#### Sherwood and Bowerman *v.*Ruggles.

The question of sea-worthiness, is a matter of fact to be decided by the jury on the evidence.

There is no legal presumption that a vessel is unseaworthy, from the fact of her leaking within a few hours after her sailing, there being no unusual stress of weather.

The owners of a vessel have a lien upon the cargo, for the proper proportion of the general average, on an injury to the vessel by the perils of the sea.

The owners remedy against the consignee, is not lost by the latter’s receiving the cargo at the port of necessity and forwarding it himself to its destination.

If after a vessel is disabled, the master can in a reasonable time, communicate with his owners, it is his duty to do so, before making repairs ; and such delay does not relieve the owner of the cargo from contribution.

It is for the jury to say, upon all the circumstances, whether the delay in order to communicate be reasonable.

July 7, 8 ;

July 15, 1848.

Assumpsit for average on a cargo of turpentine, tried before the Chief Justice, in October, 1847. ■

The plaintiffs proved the shipment of 1150 barrels, on board of their schooner, the Cornelia, at Swansborough, North Carolina, on the 16th September, 1845, consigned to the defendant at New York. The vessel sailed, September 22d. The next day, about three hours after they crossed the bar, in a gale of wind, she sprung a leak,, and it became necessary to put back. She did not succeed in getting into S., and finally, on the 25th, went into the port of Beaufort, There the cargo was dis*56charged, and the vessel hauled up : a survey was had, and repairs made to the amount of $368. She was then taken to the wharf, and reloaded. While lying there in October, a gale of wind and heavy sea drove her upon an old wharf under water, where she pouiided, and again leaked, so that the tide ebbed and flowed in her. Another survey was called, and the master wrote to his owners in New York for advice. They advised him to go on with repairs, and while so doing, an agent of the underwriters came on, took charge of the vessel, and completed her repairs.

The cargo was again taken on board, and the Cornelia sailed for New York in December, 1845. Had bad weather, and in a heavy gale on the 12th of December, off Cape Hatteras, the vessel was so far disabled, that she had to go back to Beaufort. She lost some of her deck load, her small boats, and one anchor in crossing the bar ; and some of the load was thrown overboard to ease the vessel. Another survey was called, when extensive repairs were advised. The master wrote to his owners for advice, and came himself to New York directly afterwards.

While the Cornelia was *lying*at Beaufort in October and November, there was no suitable vessel to be had there to bring on the cargo. She was ultimately repaired, and came on to New York in the spring of 1846. Mean time, the defendant, by agreement with the owners, sent a vessel to Beaufort in January, 1846, which there received 999 barrels of the turpentine originally shipped on the Cornelia, and brought it to him at New York.

The freight payable by the bill of lading, signed by the master of the Cornelia, was thirty-five cents per barrel, with primage and average accustomed. On the adjustment of the average, made by a broker, the amount of the special charges against the cargo, was $87 90, and of the general average, $643 71. The defendant furnished the broker with the valuation of the cargo, and examined the statement. He refused to pay the general average charged to the cargo. The statement was sent to the underwriters. The plaintiffs then proved, (the evidence being objected to,) to show defendant’s acquiescence in the *57¡results of the adjustment of average, that he received from the underwriters, the amount of his loss and general average on the cargo of the Cornelia, in August, 1846.

The defendant claimed that the vessel was unseaworthy, and that there was unreasonable delay in the port of Beaufort, to his great loss in the value of the cargo.

The judge, in charging the jury, said, the first ground of defence is, that the 1150 barrels of turpentine composing the cargo, were not delivered to the defendant according to his contract with the plaintiffs. But there is abundant evidence to show that this property did come into defendant’s possession. It is shown that he sent a vessel for it, and it appears from his statement to Mr. Johnson, that he sold it at two dollars and seventy-five cents per barrel. The second ground of defence is, that there was unreasonable and unnecessary delay on the part of the captain in the port of Beaufort; that this delay was unauthorized, and such as the captain had no right to make. But it is not the rule of law, that the captain is bound to proceed immediately to repair the effects of a storm, without waiting to communicate with his owners. If he can do so in a reasonable time, it is his right and his duty to communicate with them, and to wait for advice. If the jury find in this ease, a fair exercise of that right, this ground of defence fails.

But the main ground of defence is, that the vessel was unseaworthy. This is a matter of fact to be decided by the jury, on the evidence. The defendant’s counsel has relied upon the log-book, protests, and surveys made at the time. These, though not evidence, have been admitted, because not objected to by the other side. If she was not fit for this voyage, and therefore loss occurred, the defendant is not responsible in this action.

Defendant’s counsel excepted to the charge of the Chief Justice respecting the right of the captain to wait and communicate with his owners; and requested him to charge the jury, that from the vessel leaking two hours after she sailed, she must be presumed unseaworthy, unless an adequate cause for that leak is shown by the plaintiffs; and that no such cause has been shown, and that the fact of such leak has been proved by legal and competent evidence. The judge assented to the *58general principle of law laid down by defendant’s counsel; but stated that the question whether an adequate cause had been shown, was one for the decision of the jury.

The jury rendered a verdict for the plaintiffs; and the defendant moved for a new trial.

*H. Ketchum,*for the defendant.

*F. B.*Cutting, for the plaintiffs.

By the Court. Vanderpoel, J.

The question whether the vessel was seaworthy, was purely one of *fact.*It was fairly submitted to the jury, and they have found that she was seaworthy. Barnum testified, that in 1844 he repaired the schooner for the plaintiffs ; that he cut her down to the water’s edge, put in new timbers, new ceiling, new outside from the bottom to the rail; that he took out all the ceiling, and left only the keel, stern, stern-post, and a few floor timbers. He says, he substantially rebuilt her.

The witness Newman also testified, that he was a shipwright; that he examined the schooner Cornelia about eighteen months ago, at the request of Mr. Johnson. They put her on the dock, and the witness examined her to ascertain the cost of repairs. She was then in good condition, except that her stern-post had been started.

To this is opposed the fact, that the vessel sprang a leak so soon after the commencement of the voyage. We cannot, on the strength of this fact, assume the responsibility of overruling the finding of the jury. Whether the vessel was seaworthy, was peculiarly a question *of fact.*We cannot say that there is no evidence to sustain the conclusion to which the jury came; and cannot, without interfering with their province, and violating a too well established principle, overrule their finding.

*2.*Another point taken by the defendant is, that the testimony of Thomas Callendar was improperly admitted. He testified, that he was an oflicer of the Sun Mutual Insurance Company, and sometimes acted as assistant secretary; that, on the *22d*day of August, 1846, he, for the company, paid the defendant *59$1237 55, in full for loss and general average on the cargo of the schooner Cornelia, as appóared from a receipt introduced, and signed by the defendant Ruggles. The ground on which the judge at the trial admitted this evidence, is correct. It was admissible to show, not that the defendant was liable, because he had received his insurance, but to show that he had acquiesced in and admitted the principles and results of the adjustment made by Johnson, the witness who made the adjustment.

3. Another ground taken by the defendant is, that the turpentine whicli is sought to be made contributory to the plaintiffs indemnity, was never delivered to the defendant, and therefore is not subject to general average. In *Strong*v. *The New York Firemens' Insurance*Company, (11 John. 323,) it is declared to be the duty of the master, in cases proper for general average, to cause an adjustment to be made upon his arrival at the port of destination; and it was hold, that he has a lien upon the cargo to enforce payment of the contribution. Here, the schooner was necessarily detained at the port of necessity, for more than two months. The defendant becomes impatient, sends on a vessel, and brings away his property. Now, he contends, that the turpentine was not delivered to him according to his contract with the plaintiffs, and that it is not, therefore, subject to general average. The plaintiffs, surely, cannot by this agency of the defendant, lose his claim. The jury have found that there was no unreasonable or unnecessary delay in the port of Beaufort; and the defendant could not, by taking his property from there, when the schooner was being repaired, destroy the plaintiffs right to have contribution from it.

No error was committed on the trial, and the motion for a new trial is denied.