
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1804.
    De Pau v. Jones, and others.
    .If goods are damaged in consequence of the vessel’s striking on the bar on entering her port, without a pilot, the insurers will not be liable as for a general average; unless it appear, that the master waited a reasonable time for a pilot, or was justified by some impending danger, or urgent necessity, in adventuring over the bar without one.
    ‘Where by the terms of a policy on goods from Bordeaux to Charleston, fruit was excluded from average, unless general, held, that the insurers Were.not liable for a partial loss on dried prunes.
    
    Motion for a now trial. This was an action on a policy of insurance, and was fried before Buevakd, J. in Charle-ton. The circumstances of the case were these: Tiio insurance was on goods, shipped on board the American brig Wexford, at, and from Bordeaux, to Charleston, at the rate of 3 1-2 per cent. No insurance against loss under 5 per cent., unless general average. Salt, grain, coffee in bulk, indian meal, fruit, cheese, dry fish, vegetables, roots, and other articles that are perishable in their nature, warranted free from average, unless general. Sugar, hemp, &e. •free from average under 7 per cent., unless general.” The vessel met with bad weather, struck on the bar of Charleston, and became leaky; in consequence of which the goods insured were damaged. The goods consisted of corks, hair powder, and dried prunes.
    
    It appeared, from the protest of the master, &c. that the brig sailed from Bordeaux in January, 1802, and arrived at Charleston jn April. That she ran on the bar of Charleston in entering the port, without a pdot, the master being afraid of bad weather. That the provisions on board were nearly expended-; which, together with the apprehension of the master, that the vessel might be driven out to sea again, if an attempt were not made immediately to enter the harbour, induced him to venture in without a pilot, or waiting any time for one.
    The vessel was surveyed soon after she got into port. The pargo had sustained considerable damage, by reason of the vessel’s ¡striking upon the bar. Several bags of corks were found broken* .and the corks floating about: and upon opening some of the boxes of prunes, it appeared that they were considerably damaged by the gea water, which had got into the vessel in consequence of the in«jury «ho received in her passage over the bar.
    
      It was proved, that dried prunes are not, generally speaking, con. sidered perishable in their nature; and that on voyages of moderate length, they are not apt to spoil, or be damaged : but on long v°yages> they do sometimes spoil from the heat of the vessel.
    For the plaintiff, it was contended, 1. That he was intitled to a contribution to a general loss, by way of general, or gross average, for the damage sustained by the goods; as the necessity of the case justified the master in adventuring into the harbour, without waiting for a pilot to conduct the vessel over the bar, for the preservation of the vessel and cargo, and benefit of all concerned. 2. That prunes, being dried fruit, were not to be'considered within the intent and meaning of the policy, as excepted from average, or partial loss.
    These positions were controverted by the defendant’s counsel ; and the judge charged the jury in favor of the defendants, upon both points. 1, That the act of the master did not appear to be justified bv any urgent necessity, since the weather was not stated to be so stormy, as to occasion any well grounded fear of being driven back to sea immediately, nor the crew in any danger of starving; and by waiting a short time, he might have had a pilot to conduct him over the bar. That his act in venturing over the bar without a pilot, under the circumstances of the case, without deliberation, or consulting with the crew, which there was an op. portunity of doing, appeared to be rash and imprudent, and exposed the vessel and cargo to unnecessary peril; and therefore could not be considered as a sacrifice hazarded, under the pressure of necessity, for the preservation of the ship and cargo, which would intitle the plaintiff to general average. 2. That dried prunes must be considered in the generic term, “fruit,” and therefore, exempt from average loss, or partial loss. That by the terms of insurance, the underwriters were not bound to indemnify the owners for such partial loss of fruit, which should happen through damage received at sea, in the course of the voyage, from any of the perils mentioned in the policy : and therefore, that the plaintiff had no right to recover. But the jury found for the plaintiff.
    And now, on the motion for a new trial, it was argued by Che'Ves, and Pringle, for the defendants,
    l That dried prunes must be comprehended in the generic term, “fruit,” which is expressly exempt from partial loss; and that it would be against common sense, to hold the contrary. 2. That the plaintiff ought not to recover general average, because the damage sustained was not in consequence of any act done with a view to avoid a total loss., Tark. 123. 1 Mag. 64, 35. Beawes, 148, That genera), op 
      gross average, signifies a contribution to a general loss. Park. 121. 3 Bur. 1535. That whatever the master of a ship in distress, with the advice of his officers, and sailors, deliberately does, for the p re■servatif>n of the whole, to lighten his vessel, which is what is meant by jettison, or jetson, where goods are thrown overboard to lighten the ship, (navis levandi causa,) for the safety of all, is m all places allowed to be brought into general, or gross average : in which all who are concerned in ship, freight, and cargo, are to bear a proportional part of the loss, of what was so sacrificed for the conimon welfare; and must be made good by the insurers, in such proportions as they have underwritten. 1 Mag. 35, Park. 122. Abb. 275. That if the ship ride out the storm, and arrive in safety at the destined port, the captain must make regular protests, and must swear jointly with some of his crew, that the goods were cast into the sea for no other cause, but the safety of the ship, and the rest of the'cargo. Beawes, 148. Park. 121. 1 Mag. 55. Burn, 171. But in the present case, there was no such sacrifice made, for any such cause, as could intitle the plaintiff to general average. 3. That a particular, or partial loss, or average loss, implies ex vi terminis, a damage the ship may sustain in the course of her voyage, from any of the perils mentioned in the policy; and when applied to the cargo, it also means the damage which the goods may receive, without any fault of the master, by storm, capture, shipwreck, or stranding. 4 Bür. 1966. 2 Bur. 1172, Park,'53. Burn, 151. Park, 99. That some goods, being of a perishable nature, the un« derwriters, by express words inserted in their policy, declare they will not be answerable for partial loss happening to them; as in the pro. sent case, fish, fruit, &c. unless it arise by way of general average, by the ship being stranded. Burn, 168. 8 Bur. 1555. Park, 111, 112. Corn,.is a general term, and includes many particulars, as peas,- beans, and malt. 3 Bur. 1550. But salt does not include salt petre. Ib. That in this case, fruit must include prunes, because prunes are fruit, and their beiug dry, makes no difference; for fish, includes salt fish.
    On the contrary, it was argued by W. Drayton, for the plain* tiff,
    that upon a close and critical examination of the policy throughout, it would appear that dried fruit was not meant to be comprehended in the generic term, “fruitbut only unmanufactured fruit was meant. If manufactured fruit, or dried fruit, had been meant, it is to be presumed it would have been expressed, because “ dry fish” is expressly mentioned, and n< t left to be implied by the general term, “fish.” And according to the mercantile meaning. and legal sense of tha word fruit, in a policy, dried, or preserved fruit, is never intended. Salt, does not include salt petre, because' manufactured and prepared differently. Park, 112, 122. 1 Marsh, 139. 2 Id. 402. That the plaintiff was intitled to general average, although no goods were thrown overboard into the sea, in order to lighten the vessel, for the preservation thereof, and of the car. go, if the damage which was sustained was a sacrifice made to-avoid a total loss, which was the case. The present was compared to the case of Da Costa v. Newnham, 2 T. It. 407, where a ship was obliged to put into port, for the benefit of the whole concern, and charges were incurred for taking care of the cargo, and even provisions for the workmen employed in repairing the ship; and these charges were deemed general average. So in Birkley, and others, V. Presgrave, 1 East, 220, where a loss was incurred by sacrificing the tackle belonging to a ship, for an unusual purpose, and on m extraordinary occasion of danger, for the benefit of the whole con. Gem, the ship owner was allowed to recover his proportion of ge. neral average. All those articles which are made use of by the master and crew, upon the particular emergency, and out ot the usual course, for the benefit of the whole concent, must be paid as general average; and all other extraordinary sacrifices made for the preservation of the ship and cargo, upon a principle of natural justice. The only question to be considered is, whether the da. mage sustained, was a sacrifice made for the benefit of all concerned in the vessel and cargo, and whether the sacrifice was justified by the emergency of the occasion. Aud he insisted that it was ; and that the rule of consulting the crew, upon the expediency of such sacrifices, is rather founded in prudence, in order to avoid dispute, than in necessity. I East, 228.
   The court

were of opinion, first, that from the evidence given at. the trial, it did not appear that the captain was justifiable in adven, luring over the bar, without waiting a reasonable time for a pilot, by reason of any impending danger, or urgent necessity ; and there, fore, that the plaintiff was not intitled to a contribution to a general loss. Secondly, that it could not be fairly presumed, from the words of the policy, and the circumstances of the case, that dried prunes were not intended to be included in the general term, fruit; for what other kind of fruit, than dried fruit, could be meant to he brought from Bordeaux to Charleston 1

Motion for a new trial granted.

Present, Grime,'Wawes, Xs.EZgYABT, and Brevard, Justices.  