bariæ." And proceeds-"All this might be good to excuse the master to the proprietor of such goods, but by no means to bring into general average goods stowed upon deck, without the consent of the other shippers."-Emerigon, tom. 1, p. 623.

Boulay Paty (Cours de droit Mar., vol. 4, p. 566) infers from this passage that Emerigon inclined to an opinion adverse to the exception of Valin, and the silence of Pothier would seem to justify a surmise that his mind was not free from doubt upon the subject. The truth is, that the decree of the Admiralty of La Rochelle has not been implicitly received in France. The grounds on which it proceeded are not very clearly stated in Valin's report; and Boulay Paty (ibid.) informs us, that notwithstanding the express protection from responsibility for deck-cargo, since extended by the Code de Commerce (art. 229) to masters in the coasting trade, it was held by the Cour Royale de Rennes in 1822, that art. 421, excluding goods so disposed from average, was a law without exception. Boulay Paty and Rogron disapprove of that decision on the ground of the special provision in the former article, which ought, they contend, to be liberally construed, and their view appears to have been confirmed by a decree of the Cour Royale de Bordeaux. Emerigon, however, admits goods to general average when stowed on deck, with the consent of the other shippers, and the doctrine of Valin may perhaps be found not to differ in point of principle from that opinion.

In the United States, the rule excluding deck-cargo from average, as laid down by KENT and STORY, appears to have been inflexibly maintained. In the case of Dodge v. Bartol (5 Greenleaf's Rep. 286), an action was brought by the owner of goods which had been shipped on deck, by agreement between him and the master, to recover from the owner of the ship a contribution for their loss by jettison. The cause was tried before C. J. MELLIN, who directed the jury to consider (1), whether there was a general usage in the particular trade to carry deck-loads, when occasion offered, if not deeply laden, and no objection made; and (2), whether there was such a general usage among merchants and shippers, that the owner of a deck-load cannot maintain an action against owners and freighters for their proportion of the loss occasioned by its jettison for the preservation of the vessel and cargo; such usage being so generally established as to have the force of law; both of which questions the jury answered

in the affirmative. The case being afterwards brought before the Supreme Judicial Court of Maine, the counsel for the defendants rested his case on the broad ground, that the owners of a vessel are not liable to contribution for the jettison of goods stowed on deck, and the passage from Valin was cited for the plaintiff in support of the exception to that rule, on the ground of usage. Mr. Justice WESTON, delivering the judgment of the court, refused to admit the exception as part of the maritime law of America. He says, "The general law that jettison from the deck presents no case for contribution has been recognised in New York and Massachusetts. By the general maritime law, this is not a case for contribution. If this be by usage an excepted case, the burthen of proof is on the plaintiff to show it. The defendants are not bound, nor is it necessary for them to prove a usage corresponding to the law."

With the rule thus founded on ancient usage, and confirmed by modern ordinances and decisions, the practice of mercantile men in England has been uniformly consistent. Goods stowed on deck were considered to be at the risk of the shipowner, unless so stowed by agreement with the owner of them, in which case he was held to have taken the risk upon himself. Policies of insurance on ship or goods were, in the absence of special provisions, understood not to cover deck-cargo, or average in respect of it. Losses were settled, averages adjusted, on the principle of its exclusion. Even in trades, in which the custom of carrying deck-load had become inveterate, no instance, within the memory of the most experienced, was known to have occurred of a claim for general average in respect of it having been submitted to or enforced. It was of this practice of English merchants, undisturbed by judicial decision, that Lord TENTERDEN was understood to speak, when adverting to the positive enactment of one of the foreign ordinances; he says, "the same rule prevails in practice in this country." Had he entertained an opinion that it might be countervailed by a prevalent practice in a particular trade to carry goods on deck, he would have expressed that opinion in unambiguous language, and supported it by argument or authority.

The judgment of the Court of Common Pleas, in Gould v. Oliver (p. 486; 4 Bing. N. C. 134), may appear to support the doctrine that a custom in a particular trade to carry deck-cargo will exempt it

from the operation of this rule of exclusion. But in that case, a custom in the Canada trade, that the owners of ships had been used to have, and of right ought to have, for themselves and their servants, the liberty and privilege of carrying a portion of timber on the deck, was averred and admitted upon the record, and the judgment proceeded on that admission. The real point in disputethe existence of this usage-was eluded by the issue in law, joined on the demurrer to the plea. But when, after the trial of the issues in fact, that case came again (2 Man. & G. 208) under consideration, on exceptions taken to the evidence which had been received to rebut the evidence of the alleged usage, the court expressed a clear opinion that a usage, for shipowners to make good the loss sustained by jettison from the deck was strong evidence to show that the practice of carrying goods on deck however common, was not warranted by the usage of the trade. The authority of Valin is, indeed, cited by C. J. TINDAL, in the earlier judgment, for the rule of exclusion, and for the exception to it, on the ground of usage. But on referring to the commentary on the ordinance, it seems probable that the usage which Valin states to have been comfirmed by the Admiralty of La Rochelle, was a usage, not simply to carry deck-cargo, but also to adjust the loss of it on the principle of general average. He tells us it was a usage which had always been "tolerated;" and adverting to the case of an owner of underdeck-cargo, who had refused to be bound by it, speaks of the decree then recently pronounced against him, as a legal sanction given to an old existing custom. It is, indeed, incredible that any usage short of this could have been sustained against the enactment of the French ordinance, whereas a decision that shippers and shipowners must be considered, in the absence of express stipulations, to assent to average and its adjustment with reference to the known course and usage of the particular trade to which their contract relates, would be consistent with the principles of the civil law, the French law, and our own? Pothier, Des Obligations, part 1,

ch. 1, s. 1, art. 7. Simmons v. White, 2 B. & C. 805.

Upon the whole, it is with great diffidence submitted, whether the true reading of this passage be not, that a usage in a particular trade to stow goods on deck, or the consent of the owner of them, may relieve masters of ships from responsibility for the loss of goods so disposed; but that in England, as in other maritime states, they are excluded from the benefit of general average.—Mr. Justice Shee. (But see Johnson v. Chapman, post, 526.)

(2.) The right of the owner of deck-cargo to be relieved in case of its jettison by a general contribution, had not until lately been the subject of consideration in our courts. In a few cases of insuranceBackhouse v. Ripley, Park on Insurance, 26; Ross v. Thwayte (ibid), and Da Costa v. Edmunds, 4 Campb. 142, the propriety of that mode of stowage had been noticed, but in them the plaintiffs sought to recover from underwriters the full value of goods thrown overboard. The defence was founded upon a usage exempting insurers from liability for the loss of such goods, or of goods so disposed, and not upon any rule of the law of general average. Underwriters on goods might be liable on their contract to make good a loss by jettison ex justá causa, although a claim for general average in respect of it could not be sustained,Butler v. Wildman, 3 B. & A. 398. Such cases, therefore, do not appear to be of direct authority on the question, whether or not goods stowed on the deck of a ship are excluded from the benefit of general average.

In the case of Gould v. Oliver, 4 Bing. N. C. 134; 5 Scott, 445, the owner of certain timber, shipped at Quebec for London, and of which jettison had been made during the voyage, brought his action to recover so much money as the defendant, as owner of the ship and her freight, was liable to contribute to the said loss in a general average. The second count set out a custom touching the loading of timber in the trade between Quebec and London, by which shipowners had the liberty and privilege of loading on deck a reasonable part of the timber which they were employed to

carry, and alleged that the timber in question was a reasonable part of the timber which the defendant was employed to carry, and was laden on the deck according to such custom. The defendant pleaded, admitting the custom stated in the declaration, that there was not any custom that any contribution and general average should be paid on the loss or damage of timber placed on deck and cast overboard. which plea the plaintiff demurred.

To

On this issue, the question was not whether, generally, the owner of goods laden on deck, which are thrown overboard for the preservation of the ship and the rest of the cargo, is entitled to contribution against the owners of the ship and of the residue of the cargo, but whether, in the special and particular case, where the shipowner had laden the goods on deck under a privilege reserved to him by the general usage and practice of the voyage, known to both the contracting parties, the owner of the goods might claim contribution from the shipowner? "Upon the best consideration," said Chief Justice TINDAL, delivering the judgment of the Court of Common Pleas, "that we can give to this question, referring at the same tiine to the foreign authorities, and to the few decisions which have taken place in our own courts, we think the plaintiff entitled in this case to contribution against the shipowner. The general rule laid down by the foreign authorities, and adopted by our own law, is, as is well known, that all goods thrown overboard for the preservation of the ship and cargo, shall be entitled to contribution. Upon this general rule, however, there is engrafted an exception by the foreign writers, that goods laden on the deck and cast into the sea shall not receive contribution, saving to the owner of the goods his recourse against the master or shipowner:" Consol. del Mare, by Boucher, c. 183; Ordinance, book 3, tit. 8, art. 13; Emerigon, c. 12, s. 42; Code de Commerce, art. 421. Now, where the loading on deck has taken place with the consent of the merchant, it is obvious that no remedy against the shipowner or master for a wrongful loading of the goods on deck can exist. The foreign authorities are, indeed, express on that point: Valin, tit. Du Capitaine, art. 12; Consol. del Mare, c. 183. And the general rule of the English law, that no one can maintain an action for a wrong where he has consented or contributed to the act which occasioned his loss, leads to the same conclusion. Un

less, therefore, the owner of the timber in this case has a claim for contribution against the owner of the ship, he is without any remedy whatever against any one, but must himself bear the whole of the loss, in consequence of his timber having been thrown overboard for the benefit of all; an inference directly at variance with the general rule above laid down, and, indeed, contrary to the authority of the foreign writers. For Valin lays it down, that the rule of art. 13 does not apply in respect of boats and other small vessels going from port to port, "where the usage is to load merchandise on the deck," the latter words of which text-writer gives the reason for throwing such a case out of the exception into the general rule for contribution, at least so far as the ship is concerned. As to the authorities in the English courts, there is no one which states directly that goods laden on deck shall in no case be entitled to contribution. The question, whenever it has arisen in our courts, has been between the owner of the goods thrown overboard and the underwriter; and the rule generally established seems to have been, that for goods so laden the underwriters are not responsible. But in the case of Da Costa v. Edmunds (4 Campb. 142), it was left to the jury to say whether there was a usage to carry on deck goods of the description of those thrown overboard, and the jury having found such usage, the underwriters were held liable. The case now under consideration does not, indeed, arise between the same parties, but appears to fall within the same principles of decision.

In order to a clear apprehension of the grounds on which this judgment proceeds, it will be necessary to attend particularly to the precise point raised on the record, for the decision of the court. The liability of the shipowner to contribution was the only question to be determined, and the judgment, therefore, is limited to an affirmance of his liability. From another report of the same case, upon motion, after trial of the issues joined upon the pleas to the first count (Gould v. Oliver, 2 Scott, N. R. 241; 2 Mann. & G. 208), it appears that the whole cargo was the property of the plaintiff, and, therefore, that the fund contributory to a general average loss would consist of the value of his own goods, and the value of the ship and her freight. The rule, however, excluding goods stowed on deck from the benefit of general average was expressly recognised, and the case brought