#### John Brooks *versus*The Oriental Insurance Company.

In the case of a valued policy upon a ship, by which the underwriter is not to be Iia ble for a particular average unless it shall amount to five per cent, the percentage is to be reckoned upon the valuation after deducting the premium.

Where the vessel sustained a damage in a gale, and several months afterward another damage by running foul of another vessel, it was *held*that these two distinct losses could not be joined together to make up the five per cent.

Where a vessel insured, having lost her boat and camboose and had her mainsail damaged in a gale, repaired the sail at sea with duck taken from the cargo, and purchased an old boat and camboose at a port of necessity, and, upon her arrival at home, sold the sail, boat and camboose, and procured new ones, it was *held,*that the loss was particular average ; but other repairs made abroad from strict necessity to enable the vessel to return, and which were of no value after her return were held to come under geneial average.

Where the master, in the exercise of his discretion and acting in good faith, makes in a foreign port only temporary repairs of an injury covered by the policy, and permanent repairs are made at home at the end of the voyage, the underwriter is liable for both repairs.

In the case of a partial loss on a ship, in making the deduction of one third new for old from the expenses of repairs, the value of the old materials is to be first deducted from the gross expenses, and then one third is to be deducted from the balance.

The deduction of one third new for old is to be made in the case of a new iron strap for a dead-eye.

*265The underwriter was held not to be liable for a hawser lost overboard, which was stowed in the boat on deck.

The assured is not entitled to charge a commission on the repairs made at home : nor for the expense of a survey made at home.

This was an action on a policy of insurance by which the defendants assured 2800 dollars on the plaintiff’s schooner Tryon and appurtenances, at and from Salem to port or ports on the globe, one or more times, the risk to continue twelve months from the 23d of August, 1825, and if the vessel should be on a passage at the expiration of that time, then until her arrival at her then port of destination, for a premium at the rate of four per cent per annum. In case of loss, the assured was to abate one per cent. The assurer was not to be liable for any partial loss, unless it should amount to five per cent, but the assured was to recover on a general average. The vessel was valued in the policy at 3000 dollars.

By the report of auditors appointed by the Court it appeared, that the schooner, on her outward voyage from Boston to Brazil, on the 22d of September, 1825, experienced a heavy gale of wind, and was thrown on her beam ends. All her movables on deck, including the longboat, the camboose, and a hawser, which was stowed in the boat, were lost. The iron strap of one of the dead-eyes in the fore rigging, and some of the pannel work in the cabin, were broken. The mainsail was badly torn, so that the use of it was lost for four or five days, which were consumed in repairing it. In order to repair the injury done to the mainsail, it became necessary to take from the cargo, at sea, two bolts of duck and some twine ; and with these the mainsail was repaired as well as the crew could do it in so small a vessel, but it was not thoroughly repaired. In consequence of this disaster the schooner put into St. Jago, Cape de Verds, where she was detained three days in getting supplies and making partial repairs. The master bought a boat at St. Jago, which was old, leaky and worm-eaten, and had some of its timbers badly broken ; also a camboose, which was old, much broken and out of order; but this boat and camboose were the best that could be procured there. That place, it appeared, is not a suitable one for repairing vessels.

From St. Jago the schooner proceeded on her voyage to *266Bahia, where the master purchased an iron strap for a dead-e7e- Workmen and materials for repairing t essels may ordinarily be procured at Bahia, and generally a vessel injured as the Tryon was, might be sufficiently repaired and supplied there ; but at an expense exceeding, by at least one third, the expense of making such repairs and procuring such supplies at Salem. ■ It was testified, that at the time when the schooner was at Bahia, the master tried, but was unable, to get a carpenter to make repairs.

From Bahia the schooner proceeded on her voyage to Havana. Off Havana, in February, 1826, she experienced two or three pretty heavy gales, in one of which the forestay parted in the wake of the bowsprit under the leather.

At Havana, the schooner’s cargo was landed, and a cargo of sugar and coffee taken in ; and she proceeded to New Orleans. Labor and materials necessary for repairing the damages previously sustained and for replacing the articles lost from on hoard, might have been procured at New Orleans, but at an expense greatly exceeding the expense of such repairs and supplies in the ports of Massachusetts.

The cargo of the schooner was discharged at New Orleans, and another taken in, and she was towed down the river by a steam-boat. At the Balize, on the 5th or 6th of April, 1826, she took on board a pilot to carry her over the bars. The weather becoming foggy, she struck against another vessel and carried away all the stanchions, rail and bulwarks from the starboard cathead to the main rigging, together with the starboard fore channel, parted the forward shroud and lanyard of the middle one, and broke the bolt of the after chain plate, damaged the stock of the starboard anchor, destroyed the camboose house, and tore up about seven feet of the plank-shear and water-ways on the starboard bow. The schooner was then towed back to the Balize, where carpenters were procured and the injuries partially repaired. It was in evidence, that the Balize is a small place inhabited principally by pilots, some of whom are carpenters, and that extensive repairs upon vessels cannot be made nor supplies for them be obtained there, for want of a suitable situation and the requisite materials.

From the Balize the schooner proceeded to Havana, where *267she arrived on the 19th of April, 1826. At this place the master had partial repairs made upon her ; and here he purchased a new hawser. A thorough repair of the schooner might have been made at Havana, and a proper camboose, boat, mainsail and other articles similar to those which had been lost or damaged by the previous disasters of the schooner, might have been procured there, but only at a great expense : so great, that masters of vessels do not repair them at Havana, when they can possibly avoid it. The schooner was so far repaired as to enable her to perform the passage from Havana to New York, to which place she proceeded, but was not in so good repair as' vessels are usually put before going to sea, and as owners and masters would generally put them in, even if in so doing they should be obliged to incur unusual expense.

From New York the schooner proceeded to Salem. On her arrival, the plaintiff appointed two suitable persons to make a survey of the vessel, and to report what repairs were necessary in consequence of the injuries sustained on her voyage , and the surveyors made a report, stating the condition of the schooner, what injuries had been temporarily repaired and ought to be repaired again in a proper manner, and what other repairs should be made, and what articles lost or damaged ought to be replaced by new ones.

The plaintiff made repairs at Salem, and the items of expenditure were usual and reasonable charges for the materials found and services performed. He sold the old mainsail, boat and camboose, and procured new ones. He also procured a new stay. Among the items of charge against the defendants, was one for the survey, and another for commissions on the amount of the repairs made at Salem.

In a statement of the losses the auditors did not include the sum paid by the master for the hawser, nor the cost of the new stay. -

The schooner was about five months old when she sailed on her voyage from Boston for Brazil. She had performed only one voyage before.

The following are abstracts of the auditors’ statement of the losses.

*268Particular and general average loss in September gale m 1825.

*269*Nov 6th*

Particular and general average loss at Balize in 1826.

Choate, for the defendants,

contended that there was not a partial loss amounting to five per cent.

The five per cent is to be calculated upon 3000 dollars, the valuation in the policy, and not upon the balance after deducting the premium. The premium is to be considered as so much money expended upon the vessel. The parties have fixed on 3000 dollars as the value of the vessel for all the purposes of the policy. *Center*v. *Am. Ins. Co. 7*Cowen, 564 ; 1 Phillips on Ins. 314, 321, 402 ; Benecke, 119, 157 ; Ste*270vens on Av. 168. Possibly in making up a general average, the premium may be deducted. Phillips, 358.

successive losses cannot be joined, in order to make up the five per cent; neither can a general average be added to a particular average to produce that result. Padel*ford*v. Boardman, 4 Mass. R. 548 ; 1 Phillips, 493, 494 ; Stevens, 214 ; Benecke, 473.

The charges relating to the mainsail ought not to be allowed. The damaged sail might have been thoroughly repaired at sea, and as it was not injured to the amount of fifty per cent, it ought to have been so repaired. The defendants were entitled to the benefit of the labor of the crew. *Sage*v. *Middletown Ins. Co.*1 Connect. R. 243. At any rate, after electing to repair, and after the old sail has served during the whole voyage, the defendants should not be charged with the cost of a new sail, in addition to the expense of repairing the old one. The auditors have included the repairs of the old sail in the general average, and so far as they were necessary to enable the vessel to proceed to St. Jago, that was proper ; but so far as they were made for the general purposes of the voyage, they constituted partial loss. *Plummer*v. Wildman, 3 Maule & Salw. 482. If the assured intended to claim for a new sail, he should have procured one at St. Jago ; for the defendants were entitled to the value of the old one, and the effect of waiting till the vessel arrived at Salem, is to charge the defendants for the wear and tear of it during the whole voyage.

In regard to the boat and camboose, the defendants are chargeable for those only which were purchased at St. Jago. They were seaworthy, and answered the purposes of the voyage ; and if they were not so good as the former ones, the difference in value should be added to their cost. Or if the assured intended to purchase new ones, he should have done it, if possible, at the next port at which the vessel arrived after leaving St. Jago, when the others were of more value than at the end of the voyage. But if the defendants are chargeable for the new boat and camboose procured at Salem, they are chargeable for these only.

With respect to the damage done at the Bahze, repairs are *271made, first at the Balize, then at Havana, and upon the vessel’s arrival at Salem the whole work is done over. The defendants are liable only for the repairs at the Balize and at Havana. If the repairs at those places were not thorough, they were as much so as the plaintiff’s agent required. At least some deduction should be made for the cost of undoing those repairs.

The deduction of one third new for old should be made from the cost of the iron strap for the dead-eye. Phillips, 371 ; *Byrnes*v. *National Ins. Co.*1 Cowen, 265.

Commissions on the repairs made at Salem ought not to be allowed. *Sage*v. *Middletown Ins. Co.*1 Connect. R. 242.

The charge for the survey at Salem is improperly included m the general average. Phillips on Ins. 497.

*Saltonstall,*for the plaintiff,

to show that, under the circumstances of the case, the master was not obliged to make permanent repairs abroad, and that as he acted in good faith, the defendants were liable for the temporary repairs, cited *Peters*v. *Phœnix Ins. Co.*3 Serg. & Rawle, 25 ; 1 Phillips on Ins. 472 ; *Milles*v. Fletcher, 1 Doug. 231 ; *Dickey*v. *New York Ins. Co. 4*Cowen, 247.

The repairs at the Balize and at Havana are properly charged to the underwriters, and as a partial loss. The plaintiff had a right to repair either abroad or at home; but if he was bound to repair abroad, the measure of the loss is the amount of the expenses which would have been reasonably incurred in making the repairs abroad ; and from the testimony in the case, such expenses in regard to either of the disasters would probably have exceeded five per cent on the value of the schooner.

The opinion of the Court was afterward delivered by

Putnam J.

This case is as unimportant in regard to the amount of property involved in it, as it is important and fruitful in legal questions. The main question is, whether the particular average loss amounts to five per cent, within the meaning of the policy.

The questions which the counsel have raised are :

1. Whether the percentage shall be calculated upon the *272nominal valuation in the policy, or upon that valuation after deducting the premium.

2. Are distinct successive losses to be added together to make up the five per cent.

3. Were the temporary repairs and supplies which were made abroad, chargeable to the account of the general average, as the defendants contend, or to the account of particular average, as the plaintiff contends.

4. Whether the deduction of one third new for old, shall be made from the gross amount of the expenses of the repairs, or from the balance remaining after the sum obtained by the sale of the old materials has been deducted from the gross amount.

5. Whether the defendants are chargeable for the loss of the hawser which was swept off the deck in» the boat, or for the new stay, or for the charge of commissions upon the renairs at home, or for the survey which was had at home.

In regard to the first question raised, we believe the custom is not uniform, but that the prevailing usage is, to deduct the premium from the valuation, and to calculate the percentage upon the balance.1 And we adopt that rule. It applies only to the adjustment of particular, and not ,o- general average losses : for in the latter, the ship, cargo and freight are to contribute respectively, according to the actual value of each, and the owner of one of these subjects of contribution, is not bound by the agreement which the owner of another of them may have made with the insurer.

. And we are of opinion, as to the second question, that distinct and successive losses are not to be added together, in order to make up the five per cent; but that the damage from disasters happening at one time, or in one continued gale or storm, is to be considered by itself. If this were otherwise, the insurers would be called upon to pay for a great many trifling losses which should be borne by the assured as coming within the common wear and tear of the ship. It was to prevent such claims, that the clause in the- policy now under consideration was introduced. This is according-to the English prac*273tice. Stev. on At. 214. But it may be otherwise in regard to the cargo, because the actual damage received at different times cannot be ascertained during the passage, or when it happens, but only when the cargo is unladed. 1 Phillips on Ins. 493, 494. 2

As to the third question, it is contended for the defendants, that the temporary repairs should be charged to general average ; and we are referred to *Plummer*v. Wildman, 3 Maule & Selw. 482 ; which in several particulars resembled the case at bar. The ship had been run foul of, and so much damaged as to make it necessary to return to her port to repair, to enable her to perform the voyage, and she was afterwards completely repaired at the end of the voyage. The expenses of repairs, which were made abroad, which were strictly necessary to enable the ship to perform her voyage, were placed to the account of general average. *Bayley*J. doubted whether the repair of a particular damage could be placed to the account of general average, inasmuch as it is a benefit done to the ship.

The Court considered those repairs only under the account of general average, which were absolutely necessary for the enabling of the ship to pursue her voyage ; and all beyond were to be set down to the account of the ship. “ Therefore deducting the benefit, if there be any, which still results to the ship from the repair, the rest may be placed to the account of general average.”

The case at bar furnishes an illustration' of the doctrine adopted in *Plummer*v. *Wildman ;*for the expenses of the supplies and repairs of the damage in the September gale, were of some benefit to the ship. The old boat, camboose, and mainsail, were sold at Salem for the account of the owner.

The expenses attending that disaster, are therefore to be placed to the account of the particular average. But the expenses of the repairs at the Balize seem, from the evidence detailed by the auditors, to have been of strict necessity, and were of no value to the ship after her return to Salem. They amount to 104 dollars 57 cents, and should be charged to the general average.

*274It is objected, however, that the vessel might have been completely repaired abroad ; and the fact is proved ; but the expenses would very greatly have exceeded the complete repairs at Salem. We think the master had a right to ex ercise a sound discretion upon that matter, and that the defendants are liable for the expenses of the temporary repairs of the damage in the September gale, which are to be added to the complete repairs at Salem : which sums together are to be considered the expenses of repairing the damage sustained in that gale.1

We are next to consider, whether the allowance of one third new for old shall be deducted from the gross amount of the expenses for the repairs, or from the balance remaining after the sums obtained for the old boat, camboose and main sail, have been deducted.

This point has not been judicially settled in this State. Mr. *Phillips (vol.*1, *p.*371) considers the old materials to belong to the insurer, and that the amount of the sale of them shall be allowed towards the sum which he is liable to pay for the loss ; and that the deduction of one third new for old shall be made from the gross amount of the expenses for repairs On the contrary, in New York the one third is not deducted from the gross amount, but from the balance after the old materials have been applied towards the repairs ; and the old materials are considered as belonging to the assured. And this rule appears to us to be the best. We do not see how the property in the old materials has changed and become the property of the insurer. There has not been any abandonment of the old materials. If the owner should do the work and apply the old materials towards it, we think that the amount of the expenses after such application should be the cost of the repairs, and the sum from which one thir new for old should be deducted. *Byrnes*v. *National Ins. Co.*1 Cowen, 265.1

In the case at bar, the cost of the temporary repairs is to be added to the cost of the complete repairs at Salem ; from *275which the sum obtained for the old boat &c. is to be deducted and then the deduction of one third new for old is to be made. It may be true, that some of the articles supplied were no better than those lost, — iron strap for dead-eye, for example, — but we do not know any thing excepted from the rule of one third new for old, but an anchor.2 Perhaps it may be true that an old anchor which has been proved, is "better than a new one.

And as to the items referred to in the 5th place, we think the auditors properly excluded the cost of a new hawser from the plaintiff’s claim. It is a matter of common information, that it should have been stowed in the hold with the cables on the passage, and not in the boat on deck. The -ssured is not to recover for a loss occasioned by his own íegligence or that of his servants. Roccus Mar. Law (on Insurance), note 22.

So the claim for a new stay was properly disallowed. It parted in the wake of the bowsprit several months after the September gale, and was the only injury which was sustained when it parted.

And we do not think that the plaintiff is entitled to charge a commission upon the expenses of repairs *at home.*So the Supreme Court of Errors in Connecticut have determined. *Sage*v. *The Middletown Ins. Co.*1 Connect. R. 242. “ He might (say they) with equal propriety charge in all cases on the gross sum paid by him to his agent, including his commission on the commission paid to the agent.” *Anon*ymous, 1 Johns. R. 312, S. *P.*The charge by a merchant or factor abroad, of commission upon his disbursements, stands upon different ground and makes a part of the necessary expenses for which the insurer is liable.

And we do not think the charge of the survey at Salem should be added to make up the five per cent. That is the rule according to the ordinance of Hamburgh. 1 Phillips, 497. Whether or no five per cent loss has happened at one time during the voyage, is a question which cannot be affected by the mode adopted to prove it. It cannot be considered as part of the loss.

*276The opinion which we have formed rests on the basis, that ^le captain has conducted himself with good faith in the exercise of his discretion, in making the temporary repairs abroad and the permanent ones at home. And considering all the circumstances, we think he judged wisely. The old boat and camboose, poor as they were, were the only ones which could be procured at the port of necessity ; and the main sail, though repaired on board as well as the people could do it, was not put in as good a condition as when the sail was split. And as to the complaint, that the defendants are to be liable for doing the work over and over again, at the Balize, at the Havana, and at Salem, the answer is, that the captain, acting in good faith, has thought it necessary so to conduct the business.

We have not made any calculation to ascertain what the result will be. The parties are to make it upon the principles we have declared, and if they cannot agree, we shall refer the case to the auditors to make the computation ; and the judgment will be rendered accordingly.

1

 See 2 Phillips on Ins. 213, 346.

2

 See *Donnell*v. *Columbian Ins Co.*Sumner, 375 *et*seq.

1

 See 2 Phillips on Ins. 233, *et seq.,*263.

1

 See *Dickey*v. *New York Ins. Co.*4 Cowen, 222; *American Ins. Co.*v *Center,*4 Wendell, 45; Amer. Jurist, *vol.*5, *pp.*252, 262; *vol.*6, *p.*45.

2

*Eager*v. *Atlas Ins. Co.*14 Pick. 141; 3 Kent, (3d ed.) 339.