Swan v. Chandler

Barnard, B. J.:

The plaintiff obtained no additional right by the execution of the bond. That hond was given to pay the claim, if valid, upon the principle of general average. The facts do not show any valid claim upon the bond beyond eight dollars. The defendants had lumber on board plaintiffs’ vessel as freight. The vessel was disabled by collision in Block Island sound, but no unusual expense was incurred until the vessel drifted to a point near New London, when she engaged assistance from a tug, and went into New London harbor. The charge and the papers evidencing the disaster cost eight dollars. Then the vessel had three remedies: It could claim freight pro tanto ; it could repair and finish the journey to the point of delivery; it could engage other transportation to earn the freight. "When the disability of the ship is inevitable or accidental, without fault of the owners or master, freight is due if the master will either mend the ship or freight another, but if the merchant will not agree *194to that, then freight is due for so much as tbe ship has earned. (Parker’s Law of Skipping, 404.)

The cost of tbe repairs made upon tbe skip is not subject to genera] average, unless suck repair was necessary for tbe preservation of tbe property. This cannot be claimed. Tbe vessel and cargo were safe in New London barbor, and were there subject to no peril. It was a safe port of refugd. Conceding that tbe master could carry tbe cargo to New York, the port of delivery, in tbe vessel, that would only excuse time for reasonable delay in making repairs. In no event could the vessel hire towing from tbe port of refuge to tbe port of delivery and claim tbe cost to be subject to average. Tbe vessel could do so to earn tbe freight, but could not charge an additional sum to the freight as if it bad been incurred in a common danger to ship and cargo, and tbe damage was necessary to tbe preservation of either, in whole or in part. There is, therefore, nothing which was paid out after tbe vessel left New London which, is subject to the maritime principle of average.

The judgment should therefore be reversed, and a new trial granted, costs to abide event.

Pratt, J., concurred.

Judgment reversed and new trial granted, costs to abide event.