vessel are matters as to which the master is, generally speaking, bound to exercise his skill, and over which he is intrusted for the benefit of all concerned with a supervision, his failure to do so, properly, is negligence, for which the owner may be liable. While, therefore, we have some difficulty in respect to the sufficiency of this allegation, we think it is such as necessarily leads us into the inquiry whether the loss by jettison was occasioned by negligence of the master in overloading the ship. And as we find it extremely difficult, if not impossible, to distinguish between the obligation of the owners and master in these particulars, we shall proceed to consider the question whether the case is one of culpable negligence, or is within the exception of perils of the seas contained in the bill of lading.

There can be no doubt that a loss by a jettison, occasioned by a peril of the sea, is a loss by a peril of the sea. In that case the sea peril is deemed the proximate cause of the loss. But if a jettison of a cargo becomes necessary in consequence of any fault or breach of contract by the master or owners, the jettison is attributable to that fault or breach of contract, and not to sea peril, though that also may be present and enter into the case. This distinction is familiar in the law of insurance. General Mut. Ins. Co. v. Sherwood, 14 How. 365, and cases there cited.

In this case, did the necessity for the jettison arise from any fault or breach of contract by the master or owners?

Two grounds are assumed by the libelant. The first is, that considering the great weight of these articles, resting upon a small part of the upper deck, sufficient means were not used to support the weight and stiffen the ship, so as to prevent the deck from being strained.

This was a new ship, built of such materials, and so fastened and braced, as to be uncommonly strong. The owners employed a ship carpenter, who had worked on the vessel when built, to do what he deemed necessary to support this unusual weight on the deck. He describes what was done. The master superintended these alterations. He and the carpenter deemed them sufficient. They were both going 112] to sea in the vessel-the one *as commander, the other as carpenter-and can hardly be supposed to have omitted anything which they thought necessary for safety. The owners do not appear to have restricted them, in point of expenditure. We cannot avoid the conclusion that everything was done which these men thought necessary; and possessing, as they must be presumed to have done, conpetent skill in their respective occupations, they believed this part of the cargo was securely stowed and fastened and stayed, to go safely on the voyage. In point of fact, however, after being subjected to the action of the sea in a storm, it was found the deck had settled.

The second ground taken by the libelants is, that the ship was so overloaded, by the great weight of these articles on deck, as to be unseaworthy; and as the jettison was made to relieve the vessel from this condition, the owners are responsible for the loss. In part, at least, the same principles of law will be found applicable to both these grounds, and therefore we consider them together.

The principal question-and it is one of much importance is, what is the extent and operation of the implied contract of the owner respecting the ability of his ship to carry a particular deck load which he receives on board, under a contract that it shall be carried on deck, dangers of the seas excepted?

In general, the owner warrants the sufficiency of his vessel to carry the cargo put on board by the freighter, provided the vessel be not injured by a peril of the sea. Besides this, he contracts for the use of due care and skill in stowing the cargo, and in navigating the vessel. But, in applying these rules to cargo on deck, some peculiar considerations must be borne in mind.

This bill of lading declares that the property is to go on deck. It excepts perils of the seas. The exception must be construed with reference to the particular adventure, which the contract of affreightment shows was contemplated by the parties. Under this bill of lading the question is, not what in other circumstances could be deemed a peril of the sea, but what is to be deemed such when operating on this vessel, with this deck load. If a very burdensome cargo, like iron, is taken on board, and heavy weather met with, and a jettison made, it would not be a ground of claim against the owner, that the weather encountered would not have been sufficient to justify a jettison if the cargo had been cotton.

And when this freighter consented to place on the deck of this ship his boilers and chimneys, weighing upwards of thirty tons, not distributed about the deck, but lying in a small space, must he not be taken to have known that their necessary effect *might be to [*113 embarrass the sailing of the ship in a gale of wind, and cause her to labor in a heavy sea. The grounds upon which the rights and obligations, as to contribution, of owners of cargo on deck, in case of jettison, have long rested, have an intimate connection with this question. Valin, lib. 3, tit. 8, art. 12, giving the reason of the rule, that goods jettisoned from the deck are not paid for in general average, but contribute if not thrown over, says: "The reason why articles on deck, thrown overboard or damaged, are not contributed for, is, that as they cannot but embarrass the working of the ship, the presumption is, that they have been jettisoned before a full necessity for a jettison of cargo arose, and only because they hindered and confused the maneuvering of the vessel."

This has been still more clearly expressed by Locré, in his Commentary on the Code du Commerce Maritime, lib. 2, tit. 12, art. 421. He says: "Perhaps the common safety would not have made a jettison necessary if the lading had not been in contravention of rule, if it had not brought the dangers on the vessel, or contributed to enhance them." Similar views have been taken by the most approved writers on the law of insurance in this country and in England, and they have been applied in many cases. Abbott on Shipping, 481, 490, and notes; 3 Kent's Com. 240; 2 Phillips on Ins. 71; 2 Arnold on Ins. 890. It was remarked by Lord Denman, in Milward v. Hibbert, 3 Ad. & El. (N. S.) 120, that the reason assigned by Valin, that goods on deck embarrassed the navigation of the ship, is not suflicient to form the basis

Be

that there was negligence in not properly stowing and supporting this burden on deck, we think it is not made out in proof. The master is bound to use due diligence and skill in stowing and staying the cargo; but there is no absolute warranty that what is done shall 116] prove sufficient. We are of *opinion that due diligence and skill were used. sides, we do not find the necessity for the jettison attributable to any defects in these particulars. It may be that additional supports of the lower deck would have assisted the vessel in bearing the weight, but we see no reason to believe they would have enabled it to carry this unusual burden through a storm; and therefore, if we found negligence in this particular, we could not declare that the loss was to be attributed to it.

The decree of the District Court is to be reversed, and the cause remanded, with directions to dismiss the libel with costs. Decree reversed and cause remanded.

ADAM D. STEWART, Pl'ff in Er.,

V.

THE UNITED STATES.

(See S. C. 17 How. 116-130.)

Collector-extra compensation.

Section 18 of the Act of May 7, 1822, was intended to provide to the collector, and other officers named therein, compensation for extraordinary services incident to their respective offices, and to them only.

It does not embrace compensation to the collector for services as inspector.

Collector, as such, cannot claim compensation for services imposed by law upon his subordinate, the performance of which it is his duty to supervise and enforce.

Argued Dec. 26, 1854.

IN

Decided Jan. 9, 1855.

IN ERROR to the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington.

This was an action of assumpsit, brought in the court below to determine the construction of the law relating to the officers of the customs. The general issue was pleaded and the case tried upon an agreed statement of facts, which appears in the opinion of the court. Verdict and judgment in the court below having been in favor of U. S., the case is now here on a writ of error.

Mr. Walter S. Cox, for the plaintiff in error: 1. The Act of Congress of May 7th, 1822, does not apply to cases in which a collector holds at the same time the office of collector and any other distinct and independent office recognized by law, by distinct and independent appointment.

If the literal meaning of the Statute would extend to cases which the court are satisfied the Legislature never contemplated, or which would lead to absurd consequences, the operation of the statute must be restrained to narrower limits than the words import.

2 Inst. 386; Bac. Abr. Stat. I. 5; 1 Black, 88; Brewer's Lessee v. Blougher, 14 Pet. 178; U. S. v. Fisher, 2 Cr. 358; 1 Cond. 421. 15 L. ed.

Repeals by implication, whether general or partial, are not favored by the law; and there must be positive repugnancy between the old and the new law to make a repeal by implication.

Dwarris on Statutes, 674; Wood v. U. S. 16 Pet. 342.

There are two sets of phrases in the laws. The 15th section of the Act of May 7, 1822, which limits the amount to be received by a deputy-collector "for any services he may perform for the United States in any office or capacity," is supposed to indicate the same policy as the 18th section, and to apply only to services rendered by him as deputy-collector, and not to cases where he is invested at the same time with another distinct office.

On the other hand, the 14th section employs a distinct language, to apply to distinct offices.

The difference between the two forms of language is shown, and the above views generally are sustained, in the case of U. S. v. Morse, 3 Story, 87. The meaning of this Act is at least doubtful; and if so, it should be construed faIb. vorably to the plaintiff in error.

II. If our construction of the Act of May 7, 1822, be correct, the plaintiff in error was entitled to the conpensation claimed by him in his accounts for the 4th quarter of the year

1832.

By the Act of March 2, 1799, ch. 22, sec. 21, 1 Laws U. S. 627, collectors are to appoint inspectors, with the approbation of the principal officer of the Treasury Department.

By the Act of March 3, 1815, ch. 94, sec. 3, 3 Laws U. S. 231, continued in force by Acts of April 27, 1816, and March 3, 1817, inspectors are declared to be officers of the customs, and required to take an oath of office.

The Act to regulate the collection of duties, etc., of July 31, 1789, 1 Laws U. S. 45, limits the compensation of inspectors to $1.25 for every day of actual employment.

The Act of March 2, 1799, sec. 2, 1 Laws U. S. 707, increases the maximum to $2 per day; and the Act of April 26, 1816, 3 Laws U. S. 306, makes it $3 per day.

Under these Acts, the Secretary of the Treasury, in 1820, established the compensation of the plaintiff in error at $3 per day. He continued in the office until January 15, 1833. Under the fixation of his salary by the proper officer, after the service was rendered, he acquired a vested right to the compensation established by the Secretary, unless the Act of May 7, 1822, sec. 18, reduced his compensation; and that, too, even if the Secretary erred, either in the appointment to office or the fixation of salary.

U. S. v. McCall, Gilp. 563; U. S. v. Macdaniel, 7 Pet. 15.

III. The act of the Secretary related entirely to the past, and must therefore be construed to be a mere decision, which, if erroneous, cannot conclude the judgment of the court.

U. S. v. Dickson, 15 Pet. 141.

Mr. C. Cushing, Atty.-Gen., for defendant in error:

Act of 7 May, 1822, 3 Stat. at L. by L. &

This rejected claim of $3 per day as inspector of the customs, while he was also collector of the district, is the subject of the bill of exceptions, and of this writ of error, by Mr. Stew

art.

That the offices of collector of the district and of inspector of the customs are distinct and separate, is admitted; but that does not make an exception from the inhibition of the Act of 1822, "that no collector . . . shall ever receive more than $400 annually, exclusive, etc., for any services he may perform for the United States in any other office or capacity."

The 21st section of the Act of 2d March, 1799, to regulate the collection of duties on imports and tonnage, 1 Stat. at L. by L. & B. sec. 642, ch. 22, shows that the several offices of collector, naval officer and inspector, are distinct.

The appointment, as a constitutional act, lies with the Secretary of the Treasury, the language of the Statute being quite inexact, and running as if the Secretary merely possessed a power of approving or disapproving. In fact, he, and he alone, appoints.

Marbury v. Madison, 1 Cr. 137, 155; U. S. v. Batchelder, 2 Gal. 15; U. S. v. Wood, 2 Gal. 361; Mr. Legare's Opinion, Opinions Atty. Gen. pp. 1577, 1579.

But the inconvenience remains, of having the collector, as collector, employ himself as in spector. Act to Establish the Compensations of Officers employed in the Collection of Imports and Tonnage, 1 Stat. at L. by L. & B. 707, ch. 23, sec. 2.

The compensation to inspectors was increased by a subsequent Act, so that the maximum of allowance is $3 per day.

By the Act to regulate the collection of duties on imports and tonnage, approved 2d March, 1799, 1 Stat. at L.; by L. & B. p. 642, ch. 22, sec. 21, "The surveyor shall superintend and direct all inspectors, weighers, measurers and gaugers within his port; and shall, once every week, report to the collector the name or names of such inspectors, weighers, gaugers or measurers, as may be absent from, or neglect to do, their duty. And at the ports to which a collector only is assigned, such collector shall solely execute all the duties in which the co

served by a bill of exceptions in the court beThe questions of law passed upon and relow, and which this court are now called on to review, arises from the following agreed statement of facts, viz.:

That on or about the 12th March, 1818, the

defendant was appointed by the President of the United States, collector for the district of Michilimackinac, and inspector of the revenue for the port thereof; which offices he continued receive the emoluments of, till the 15th day of to hold, by successive reappointments, and to January, 1833.

"That on or about the 1st April, 1819, the defendant was appointed, by the Secretary of the Treasury, inspector of the customs for the tinued to hold, under his original appointment, port of Michilimackinac; which office he conuntil January 15th, 1833. The defendant's is the only case found on record of a collector holding at the same time the office of inspector of the customs. His allowance, in that capacity, was fixed by the Secretary at $40 a month, and so continued until the second quarter of the year 1820, when it was increased by the Secretary to $3 per day, the maximum allowance permitted by law to a regular inspect

or of the customs. The defendant continued to be paid, as inspector of the customs, at this rate, till the 1st of July, 1822, when the Act of Congress of 7th May, 1822, went into effect, entitled: 'An Act further to establish the compensation of officers of the customs, and to alter certain collection districts, and for other purposes.' 3 U. S. Stat. at L. 693. The 18th section of this Act is as follows: 'No collector, surveyor or naval officer shall ever receive more than $400 annually, exclusive of his compensation as collector, surveyor, or naval officer, and the fines and forfeitures allowed by law for any services he may perform for the United States in any other office or capacity.""

"A copy of the foregoing law was duly transmitted by the Treasury Department to the de fendant. In his accounts for the 3d and 4th quarters of the year 1822, the defendant charged compensation at the rate of $3 a day, as inspector of customs, which charge was disallowed at the treasury; and in his accounts for the three first quarters of the year 1823, he charged compensation at the rate of $40 a month, as inspector of the customs, which latter charge was also disallowed at the treasury. The defendant rendered several other accounts,