Ferguson v. . Fitt , 2 N.C. 239 ( 1795 )

When a vessel is in danger of being lost, and part of the goods on board are cast overboard to save the rest, and the vessel afterwards comes safe into port, the goods that are saved shall be subject to average; but if the vessel should not come safely into port, then average shall not take place, for the only reason of average is because the goods preserved (240) were saved by the loss of the property thrown overboard; and then it is reasonable that the owners of the saved goods should make a just compensation to the owners of the goods thrown overboard. But this does not take place where the casting of goods into the sea is not the cause of the salvation of the goods preserved; and they relied upon Beawes. With respect to the wages, sailors lose them where the vessel is lost, from the time of their sailing from the last port of delivery. This rule is founded in policy, to make sailors careful of the vessel, and alert in the preservation of it when in danger. They relied upon 3 Bac. Abr., 593, Comm.verbo Navigation; 3 Burr., 1485; Doug., 539. But the master is not subject to this rule; there is no case which says he is. He must, therefore, have judgment. As to the act of limitations, the words used in these letters will take the case out of it.

Judgment for the plaintiff.

See Ferguson v. Taylor, and the note thereto, ante 20, for the acknowledgment requisite to take a case out of the statute of limitations.

Cited: Wells v. Hill, 118 N.C. 908.