Barker v. Baltimore & Ohio Railroad ( 1871 )

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.