This is a motion to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action. This action is brought against underwriters to recover the plaintiff shipowner’s share or contribution toward expenditures in general average. The policies of insurance are written upon plaintiff’s schooner “ at and from Newport News, Va.”
The complaint alleges that the schooner sailed from New York for Newport News. Before the vessel dropped anchor off the coal pier at Newport News she had stopped at Lambert’s Point, .Hampton Roads, where a coal hoister,. which had been drawn *576alongside to discharge ballast, was caused by a storm to hit the schooner, and as was afterward discovered, loosened some of her planking. The fact was not known at the time, and after the vessel had taken on her cargo the defect was discovered while the vessel was in the stream, whereupon her master decided for the safety of all concerned to discharge the cargo and have the vessel placed in dry dock where the defect was repaired. A general average statement was prepared in the usual way covering the disbursements attendant on the dry docking, repair, etc.
Defendants’ first contention is that at the time the damage was sustained the vessel had not arrived at Newport News, and it is urged in substance that the court may take judicial notice of the fact that Lambert’s Point is not a part of Newport News in the maritime sense. I agree with the plaintiff in this respect, that at best this is a question of fact which cannot be decided upon the pleadings.
The defendants urge further that, if the risk be regarded as having attached, there is no such extraordinary circumstance shown as would warrant the application of general average; and, second, that the expenses were not incurred for the benefit of the entire venture. More or less these two claims depend upon the. proposition that, since the shipowner warrants the seaworthiness of the vessel, damage resulting from the breach of that warranty cannot be made the basis of general average. If, however, the facts stated in the complaint be interpreted as indicating that the policy had not attached at the time the vessel was injured, and that she was, therefore, in fact unseaworthy when she actually made fast to the pier at Newport News, I am inclined to agree with plaintiff’s contentions, first, that the application of general average depends not upon the date of the injury but the date of the “ sacrificial act,” in this case the dry docking of the ship (Norwich & N. Y. Transp. Co. v. Insurance Co. of North America, [D. C.] 118 Fed. 307-309. See, also, Willcox, Peck & Hughes v. American Smelting & Refining Co., [D. C.] 210 Fed. 89, and Fowler v. Rathbones, 12 Wall. 102); and, second, that so far as defendant relies on the unseaworthiness as arising from plaintiff’s fault or negligence the “ Jason ” clause protects the plaintiff, “ if the defect or unseaworthiness was not discoverable by the exercise of due diligence.” (The Jason, 225 U. S. 32.) This in turn suggests issues of fact that must be tried.
Motion denied. Orders signed.