vessel is compelled to seek refuge from tempest, in a port out of the course, or short oC'her port of destination, for the mutual safety of the ship and cargo, the owners of each are respectively bound to contribute, in proportion to their several interests.' In this case, the following charges appear to be of that description, and not the others : Attendance on the schooner coming into port; pilotage ; harbor master and health officers’ charges ; wharfage to unload and unloading; and perhaps the protest. These charges were necessarily incurred for the safety and preservation of the goods as well as of the vessel. The other charges do not appear to be at all necessary to the safety of the goods ; and, therefore, the 'defendant is not liable to contribute to their payment.

Judgment for the defendant, he having paid, as appears by the verdict, fully the amount of what he was liable to pay. ■  