bales of cotton shipped on deck at lower freight, on a voyage from New York to Liverpool, were jettisoned, and the claim against the ship for contribution was rejected on the ground that to allow it would "make the shipowners insurers of all the goods laden on deck without a premium, at half freight, which would be the height of injustice." In this case some of the witnesses said such a claim was never heard of, and the usage was clearly against it.

In the case of staves thrown over from the deck, on a voyage from New York to Lisbon, and allowed for in an average adjusted at Lisbon, the court in New York were of opinion that the shipper of the staves was not entitled to contribution. The staves were shipped on deck on a special contract, and there was no evidence of any custom to carry a deck-load. Lenox vs. United Insurance Company, (3 Johns. Cas. 178, 1802.)

In one case in Maine, Dodge vs. Bartlett, (5 Greenleaf, Rep. 285, 1828,) of a claim for contribution for goods jettisoned from the deck, where they were carried for half freight, Mr. Justice Weston said, "There can, we think, be little doubt that in the excepted cases stated by Valin, depending on a usage to load on deck, full freight was paid for the whole goods;" and it was considered in that case, that the different rate of freight was a suffi cient reason for rejecting the claim. The court, however, said at the same time, that they did not think a liability to contribution would result from a usage to carry on deck.

In a subsequent case in Maine, Cram vs. Aiken, (1 Shepley, 229, 1831,) of goods jettisoned from the deck, and the ship thereby saved, on a voyage from Boston to Hallowell, in which it was proved to be the usage so to carry goods like those in question, not liable to damage by being wetted, at the same freight as in the hold, the claim on the owners for contribution was rejected. There was in the case some evidence to show that the claimant knew the goods were to go on deck. Mr. Chief Justice Weston, giving the opinion of the court, said, "Neither the master nor the owner can be chargeable with any fault in putting the goods on deck. The claimant must be understood to have assented to their having been placed there.” And the claim was rejected on the ground that goods on deck are "pecu. liarly exposed," and the court considered that there was no sufficient authority for any exception to this rule.

The same question has been raised in England. It came up first in Da Costa vs. Edmunds, (4 Camp. 142, 1815,) in a trial of a case before Lord Ellenborough, in which some carboys of vitriol were jettisoned from the deck, it being proved to be customary to carry this article on deck as well as in the hold. Lord Ellenborough ruled in favor of the claim, and this ruling was acquiesced in by the other judges of the King's Bench.

In a subsequent case before the Court of King's Bench, since Lord Denman has been Chief Justice, Gould vs. Oliver, (4 Bing. N. C. 134,) a shipper of a cargo of lumber for a voyage from Quebec to England, claimed contribution of the ship-owners for the jettison of the part of the cargo carried on deck. It was proved to be the usage to carry part of such a cargo on deck on that voyage. The claim was allowed.

In regard to the proper mode of carrying the boats, all the cases agree that it must depend on usage. In an English case, Blackett vs. Roy, (Exch. Ass. Co., 2 Crompton and Jer. 244,) a policy on the ship was held to cover and make the underwriters liable for the loss of a boat carried on the quarter, this being proved to be the usual way of carrying a boat on the voyage

in question. The court did not go beyond the inquiry whether this was the usual way, but considered the decision of the fact that the boat was rightfully there, to be decisive.

A similar case has occurred in Massachusetts, Hall vs. Ocean Insurance Company, (Suff., 1839,) in which the assured on the ship claimed for the loss of a boat slung to the davits at the stern. The only question was, whether this was the usual way of carrying it; and it not appearing to be an unusual way, this was considered to be conclusive of the case in favor of the assured.

Now if the question whether a boat must be carried on deck, or may be carried at the quarter or stern, depends on what is usual, that is, is a mere question of fact; the other question, whether any particular description of goods must, on any particular voyage, or on board of any particular description of vessel, be carried under deck, or may be carried on deck, seems to be very analogous in principle, and the analogy is certainly very strong in favor of holding the decision of the fact to be conclusive of a claim for a loss in the latter case, no less than in the former.

It has been held in Connecticut, that a shipper is affected by a usage to carry goods on deck, whether he, in fact, knows any thing of it or not. Some casks of gin so carried, were jettisoned on a passage from Hart. ford to Boston, for which the shipper claimed indemnity of the ship-owner, and the jury were instructed that if it were usual to carry such an article on deck, the claim should be rejected, and this instruction was deliberately confirmed by the court. Barber vs. Brace, (3 Conn. Rep. 9.)

Indeed it is a well-known rule of commercial law, that the usages of any trade are presumed to be known to every one interested in it, whether as a ship-owner, shipper, or underwriter.

Another case that has occurred in Massachusetts, Lapham vs. Atlas Insurance Company, (Suff. 1839,) has some bearing on this subject. In a claim for a loss, the underwriters objected that the navigation of the ship had been embarrassed, and the risk accordingly enhanced by taking a deck-load of cotton. It was, however, stated by witnesses that the navigation of vessels of the same description was not at all hindered by such a deck-load. Now, as above stated, the supposed embarrassment of the navigation of the ship, is the principal ground of the general rule as to contribution for a deck-load. The court did not exclude an inquiry as to the fact in this particular case. If, therefore, the doctrine as to contribu tion for a deck-load rested wholly on the supposed embarrassment of the navigation of the ship, it would not be applicable to such a case as the

above.

Where the shipper demanded indemnity from the ship-owner for some hogsheads of spirit carried on deck, and lost on a passage from New York to Portland, Mr. Justice Ware adjudged the ship-owner to be liable, remarking that no usage was proved, to carry the article on deck on that voyage. (Crane vs. the Rebecca; Am. Jurist, vol. 6, p. 1, S.C., Ware's Reports. See also ship Paragon, Ware's Reports, 322. This implied that, according to the other cases above cited, if there had been proof of such a usage, the ship-owner would not have been liable.

From this sketch of the jurisprudence relating to this question, we find the authorities agree that if the goods are stowed according to the usage on the particular voyage, the master and owners are not liable for any dam. age or loss, though the goods are stowed on deck. Now the rule as stated

in the French ordinance is, that no contribution can be claimed for jettison of goods carried on deck, the claim in such case being against the master; thus plainly implying at least, if not explicitly asserting, that where the claim against the ship and cargo ends, that upon the master, for improper stowage, begins. This is the construction put upon the ordinance by Valin, than whom we can hardly have a more weighty authority upon a matter of commercial law, even at the present day, where the circumstances are, as in this case, parallel to those of his own time. According to his construction of the ordinance, sanctioned by the decision of the Rochelle tribunal, the right to contribution for jettison of the deck-load, had place where the usage of the trade was to take a deck-load. Under the rule of the Rhodian law, if the goods of one are jettisoned for the sake of the others, they shall contribute pro rata for the sacrifice. It is they indeed, who, by their representative, the master, sacrifice his goods, for their own benefit, for the shipper cannot be presumed to consent that his own goods, though carried on deck, shall be sacrificed for the benefit of others merely, without any compensation to himself; and the assumption, in a case or two, that he does so assent, is, it seems to me, without the slightest foundation, and is contrary to the plain fact, for men do not assent to the gratuitous sacrifice of their property. If the goods are wrongfully and unjustifiably stowed on deck, the parties interested may throw them overboard without making compensation, in case of danger, just as anybody may abate a nuisance in the highway or on his own ground, but we should hardly say that the wrong-doer, who erected it, did so on an agreement that it might be abated. Valin puts the rule denying contribution upon this ground.

The presumption is, he says, that the goods ought to have been thrown over even before there was any danger threatening. This is the extent of the exception to the Rhodian law as Valin left the subject. The Rhodian law allowed contribution without expressing any exception. The modern ordinances and usage made the exception of the case of jettison of goods carried on deck. Valin says this modification of the Rhodian law is not applicable where the other shippers must, from the usage, know that goods will be so carried.

It is said that the deck-load, though one may be customarily carried on the particular voyage, obstructs the navigation of the ship. Though the tes. timony was to the contrary in the case of the deck-load of cotton already mentioned, yet allowing this to be the case, if the obstruction is no greater or other than the particular navigation is ordinarily subject to; if it is one that is usual and common, and known to everybody, or presumed to be so; if the goods are rightfully and justifiably on the deck; whether they facilitate or obstruct the navigation, seems to have not the slightest bearing upon the question of a claim for contribution. It is a reason, if it be a fact, why these goods should be thrown over first. And so there are other reasons why particular goods should be selected for jettison, such, for example, as their small value in comparison with their weight; but it does not follow that a good reason why goods should be jettisoned instead of others, is one also why no contribution should be made for them.

Again, in two of the cases above cited, the circumstance of lower freight being paid for goods on deck was considered to be of weight, for it is said that it would be very unreasonable for the ship-owner to insure the deckload without any premium for so doing. If a special agreement were made for low freight of goods on deck, on a voyage on which such a mode of

stowage was not usual and known to everybody, the fact of its being unusual would be a reason against allowing a claim upon the other shippers for contribution for the jettison of goods so carried, but it does not appear who the rate of freight has to do with the question. As there are other sufficient reasons why a lower freight may be demanded and paid for goods on deck, there is no necessity for seeking a reason in the exception from contribution. The connecting the rate of freight in any way with the ques tion of contribution, except in assessing the ship-owner, seems to be entirely forced and fanciful. The agreement to carry cheap, certainly does not im ply a condition that the carrier should have any particular privilege to destroy the goods. This he could not do if he carried them gratuitously. There is no other case in which the responsibility of the carrier is determined by the high or low rate of freight. But this reason may be put entirely out of the question, since the extent of the exception is not pretended to be limited to cases of lower freight; in a number of the cases already cited, the same freight was paid, on and under deck; in some of those cases the shipper did not previously know of his goods being carried on deck.

On the rule as stated in the ordinance, and explained by Valin, there can be no reason given by the master and owners against contribution by the ship and freight, for the only case exempted from contribution is one where entire indemnity is due from the ship-owner, on the ground of his non-compliance with his agreement. In all the treatises and jurisprudence on this subject, we shall, I think, seek in vain for any ground or pretence whatever, short of an express special agreement to that effect, for exempting the ship and freight from contribution, unless it be the liability of the ship-owner to pay the whole value of the goods jettisoned from the deck. The master puts the goods on deck without the knowledge of the shipper. They are jettisoned for the safety of the ship and the rest of the cargo. The shipper demands indemnity. The ship-owner replies that he is not responsible, and the courts so hold on the ground that the goods were rightly and properly stowed, according to the usage of the trade, and the shipper is presumed to have known that they might be so stowed. The shipper then demands contribution. The ship-owner says, "No; it was understood and virtually agreed between all parties, that I might put the goods of any one in a situation in which they should be subject to be sacrificed without compensation, and I chose to put your goods in that situation." This seems to me, I confess, to be preposterous. Nor do I perceive that it makes any difference between these parties, if the goods were carried on deck by an express special agreement.

Again, it is said to be unequal and unjust that the shippers of goods under deck should contribute for the jettison of those on deck. But Valin has given a reason why they should contribute, where the usage is so to stow goods, namely, because the whole cargo is carried at a lower freight than if no goods were permitted to be so carried. The shipper under deck has therefore, a consideration. Besides, if any of the goods under deck are of a description liable, by the usage, to be carried on deck, this is an additional reason why they should contribute, since it depended merely upon the time when they were brought on board whether these or the others were carried in the hold. Undoubtedly, in order to render goods under deck liable to contribute, the usage ought to be clearly established, so that the shipper of goods carried under deck must be presumed to have known that such goods would be carried, and be carried on deck. Some things, as, for instance, an

elephant, as mentioned in one of the cases by way of illustration, are al. ways carried on deck. But if, as in such case, the thing is but rarely transported by sea, the shippers certainly cannot be presumed to know that it will be on board. But if any particular descriptions of articles are com monly carried on the voyage, and usually carried on deck, or either on deck or in the hold, indifferently, according as a greater or less proportion of the cargo consists of such articles, it does not appear why such a usage is not to be presumed to be known to everybody, as well as any other commer. cial usage, nor why any contract made in reference to such trade, should not be considered to be subject to the usage.

As far as the other goods on deck, that are not jettisoned, are concerned, they seem to be on the same footing, as to contribution in the case in question, as the ship and freight.

It is said, in some of the cases, that goods on deck are more exposed to sea-damage. This fact cannot, however, have any bearing on the question of average, since the goods jettisoned are contributed for at their value at the time of their being jettisoned, and if they have been previously damaged the contribution is lessened thereby; and the fact that they are more liable to damage in future on deck than if they were in the hold, is a matter of no concern to the other shippers; it does not authorize the ship-owner and other shippers to throw them overboard.

Suppose a jettison of goods from a steamboat, where the freight is generally carried on deck, would not this give a valid claim for contribution? I presume there is no doubt that it would give such a claim. Why does not the shipper of goods on deck, on board of a sailing vessel, stand upon precisely the same footing, if the cargo, including his goods, is the usual cargo and stowed in the usual way, on the particular voyage? It appears to me that these are the real questions of fact upon which all these cases ought to turn.

Mr. Justice Ware remarks that "the law does not consist of cases, but of principles," (Am. Jurist, v. 6, p. 13;) and if his remark is applicable to this subject, and it ought to be especially applicable to commercial questions, I think I am authorized in stating it as my opinion that the law on this subject is precisely as it is laid down in the French ordinance and Valin's commentaries; and that the jettison of goods rightfully carried on deck according to the usage of trade, which the other shippers must be presumed to know would be carried, and so carried, gives a valid claim for contribution against the ship, freight, and cargo; and that such a jettison gives a valid claim against the ship and freight, in all cases whatsoever; unless there is an express agreement to the contrary. I do not see how a different doctrine can be maintained without working a palpable wrong, and at the same time clashing with well-established and fundamental principles. This doctrine is besides, supported by some of the cases.

THE skill of a merchant or tradesman is exhibited in the combination of the greatest profit with the least expense; and he will make the most money who calmly looks from the "beginning to the end," rather than to be attracted by any intermediate point, however profitable it may appear