
    Smith and Stanley against J. and I. Wright.
    For goods shipped on deck and ejected, there is no contribution; nor is the owner of the vessel liable as a carrier.
    This was an action against the owners of a ship, to recover the value of goods shipped on deck, and ejected.
    At the trial it was .admitted that the defendants were owners, of the ship Charlotte,- that the plaintiffs were owners of twelve bales of cotton, laden on deck, to be carried from Hew-York to Liverpool; that they were to pay one half of the freight which was paid for goods carried in the hold; and that the cotton, in a storm, was ^thrown into the sea, for the preservation of the [*44] ship and the residue of the cargo, both of which arrived in safety.
    Several eminent brokers, underwriters, and merchants were examined, and they all uniformly testified, that goods on deck, if lost, are paid for by the underwriters on those goods, without contribution from the assurers of the vessel or other parts of the cargo; that there was no instance of an average on contribution allowed, when a loss happened in this way; that they never knew of any such case occurring between an owner of goods on deck and the owner of the vessel; that goods on deck always pay a higher premium, even 'in summer double, in winter, about 7 to 3, and less freight than goods under deck: the freight is less by one half, or two thirds, or thereabouts, but alwaj^s less; that they never before heard of a demand of this kind made against the owner of the vessel by the shipper of goods; that the freight of goods on deck is less than when below, because they are not considered as at the risk of the owner of the vessel. One merchant said, he once owned goods on deck, which were lost by jettison; and being uninsured, he claimed nothing from the owner of the vessel or the other part of the cargo. He conceived it to be the general understanding, that, for goods ejected from the deck, no contribution is to be made by the owner of the vessel, or of the other goods.
    By consent of parties, a verdict was found for the plaintiffs, subject to the opinion of the court, on a case to be made, as to the law, and the admissibility of the preceding testimony ; it was agreed, that if, subsequent to the trial, any instances of usage could be ascertained by affidavit, they should be added; and, in case of judgment for the plaintiffs, if any controversy should arise as to the amount really due, it should be settled by indifferent persons. In case the opinion of the court should b'e against them, judg rncnt to be entered for the defendants.
   Per Curiam.

The plaintiffs shipped on half freight, on the deck of the defendants’ vessel, twelve bales of cotton for Liverpool; which, for the preservation of ship and cargo, were, in a storm, thrown overboard; and the question is, are they entitled to average ? It is conceded, that to general average they are not: that the shippers of goods ■ under hatches, and the insurers on ship and cargo, [*45] are not liable to contribution *on account of their presumed ignorance of any part of the cargo being placed in so perilous a situation. But it is insisted there is not the same ground of-exemption for the shipowners, because such fact is to be presumed within their knowledge; and they are benefited by the extra freight. If this reasoning be correct, its effect would be to make the shipowners insurers of all goods laden on deck, without premium, and at half freight; which certainly would be the height of injustice.

It is sufficient for our purpose, that the usage has been against the allowance of average to goods placed on the deck of a vessel. This is proved to be the case, from the testimony of several insurance brokers and merchants, of long standing among ns; some of whom carry it back as far as thirty years ; a period, however, too short, it is said, to establish a usage. The true test of a commercial usage is, its 'having existed a sufficient length of time to have become generally known, and to warrant a presumption that contracts are made in reference to it. This appears to be the case in the present instance. We are, therefore, of opinion, that judgment be for the defendants.

Judgment for the defendants. 
      
       Goods laden on deck are never contributed for; but a boat may be a subject of general average. Lenox v. Marine Ins. Co., July, 1802. The reason why for goods laden on deck 'neither contribution nor general average, in case of ejection, can be claimed, is, that they themselves increase the danger of the navigation, and are taken on 'board, under an implied agreement that they shall be sacriflcéd, if it be necessary to eject.
     