Polynesian., 1853-05-21
CHE polpnesian.
AWARD.

AWARD.
WHEREAS the American Bark Philomela
on voyage from .Nep York to Honolulu
Hawaiian Islands, with a cargo of flour
bread, coal, and other articles of merchan.
disc, met with severe disaster at sea, ant
was obliged to put into Monte Video, Para,
guay, for repairs to enable her to proceed on
her voyage, whereby suadry expenses and
charges were incurred, and sacrifices made
and whereas on the arrival of the said Bark
at Honolulu a dispute arose betweea the
master and freighters of said Bark as to
whether the case was one of general average,
and if so, what amount of the losses should
be contr ibuted for by all concerned; and
whereas the whole matter in dispute was re-
ferred to the undersigned by an agreement
executed by all parties on the 23d day Of
March 1853, for final settlement and ad-
ljustment of the general average losses, il
any, according to the law and usages of this
Kingdom.
Therefore, Be it known, to all whom il
may concern, that having accepted and ia
ken upon me the said reference. and having
heard what hath been alledged by and on be-
half of all parties, and examined such wit
lnesses on oath as were necessary and proper
Ito give evidence touching and concerning
the matters referred to me, and each party
having produced before me such vouchers,
papers and writings relating to the matters
in difference as were necessary to enable me
fully to investigate the same, do hereby
make the following decision, award and ad-
justment, conformably to the law and usages
of this Kingdom.
am of opinion that the injury which COM
PEELED the vessel to put into port, was mere
peril of the sea, arising from the violence OF
the weather, without any sacrifice for the ben
eft of all concerned, and consequently the
Expenses of repairing the vessel are not a
general average loss, but must fall solely up
on the owners of the ship, for whose benefit
alone they were incurred. But though the
repairs of the ship are particular average
loss, to be borne by the ship alone, yet it is
a well settled rule of law, that the expenses
of entering and quitting port of distress, to
reft, and Of discharging and reloading cargo
there, and all other necessary expenses for
the benefit of all concerned are TO be contri-
buted for as a general average, without re-
gard to the nature of the damage which
made it necessary to put in for repair. This
principle is carried to greater lengths in the
United States than in Engla but in both
countries and on the Continent it is well es-
tablished, The rule applicable to such cases
in the United States has been adopted here
in the main, and it is stated by MIR. Justice
Story to be definitely settled that whatever
be the nature of the injury, whether arising
from voluntary sacrifice, or a mere peril
of the sea, the wages and provisions of the
crew from the time of putting away for the
port, the expense Of loading and unloading
and every other expense necessarily incurred
during the detention, for the benefit of all
concerned, are to come under general aver
age" Abbott on shipping, 9th Am. ed. GOO
COL, Arnould on Ins. 9I4 note.
1t appears that the master sold portion OF
the cargo to raise part of the money neces-
sary to defray the expenses of putting into
port, making repairs, unloading, reloading
quitting port, ETC.; and being satisfied from
the evidence submitted TO me that he ex-
hausted all other means of raising money,
without success, am of the opinion that he
was justified in making such sale, and that
the loss sustained by the sale, so far as it
was for the general benefit is the subject Of a
general average contribution. Kent's
Comm. 242. Mason r. 255. Jiles VS.. Ea-
gle, Ins Co. and Metcalf I4O. 2 Arnould
on Ins. 69l, S92.
But it is a new and somewhat nice question
to determine, whether the whole Of the loss
sustained by the sale Of the goods should be
contributed for in general average, or only
such a portion Of the loss as was necessary
to defray the general average expenses. In
other words, is the loss arising from the sale
of goods to raise funds to meet the expenses
of repairing the ship, which is a particular
average loss, to be made good by the ship
owner alone, or to be contributed for by all
|concerned 1t is clear that the loss resulting
from sale Of so much of the cargo as was
necessary to defray the expenses Of entering
port, unloading, reloading, and all other ex-
penses clearly within the range Of general
average losses, should be contributed for by
all, and the same may be said where the
goods are sold to raise the means of replac-
ing sails, masts, cables, &C., which had been
sacrificed for the general benefit; but where,
as in this case, a portion of the goods were
sold to repair a particular average loss, it
becomes question of no little doubt. 1t is
said by the counsel for the ship owner, that
it is as much for the general benefit that the
ship should be repaired, as that she should
enter port and quit it again, and that conse-
quently the loss arising from sale Of the
goods to defray the expenses of the former,
establishes as good claim to general aver
ace as the loss from sale to meet the latter.
That the objecs is to put the ship in condi-
ton to take on the cargo, and the loss from
the sale is a sacrifice for the good of all con-
cerned. 1t is resorted to not for the benefit
of the ship alone, but for the joint benefit OF
both ship and cargo, and should be treated
just as though the goods had been just issued
But to my mind the distinction between the
loss on goods sold to meet general average