
    *Doane and Others v. Keating.
    November, 1841,
    Richmond.
    [37 Am. Dec. 671.]
    (Absent Brooke, J.)
    General Average — Deck Cargo — Parol Evidence. — One ships goods from New York to Norfolk, to be stowed on deck; but the bill of lading is in the usual form, not mentioning that the shipment is of a deck load; in an action by the shipper against the ship owner for average, parol evidence that the goods were to be stowed on deck is admissible.
    Same — Same—Jettison.—In case of j ettison of a deck load, to avoid dangers of the seas, the owner of the goods is not entitled to the benefit of general average.
    The appellant Doane, Sturges and Buckley, were owners of the schooner Empire, which was one of a line of packets running between New York and Norfolk.
    In October 1837 Keating shipped at New York for Norfolk 25 hogsheads of molasses to be stowed on deck, and bills of lading were signed by the master, in the following words: “Shipped in good order by Thomas Keating, on board ' the schooner Empire, whereof is master for the present voyage, now lying in the port of New York and bound for Norfolk, twenty hogsheads molasses, being marked and numbered as per margin, which are to be delivered in like good order and condition at the aforesaid port of Norfolk (the dangers of the seas only excepted) to Merit Jordan or his assigns, he or they paying freight for the said thirty-five dollars as customary, with primage and average accustomed. In witness whereof, the master or purser of said vessel hath affirmed to bills of lading, all of this tenor or date, one of which being accomplished the other to stand void. Dated at New York the 15th October 1837. (Signed) J. P. M’Math.”
    The vessel sailed from New York on the 21st October, and did not arrive at Norfolk till the 6th November. In *the progress of the voyage, the vessel being off cape Henry, a violent storm came on, which blew her off to cape' Hatteras; and while she was scudding before the wind, a consultation . was held as to what was to be done, and it was recommended that part of the deck load should be staved. The master gave orders that it should be done; and 23 of the 25 hogsheads of molasses were accordingly staved. This course was necessary to save the vessel, the cargo and the crew; the storm could not be weathered without doing it. On the arrival at Norfolk, the cargo was delivered, Keating making no claim, and giving no notice not to deliver the cargo.
    In December 1837, Keating sued out of the circuit superior court of Norfolk, a súb-poena in chancery against Doane, Sturges and Buckley, the ship owners, M’Math the master, and Rowland the agent of the owners, with an endorsement of foreign attachment. The ground of claim stated in the bill, was, that the master did not take due and proper care of the 25 hogsheads of molasses, but failed to deliver 23 hogsheads of the same. In consequence of which, the ship owners being non-residents, the bill sought to subject any property of theirs, in the hands of the home defendants, to satisfy the value of the 23 hogsheads.
    Rowland answered, that he had no property of the ship owners in his hands; and M’Math, that the schooner was in his possession as master, and was within the jurisdiction of the court. The ship owners answered,- that due and proper care was taken of the molasses: that during the voyage, a violent storm made it necessary for the safety of the vessel, the cargo, and all on board, that the molasses, which was a deck load, should be thrown overboard or staved, and so it was owing to the act of God, that the 23 hogsheads were staved and remained undelivered ; and they denied that they were responsible for goods shipped on deck, as in this instance the molasses was, and staved in consequence of perils of *the sea, insisting that where a deck load is so lost by the perils of the sea, without any want of care on the part of the master, the loss must fall on the shipper and not on the ship owners.
    It was clearly proved, that Sturges, one of the owners, reluctantly, and at the earnest request of Keating, agreed to take the molasses as a deck load, and Keating saw it being stowed on deck: that the bill of lading was signed, in its present form, by the master, without reading it: that the freight of 35 dollars, was one dollar per hogshead from New York to Norfolk, and ten dollars from Norfolk to Gosport where the molasses was to be delivered, which was the usual freight for a deck load; whereas, had it been stowed under hatches, the freight would have been one dollar and twenty-five cents per hogshead: that Keat-ing arrived at Norfolk before the vessel, and stated in conversation with several persons that his molasses was on deck, and he expected it would be lost; and he told one witness, that he thought the 23 hogsheads should come under general average; the witness told him he thought not, and offered to go with him to Mr. Cowper, the secretary of the marine insurance company; Mr. Cowper, upon Keating’s state of facts, remarked that a deck load was not entitled to the benefit of general average; upon which Keating observed that the loss of the molasses would be his loss.
    There was proof, on the other hand, to shew that the vessel was employed in the coasting trade between New York and Norfolk, and was so constructed as to carry deck loads, and was in the habit of carrying such loads.
    On the 29th November 1838, the court ordered, that the ship owners should give bond with surety in the penalty of 2000 dollars, with condition that the vessel should be forthcoming to pay and satisfy the decree, or that they should pay and satisfy the sum that should be decreed to Keating; and on failure to give such bond, the sergeant of Norfolk borough was directed to take ^possession of the vessel, and deliver her in the possession of Keat-ing upon his executing a like bond, and on his failure to give such bond, to retain the vessel till further order. And the cause coming on for hearing, the court decreed, that the ship owners should render an account of the value of 23 hogsheads of molasses at the price such molasses would have been worth at Norfolk at the time of the vessel’s arrival there, and of the several values of all the goods and merchandize shipped on board the schooner which arrived, distinguishing the several shippers and the respective values of their goods and merchandize, and also an account of the value of the schooner, her tackle, apparel and furniture; and then, the commissioner was directed to-state an account upon the principle of general average and contribution ; ascertaining the amount due Keating in consequence of the loss of his molasses. On the next day, the parties filed an account to be received and taken as the accounts which the commissioner was to state: and the ship owners consenting, l;hat the sum of 1258 dollars should be taken as the true amount due to Keating (if any thing was due) after ascertaining the contributory share which the several owners of the schooner and of her cargo should pay towards his loss, and deducting such contributory share from the value of Keating’s molasses which was staved for the preservation of the schooner and her cargo; and it appearing that the ship owners delivered all the cargo that arrived safe in the vessel, to the respective consignees thereof, without settling the average loss, or demanding payment of the several contributory shares; the court decreed, that the ship owners should pay Keating the said sum of 1258 dollars, with interest from the 1st January 1838 till paid, and the costs of suit; and that, unless payment should be made within sixty days from the adjournment of the court, the sergeant should make sale of the schooner, her tackle, apparel and furniture, &c.
    *From this decree, Doane, Sturges and Buckley, by petition to this court, prayed an appeal; ■which was allowed.
    Robinson, for the appellants,
    maintained, that goods shipped on deck, if lost by jettison, were not entitled to the benefit of general average; for they, by their situation, increased the difficulty of the navigation, and were peculiarly exposed to peril. 3 Kent’s Comm. 240; citing Smith v. Wright, 1 Caines’s Rep. 43; Lenox v. United Ins. Company, 3 Johns. Cas. 178; Boulay-Paty, tom. IV. 566; Code de Commerce, art. 421; Dodge v. Bartol, 5 Greenl. 286; The brig Thaddeus, 4 Mart. Louis. Rep. 582; to which may be added Barber v. Brace, 5 Conn. Rep. 9. In Abbott on Shipping, p. 344, it was said, that “the French ordinance, in express terms, excluded from the benefit of general average, goods stowed on the deck of the ship; and the same rule prevailed in the practice” of England. If, however, there could be any doubt on the question as a general one, there could be none as respects this particular case; for the parties here must be considered as having contracted with a view to the law of New York; as to which the cases of Smith v. Wright and Lenox v. United Ins. Company were decisive.
    Lyons and Stanard for the appellees,
    argued, that the bill of lading shewed a shipment in the ordinary manner, and a shipment at what would’ be a fult freight if shipped under hatches, stipulating delivery at Norfolk not at Gosport; whereas, they said, it was usual, when the shipment was of a deck load, that the bill should express the fact. This bill of lading, therefore, was the only evidence as to the terms of the contract. When the goods of several were shipped in a general ship, the bill of lading was given and taken to express the contract, Abbott on Ship. 216, 219. And it was assignable like a bill of exchange by the custom of merchants, *Lickbarrow v. Mason, 2 T. R. 63, 5 Id. 683. A bill of exchange was a contract in writing by the custom of merchants, and the whole of the contract must appear on the face of the bill, Thomas v. Bishop, 2 Stra. 955. So a bill of lading was a contract in writing by the custom of merchants, and could not be varied by matter lying in parol. A merchant who underwrote a policy of insurance, was never permitted to shew what did not appear bjr the instrument, Karnes v. Knightly, Skin. 54, and why should a ship owner who signed a bill of lading, be permitted to shew what did not appear on the bill?
    Then, as to the merits: The principle of the law of jettison was founded on the plainest natural justice — that where several persons were embarked in the same adventure, and it became necessary to sacrifice the property of some for the preservation of that of others, those whose property was thus preserved, should contribute, in proportion to their interests, to make good the loss incurred for their benefit. But to this principle there was an exception, generally but not universally recognized, that deck loads were not entitled to the benefit of general average. The exception should be held applicable only to cases that came within the principle on which it rested: cessante ratione cessat et ipsa lex. What was the principle? The exception had been established on grounds of public policy rather than abstract justice: it was designed to discourage a mode of shipment, whereby men might expose, not only their own property, but the property and even the lives of others, to extraordinary hazard. In the case of Smith v. Wright, it was said by the court, “that shippers of goods under hatches, and the insurers of ship and cargo, were not liable to contribution” (namely, for deck loads thrown overboard) “on account of their presumed ignorance of any part of the cargo being placed in so perilous a situation.” In Abbott on Ship. 344, after stating, *that “the Trench ordinance, in express terms, excludes from the benefit of general average, goods stowed upon the deck of a ship,” and that “the same rule prevails in practice in England,” it is added, “goods so stowed may, in many cases, obstruct the management of the vessel, and except in cases where usage may have sanctioned the practice, the master ought not to stow them there without consent of the merchant. ’ ’ And Phillips on Ins. 332, citing Valin, Tom. 2, p. 205, said, that “the right to demand contribution may depend on the particular situation of the thing sacrificed. If goods carried on deck are thrown over, it is held, in general, that no contribution can be claimed. The reason given by Valin, is, that the goods so carried embarrass the navigation of the ship. But he thinks that this doctrine ought to be i'ontrolled by the usage of trade, and accordingly that contribution may be claimed for goods thrown overboard from the deck of small coasting vessels, or river craft, which usually carry a part of their loads on deck.” The presumption of law was, that, in general, shippers of goods under hatches, and insurers of ship and cargo, were ignorant that any part of the cargo would be shipped on deck, and consequently were not held responsible for any part of the deck load thrown overboard to preserve the rest of the cargo. But this, like every other presumption, might be rebutted by facts: the law would not presume ignorance where knowledge wras proved; and if goods were shipped under hatches, with full knowledge, on the part of the shippers, that goods would be shipped on deck, they must be taken to consent that goods should be so shipped. In such case, the principle of the exception no longer applied: the case fell within the rule which required contribution, not within the exception which exempted the ship and the rest of the cargo from it. Now, they said, it was proved, in this case, that this coasting packet between New York and Norfolk was constructed to carry deck *’loads, and was in the constant habit of carrying them; whence the inference was irresistible, that all the shippers were acquainted with the fact. Consequently, all were bound to make good the loss incurred by the jettison of Keating’s goods. If there was any difference between the law of New York and that of Virginia, the law of Virginia must govern the case, for Norfolk was the port of discharge. Simonds & Loder v. White, 2 Barn. & Cress. 805, 9 Eng. C. L. R. 251.
    Robinson replied, that there was, in truth, no conflict between the parol evidence and the bill of lading. It was argued, that the bill of la'ding of a deck load, usually expressed the fact. But of that there was no evidence, and nothing was more improbable; for the principle that a deck load, in case of jettison, was not entitled to general average, was a principle of maritime law. The bill of lading, in this case, excepted “dangers of the seas;” and the jettison was caused by a danger of the sea. The bill of lading provided, that the shipper should pay freight, “with primage and average accustomed:” the average there meant, was petty average, not general or gross average, such as this was; Abbott on Ship. 326. But, if it included general average, it only included average accustomed ; and the jettison of the deck load was not, by the custom, entitled to the benefit of general average. Besides, if the bill of lading, through mistake, omitted to state the real terms of the contract, proof of the .real terms was admissible; and it was in proof, that the contract was, that the molasses should be stowed on deck, and the general bill of lading was signed by the master without reading it.
    There was other points argued at the bar —viz. whether Keating could maintain his action against the ship owners alone, for the whole amount he was entitled to; especially seeing, that after his conversation with Mr. Cow'per, he had abandoned all claim, and the master had delivered the rest of the cargo? On which poirt, "Robinson cited Shephard v. Wright, Show. P. C. 18; Birkley v. Presgrave, 1 East 220; Price v. Noble, 4 Taunt. 123; Dobson v. Wilson, 3 Camp. 480, and Abbott on Ship. p. 351, and Stanard relied on Abbott on Ship. 244. And whether, as Keat-ing alleged in his bill, that the master did not bestow proper care and attention to the molasses, and the reverse w7as proved to be the fact, he was entitled to recover any thing? But the court did not decide either of these points.
    
      
      See 14 Am. & Eng. Enc. Law (2d Ed.) 968.
    
   ALLEN, J.

The first enquiry presented by this case, is, whether it was competent for the defendants below, to set up and rely upon the defence, that the goods in question were shipped on deck with the knowledge of the plaintiff, and therefore excluded from the benefit of general average. To admit any evidence to establish such facts, would, it is contended, be to contradict the terms of the bill of lading, the written contract between the parties. I do not deem it important to enter into a critical examination of the contract, to ascertain whether such evidence would or would not be consistent with the bill of lading. The perils of the sea are excepted ; that the loss was incurred in consequence of those perils, is fully made out; and the only ground upon which Keat-ing can rest, is the claim to general average. According to the maritime -Jaw, all who have been benefited by the loss of one, are bound to contribute to make it good, provided it is a proper case for general average. If Keating had proceeded against the ship owners for their misconduct in placing on deck the 20 hogsheads named in the bill of lading, without authority, it might then have become material to examine how far the evidence objected to conflicts with the written instrument. The ship owner is held responsible for all the contributory shares of those interested in the cargo, because the case is supposed to fall within the principle of general average, and the cargo was delivered to the several ^owners thereof without their having been required to contribute. If the ship owner should be held primarily liable on this ground, he would have a right to recover from the various shippers their contributory shares; and unless the objection to the testimony would avail, if offered in defence to a bill against them for contribution, it ought not to avail here. Their liability results from the general principles of maritime law, and does not depend on any special contract with master or owner. Keating does not found his claim upon the bill of lading: he seeks to recover for the failure to deliver twenty-three hogsheads; the bill of lading mentions but twenty. The court below held it a proper case for general average, and rendered a decree for the amount to which, upon the principles of general average, Keating was entitled.

By the maritime law, the loss by general average is to b,e adjusted at the place, and according to the law of the port of discharge ; Simonds & Loder v. White. With this agrees the Ordinance of Marine, Liv. 3, tit. 8, art. 6. And Valin, Tom. 2, p, 192, shews, that the laws of the Rhodians were the same. Norfolk being the port of discharge, the laws of Virginia must govern. On this subject, our statutes and reports are silent. Nor have we, in this case, any proof of general usage. The case being entirely new, we must resort to the general maritime law, and take that rule which seems to have received the sanction of most commercial nations.

The rule of the Rodian law, as found in Abbott on Shipping, is this: “If goods are thrown overboard in order to lighten a ship, the loss, incurred for the sake of all, shall be made good by the contribution of all.” But goods stowed upon deck are excluded from this benefit. The Erench ordinance also excludes them. And so far as the matter has been acted upon in the courts of this country, the same rule has been adopted. 3 Kent’s *Comm. 240, and the cases there cited. This being the general rule, is there any thing in this case .to make it an exception? It was contended in argument, that the general rule should not apply, because the vessel was employed in the coasting trade, constructed for the purpose of taking freight on deck, and that it is known to all who ship on such vessels, that such is the usage; from which it is inferred that all should be liable for contribution in case of jettison. To sustain this view, an expression in Smith v. Wright is relied on: it is there stated, “that shippers on deck are not entitled to general average ; that the shippers of goods under hatches, and the insurers on ship and cargo, are not liable to contribution, on account of their presumed ignorance of any part of the cargo being placed in so-perilous a situation.” If this were the true reason of the rule, there would be great force in the argument. Shippers under hatches could not claim the benefit of a principle, founded on their presumed ignorance of the fact, when it clearly appeared they were fully apprised of it. But this cannot be the true reason; for the shipowner is entitled to contribution for damage sustained by the vessel, to save her in a case of extremity; which could not be, if the rule were founded on the reason above mentioned. The master or owner cannot be ignorant that the goods are shipped on deck. The true reason why contribution cannot be claimed for goods shipped on deck, is given in a note to the case referred to: “The goods themselves increased the danger of the navigation, and are taken on board tinder an implied agreement that they shall be sacrificed if it be necessary to-eject.” It is a penalty imposed on the shipper, who thus puts to hazard the safety-of the ship and the lives of the crew. And this is the reason given by Valin, Tom. 2, p. 203. “The reason why payment for effects on deck thrown overboard or damaged, is refused by this article, is, that they serve only to embarrass the working of the ship; *the presumption is, that they have been thrown overboard, before an absolute necessity for jettison, and solely because they hinder and obstruct the working.” If I have a proper understanding of the sense of the original, the jettison of goods on deck is justified under circumstances which would not authorize the same course with goods under hatches: so I understand the phrase, la presomption est qu’ils auront ete jettes avant toute neccessite de jet. And there is good reason for it; with the loading under hatches and the decks clear, so that proper exertions could be made for her safety, the vessel would ride out a storm securely, which, with her decks incumbered with loading, would endanger her safety. Such being the true reason of the rule, the usage of vessels engaged in the coasting trade to take on deck loads (even if proved, which it is not in this record) and the knowledge of that fact by the other shippers, would not vary the rule. Accordingly, some of the cases referred to in the American reports, were cases of coasting vessels.

It was further argued, that the general rule should not apply to coasting vessels, upon the authority of Valin, Tom. 2, p. 205, where it is said, contribution may be claimed for goods thrown overboard from the deck of small coasting vessels or river craft, which usually carry a part of their cargoes on deck; to which Phillips on Ins. 332, refers, as supporting the position that the usage of trade may control the general rule. The instances put by'Valin are of a very limited navigation,' between ports in the immediate neighbourhood of each other, and where it was scarcely necessary to venture into the open sea. In such cases, but little if any difference is made in freight, so inconsiderable is the risk; and the master has the right, under the usage,to stow the cargo as he pleases. A benefit results to all the shippers in consequence; for no difference being made, the freight chargeable to all is reduced; and therefore as all are benefited, *all should contribute. But no such reason can apply to the case where the master has no such right, and is only authorized to load on deck by special contract with the shipper. The instance referred to by Phillips, of the practice in whaling voyages to adjust, upon principles of general average, the loss of oil thrown overboard from the deck, where it is carried for a short time after being put into casks, before it can be properly and safely stowed in the hold, would seem to be founded on the same principle. All are benefited equally. If the oil cannot be stowed safely until it remains some time on deck after being put in casks, each adventurer is exposed to the same peril; the exposure is for the benefit of all interested in cargo and ship; and therefore, according to the principles of equal and exact justice which seem to pervade this branch of maritime law, all should contribute. But, in the case of coasting vessels on our coast, no benefit by the reduction of freight, or in any other way, accrues to the shipper under hatches, from taking on a deck load. The navigation is, on the open sea, rendered frequently more perilous from proximity to the shore, than navigation across the ocean.

I am therefore of opinion that this case does not fall within any of the exceptions to the general rule, and that Keating was not entitled to claim general average.

This view of the main question supersedes the necessity of enquiring whether the action can be maintained against the ship owner alone, if, in a case where general average can be claimed, he surrenders the cargo to the several shippers without collecting the contribution or taking from them any security.

I think the decree should be reversed and the bill dismissed.

STANARD, J.

Passing by the objections to the recovery founded on the suggested discrepancy between the claim asserted in the bill and that for which the decree *was rendered; passing by, too, the objection that Keating could not maintain his claim against the ship owners alone, for the whole amount which ought to have been contributed by them and the owners of the cargo; two questions arise on the merits of the claim: 1. Were Keating’s goods shipped on deck in conformity with the contract of affreightment? And 2. if they were, and have been lost by a justifiable jettison of them, are the shippers of them entitled to the benefit of general average? The evidence, if it be admissible, is full and satisfactory, that the goods were shipped as a deck load; and there is no doubt that the jettison was justifiable under the circumstances. It is however objected, that the evidence to prove that the godds were shipped as a deck load, is inconsistent with, or explanatory of, the bill of lading, and that such evidence is inadmissible. The evidence is not, in my opinion, inconsistent with the bill of lading. That neither affirms nor disaffirms that the goods were shipped as a deck load; and my impression is, that the utmost it can avail the shipper, is to cast on the ship owner the burden of proof, that the stowing of the goods on deck was justifiable. But furthermore, if the bill of lading was of more efficacy, clear extrinsic proof, that it was signed by mistake, and that the actual agreement was, that the goods should be taken and stowed on. deck, would be admissible ; and such proof being offered would repel the claim founded on a paper so signed. It would be but the common case of a mistake committed in reducing an agreement to writing; a mistake, from which a court of equity would relieve, even if the party were asking its aid for the purpose ; a fortiori would the court withhold its aid to enforce such contract according to its letter, in disregard of the proof of the mistake.

The general rule of the maritime law seems to be well established, that goods stowed on deck and lost by jettison, are not entitled to general average. Abbott on -Ship. 345; 3 Kent’s Comm. 240; Valin, Tom. 2, p. 303, to which may be added the cases of Smith v. Wright in New York, Dodge v. Bartol in New Hampshire, Barber v. Brace in Connecticut, and The brig Thaddeus in Louisiana. And there are no decisions bringing the general rule in question. The exception which seems to prevail in some of the coasting trade of France, does not apply in this case. No such exception is admitted' in respect to the coasting trade of England; and the cases before referred to shew, that it has not been admitted by the judicial decisions of other states of the Union in respect to the coasting trade of the U. States. The kind of lading and navigation, in which the exception is allowed in France, differs essentially from the lading and navigation of our coasting trade. In the former, no distinction is made in the freight, and the master, under the usage, has the discretion to put any part of the lading on deck which he thinks proper, without special contract and without incurring any responsibility for so doing. Our coasting trade navigates hundreds of miles in the main ocean, and is exposed to all sea risks.

I concur, that the decree is to be reversed and the bill dismissed.

CABELL, J., concurred. Decree reversed, and bill dismissed.  