
    Rogers et al., Plaintiffs and Appellants, v. Murray et al., Respondents.
    1. A party moving for a new trial on the- ground that the verdict against him is contrary to law and the evidence, is entitled to a fair application of the rules stated to the jury relative thereto, in accordance with his request, as being correct expositions of the law.
    2. If the evidence given, assuming such rules to have been correctly stated, entitles him to a new trial, it should be granted, even though the General Term may be of the opinion that such rules are not accurately stated.
    
      3. In such a case, there should be a new trial, in order that the rule may be given to the jury as the Court at General Term thinks it should be applied, and that the party seeking a contrary instruction may except thereto, and be in a position to obtain the judgment of the Court of last resort thereon.
    4. When a vessel is driven into a port of necessity, it is the imperative duty of the master to forward the cargo in another vessel, when one can be had in the same port; and the cargo is in, or at small expense can be put in a condition to be forwarded, and when that course is required by the interests of the owners; especially when the only other alternatives are, either a total loss of the cargo, or an unnecessary sale of it at the port of necessity, at one-third of its value (damaged as it then is) at the port of destination.
    5. The acts of a master (in such a case,) will be upheld by the law, if upon all the facts before him, they be such as it may be reasonably supposed a prudent owner, if personally present, would have directed or approved.
    6. The expenses of putting a disabled vessel into a port of necessity that she may be repaired; and the wages and provisions of the crew from the time of so putting away, and every other expense necessarily incurred, during the detention, for the benefit of all concerned, must be contributed for as general average.
    7. But expenses incurred for the benefit of the ship only, or for the whole or a part of the cargo only, must be borne by the thing for whose benefit alone it was incurred.
    8. Whether, when part of a cargo has been necessarily sold because it could not be carried further; expenses subsequently incurred for reloading the residue of the cargo, or for the wages or provisions of the crew during the detention subsequent to such sale, can be regarded as made for the benefit (in part) of the proceeds of the property so sold, so that such proceeds are liable to contribute therefor, quaere?
    
    (Before Bosworth and Pierrepont, J. J.)
    Heard, June 8;
    decided, July 3, 1858.
    This action comes before the General Term on an appeal by the plaintiffs from a judgment rendered at Special Term on the verdict of a jury in favor of the defendants, and also on an appeal from an order denying a motion, made by the plaintiffs, for a new trial, on a case containing the evidence. It was tried in May, 1857, before Mr. Justice Slossoh and a jury.
    It is brought to recover the value (besides other goods) of “ 488 hides, 20 of them damaged.
    “ 20 salted hides in one cask and one barrel.
    “ 14 goat-skins.
    “ 4 calf-skins.
    “ 58 kip-skins.
    
      “21 deer-skins,” which, with other goods, were shipped in July, 1855, at Aspinwall, on the schooner Pedee, by A. M. Price, under a bill of lading, by which such other goods and the hides "and skins in question were to be delivered in good order and condition at the port of N. Y.; “ The dangers of the seas,” “fire' at sea or in port,” “or any other accident or dangers of the seas, rivers and navigation of whatever nature or kind soever excepted, unto N. Rogers & Co. or order, or to their assigns, he or they paying freight for the said articles,” $10 per ton of 2,240 lbs., with 5 per cent primage, and average accustomed. All the property, except the hides and skins, were ultimately delivered. The latter were never delivered at the port of N. Y., and they are the subject matter of the present controversy. N. Rogers & Co. are the plaintiffs, and the defendants are the owners of the schooner Pedee.
    The Pedee sailed from Aspinwall for New York via St. lago de Cuba, July 6, 1855, with a crew of eight, all told, besides three men to St. lago to work their passage. The bill of lading, of the goods in question, stated that the Pedee was “ bound for New York via Cuba.” The first day out from Aspinwall, the first-mate was taken sick with Chagres-fever, and died on the sixteenth of July. The second day out, the captain was taken sick, and was unable to attend to any ship’s duty for 45 days. On the fourth day out, the second-mate was taken sick, and died on the twentieth of July. James Martin, one of the men before the mast, was appointed mate, and died between the twentieth and the twenty-sixth of July. The rest of the crew were sick off and on till the Pedee reached Carthagena, on the 1st of September, 1855. After the captain and mates were disabled, there were but two or three on board who were physically able to assist in navigating the Pedee, and they did not know how to sail or steer, nor where they were, nor where to go. The Pedee was, therefore, drifted about by the winds and currents, had her sails blown away, and one night went ashore, and knocked off her false-keel, and otherwise injured her so that she leaked badly. She was got off in about two and a half hours. Being in this condition, she was steered for Carthagena, being short of water and provisions, as well as destitute of a force sufficient to navigate her.
    
      The hides were found, on arriving at Carthagena, to be badly eaten by worms and bugs, and were put on shore and beaten by men employed by the captain, but were not thoroughly cleaned. A survey was had, and the surveyors certified, as to the hides, “that although perfectly dry they are generally very much injured by worms, and that a great portion of them is so much eaten up that it is almost valueless. Our opinion further is that the vessel having yet to be repaired here, then go to Cuba to take a cargo, before said hides, Sc., could reach New York, it is almost certain that not one single hide, &c., would arrive in this last port. Consequently, that said hides, &c., ought to be sold here, as soon as possible, for account of whom it may concern, in order to save further loss. Given under our hands this 25th day of October, A. D. 1855.
    (Signed) “ Augt. S. Hakabeegh.
    “ Albert Mathieh.
    “ Jos. Darrell Sanchez.”
    Sanchez was 22 years of age, and how much he "knew of the nature of hides, and the effect of such injuries to them, and of the mode and cost of removing the cause of further injury does not appear. Mr. Mathieu intended to bid at the sale of the hides, if a sale of them should be recommended.
    Mr. Hanabergh had resided about seven years in Carthagena, and formerly resided in Brooklyn, K. Y. How conversant he was with such subjects or whether he had been engaged in the hide business did not particularly appear. On cross-examination he stated that he could not say, “ whether the cause could or had been removed by cleaning and beating.” The captain, among other things, testified as follows:
    “The reason of my not shipping them on board another vessel was in consequence of the expense of cleaning them, as I could not have cleaned them as cheap as merchants there could, and in consequence of being short of funds to do it with, as money was worth from 50 to 75 per cent; I tried to do so; that is, to raise the money for the purpose of cleaning the hides, and in consequence of not raising the money I had the survey; I consulted with the American Consul on the subject of reshipping the hides in another vessel; Carthagena is a port where hides are largely dealt in; it is the principal article of export; the vermin remains on the hides until we come into cold weather; the frost kills them.... “ I raised money for repairs of the vessel on letters of credit from my owners; I had the means of paying for repairs without selling the cargo or any part of it.”
    A sale was determined upon by the captain, as being most for the interest of all concerned, and it took place on the 27th of October, 1855. It was a sale at public auction, duly advertised, well attended and properly conducted.
    The 488 dry ox hides sold for ................. $303 73
    20 do salted do .................. 16 50
    54 dry and salted calf skins,............... 22 57
    41 do do deer skins,............... 1 85
    Total,...................... $344 65
    Horner & Foster, of Oarthagena, bought the ox hides and calf skins, at the same time purchasing other hides, their whole purchase being 1041 dry hides and kips. They cleaned the whole lot at an expense of $15, and about the 2d of November, 1855, shipped them for New York, on the Abrasia, a vessel lying at Oarthagena, bound for New York, when the Pedee put into Oarthagena. The Abrasia sailed with the hides consigned to P. N. Spofford, who sold them for 14 cents per pound. The price at which they were sold at Oarthagena, was about $4//^ per quintal. The market value of good hides, in New York, was about 21 cents per pound, and the hides in question, had they arrived sound, would have been worth $1,878.60, after deducting freight and duty.
    Damaged hides always have some market price in New York, and the average price of damaged hides is from ^ to % of the price of sound. When not fit for leather, they are manufactured into glue.
    The Pedee sailed in November, 1855, for N. Y., via St. lago de Cuba, and did not reach N. Y. until the 3d of March, 1856.
    
      The defendants insisted, that there should be deducted
    from the......................... $344 65
    The expenses of the auction, .............. $17 00
    Consul’s charges,........................ 19 00
    For general average, chargeable against entire
    shipment, to plaintiffs, ............ 257 69
    - 293 69
    The balance being........ $50 96,
    and with interest, amounting in the whole to $62.25, had been tendered to the plaintiffs before suit brought.
    That sum, it was admitted, remained in the defendants’ hands, with the same effect as if paid into Court.
    The Judge charged {inter alia) as follows:
    “If the master of a vessel is driven into a port of necessity, he is bound to act in respect to both vessel and cargo with reference to the best interests of the owners.
    “ In respect to the cargo, his general duty is to put it in a state of forwardness as rapidly as possible. If his own vessel is disabled so that he cannot proceed with her to the port of destination, it is his duty to procure another, if it can be done at the same or a contiguous port. If he does not forward and deliver the cargo, he loses his claim for freight.
    “ If his vessel can be repaired, he may retain the cargo until repairs are made, and- if it become necessary he may sell a portion of the cargo for the purpose of raising money to make repairs, or he may hypothecate the ship or cargo for that purpose.
    “He is bound to exercise a sound discretion however. . . .
    “ The master has no right to sell the cargo unless in a case of necessity, except to raise funds for repairs to the vessel. If no means can be procured to repair the vessel, or to forward the cargo, the captain may and probably ought to sell both subjects, if in the exercise of a sound discretion that appears most for the owner’s advantage.
    “ So if the cargo is of a perishable nature, and would utterly spoil if kept at the port of necessity until the vessel could be repaired or another procured for its transportation; or if in the present case there was the highest probability, in the exercise of a sound judgment, that in the event of reshipping the hides it would be a total loss to its owners by decay during the residue of the voyage; or if there were no means of raising funds to clean the hides, and the captain was destitute of funds, and the hides were unfit for reshipment in their then actual condition, the master might properly sell the cargo as the only course left for the owner’s protection.
    “But a case of necessity must exist, and it is not enough that in making the sale the captain acted in good faith.
    “ The calling in advice of surveyors was proper as manifesting good faith, but the master was not bound by their advice. He was still bound to exercise his own judgment.” . . .
    “You are to determine whether this necessity existed at Oarthagena.
    “If it did, the defendants are entitled to your verdict.
    “If on the evidence you are satisfied that by the resort to proper measures for ridding the hides of the worms the master could have put them in a proper condition for reshipment, and that the captain had it in his power to clean the hides, and that they were not of so perishable a nature, or so utterly damaged as to render their total destruction before arrival in New York, in case of reshipment, in the exercise of an honest judgment on the part of the master, in the highest degree probable; and if you shall be satisfied on the evidence that the captain might either have retained the hides safely until his own vessel was repaired, or could have procured another vessel to have forwarded them, then the plaintiffs will be entitled to recover, notwithstanding the advice given to the captain by the parties whom he consulted in Oarthagena. . .
    “ If you find for the plaintiffs, you will give them the market value of the hides in New York, in the condition in which, according to the evidence, they would have arrived from Oarthagena if forwarded by the Pedee, (as that only is claimed by the plaintiffs), that is, the market price of hides in that condition.
    “The stipulation of the parties has fixed 21 cents as the value of sound hides at the time the vessel arrived in March, 1856.
    “Deducting freight and charges, the amount of loss at that price would be $1,878.60.
    
      “ The hides actually did bring 14 cents a pound in Hew York. You will determine the price.
    “ The plaintiffs, if entitled to your verdict, admit that defendants shall have freight, otherwise it might be questionable.
    “ From the amount of your verdict, however, the defendants will be entitled to have deducted the amount of general average properly chargeable upon the hides, for the expenses of repairs at Carthagena. The proportion has not been properly adjusted as yet, and will have to be determined by consent or reference, and your verdict, if for plaintiffs, may be for so much, less the proportion of general average expenses to be determined as the Court may direct.
    “Ho interest to be allowed.
    “Should you think the sale at Carthagena justified by the state of things then and there existing, as I have explained it to you, you will then give a verdict for the defendants.”
    Some requests to charge, and some other parts of the charge, are stated in the opinion of the Court.
    The plaintiffs’ counsel excepted to that part of the Judge’s charge wherein he instructed the jury that from the amount of their verdict, (if for plaintiffs), the defendants would be entitled to have deducted the amount of general average, chargeable on the hides for the expenses of repairs at Carthagena.
    The plaintiffs’ counsel also excepted to that part of the Judge’s charge in which he instructed the jury that no interest was to be allowed to the plaintiffs.
    The plaintiffs’ counsel also excepted to so much of the Judge’s charge as instructed the jury that should they think the sale at Carthagena justified by necessity in the state of things then and there existing, as he had explained it to them, they would give a verdict for the defendants.
    The case was submitted to the jury, who rendered a verdict for the defendants.
    The plaintiffs moved on a case for a new trial, which motion was denied. From the order denying that motion and from the judgment entered on the verdict, the present appeals are taken.
    
      John Sherwood, for plaintiffs and appellants.
    
      
      J. Edgar, for defendants and respondents.
   By the Court.

Bosworth, J.

—It is the duty of a master whose vessel becomes so disabled during her voyage that she cannot complete it, to forward the cargo by some other vessel when that can be done. (Abbott on Shipping, 4th Am. Ed., 241, 244.)

. The increased freight, if any, in such cases, is a charge upon the goods. (Ogden v. The General Mutual Insurance Company, 2 Duer R., 216, and cases there cited.)

The Judge,' at the trial, charged in substance, that if, by a resort to proper measures, to rid the hides of worms, the master could have put them in a proper condition for reshipment, and had it in his power to clean the hides, and if they were not so perishable or so much damaged as to render their total destruction before reaching New York, according to the due exercise of an honest judgment, in the highest degree probable, and if he could have forwarded them in another vessel, the plaintiffs were entitled to recover; notwithstanding the advice given to him at Carthagena by those whom he consultéd. (The plaintiffs had requested the court to so charge the jury.)

The plaintiffs are entitled to a fair application of this rule, in disposing of the case on this appeal. If the evidence required the jury to find such to be the facts, there should be a new trial. If it is thought that, any other rule of duty and liability should have been stated as a guide to the jury, it should be stated at the trial, that the plaintiffs may have an opportunity to except to it, if they deem it erroneous;

The hides in question, including another lot equally large, were cleaned at an expense of $15. There is no pretence, that the cost of cleaning, and of reloading, combined with any increased freight that would have been charged, made it as much the interest of the shippers or consignees' that they should be sold, as that they should be forwarded by another vessel.

The captain could have procured the hides to be thoroughly cleaned, as well as those who bought them. If it would have cost him even three times as much, as it did them, it was nevertheless his duty to have had it done. They could have been shipped by the Arabia, for they were so shipped. They could have been carried to New York in a condition to bring two-thirds the market price of sound hides, for that was done. They were sold, for a third of their market value in New York. There is no ground, upon the evidence, for suggesting that the cleaning of them thoroughly, transhipping them, and any extra freight that might have been charged would have amounted to one-sixth of the excess of the price they brought in New York, over that for which they were sold, or that any one supposed they would amount to that.

By the survey itself, the necessity and justification of a sale at Oarthagena, are based in part, and I think we may say, chiefly, upon the assumption that if not sold they must be detained at Oarthagena until the Pedee was repaired, and ready to resume her voyage, and then must be taken to New York, by the way of Ouba. Sanchez testifies, that his opinion in favor of a sale was founded in part upon the fact “ that the vessel was still bound to a port in Cuba, and that before the hides could arrive in New York, via that port, they would be entirely destroyed."

The only excuse, attempted by the captain, for not forwarding them by another vessel was “ the expense of cleaning them," “being short of funds to do it with." He says, “I tried to raise money for the purpose of cleaning the hides, and in consequence of not raising the money I had the survey.” The expense would have been $15, unless it would have cost him more than it did Horner & Foster. If it would have cost him three times as much, it would seem he might have raised funds for the purpose. He procured money for the repairs of the vessel on letters of credit from his owners, and was not obliged to sell any part of the cargo for that purpose. Those repairs amounted to over $3,000, besides the proceeds of the property he sold.

The conclusions cannot be avoided, that the hides could have been cleaned at a small expense, so that they could have been safely forwarded by another vessel, and that there was no difficulty in so forwarding them, and that it was clearly for the interest of the shippers that this should be done. The evidence all tends to support these conclusions, and there is no evidence that the master supposed or had any reason to suppose the contrary to be true. We should not have the slightest doubt of the accuracy of these views had we not been assured on the argument, by the defendants’ counsel, uncontradicted by the counsel for the plaintiffs, that, on precisely the same evidence as is now before us, the learned district Judge for this district has decided that “the master was justified on the facts in proof in ordering a sale of the hides in question.” We have been furnished with a copy of his opinion, being in the case of Ferdinand Maas v. The Schooner Pedee.

That opinion is preceded by a statement of the facts which the learned Judge held established by the evidence. Neither in that statement nor in the opinion is any allusion made to the fact that the necessity of a sale was advised on the idea that the hides must go to New York via Cuba, nor is any notice taken of the fact that the captain knew he could ship them direct to New York by another vessel, and assigned no excuse for not doing it, except the expense of cleaning the hides, and the difficulty of raising money for that purpose. How much the captain supposed the expense would be, he no where states. We cannot but think there was some feature in the history of the case of Maas v. The Schooner Pedee which will distinguish it from the case before us; or that it was so presented as to create an impression that no pretence was made that the hides could have been prepared for reshipment, at a trifling expense, and forwarded direct to New York, in such condition and under such circumstances as to make it the clear duty of the master to have pursued that course.

The duty of the master is imperative to ship and forward the cargo in another vessel, when one can be had in the same port, and there are no great difficulties in the way of a reshipment of the cargo, and when that course is clearly required by the interests of its owners. Under such circumstances his duty is plain, when the only other alternatives are either a total loss of a part of the cargo, or an unnecessary sale of it at one-third of its value, damaged as it was, at the port of destination. (3 Kent’s Com., 213; Saltus v. Ocean Ins. Co., 12 J. R., 107; Treadwell v. Union Ins. Co., 6 Cow. R., 270; Abbott on Shipping, 4th Am. Ed., 243; The Henry, 1 Blatch. & How., 465.

Every case of this kind must depend upon its own circumstances. The acts of a master will be upheld by the law, if upon all the facts before him, they be such as it may be reasonably supposed a prudent owner, personally present, would have directed or approved. (Abbott on Shipping, 4th ed., 242, 243.) It cannot be supposed that an owner of any prudence, would have directed or approved a sale at $344.26, when the goods could have been fitted and transhipped directly to their port of destination, at an expense short of $100, with a reasonable certainty of commanding at that port, according to the market value of such articles in a like damaged condition, from three to four times the price that could be obtained by a sale at the port of necessity. Under such circumstances, transhipment for the place of destination, is the first object, because that is in furtherance of the original purpose, and the interests of the shippers imperatively require it.

We are therefore quite clear that the verdict is not only against evidence, but on the point we are now considering, should have been for the plaintiffs.

It is insisted, and the Judge at the trial was requested to charge the jury, that the hides sold at Oarthagena, were not chargeable in general average for any repairs or expenses at that place; or incurred to reach it.

The expenses of putting into that port, having been made necessary and incurred for the safety of the ship and cargo, the hides must contribute to pay them.

The wages and provisions of the crew from the time of putting away for the port of distress to refit, and every other expense necessarily incurred during the detention for the benefit of .all concerned, are to be contributed for as general average. (2 Arnould, 914, note 1.)

But expenses incurred for the benefit of the ship alone, or for the whole or a part of the cargo only, must be borne by the thing for whose benefit it was incurred.

After it was determined to sell the hides on the ground that they could be carried no further, and after they had been sold and converted into money, it is difficult to perceive, in 'what sense, any subsequent expenses, of reloading the residue of the cargo, or for wages or provisions of the crew during their detention subsequent to such sale, can be deemed to have been made for the benefit of the hides or of their proceeds. They were not incurred with a view to benefit or carry forward either of them. (Vandenheuvel v. United States Ins. Co., 1 J. R., 406; Peters & Co. v. Warren Ins. Co., 1 Story R., 468, 469.)

The point argued was that there were no expenses for which the hides could be made to contribute in general average. As to this we think the plaintiffs are wrong. What particular expenses they should contribute in general average to pay, if chargeable with any, is a question not before us. That the Judge was not requested to decide, but it was to be thereafter ascertained, if the verdict should be for the plaintiffs, on a proper adjustment.

No point having been made that the amount justly payable had not been tendered, provided the hides were liable to contribute in general average, and provided also that the hides were justifiably sold as a matter of necessity, and it having been stipulated that the defendants were to have the same benefit from the tender, as if it had been plead and the money paid into Court, it was not error to instruct the jury that if they found the sale of the hides to be necessary they should render a verdict for the defendants. ([Logue v. Gillick, 1 E. D. Smith R., 398.)

The judgment must be reversed and a new trial granted.  