delivered the opinion of the court.
This action is brought on a policy of insurance, executed by the defendants on the steam-boat Fair Star, .her engine, tackle, &c., for the sum of five thousand dollars, the one fourth of her value. The petition charges the loss of ten thousand dollars by the bursting of the boilers, caused by the winds, waves and other perils insured against; and alleges that .an abandonment was made to the company, who by reason thereof, have become liable to pay the sum of five thousand dollars, with interest and costs. .
The petition further alleges that the boat, engine, tackle and materials, have sustained an average loss and damage to the amount of ten thousand dollars, in consequence of the perils insured against, and it concludes by a prayer for the condemnation of the defendants in the sum of five thousand dollars, with interest and costs, or their proportion of such average loss and damages as the petitioners have sustained.
The general issue was pleaded, and the cause submitted to a jury, who found a verdict in favor of,the plaintiffs-for the sum of one thousand six hundred and forty-five dollars and forty cents, with interest from judicial demand. This verdict *10_was set aside on application of tbe defendants, and a new trial granted. The jury who passed on it the second time, gave a verdict in favor of the petitioners for the sum of one thousand five hundred and fifty dollars, with interest. On this finding, the court below rendered judgment for the sum just stated, with interest from judicial demand. The defendants made an unsuccessful attempt to obtain a new trial, and appealed.
There are two bills of exception, which present the questions of law on which the case has been litigated. One is, to a refusal of the court below to charge the jury that the insurers were not liable for losses occasioned by the negligence or mismanagement of the insured or their agents, unless so expressed in the policy.
' A great deal of research has been exhibited by the counsel on both sides, in the discussion of this question, tyut we do not find it necessary to express an opinion on it. The evidence is spread on the record, and we are unable to discover any thing in it which authorizes an allegation of this icind, or which could have required the application of the doctrine on which the appellants rely. It would be improper, therefore, to remand the cause to obtain the opinion of the judge a quo on an abstract question, not necessary to the decision of the case.
The other bill of exception is in the following words : “ At the trial of this cause, the counsel for the defendants moved the court to charge the jury that tbe wages and provisions paid and consumed during a delay to repair, or after the accident in case she does not repair, -were not chargeable to the insurers, under a partial loss on the hull and materials of a vessel; and the court refusing so to charge them, the defendants tendered their bill of exception,” &c.
We will first examine the question, whether the insurers are responsible for the wages and provisions of the crew during the time the vessel remains in an intermediate port for repair, and then see whether there was error in the judge’s not giving the particular charge called for; and if there was, what should be the effect of it.
The expenses of the crew of a vessel, for their wages and provisions, during her detention at an intermediate port, to refit or repair injuries sustained on the voyage, from the time of her putting* away for the port, and every other expense necessarily incurred during the detention, for the benefit of all concerned, are subjects of general average.According- to the principles adopted in the English courts, the expenses of the crew for their wages and provisions during the detention, of the vessel to refit, are not subjects of general average; and the non-liability of the insurers -to reimburse them, seems well established in that country, notwithstanding some doubts expressed by writers on this branch of maritime law.
In one case, which came before the court of king’s bench, the reasoning of the chief justice would seem to show the propriety of admitting them as a charge against the insurers, for he is reported to have said, “ if the return to port was necessary to the general safety of the whole concern, it seems that the expenses unavoidably incurred by such necessity, may be considered as the subject of general average.” Subsequent decisions, however, have not carried, out the doctrine to the extent contended for in this case by the appellees. Parke on Insurance, 174. 2 Condy’s Marshall, 720. Hughes on Insurance, 290, 292. Beames, 166. Benecke on Indemnity, 462. Abbott on Shipping, (ed. 1829,) 349. 3 Maule & Selwyn, 482. 4 Ibid., 141. 2 Barn. & Cres., 805.
In France, such charges were reputed general average if the vessel was hired by the month;- but if hired by the voyage, the expense was borne alone by the ship, as a particular average. Valin vehemently contested the justice of such a distinction, and the commission charged with the preparation of the late code of commerce of that country, abolished it by the work which they drew up for legislative adoption. On the representations, however, made by the tribunal of commerce of Havre, it was established, and is now the law of that portion of the continent of Europe. Emeregon, vol. 1, 539 and 625. Pothier, Traité du Chartre Partie, No. 85. Boulay-Paty, vol. 4, 452 and 454.
The Law Merchant of the United States is contrary to that of England, on this point, and does not recognize the distinction of the French jurisprudence. , With us, it appears well settled that the wages and provisions of the crew, from the time of putting away for the port, and every other expense necessarily incurred during the detention for the *12benefit of all concerned, are subiects of general average. . - . . _ ? lhe reasoning of justice Sewell, m delivering the opinion of Supreme Court of Massachusetts, appears to us to express with clearness and correctness the grounds on which such a rule has been established. “A liberal construction,” says he, “in this respect, appears conducive to the interest of the insurers in-the benefit they derive from every reasonable precaution against impending and extraordinary risks, such as the continuing at sea with a vessel disabled in her sails and rigging. By rendering all concerned liable in a general contribution to defray the extraordinary expenses of seeking a port, and of the detention there to refit, the hazard of opposing interests is avoided, and a security common to all concerned is purchased, as it ought to be, at their common risk and expense.” Phillips on Insurance, 348. 4 Massachusetts Reports, 548. 7 Ibid., 365. 3 Kent’s Commentaries, 250. 4 Dallas, 246. 2 Binney, 547. 2 Washington’s Circuit Court Reports, 226. 2 Connecticut Reports, 239.
In an action against tiie in-supers, in which the assured claim mount ^insured" or such proportion of the average loss as they they mayprove and recover a ■ The insured may sue the derwntors direetiy, without ing "settled by ject to'the contribution as on a especiallye,v\d?en elie6to "contribute in settling the average but property for ere^are1 already liable.Having thus ascertained the liability of the defendants for the wages and provisions of tbe crew, during the period the , , , , , . ... steam-boat was detained at Biloxi, our next inquiry is wh®1!161' the plaintiffs can recover them in the present action, The petitioners demand judgment against them for five , , 1 ,, . , i . , . thousand dollars, the whole amount insured, or their propor7 ^011 such average l°ss and damage as the plaintiffs might have sustained; which average loss,, however, they aver amounts to five thousand dollars. Under these allegations, thilik the plaintiffs could properly prove a general r r r J r . ° average. We are not aware what other objection could be made to the action, except that of the amount not being set^ec^ by parties subject to the contribution, before recourse was had on the insurers.
But, although the decisions are somewhat contradictory 011 ^'s P°inb we apprehend that the insured may do so, in a case like that before the court, where it is not shown there , . 1 ... . . was any thing else to contribute in settling the average, but property for which the defendants are responsible. 7 Johnson, 412. Phillips on Insurance, 353. 4 Binney, 502. 1 Caines, 196.
Where theer-ror is m the amount of the th^er'dietf and ga*” preme ’ Court wi&ou^setting theverdietasideUnder this view of the case, we cannot see what object, .useful to the defendants, could have been ’ obtained by claiming the instructions from the judge a quo, that the defendants were not responsible on a partial loss. Admitting they are not, if they were so on a general average, it is immaterial how the judge charged the jury on this point in relation to what his opinion was requested.
'There remains for our consideration the amount found by . . the jury. On questions of fact, we rarely interfere with the decision of the country. If we do so on this occasion, it is because taking every loss proved at the highest rate established by the evidence, the verdict is for too large a sum. The error, therefore, being one of calculation, it behooves us to correct it. Taking the estimate of the engineers at seven thousand dollars, and deducting from it one third of the difference between new materials and old, we have four thousand six hundred and sixty-six dollars. To this must be added the amount of expenses (deducting the charge for attendance on the boat after her arrival in New-Orleans four hundred and twenty-seven dollars and fifty cents, leaves one thousand one hundred and eighty-three dollars and seventy-three cents,) which added to four thousand six hundred and sixty-six dollars, gives five thousand eight hundred and forty-nine dollars and seventy-three cents. From this must be deducted one fourth of the value of the old materials, fifty dollars, and we have five thousand six hundred and forty-nine dollars and seventy-three cents, of which the defendants are responsible for one fourth, that is, one thousand four hundred and forty-nine dollars and ninety-six cents; from which twOper cent, is to de deducted according to a clause in the policy, and the balance will be one thousand four hundred and twenty dollars and ninety-eight cents, for which the plaintiffs are entiiled to judgment.
It is, therefore, ordered, adjudged and ,decreed,' that the judgment of the District Court be annulled, avoided and reversed, and the verdict set aside; and it is further ordered, adjudged and decreed, that the plaintiffs do recover from the *14defendants the sum of one thousand four hundred and twenty dollars and ninety-eight cents, with costs in the court of the first instance ; those of the appeal to be borne by the appellees.