ceived to show that the shipper agreed that the goods might be stowed otherwise when such a bill of lading is given. In the case of The Delaware, 20 this question of the duty of the carrier to stow the goods under deck when the bill of lading was silent as to where and how they should be stowed underwent a very thorough discussion, and it was held that the carrier who had given such a bill of lading had been guilty of negligence in stowing the goods on deck, and that he was thereby deprived of the benefit of the exception of liability for losses by the dangers of the seas in the bill of lading, although the goods had been necessarily jettisoned in a storm. "Goods, though lost by perils of the sea," say the court, "if they were stowed on deck without the consent of the shipper, are not regarded as goods lost by the act of God within the meaning of the maritime law, nor are such losses regarded as losses by the perils of the sea, which will excuse the carrier from delivering the goods shipped to the consignee, unless it appears that the manner in which the goods were stowed is sanctioned by commercial usage, or unless it affirmatively appears that the manner of stowage did not, in any degree, contribute to the disaster; that the loss happened without any fault or negligence on the part of the carrier, and that it could not have been prevented by human skill and prudence, even if the goods had been stowed under deck, as required by the general rules of the maritime law." And upon this ground it was held, not only that the master and owners of the ship were liable, but that the rest of the cargo was not liable to contribute to the loss.21 Sec. 604. (§ 305.) Same subject-Stowage on deck.-In the absence of a bill of lading, or when the bill of lading is silent upon the subject of stowage, it is a part of the contract of ship vised that such part of the cargo 4 Pick. 429; Copper Co. v. Ins. Co., was not under deck. The Kirk hill, 99 Fed. 575, 39 C. C. A. 658. 20. 14 Wall. 579. 21. The Rebecca, Ware, 187; The Paragon, id. 322; Dodge v. Bartol, 5 Greenl. 286; Wolcott v. Ins. Co., 22 id. 108; Adams v. Ins. Co., id. 163; Sproat v. Donnell, 26 Me. 185; Lamb v. Parkham, 1 Sprague 343. A shipper by consenting that goods be carried on deck does not ment that the goods shall be stowed under deck.22 It is a condition tacitly annexed to the contract by operation of law; and it is equally binding on the master, and the shipper is equally entitled to its benefit, as though it was stated in express terms.23 But it is equally well settled that an established usage in a particular trade, or as to a particular kind of goods, may justify the carriage on deck, or may even make it the duty of the master to stow them there.24 Sec. 605. ($306.) Same subject-Usage as affecting the right to stow on deck in particular instances. If the goods. are of a dangerous character, as for instance, if they consist of inflammable oils or liquids, it is common for a usage to exist to stow them on deck where, in case of accident, they will be likely to do the least harm and be in a position to be more readily cast overboard.25 So live animals are carried on deck as more healthy for them and convenient for those who are to give them attention, and because any other mode of conveyance would be generally impracticable.26 So it may be shown that, according to the custom of a particular trade, lumber was carried on deck, and, the custom being established, it was held that the owner of lumber thus being carried was entitled to contribution from the ship-owner for a loss by jettison.27 And not only may goods be stowed on deck when usage in the particular trade or as to the thereby assume the risk of loss or injury to them. Schwinger v. Raymond, 83 N. Y. 192. 22. Creery v. Holly, 14 Wend. 26; The Delaware, 14 Wall. 579; The New Orleans, 26 Fed. Rep. 44; The Gran Canaria, 16 Fed. Rep. 868; The Paragon, 1 Ware, 322. In Crooks v. The Fanny Skolfield, 65 Fed. 814, the ship was held liable for leakage caused by allowing oil casks to remain on deck for two weeks in the hot sun. 23. The Waldo, Davies, 161. 24. Da Costa v. Edmunds, 4 Camp. 141. In Tower Co. v. Southern Pacific Co., 184 Mass. 472, 69 N. E. 348, a custom among steamship companies in carrying oil clothing to class it as inflammable material and stow it on deck was upheld. 25. Da Costa v. Edmunds, 4 Champ. 141. 26. Brown v. Cornwell, 1 Root, 60; Milward v. Hibbert, 3 Ad. & El. (N. S.) 120. 27. Gould v. Oliver, 4 Bing. (N. S.) 134. particular goods justifies their being so carried, but where the safety of the goods or their preservation makes it necessary that they shall be so carried, the master and owners will become liable for damage suffered by them by reason of their being stowed in the hold of the vessel. Thus, in the case of The Star of Hope,28 nuts in bags and boxes were shipped from New York to San Francisco, and were put into the hold of the vessel instead of upon the deck; and it being shown that when so carried they are liable to become damaged, and that the almost invariable practice was to carry such goods in the cabin, and that these were marked with directions that they should be so carried, it was held to have been culpable negligence in the master of the vessel to stow them in the hold.29 Sec. 606. (§ 307.) Same subject-Damage for other goods stowed in hold. The carrier is also liable to the shipper for damage done to his goods by other goods stowed in the hold of the vessel without allegation or proof of any wilful negligence on the part of the carrier.30 If, however, it was the usage to carry salt as a part of the cargo of a general ship, it would not be negligence to take it on board with other goods, and the owner of the goods liable to be injured by its presence in the hold must bear the loss occasioned thereby, if there was no bad stowage and no inquiry made by the shipper before the goods were put on 28. 17 Wall. 651. 29. In The New Orleans, 26 Fed. Rep. 44, it is held that a notice on the package not to put the goods in the hold does not bind the carrier where it is not called to his attention and not mentioned in the bill of lading. 30. Gillespie v. Thompson, 6 El. & Bl. 477, note; Brousseau v. Ship Hudson, 11 La. Ann. 427; Cranwell v. Ship Fanny Fosdick, 15 id. 436; The Bark Col. Ledyard, 1 Sprague, 530; Bearse v. Ropes, 1 id. 331. caution against protecting plumbago from damage by cocoanut oil stowed near it is negligence for which the ship is liable if damage results. The Gloaming, 46 Fed. 671; The H. G. Johnson, 48 Fed. 696. Damage done to flour by stowing it in a badly ventilated hold on top of barrels of kerosene in conquence of which the flour becomes saturated with kerosene, is such negligence in stowage that the ship is liable. Fed. 1014, 10 C. The omission to take any pre- App. 580. The Thames, 61 C. A. 232, 8 U. S. board.31 But if the master take on board goods in bad condition, and which from such condition endanger the safety of other goods with which they may be stowed, he and the owners as well as the vessel will be liable for any damage which may accrue from them.32 Sec. 607. ($308.) Same subject-Rule as to stowage in hold confined to vessels on seas and great lakes.-It has, however, been held that this rule as to stowage in the hold of the vessel applies only to sailing vessels on sea voyages, which are expected to encounter the extraordinary perils of the seas, and that it has no application to those which navigate smoother waters and are comparatively safe from extraordinary expos ures. The direct question in the case was, whether the goods which had been saved were liable, contrary to the general rule of the maritime law, which denies the right to contribution for goods carried on deck, to contribute to the loss of other goods which were being carried on the deck of a steamboat in Long Island Sound, and were jettisoned during a gale to prevent her from sinking. It was said that the sole reason for requiring the stowage of goods under deck was that goods carried on deck embarrassed the navigation of the vessel, and it was con 31. Clark v. Barnwell, 12 How. 272; Baxter v. Leland, 1 Blatchf. 526. Doubtless goods liable to injure each other may be carried in the same ship if it be the general usage to carry them together, provided all proper means are employed to prevent injury. But no general usage is established to carry tea and camphor in the same vessel. The practice of sometimes carrying them together in the same vessel is of very recent date, and only in vessels specially de signed and built to keep the camphor in air-tight compartments. When a large part of the cargo is found to be impregnated with sequently regarded as unjust that that portion of the cargo which imperiled the vessel and other parts of the cargo, if thrown overboard, should be compensated for by that which was saved. No such reason, it was said, has any application to a vessel propelled by steam, and the reason of the law ceasing, the law itself ceases. The conclusion of the court, therefore, was that the rule laid down as applicable to sailing vessels upon a sea voyage had no relation to a voyage by a steamboat upon the Sound; and that if it had, the usage established in the case to stow the goods on deck took it out of the rule.33 A decision to the same effect had previously been made by the supreme court of Illinois,34 in which it was held that the maritime rule as to general average, in case of goods jettisoned from the deck of a sailing vessel, did not apply to a double-decked propeller navigating the lakes between Chicago and Buffalo, both on account of the fact that the vessel was propelled by steam and because of the universal usage to stow freight upon the deck of boats of that kind in navigation upon the lakes. And in several other cases, it has been decided that the rule has no application to cases of vessels propelled by steam, but is confined to sailing vessels.35 But in The Milwaukee Belle,3 it was held to apply to sailing vessels upon the lakes. Sec. 608. ($309.) Same subject-Inland vessels subject to same rule as carriers on land. We may therefore safely conclude, both on reason and authority, that this rule of the maritime law as to the stowage of goods is confined to ships which sail upon the seas and the great lakes. But whether this be so or not, it can have no application to steamboats which navigate our rivers, which, as is well known, are built to carry their freight principally on deck, and could, from the character of these rivers, be made available as instruments of commerce in no other way. The only rule, therefore, which can be laid down 33. Harris v. Moody, 30 N. Y. 266. 34. Gillett v. Ellis, 11 Ill. 579. 35. Merchants', etc. Ins. Co. v. Shillito, 15 Ohio St. 559; Toledo Ins. Co. v. Speares, 16 Ind. 52; |