
    Jonathan H. Barker et al. v. The Baltimore and Ohio Railroad Company.
    ' Expenses incurred for seamen’s wages and-subsistence are items of charge proper to be included in the adjustment of general average.
    The cases of Perry v. Ohio Insurance Company, 5 Ohio, 305; Gtazzam v. The Cincinnati Insurance Company, 6 Ohio, 71; and Wébb v. The Protection Insurance Company, 6 Ohio, 453, are overruled so far as they are in conflict with this decision.
    Error to the Superior Court of Cincinnati.
    In the month of December, 1863, Barker, Hart & Cook were the owners of the steamboat Prima Donna, on which the Baltimore and Ohio Railroad Company, with others, shipped, at Cincinnati, a cargo destined for the port of Wheeling. On the passage, at the head of Captina Island, below Wheeling, the vessel struck a coal barge, which, unknown to the pilot, had the previous day been stranded and sunk in the main and usual channel of the river Ohio. The collision was without fault or negligence on the part of the pilot, master, or crew of the steamer, and resulted in springing a leak therein. The master immediately ran the vessel ashore, where she at once filled and sunk in water to the depth of several feet above the guards. In order to preservé the cargo, a portion thereof was discharged upon the shore, another portion removed to the upper deck, and the vessel raised.
    The agent of the railroad company, on learning of the disaster, repaired to the scene, tendered freight, and demanded its portion of the cargo. But the master of the vessel, claiming that the disaster presented a case of general average, asserted his right to retain possession thereof, as security for. the payment of the company’s ratable contribution. The agent of the railroad company disputed this claim; but in order to obtain.possession of its goods, without litigation, deposited with the master $1,513.15, which was its estimated proportion of the general average, and with the other parties in interest, entered into the following average bond:
    “Whereas, the steamboat Prima Donna, of Covington, Kentucky, being in good and seaworthy condition, well and fully manned and equipped, left Cincinnati on December 15, 1863, laden with a cargo of merchandise, bound to the ports of Parkersburg and Pittsburg and intermediate ports; and, whereas, on the night of the 19th of the same month, while passing the head of Captina Island, Ohio river, in the prosecution of said voyage, the said steamboat Prima Donna did strike an unseen obstruction in the channel of the river, supposed to be a sunken coal barge, sunk a day or two prior to said disaster; by which casualty the said steamer Prima Donna immediately filled with water and sunk, in consequence of which disaster certain disbursements and expenses have been incurred, and may hereafter be incurred, for the joint and general benefit of all the property jeopardized, or the recovery, preservation, and protection jointly of said vessel, cargo, and freight. Now, therefore, we, the undersigned owners, insurers, consignees, agents, or attorneys of owners, insurers, or consignees of said vessel, cargo, freight, or other interests connected therewith, do hereby covenant and agree jointly, one with the other, and each one for himself, to pay on demand our respective proportions of any and all said disbursements and expenses as shall appear to be legally and lawfully due from us pro rata, or according to the amounts of our respective interests in the said vessel, cargo, freight, or other interests involved; and that John Townley, of Cincinnati, a legal and competent adjuster of marine losses, he having no interest directly or indirectly in the said vessel, cargo, or freight, be hereby appointed as adjuster in the present case, by whose adjustment, approved, by the president of the board of underwriters of Cincinnati, we hereby agree to abide.
    
    “ In witness whereof, we have, on this, the 25th day of December, a. d. 1863, set our hands aud seals at Wheeling.
    “ C. A. Lorenzo, Oliver Palmer, Agent for Baltimore and Ohio R.R. Co., Underwriters on boat and on account of whom it may cargo, concern, reserving all legal Wm. Taylor, rights. Samuel Oit, Son & Oo.
    J. B. Eord, Agent. Maxwell, Campbell & Tin-Wheat & Sons, gle,
    Thos. G-. Odiorne, President M. Marsh, Agt. for two hhds.
    
    
      Citizen’s Ins. Co., Cincinnati. Tobacco, marked K. by W. George E. Mayer. M. Marsh.
    
    Joseph Scott, Master. Drennen & Reisinger.”
    Laughlin & Taylor.
    Under this agreement an adjustment of losses and expenses was duly made and reported, amounting in gross to $2,485.93, of which.the ratable proportion assessed' against the railroad company was $1,240.30. Barker, Hart & Cook tendered to the railroad company the difference between their deposit and this assessment, which the company declined to accept, and brought an action, in the Superior Court of Cincinnati, to recover the entire deposit.
    Barker, Hart & Cook answered, setting out all the facts connected with said disaster, including the adjuster’s report and the several items of cost, charges, and expenses included therein, averring that the facts presented a case of general average, and that the adjustment was regularly made under and in pursuance of said agreement and in accordance with the usage in such eases at the ports of Pittsburg, Wheeling, Cincinnati, and St. Louis.
    The railroad company did not reply and offered no testimony. Barker, Hart & Cook presented the depositions of sundry witnesses, tending to show that at said ports it was the usage, in general average cases, to include in the adjustment all such items of charges and expenses as are embraced in this report.
    On the hearing, the Superior Court ordered that there be struck from the answer and the report of adjustment all items for the subsistence and wages of the master and crew of the vessel during the detention and repair thereof, and gave judgment for the railroad company in $754.
    The finding and judgment of the court at special term were, on error, affirmed at general term, whence the cause is brought here for reversal.
    
      Lincoln, Smith, War node £ Stephens, for the plaintiff in error:
    1. Where a steamer on the Ohio river, without any fault of her officers and crew, meets with a disaster which puts boat and cargo in peril of greater loss, and expense is necessarily incurred to protect the same from such greater loss, and the same is successful therein, it is a case of general average; and this is true though the disaster was fortuitous. McAndrews v. Thatcher, 3 Wal. 366; Rogers v. Murray, 3 Bos. 368; Thornton v. The U. S. Ins. Co., 12 Maine, 152; Job v. Langton, 6 El. & Bl. 791; Nimick v. Holmes, 25 Penn. St. 373; Hathaway v. The Sun Mutual Ins. Co., 8 Bos. 73.
    2. Where, in such a case, the parties agree that the statement shall be made up by a given adjuster, and that they will abide thereby, if approved by the president of the board of underwriters of Cincinnati, the adjustment so made up and approved is binding; and the parties so agreeing can not go into the accuracy of all the details thereof, unless they can show fraud or bad faith in the conduct of the adjuster-making up such average or in the party thus approving it. Thornton v. The U. S. Ins. Co., 12 Maine, 153; Peters v. The Warren Ins. Co., 1 Story C. C. 463; Strong v. The Firemen’s Ins. Co., 11 Johns. 323; Livingston v. Ralli, 5 El. & Bl. 135, 136; Ranger v. Great Western R. W. Co., 5 H. Lds. Cas. 89; Martin v. Chapman, 1 Ala. 282; Jones v. The Bos. Mill Cor., 6 Pick. 148.
    3. If the officers and crew are employed in such efforts, their wages and provisions while so employed are chargeable in the general average. It is, and has been, the usage for years, throughout the West, to include them, and there is nothing in the law of Ohio, as heretofore declared, to the contrary. 2 Arnould on Insurance, 911; Hopkins on Average, 46-52; Bailey on Average, 71; Barnard et al. v. Adams et al., 10 How. 307; Hathaway v. Sun Mutual Ins. Co., 8 Bos. 72, 73; 1 Sprague’s Decisions, 18, 19; Rogers v. Murray, 3 Bos. 368; Dillworth v. McElvey, 30 Mo. 155, 156; McAndrews v. Thatcher, 3 Wal. 366, 367; Firemen’s Ins. Co. v. Fitzhugh, 4 B. Mon. 171; The Star of Hope, 9 Wall. 236.
    The law upon this point is thus declared by the Supreme Court of the United States in Barnard et al. v. Adams et al., 10 How. 307:
    “ 3. The third exception relates to the allowance of the wages of the crew after the boat was stranded. But as they were employed as mariners and quasi-salvors of the cargo, laboring for the joint benefit of the adventure, we think the exception is not supported. Their services were essential to the entire saving of the cargo. Their duties did not cease with the stranding, and they were entitled to wages while their services were required for that purpose. If the. same services had been rendered by strangers, the expense would have been properly charged as a result of the disaster, in stating the average. That the same services were rendered by the crew after the Brutus was stranded,, and the voyage as to them technically broken up, can not affect the case. Even if their obligation to the ship had ceased, still their services to vessel and cargo entitled them to their wages and support as a general charge.” 10 How-307.
    In the case of the Star of Hope, 9 Wal. 236, the court say:
    “Whatever the nature of the injury to the ship may be,, and whether it arose from the act of the master in voluntarily sacrificing a part of it or in voluntarily stranding the vessel, the wages and provisions of the master, officers, and crew from the time of putting away for the port of succor, and every expense necessarily incurred during the detention-for the benefit of all concerned, are-general average. . . .
    “ The wages and provisions of the master, officers, and crew are general average from the time the disaster occura until the ship resumes her voyage, if proper diligence is •employed in making the repairs.”
    In the case at bar the vessel was voluntarily stranded, but that makes no difference, as the cases before cited show.
    In Rogers v. Murray, 3 Bos. 368, the court say:
    • “ 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.”
    In Hathaway v. The Sun Mutual Ins. Co., the court say: “ A ship with a cargo on board is compelled, by a peril which induces a loss, the subject of general average, to go into a port of distress. She requires repairs, and they are furnished. ' The expenses for wages and provisions during detention, being a given sum, that sum is rightly made the subject of general average. The reasoning would seem quite just that, had the ship been in ballast, the same expenditure would have constituted particular average. .. . . The force of these remarks is not diminished by the fact that, in our country, these expenses of wages and provisions constitute a subject for general average, and, as I conceive, must be allowed, even where the damage which made them necessary was fortuitous. But they are allowed only so long as they are necessary for the common benefit.” 8 Bos. 72, 73.
    To the same effect are the cases of the Brig Mary, 1 Sprague’s Decisions, 18, and Dilworth v. McElvey, 30 Mo 155, 156.
    The law of England in this respect was different from cur law, and from the law of the commercial nations of Europe. But the courts of England are beginning to make exceptions to their rule and follow our law, as more conducive to the interests of commerce, and, on the whole, more just.
    
      Mr. Arnould thus concludes his remarks upon the subject : “ In the United States these expenses are in all cases alike brought into general average; and on the continent they are generally admitted to be such, although there is hardly any point, even in the perplexed doctrine of general average, in which there is such a' great diversity in the positive laws of mercantile states.” 2 Arnould on Ins. 911.
    The learned editor, Mr. Perkins, has the following statement of the law in a note to the above passage: “ As stated in the text, in the United States, the rule seems definitely ■settled in our commercial states, that whatever he the nature of the injury, whether arising from a voluntary sacrifice, or a mere peril of the sea, the wages and provisions of the crew from the time of putting away for the port of distress to refit, and other expenses necessarily incurred during the detention for the benefit of all concerned, áre to be contributed for as general average.” Note 1, p. 911.
    Upon this point, see also Firemen’s Ins. Co. v. Fitzhugh, 4 B. Mon. 171; Walden v. Le Roy, 2 Caine, 263; Padelford v. Boardman, 4 Mass. 554, 555; Clark v. U. M. and F. Ins. Co., 7 Mass. 369; Barker v. Phœnix Ins. Co., 8 Johns. 318; Brooks v. Oriental Ins. Co., 7 Pick. 263; Dunham v. Corn Ins. Co., 11 Johns. 320; Peters v. The Warren Ins. Co., 3 Sumn. 400; Potter v. The Ocean Ins. Co., 3 Sumn. 38; Da Costa v. Newman, 2 Term, 414.
    Why are they thus to be contributed for ? Because they are extraordinary expenses for the' benefit of all, to relieve the common property from .a peril.
    Mr. Lawrence R. Bailey, in his practical treatise on General Average, says: “ The expenses of discharging the cargo and carrying it to a place of safety, at a port into which the vessel is driven as above, are allowed in general average, whether the necessity for discharge is the damage which the ship has sustained, or that which the cargo has sustained.
    “The same rule applies to the expense of discharging cargo in order to get a stranded ship off the ground.
    “ This does not, however, include the ordinary expense of discharging cargo to enable a vessel to leave her port of departure, or to enter her port of destination, or to cross; any bar or shoal in the course of her voyage, where such is the usual course on such a voyage.”
    This is the English law, even, which differs from our own law upon the point in question, and from the law of the-continent.
    Another late English writer, Mr. Manley Hopkins, in his-Hand-book of Average for the use of merchants, agents, ship owners, masters, and others, says: “ If the vessel has sprung a leak, or injured her keel or bottom, and it becomes necessary in order to get at the damaged part, to discharge the cargo, the labor of discharging is general average : so are lighters and boats hired to carry goods to the-shore; cartage of them to the warehouse or other place of safety; the labor of taking into the warehouse; . . . . the cargo kept in lighters, instead of being landed, . . .. is usually applied to general average.” Hopkins on Average, 49.
    Is' not the expense here of unloading, taking ashore,.' guarding there, raising the boat with the other cargo, the replacing the cargo taken ashore, general average expense, even under the English rule as here stated ?
    The same author, in another place, says: “ It is in the particular of wages and provisions for the ship’s company during the time she is under average, that the English custom differs from the American, and nearly all foreign usage. As soon as a ship’s head is diverted from her proper course for the purpose of going into a port of disaster, and until she has regained her homeward direction after leaving port, the wages and provisions are, by foreign practice, chargeable in general average. . . .
    “Foreigners, and some of our own colonists, do not see the subject in the same light, however, and claim the wages and victuals in their adjustments. Many of our own insurance clubs have followed their example, and permit by their rules the wages of the ship under detention to be allowed in average.”
    
      It seems, then, that the same rule is being adopted in .England, as on the whole fair and beneficial to commerce,
    As I understand the case of Plummer v. Wildman, 3 M. & S. 486, the wages and provisions of the crew in unloading and reloading were allowed in general average.
    See opinions of Lord Ellenborough and Le Blanc, J. Lord Mansfield allowed these charges in an early case. Da Costa v. Newman, D. & L. 414.
    In Thornton v. The U. S. Ins. Co., the court say: “But the law has been differently settled in the American courts, .and we apprehend is now at rest upon this point, perhaps in every state in the Union, certainly in all the principal -commercial states. It is stated, in Phillips on Insurance, that the decisions of the American courts and the practice of insurers concur in allowing the wages and provisions as a part of the average loss, in case of an interruption of the voyage to refit.” 1 Phil. Ins. 348.
    In the notes to Abbott on Shipping, by Story, page 350, it Is said that in America the rule seems definitely settled in our principal commercial states, that whatever be the nature of the injury, whether arising from a voluntary sacrifice or a mere peril of the sea, the wages and provisions of the crew from the time of putting away for the port, and every other -expense necessarily incurred during the detention for the benefit of all concerned, are to become as general average, and this position is abundantly supported. 12 Maine, 152, 153.
    The law is very succinctly stated in Walden v. Le Roy, by Ch. J. Kent. He says: “ The case of Da Costa v. Newnham, 2 D. & L. 407, is, however, material and important on this subject. In that, the decision of the Court of King’s Bench approaches very near to a sanction of the' above expenses as a general average. It was held, where a ship is obliged to go into port for the benefit of the whole concern, the charges of loading and unloading the cargo, and taking care of it, and the wages apd provisions of the workmen hired for the repairs, become general average. It was not requisite in that case to decide whether the seamen’s wages and provisions should become general average, as the crew had been discharged; but as the two eases ai’e very analogous-in principle, and have been so regarded by Park and Marshall, I can not perceive any sound distinction between them.” 2 Caine, 263, 264.
    That the unloading and reloading of the cargo, and the getting up the steamer with the balance of the cargo, was all a subject of general average under the circumstances in-proof, it seems to me very clear, though the steamer was accidentally injured. See the cases cited, and the following lately decided in England, by Lord Campbell. Moran v. Jones, 7 El. & Bl. 533; Job v. Langston, 7 El. & Bl. 791; Hall v. Jansen, 6 El. & Bl. 791.
    In the case of Job v. Langston, Lord Campbell says: “ The stranding was fortuitous, arising from perils of the sea. The expenses, to constitute general average, must therefore be brought within the second category, extraordinary expenses incurred for the joint benefit of ship and cargo. They were extraordinary expenses not to be ascribed to wear and tear, and therefore to be borne by the-underwriter; but are they to be considered as incurred for the joint benefit of ship and cargo, so that a portion of them ought to be borne by the owner of the cargo, or the underwriter of the cargo. Although the stranding was fortuitous, all expenses incurred from the misadventure till the cargo had been discharged, confessedly constituted general average. But how can it be said that the subsequent-expenses in getting off the ship and taking her to Liverpool for repair were of the same character.” 6 El. & BL 791.
    Clearly the court did not err in holding this case one of general average.
    In the case of Hall v. Jansen, the court say: “Now the-expenses necessarily incurred in unloading and reloading the cargo for the purpose of repairing the ship, that she may be made capable of proceeding on the voyage, have been held to give a claim to general average contribution; for the acts which occasion these expenses become necessary from perils insured against; and they are deliberately done for the joint benefit of those who are interested in the ship, the cargo, and the freight.” 4 El. & Bl. 507.
    Mr. Arnould gives the definition of a general average: “ A general average loss, therefore, may be defined to be a loss arising out of extraordinary sacrifices made, or extraordinary expenses incurred for the joint benefit of ship and cargo.” 2 Arnould, 881. He also says: “ Thus where in order to repair the ship, it becomes absolutely necessary to discharge cargo, all expenses of unloading, warehousing, and reloading it come into general average, because incurred for the joint benefit of both ship and cargo.” 2 Arnould, 907. So where ship and part of the cargo are raised together, all expense of raising the same, such as unloading, watching, and reloading, are general average, as has been shown.
    Mr. Parsons says: “ Hitherto we have considered only cases in which property was actually destroyed or sold, and was contributed for. It is, however, a well-settled rule of the law of general average, that extraordinary expenditures for the common benefit are to be contributed for.” 2 Parsons on Mar. Ins. 252.....
    “And it is then a question whether the wages and provisions are to be contributed for. In England, the law seems to be not entirely settled, but the latest authority, which, however, is only a dictum, would lead to the conclusion that in such a case the wages and provisions, and other expenses of the detention, do not constitute a general average loss, as the repairs themselves certainly would.
    “ In this country, by the decided weight of authority, although not without some exceptions, these expenses would come under the law of general average from the time the vessel bore away for her port- of repair, provided only that it was necessary for the safety of ship and cargo alike, that the repairs should be made, whether the injury which created the necessity was or was not itself within the law of general average.
    
    
      “ This may be regarded, we think,, as the settled doctrine and practice in this country.” 2 Parsons, 257.
    He also says: “ If the vessel be stranded not voluntarily, and expenses are incurred in getting her off, and the effort is unsuccessful, the ship alone pays for that. If the vessel be got off, then are these expenses to be contributed foi 1” 2'Parsons, 26B.
    It is beyond question, therefore, that the case was one for general average; that the wages and provisions of the crew, while laboring to.relieve boat and cargo-from the peril they were in, were general average expenses, and that they were properly carried into the-average stated by-Townley.
    4. If the earlier decisions of the Supreme Court of Ohio had so determined, the court would now reverse those decisions, in order that the law of Ohio might conform to the - commercial law of the country. But it is said the law of Ohio is different, and sundry early cases are referred to, to -show it. They are: Perry v. The Ohio Ins. Co., 5 Ohio, 306; Gazzam v. The Cincinnati Ins. Co., 6 Ohio, 73; Webb et al. v. The Pro. Ins. Co., 6 Ohio, 474.
    It was upon these cases that the Superior Court relied.
    I think, when carefully examined, they do not sustain the judgment of that court.
    1. In the first place, they were made at an early time in the history of the Supreme Court of Ohio, and before much was known of insurance law at- the. West. At that very time the.court decided that carelessness on the part of the assured, or his-agent, was a good defense. Ludwick v. The Ohio Ins. Co., 5 Ohio, 436; Howell v. The Cincinnati Ins. Co., 7. Ohio, 276; Fuller v. Lancaster Ins. Co., 7 Ohio, 5.
    These authorities were, however, found -to be inconsistent with the -law as. it .was determined in the other states, and by the Supreme Court of the United- States, and they were overruled, in - order that the law of Ohio might conform to that of the other states, the court deeming that a -sufficient reason. Perrin’s Adm’r v. Pro. Ins. Co., 11 Ohio, 171; Thornton v. The United States Ins. Co., 12 Maine, 153.
    
      And if there be anything in the above eases inconsistent with the law as it is above stated, they should no longer be followed.
    But a careful examination of those cases will show that they do not apply to the point before the court.
    In Perry v. Ohio Ins. Co., the boat was injured by breaking a shaft while on her way to New Orleans, her port of destination, with a cargo. She was thereby rendered helpless, and was towed to New Orleans, where she was .going-to deliver her cargo.
    Neither she nor her cargo were put in any peril by the •disaster, and the crew performed no service but their ordinary service — that which they would have been compelled to perform at any rate. And while being towed, she was •carrying her cargo on to the port of destination. It was no case of general average; it was not so presented; but was a case of particular average. This was the first- of “these cases, and it led to some loose language in the subsequent cases.
    In Gazzam v. Cincinnati Ins. Co., it does not appear that, .at the time the boat was on the rocks, there was any cargo on board, or that the boat was in any peril; or that the crew labored even in getting her off. The court treats the item as one for ordinary wages while the boat was delayed “there merely, and not as an item for wages of an extraordinary character for the common benefit, and to relieve boat and cargo from any impending peril. This item was ■not presented as a charge in general average, and .that case does not meet this.
    The case of Webb et al. v. Protection Insurance Company is to the same effect, and does not determine the point here involved.
    The charge there was for wages while the boat was being repaired.
    The court say: “ The insured is only liable for the extraordinary expense occasioned by the injury, which does not include expenses for the mere delay of the boat, or ordinary wages for her navigation to the port of repair., These decisions, in our understanding of them, exclude from the verdict the item for the wages of the crew before' their discharge at New Albany, and the item for the provisions of the crew; besides, the boat on her way to the port of repair earned towage of another boat and passage money — one hundred and seventy-five dollars and fifty cents — which is credited in the account. Instead, therefore, of being an unmanageable wreck, to be driven by external power, she was earning freight.” 6 Ohio, 474, 475.
    Some of this language is apparently opposed to the law as well settled, but the case does not come up to the ease before the court. That was not a case of general average, as is this. The cargo was no longer there, and was in no. way in peril, and extraordinary efforts to relieve it from such peril were not made. The point was this: Did these wages and provisions form a part of the special average? It was presented as a case of special and not of general average. If the court means to say in that case, that where a boat is injured by a peril for which the underwriter is. liable, such as the destruction of her cabin or injury to her hull, and the crew rebuild or repair it, no compensation can be had, unless the useless formality is gone through with of discharging and rehiring them, it is not law. Firemen’s Ins. Co. v. Fitzhugh, 4 B. Mon. 171.
    As to these authorities, they are all between insurer and insured. The case before the court is between the carrier and consignee, and it is enough to say that the law in such case is well settled in favor of the claim we here set up. The court will see that the Superior Court admits that the law is as I claim it to be. The decision was based entirely on an erroneous view of the cases cited from the fifth and sixth volumes of the Ohio Reports. If those eases decide what the Superior Court suppose they do decide, this court should not hesitate to overrule these decisions, for the same-reason that the decisions of this court were overruled in Perrin’s Adm’r v. Pro. Ins. Co., 11 Ohio, 171.
    5. A general average, made up in accordance with the-law and usage of the port of destination, is binding od all. parties, whether it be in accordance with the law of the domicile of the shipper or not. Thornton v. United States Ins. Co., 12 Maine, 158; Loring v. Neptune Ins. Co., 20 Pick. 413; Peters v. Warren Ins. Co., 1 Story C. C. 471; Depaux v. Ocean Ins. Co., 5 Cow. 67; Strong v. Firemen’s Ins. Co., 11 Johns. 337; 2 Arnould on Insurance, 944.
    In Peters v. Warren Insurance Company, the court says: “Now, certainly the weight of authority, both in England and America, is, that the items included and the sums apportioned and paid according to the law of a foreign country, as a general average, in an adjustment thereof, made there (and, a fortiori, if enforced by the public tribunals there), are, quoad the items and the rule of apportionment, conclusive upon and payable by the underwriters here, as a general average, although not apportioned in the-same manner and not deemed items of general average by our law.” 1 Story, 471.
    In the case of Loring v. Neptune Insurance Company, the court says: “The general average in the present case was made up and adjusted at Hamburg, the port of destination, at which the several interests liable to contribute were necessarily to he separated from each other. Hamburg, therefore, was the proper place for the adj ustment and payment of this general average. Such general average must necessarily be adjusted according to the laws and usages of the place where the adjustment was made.”
    The defendants contended that the adjustment was unjust and unreasonable. In answer to this, the court says: “ In regard to the last point, although the evidence is not very full and satisfactory, we are of opinion that the adjustment was made according to the law and usage of Hamburg......Such being the established law and usage of Hamburg, the proper place of adjustment, the plaintiff was bound by it; that is, as between him and the other'parties to that adjustment, as well those entitled to contribution as those bound to contribute, this adjustment was conclusive.” 20 Pick. 413.
    An average must be stated upon the boat, cargo, and freight money. Parties, either as shippers or underwriters, from all sections of the country, indeed from many countries, •■may be interested in it. It must, therefore, be stated as of •the law of the port of destination or departure where the property is to be delivered; the former unless it be otherwise agreed. As usage is the foundation of the most of the law merchant, so it lies at the bottom of the law relating to general average. The customs of the sea were the foundation of the maritime law.
    And so the usage of merchants was the foundation of ■the law relating to bills of exchange. Story on Bills, sec. 11.
    And upon this very question a most learned judge, Sewall, in an early case, said: “Eor rules to govern in these inquiries, there is a more than ordinary reference to established usages; and these, when ascertained, are found to be suitable applications of general principles, or not inconsistent with them, or with the tenor of the contract to be explained ■and enforced, and are considered as authoritative upon the parties. A reference to usage is fairly implied in contracts of a commercial nature, and is to be presumed, indeed, in the construction of contracts generally, where the conclusion is not avoided by special circumstances or stipulations.” 7 Mass. 869.
    In the case of Simonds v. White, 2 Barn. & Cress. 811, the court (C. J. Abbott) say: “ There are, however, many variation s in the laws and usages of different nations as to the losses that are considered to fall within this principle. But in one point all agree, namely, the place at which the average shall be adjusted, which is the place of the ship’s destination, or delivery of the cargo. I believe, also, that all are agreed on another point, namely, that the master is not compellable to part with the possession of the goods, until the sum contributable in respect of them shall be either paid or secured to his satisfaction. . . . If, then, the average is to be adjusted at the place of destination, by what-law. •shall it be adjusted ?” 2 Barn. & Cress. 811.
    
      “ Then suppose, which will perhaps be the most usual case, that the goods belong to persons of different nations, the adjustment must be made either according to some one' law regulating the whole, or it must be in parts, according to as many different laws as there happened to be persons-of different nations concerned in the adventure. The latter mode would be attended with great confusion, perplexity, and inequality, even if it should be found practicable, which in many cases it would not be. In this case, also, the law of the country must prevail.” 2 Barn. & Cress. 812.
    
      W. M. Ramsey, for defendant in error.
    No brief or argument for the defendant in error was found' 'among the papers in the cause.
   West, J.

The issue raised by this record presents the-single question, whether expenses incurred for seamen’s» wages and subsistence are items of charge proper to be included in the adjustment of general average?

The court below held that the disaster to the Prima Donna raised a case for average contribution; to which holding, no exception was interposed, and hence, its propriety is not now a question before us. But in estimating the-amount of contribution to which the owners of the vessel were entitled, charges for seamen’s wages and subsistence were excluded, on the authority of Perry v. Ohio Ins. Co., 5 Ohio, 305; Gazzam v. Cincinnati Ins. Co., 6 Ohio, 71, and Webb v. Protection Ins. Co., 6 Ohio, 456. On exception to which exclusion, this cause is brought here.

These early decisions followed the rule then recognized, and probably still adhered to, by the English courts. But they are, as intimated by the learned judge who announced the opinion of the- Superior Court, at variance with the settled law on the subject in this country, and should be modified to harmonize therewith, and with the modern maritime usages of western navigators and underwriters.

We can not perceive why, on principle, expenses for seamen’s wages and subsistence, incurred pending an extraordinary peril should not be treated as extraordinary sacrifices. We therefore think the American doctrine, as laid down by elementary writers, and generally recognized in the adjudicated cases, maintains the better rule. Abbott on Shipping, 601; Barnard et al. v. Adams et al., 10 Howard, (U. S.) 807; The Star of Hope, 9 Wal. (U. S.) 236. In the case last cited, the court say, “ Whatever the injury to the ship may he, and whether it arose from the act of the master in voluntarily sacrificing part of it, or in voluntarily stranding the vessel, the wages and provisions of the master, officers, and crew from the time of putting away for the port of succor, and every expense necessarily incurred during the detention, for the benefit of all concerned, are general average.”

Regarding the early decisions of this court above cited as exceptional, they are s.o far modified as to bring the law of this state into harmony with the current of American authority.

The judgments of the Superior Court, at general and ¡special term, will be reversed, and the cause remanded for further proceedings.  