M'Bride v. Marine Insurance

| N.Y. Sup. Ct. | Feb 15, 1811

Per Curiam.

The wages of the crew during the detention of the ship by the embargo, and until they were discharged, were not covered by the policy upon the ship. They do not even go into a general average, btit fall exclusively upon the freight. This general rule has been often admitted. (1 Term Rep. 127. Buller, J. in 2 Term Rep. 414. 3 Caines’ Rep. 155. 4 Dallas, 246.) The foreign authorities on commercial law speak the same language. (Ord. de la Marine, lib. 3. tit. 7. art. 7. Pothier, Traité des Charte Partie, No. 85. Ricardo Négoce d’Amsterdam, p. 279.) But it is said, that, upon a valid abandonment, the subsequent freight belongs to the insurer upon the ship. This is undoubtedly the better opinion. It does not, however, follow, that the insurer is responsible for this charge upon his contract of insurance. If he accepts the abandonment, the subsequent wages will be, chargeable to him, as owner, and not as insurer. In- this case the defendants' would not accept of the abandonment, and the plaintiff might have sold the ship according to the decision in Waldens V. The Phoenix Insurance Company. (5 Johns. Rep. 310.) But if the plaintiff, instead of selling" the ship, or laying her up and discharging the crew, thought proper to continue the crew in service and under wages, he cannot make that expense a charge under the policy on the ship. In addition to the payment of a total loss, the insurer is answerable only for the necessary expenses incurred in labouring for the safety and recovery of the subject insured. His contract reaches to no other charge, and the detention of the crew was not requisite for that purpose. As the sovereign who lays the embargo, says Ricarda does not claim the ship or cargo, but only detains them, it cannot be said that the crew remain on board to prevent an entire loss. The crew, says Pothiery are maintained during the detention, at the exclusive expense of the owner; for he owes their services to the shipper for the voyage, and the price of their services is embraced by the freight.

The next charge made by the plaintiff was, the expense of unloading the cargo and the storage of it; but this item was properly abandoned by the counsel, as totally untenable. The authority of the books is expressly against it. (1 Emerig. 539.)

The last charge is, the expense of the sale and wharf-age of the ship. These are proper charges, and ought, in this case, to be deducted from the amount of the sale of the ship, and the defendants ought to be credited with the net amount of the sale, after deducting the actual expenses of the sale and the'wharfage. The expense of wharfage must have been necessarily incurred, in taking care of the vessel. It was requisite to her safe-keeping, and if any difficulty occurs, in the liquidation of these last charges, between the parties themselves, it must be referred to Mr. Ferrers to ascertain the amount, which, together with the costs of this motion, must be paid by the defendants. Judgment accordingly.