Ferguson v. Fitt, 2 N.C. 274, 1 Hayw. 274 (1795)

Oct. 1795 · North Carolina Superior Court

2 N.C. 274, 1 Hayw. 274

Ferguson v. Fitt.

When the vessel is lost, the goods that ¡we saved are not liable to ave. rage — the master does not lose his wages by the loss of the vessel. These words, in a letter from a Defendant to the Plaintiff, “I would rathe come to a settlement, although 1 should allow the account as Insis’ed on by you, than wait the event of a law suit,” are sufficient to take the case out of the statute of limitations.

Case. For wages due to the Plaintiff as Master of a -vessel, which he had navigated for the Defendant to.St. Euxfatia; and upon au account settled, and a special case made, stating in substance, that these services were performed in 1788, or beginning of 1789, and that the Defendant wrote to the Plaintiff within three years, saying, “ he would rather come to a settlement, although he should allow (he account as insisted on by the Plaint iff, than wait the event of a law suitand the doubt stated on this point was, whether the act of limitations barred the Plaintiff in this case. The special case further stated, that when the vessel left Eustatia, laden with rum and other articles, there were on board six puncheons of rum that belonged to the Plaintiff, and that the vessel was lost, after it bad passed the bar, on the homeward, bound voyage; and that these six hogsheads of rum, together with about twenty-two hogsheads of other rum, the property of the Defendant, were saved; and the whole including the six hogsheads, came to the Defendant’s pos session; and the doubt staled for the opinion of the court, was, whether the six hogsheads of rum should be subject to an average loss or not; and whether, the vessel being lost, the Master was at all entitled to his wages.

Per curiam,

(after several days taken to consider,) when a vessel is in danger of being lost, and part of tin.goods on board are cast overboard to save tlie rest, and th«- vesse! afterwards comes safe into port, the goods that are saved shall be subject to average ; but if the vessel should not come safely into port, then average shall not take place for the only reason of average, is, because the goods preserved, were saved by the loss of the property thrown overboard ; and then it is reasonable, that the owners of the saved goods, should make, a just compensation to tlie owners-of the goods thrown overboard — but litis does not take place, where the casting of the- goods into the sea, is not the cause of the salvation of tlie goods preserved : and they relied upon Beawes. With respect to the wages, sailors lose them where the vessel is lost, front the time of their sailing from the last port of delivery. This rule is founded in policy, to make sailors careful of tlie vessel, and alert in the preservation of it, when in danger. They relied upon 3 Baa. Mr. 593— Comm, verbo Navigation. 3 Burr. 1481. Doug. 33?>.— But, the Master is not subject to this rule — there is no case which says lie is — he must therefore have judgment. As to the act of limitations, the words used in these letters, will take the case out of it. So there was judgment for the Plaintiff.

Note. — Vide Ferguson & Wife v. Taylor, and the note thereto, ante 20, for the acknowledgment requisite to take a case out of the sta tute of limitations.