have happened without the master's fault, this does not excuse him; but if it must have happened, although he had not been in fault, he is exonerated.1

If the shipper provides the dunnage, the vessel is not responsible for its insufficiency to an indorsee of the bill of lading.2 And generally it is sufficient if the master provides the kind of dunnage ordinarily in use at the port of shipment for the description of goods carried. Where damage to goods is attributable partly to the fault of the carrier, and partly to the fault of the shipper, and it is impossible to ascertain for what proportion each is responsible, the loss will be equally divided between them. If the owners of

a chartered ship are in possession by their servants, the master and crew, they are liable for damage done by improper stowage to the goods of a shipper who is ignorant of the charter-party,5 although the goods are stowed by a stevedore appointed by the charterer. But the master is not liable in such a case to the shipper.7

The owners of a general ship are liable to a shipper for damage done to the goods from other goods stowed in the hold, without al

Garrick, Exch. of Pleas, Trin. Term, 1853, 11 Law J. 255, that where a shipper was to send a person to stow the goods, the master would not be liable if they were improperly stowed. See also Arnold v. Anderson, 2 Yeates, 93.

1 Thus, in Gardner v. Smallwood, 2 Hayw. N. C. 349, the court said: Taking a full price and stowing upon deck will subject the owner of the vessel to pay damages, if what is placed on deck be thereby lost, or damaged; but if that did not occasion the loss, he will be no more liable for damage to that part of the cargo than to the rest." See also The Waldo, Daveis, 161, 171, per Ware, J.; and Lawrence v. Minturn, 17 How. 100, post, p. 266, n. 4. In Vernard v. Hudson, 3 Sumner, 405, it was held that where the goods were shipped on deck without the consent of the owner, but were delivered in good order, the consignee was bound only to pay a deck freight, and Mr. Justice Story intimated that at common law no freight whatever would be due.

2 The Ville de l'Orient, Irish Adm. 2 Law Times, N. S. 62.

Ibid.

Snow v. Carruth, 1 Sprague, 324.

5 The St. Cloud, Brow. & L. Adm. 4.

Sandeman v. Scurr, Law Rep. 2 Q. B. 86.

In Blaikie v. Stembridge, 6 C. B. N. s. 894, affirmed in Exch. Ch. ib. 911, the vessel was under a charter-party which provided that the stevedore was “to be appointed by the charterer, but to be paid by and act under captain's orders." The charterer put the vessel up as a general ship. The master exercised no control over the stevedore, and was not on board when the plaintiff's goods were laden. Held that the master was not liable, the stevedore not being his agent.

legation or proof of any wilful or negligent default on the part of the ship-owner. And it would seem that they are so liable, even if the goods doing the injury were put on board in a condition to do mischief, by the shippers of the damaged goods, the proximate cause of the injury being the stowage of them by the captain too near the other goods.2

1 Gillespie v. Thompson, cited 6 Ellis & B. 477, note, 36 Eng. L. & Eq. 227; Brousseau v. Ship Hudson, 11 La. Ann. 427. But see Baxter v. Leland, Abbott, Adm. 348, 1 Blatchf. C. C. 526. In The Bark Col. Ledyard, 1 Sprague, 530, a general ship took some barrels of flour and also some spirits of turpentine belonging to different shippers. The 'effluvium from the turpentine injured the flour. Held that the carrier was liable, and that the measure of damages was the difference between the fair market value of the flour and such value if it had not been injured. It was said that if the carrier could have shown an established usage to carry breadstuffs and spirits of turpentine together in a general ship from New Orleans, the carrier would not have been liable. See also Cranwell v. Ship Fanny Fosdick, 15 La. Ann. 436; Bearse v. Ropes, 1 Sprague, 331; The Sch. Reeside, 2 Sumner, 567; The Fanny Fosdick, 4 Blatchf. C. C. 374. In The Invincible, U. S. D. C. Mass. 1868, Lowell, J., casks of oil were shipped from San Francisco to Boston. On arrival there was found to be a considerable loss by leakage, caused by the shrinkage of the casks. This shrinkage, it was alleged, was produced by heat caused by stowing dry hides and rags too near the casks. There being a special contract in the case exonerating the vessel from loss by leakage, the burden was held to be on the libellants to show that the loss was caused by the fault of the carrier. Lowell, J., in deciding against the libellants, said: "Upon the whole evidence I am satisfied that this loss did not arise from the fault of the ship itself, nor from the want of care and skill of the claimants' agents in stowing or navigating her, but from the operation of causes which, whether common to all such voyages or not, were common to all in which the vessels happened to have just such a cargo, and that such a cargo is not uncommon, but usual and proper, and that the ship was stowed in the usual and proper manner."

2 Alston v. Herring, 11 Exch. 822, 36 Eng. L. & Eq. 475. The defendant's plea in this case set up a charter-party, by which the defendant, as owner, chartered the ship to the plaintiffs, and agreed to load a cargo from the plaintiff's factors, and carry and deliver it. It also alleged that the plaintiffs shipped the goods mentioned in the declaration, and also contracted with a third party to receive from him and carry certain cases of sulphuric acid for freight to be paid to the plaintiffs, and that it was the duty of the plaintiffs as the shippers to give notice to the owners of the ship of the article being sulphuric acid, in order that it might be stowed in some place where, if it leaked, it would not come in contact with other parts of the cargo; that no notice was given, that they caused the cases to be stowed near the goods mentioned in the declaration, and that some of the acid leaked and damaged the goods, and so prevented the defendant from performing the agreement, and that the damage was occasioned by the plaintiff's neglect. The court held this plea to be bad; Alderson, B., said: "It is true the plea alleges

The question has arisen whether shippers are not answerable to the owners of the vessel, for putting on board dangerous goods, or goods insufficiently packed, the dangerous character of which cannot be discovered by easy inspection, and it is not made known to the owners by the shippers; and it would seem that they are so liable. So, if a ship is chartered and the owner is obliged to pay the shippers for damage done to their goods by the goods of the charterer, he is entitled to compensation from the charterer that but for the shipment of the acid without notice, the damage would not have happened. But the shipment alone would not be enough. A further act would be necessary, namely, the placing of the acid where it was placed in the ship, and that was the defendant's act, and he was the immediate causer of the damage." In answer to the objection that the suit could not be maintained, because in a cross action the defendants would have to refund the sum demanded, the court said: "In such an action might not the plaintiffs well contend that though the defendant would not have put the cases where he did had he known the contents, yet as he was content to run the risk of their containing some fluid which might have caused the damage, it would be unreasonable to make the plaintiffs liable for the whole damage, because it turned out that the cases contained sulphuric acid? We think so. It is true the plea states the cases were placed where they were without any neglect, default, or wrongful act of the defendant. That means no more than that the so placing them was neither neglect nor intrinsically wrong. Be it so. But it is certain had the contents of the cases been some fluid, and not sulphuric acid, which had escaped and damaged the cambric, the plaintiffs would have been entitled to recover, whether the defendant had been negligent or not. We think, therefore, a jury might take that into their consideration in estimating the damages which the now defendant would sue the plaintiffs for, on the supposed contract not to ship sulphuric acid without notice, and consequently the damages in such an action might be different from those recoverable in this action, and that the rule for preventing circuity of action does not apply." See The Helene, Brow. & L. Adm. 429.

The fourth plea

1 Brass v. Maitland, 6 Ellis & B. 470, 36 Eng. L. & Eq. 221. of the defendants was held to be good. It was that the master knew, or had the means of knowing, and reasonably might, could, and ought to have known that the goods shipped, namely, bleaching powder, contained chloride of lime, and that the master and persons employed about the ship knew and had the means of judging and knowing the state and condition and sufficiency of the casks. But the court were not unanimous in respect to a plea, setting forth that the master knew or had the means of knowing and ought to have known the nature of bleaching powder. One of the judges was inclined to dissent from the decision holding the plea good, on the ground that the master was not the party generally concerned in the shipping, taking on board, or stowing of goods. See also Alston v. Herring, 11 Exch. 822, 36 Eng. L. & Eq. 475; Hutchinson v. Guion, 5 C. B. N. S. 149; Farrant v. Barnes, 11 C. B. N. s. 553; Ohrloff v. Briscall, Law Rep. 1 P. C. 231.

although the charterer did not know and had no cause to suspect that his goods would cause any damage. And if a shipper puts on board, without the knowledge of the captain, goods which are forbidden to be exported, he is liable if the ship is seized.2

Goods on deck, when jettisoned from necessity, cannot claim contribution in general average by the general law merchant.3 And if they are so carried by agreement with the shipper, he can have no claim against any party for the loss. But if carried there without his consent, and then jettisoned from necessity, it should seem that the shipper should claim from the ship-owner what he loses by having no claim for contribution; for though it was not the fault of the master that the goods were lost, it is his fault that

In Lawrence v. Minturn, 17 How. 100, it was held that where iron boilers had been stowed on deck with the consent of the shipper, and were jettisoned by necessity, the owner of the vessel would not be liable. Mr. Justice Curtis, in delivering the opinion of the court, after speaking of the maritime codes, said: "There is not one of them which gives a recourse against the master, the vessel, or the owners, if the property lost had been placed on deck with the consent of its owner; and they afford very high evidence of the general and appropriate usages, in this particular, of merchants and ship-owners. Consolato del Mare, par Pardessus, c. 186; Ord. de la Mar. Valin, lib. 2, tit. 1, art. 12; Code du Com. Mar. par Locré, art. 229, lib. 2, tit. 4, art. 229; Emerigon, ch. 12, sec. 42; Boulay Paty, tom. 4, 566, 568." And again: "The extent to which we understand the authorities to go, and the law which we intend to lay down, is this: That if the vessel is seaworthy to carry a cargo under deck, and there was no general custom to carry such goods on deck in such a voyage, and the loss is to be attributed solely to the fact that the goods were on deck, and their owner had consented to their being there, he has no recourse against the master, owners, or vessel, for a jettison rendered necessary for the common safety, by a storm, though that storm in all probability would have produced no injurious effect on the vessel if not thus laden. If the vessel is in itself stanch and seaworthy, and her inability to resist a storm arises solely from the position of a part of the cargo on deck, the owner of the cargo, who has consented to this mode of shipment, cannot recover from the ship or its owners, on the ground of negligence, or breach of an implied contract respecting seaworthiness." See also Smith v. Wright, 1 Caines, 43; Dorsey v. Smith, 4 La. 211; Hampton v. Brig Thaddeus, 4 Mart. La. 582; Shackleford v. Wilcox, 9 La. 33; Cram v. Aiken, 13 Maine, 229; Sproat v. Donnell, 26 Maine, 185; Johnston v. Crane, 1 Kerr, New Brunswick, 356; Sayward v. Stevens, 3 Gray, 97.

their loss gives no claim for contribution. The burden is on the ship-owner to prove that the shipper agreed that the goods should be carried on deck.2

We shall treat of this subject more fully in the chapter on General Average.

If goods are carried on deck without the consent of the shipper, and are lost by a peril of the seas, the owner will be responsible, although the bill of lading contained a clause excepting the liability of the owner for a loss by perils of the sea. For this exception does not lessen his obligation to carry the goods in the proper and customary manner.3

SECTION IX.

WHO MAY SUE FOR NON-DELIVERY OF THE GOODS OR INJURY TO

THEM.

If there be a refusal to deliver the goods, or a delivery to a wrong person, or damage to, or loss of the cargo, for which the ship is responsible, the next question is, Who may make the claim for the goods, or their value, or for compensation for damage, and sustain an action grounded upon it? The consignor has shipped the goods, but has shipped them to the consignee; and which of these parties should make the claim? There has been some conflict, and may yet be some uncertainty in respect to this question; but we think the general principles applicable to this question ought to be sufficient to decide it.

Thus, if goods are shipped by the order of A, and an unindorsed bill of lading is sent to him, and he nevertheless gets possession of the goods by stating to the captain that he is the owner, the

1 The Paragon, Ware, 322; Barber v. Brace, 3 Conn. 9; Creery v. Holly, 14 Wend. 26; Gould v. Oliver, 2 Man. & G. 208, 4 Bing. N. C. 134, 2 Scott, N. R. 241.

The Peytona, 2 Curtis, C. C. 21.

The Rebecca, Ware, 188; The Waldo, Daveis, 161; Stinson v. Wyman, Daveis, 172; Waring v. Morse, 7 Ala. 343. But if no damage results from their being put on deck, the owner of the vessel will not be liable for injury happening from any other cause, and the shipper must pay freight. Gardner v. Smallwood, 2 Hayw. N. C. 349; Vernard v. Hudson, 3 Sumner, 405. See ante, p. 263, n. 1.