Peters & Co. v. Warren Insurance Company. suit. They made no objection, and interposed no offer of payment. Under such circumstances, they must be taken to have approved the resistance of the plaintiffs to the claim, and to have authorized the defence to be made; and, therefore, as there is not the slightest pretence, that the whole defence was not conducted with entire good faith and sound discretion, they must pay their proportion of the costs and expenses, including the fees of the attorneys and counsel employed in the defence. Judgment will be entered accordingly for the amount, as soon as it is ascertained. JOHN PETERS & Co.1 v. THE WARREN INSURANCE COMPANY. Where a loss occurs by an accidental collision with a foreign vessel, which by the law of the country, where it takes place, is to be borne and apportioned between the vessels, as being by inevitable casualty, it is not by our law deemed a general average. The mere fact, that an apportionment is made of a loss between the different parties in interest, if the loss itself does not arise from some act done, or sacrifice or expense voluntarily incurred for the common benefit, does not necessarily make it a case of general average by our law. Although salvage is often in the nature of a general average, it is not universally true, that, in the sense of our law, all salvage charges are to be deemed a general average; they are only so, when incurred for the benefit of all concerned. The items included and the sums apportioned and paid, according to the law of a foreign country, as a general average in an adjustment thereof, made 1 This case was omitted by accident, having been decided at the very close of the last October Term, (Boston.) Peters & Co. v. Warren Insurance Company. there, (and a fortiori, if enforced by the tribunals there) are quoad the items and the rule of apportionment conclusive upon and payable by the underwriters here, as a general average, although not apportioned in the same manner, and not deemed items of general average by our law. By the Boston policies of insurance no partial loss on a ship under five per cent. is to be borne by the underwriters. Assuming, that a loss by such an accidental collision, sustained by the ship insured, is a partial loss, and less than five per cent. ; yet if the sum apportioned on her, on account of the injury to the other vessel, together with her own loss, exceeds five per cent., the underwriters are liable for the whole loss borne and apportioned on her. Under the circumstances of the present case, it was held, that the loss by the collision was an entirety, and the whole damage assessed upon, and payable by the Paragon, was a direct damage or partial loss, occasioned by the collision, and the items were not to be separated. Where a bottomry bond, executed at Hamburg, was given at a premium of twelve and a half per cent., and the bottomry holder agreed to give it up, if the sum advanced and common interest were promptly paid, and the agent of the bottomry holder received a draft from the owners on Hamburg for the amount, and common interest, and charged a commission for indorsing the draft, and the bond was thus taken up; It was held, that the underwriters were liable for the interest and commission, and bound to pay them as a part of the loss, since they thereby obtained the benefit of the surrender of the twelve and a half per cent. premium; and they were not entitled to the benefit without partaking of the burthen. Held, also, that one of the owners, who transacted the business, and gave the draft, and took up the bottomry bond, as agent for all the owners, was not entitled to claim against the underwriters any commission on his disbursements, or for his services. THIS cause was formerly before this Court, and the report thereof will be found in 3 Sumner's Reports, 389. It now came again before the Court at this term, upon exceptions filed to the Report of the Auditor, to whom it had been referred to ascertain and adjust the loss, which the defendants were entitled to recover. The exceptions were as follows: The defendants object to the report of the insurance broker, William Hales, Esq., to whom the case was referred. (1.) We object to the amount of partial loss, and the proportion thereunto belonging, of the general expenses at Ham Peters & Co. v. Warren Insurance Company. burg, on the ground, that by itself it would not amount to five per cent. (2.) We object to Hechscher's charge for indorsing Mr. Peters' draft, $ 46.44. (3.) We object to the charge of the interest included in Parish's account with Peters, which runs to the 26th of May, 1837; when the loss occurred November, 1836, and was demanded January 31st, 1837, and payable March 31st, 1837. The plaintiffs filed the following exception: The plaintiff excepts to so much of the Report as disallows the charge for a commission. The exceptions were argued by T. Parsons, for the Insurance Company, and by F. C. Loring, for the plaintiff. The argument for the plaintiffs was as follows: The first objection is, to what is called the partial loss, not amounting to five per cent. The answer is, that there was no partial loss; that, by the laws of Hamburg, the whole damage in cases of collision is a general average loss; and that in the present case the damage to the Paragon was as much general average, as that to the Franca Anna. : This appears conclusively by the statement of facts, which embodies a part of the Despacheur's adjustment in the following words "That is, the Paragon, her cargo and freight was to bear one half of the expense of her own repairs, and to pay one half of the value of the Galliot, &c." And the adjustment concludes as follows; "which sum" (meaning one half of the expenses of repairs and loss of the Galliot,) "is to be borne by ship, cargo, and freight, as general average.' The answer to the second objection, and in part to the third, is drawn from what appears in the auditor's report, and a letter therein referred to, and is as follows. The owners having no funds at Hamburg, the master was necessitated to Peters & Co. v. Warren Insurance Company. raise the funds to pay the amount of the general average, payable by the ship on bottomry. Parish & Co. furnished the funds at the premium of twelve and a half per centum. They, however, wrote to their correspondents in New York, Hechsher & Co., that they did not intend to exact the premium, if the amount advanced, with all charges, was promptly paid, and the owners should secure it by effecting a policy of insurance on ship or freight, and assigning it to Hechsher & Co. for that purpose. The plaintiff, on receiving this intelligence, requested the defendants to furnish funds to pay the bond; they declined to do so; and he then made arrangements to, and did furnish the funds, by which the bond was paid, and the premium of twelve and a half per cent. saved to the insurers. The expenses incurred in so doing seem to be equitably, if not legally, a charge on the insurers, as they derive the sole benefit therefrom; and in fact, they seem to come within the provision in the policy, that the insurers will contribute towards all expenses incurred in and about the recovery of the property. The items excepted to are actual cash payments made by the plaintiff for this purpose. The payment was made in the usual course, by remitting bills of exchange. The charge for indorsing is a usual and customary one, which the plaintiff was obliged to pay, because Hechsher & Co. were instructed to claim the whole premium if any delay or objection occurred. The interest, objected to, was actually paid by the plaintiff; and he does not, as it would appear, receive, nor does the office pay double interest. The usual sight of bills remitted is sixty days. Parish & Co. would, therefore, charge interest, till the bills matured and were collected; and the plaintiff was obliged to remit enough to cover the amount due, when the bills should mature; which he did. If he had purchased bills, payable at Peters & Co. v. Warren Insurance Company. sight, this charge of interest would not appear, but the same amount would be charged in another shape, because the bills would have cost more. If, on the refusal of the defendants to furnish funds, the plaintiff had elected to pay the bond and premium, he certainly could have recovered it. By taking the course he did, a considerable saving was effected, of which the defendants have the entire benefit, and should therefore pay all the expenses actually and necessarily incurred for that purpose. The same remarks will apply to the charge for the insurance to secure the bond, which the auditor has left "in the mud," but which the defendants have not excepted to. And for the same reasons, the plaintiff considers himself entitled to charge a commission for his services, time, and trouble in effecting the arrangement, as for a service rendered to the defendants; in which light it is hoped the Court will consider it. The The argument for the defendants was as follows: exception to the "partial loss "rests on this ground. The vessel lost a cable and anchor, &c. This loss was certainly a partial loss by our law, and did not amount to five per cent. We understand the law of the case to be, not that a foreign adjustment determines for us, what is a general average; but that a foreign adjustment of what is truly, and by our law a general average, is binding on us. By the opinion of the Court in this case, it will be seen, that it stands on a very different footing from general average. As to the bottomry bond, Peters was permitted to take this up for less than its face, and whatever sum he actually was obliged to pay in so doing, we acknowledge ourselves liable for, but no farther. Now, we, the defendants, had at that time |