Yet, if the

contribution, as in case of a general average. goods are, without necessity, thrown overboard, the carrier will be chargeable with the loss. If a ferryman should, in the emergency of a storm, throw overboard a box of jewels, and it was done from absolute necessity to save life, he would not be responsible; but if done rashly, it would be otherwise.3

§ 216. In an action against the defendants, as owners of a certain schooner, for not delivering flour shipped at Georgetown for Portsmouth, it appeared, that twenty barrels of it were shipped to go under deck at a certain price per barrel, and one hundred and forty barrels were shipped to go on deck, at half that price for freight. It appeared, that on coming on Nantucket shoal, in bad weather, and with a heavy sea, the vessel struck, and was in such danger as to

1 Story on Bailm. § 530 a, 4th edit.; Smith v. Wright, 1 Caines (N. Y.) R. 43; Lenox v. U. Ins. Co. 3 Johns. (N. Y.) Cases, 178.

2 Ibid.

3 Mouse's case, 12 Co. R. 63; Bancroft's case, cited in Kenrick v. Eggleston, Aleyn, R. 93; and see Jones on Bailm. 107, 108; Bird v. Astcock, 2 Bulst. R. 280; 2 Roll. Abr. 567. "The case of Bancroft, as cited by Lord Chief Justice Rolle, would seem to imply a responsibility of the carrier even in cases of jettison. It is stated thus: A box of jewels had been delivered to a ferryman, who knew not what it contained, and a sudden storm arising in the passage, he threw the box into the sea. Yet it was resolved that he should answer for it. Sir William Jones suspects, that there must have been some proof of culpable negligence in the case, and that probably the casket was both small and light enough to have been kept longer on board than other goods. Even then the case would be sufficiently hard; as the ferryman did not know the contents, and might have acted for the best. But if the doctrine of the case be, that jettison will not, in a clear case of necessity, discharge the carrier, it is not law; for it was expressly decided, in Lord Coke's time, in the case of a bargeman (cited by Lord Coke in Bird v. Astcock, 2 Bulst. R. 280,) that where goods were thrown overboard in a great storm to save the lives of the passengers, by lightening the barge, the bargeman was exonerated; for the storm was the act of God, and the occasion of throwing them overboard." Story on Bailm. § 531.

render it necessary, for the preservation of the lives of the crew, and for the safety of the vessel and cargo, to throw some part of the latter overboard; and accordingly the whole of the deck load, and twenty barrels from the hold, being the plaintiff's flour, were thrown over. The value of the twenty barrels under deck was afterwards settled for in the general average, leaving only the deck load in controversy. The defendants insisted, that they were absolved from liability for the goods shipped on deck, both by the general principles of the law merchant, and by the usage and custom of America. The defendants were held not liable to contribution, as it was in evidence, that the jettison, by which the plaintiff's loss was occasioned, was justified by the highest necessity; and as it was not pretended, that the property could have been preserved by any exertion on the part of the master or mariners.1

§ 217. The law on the subject of jettison is thus laid down by Tindal, C. J., in the case of Gould v. Oliver: 2 "When the loading on the deck has taken place with the consent of the merchant, it is obvious that no remedy against the ship-owner or master for a wrongful loading of the goods on deck can exist. The foreign authorities are indeed express on that point; 3 and the general rule of the English law, that no one can maintain an action for a wrong, where he has consented or contributed to the act which occasioned his loss, leads to the same conclusion." 4

§ 218. If the goods are, without the consent of the mer

1 Dodge v. Bartol, 5 Greenl. (Me.) R. 286.

2 Gould v. Oliver, 4 Bing. (N. C.) R. 142.

3 Valin, tit. dec Capitaine, art. 12; Consol del Mar, c. 183.

4 It has been held in the Supreme Court of New Brunswick, that a master of a ship who has signed the usual bill of lading, is not liable for a loss by the jettison of goods which have been laden on deck with the knowledge and consent of the shipper and consignee. Johnston v. Crane, 1 Kerr, R. 356.

chant, or contrary to established usage, stowed on deck, and are, from their being so placed, thrown overboard in tempestuous weather, the carrier will be answerable for the loss by the jettison.1 Where the master of a vessel received hogsheads of gin on board, to be transported at customary freight, which were stowed on deck, and which were ejected during the voyage by reason of tempestuous weather; it was held, that the owners were liable for the loss, unless such stowage was authorized by consent of the merchant, or by custom. It was not pretended, that the jettison was without justifiable cause, but the complaint was careless stowage, in putting the gin on deck, when it ought to have been put in the hold.2

§ 219. In respect to the doctrine of general average, which arises in cases of jettison, and other accidents in cases of transportation of goods by sea, the law allows a compensation to the owners of the goods, where the goods are thrown overboard for the common benefit, and they may demand a pro rata contribution, from all other persons deriving a benefit from the sacrifice. This subject, however, more appropriately belongs to a treatise on the law of shipping. Carriers on land, it may be added, are entitled to the same equity, and may be entitled, if not to a common contribution, in the nature of a general average, at least, to compensation for expenses incurred by them about the preservation of the goods from extraordinary perils, which do not properly belong to them as carriers.5

1 3 Kent, Comm. 206; Crane v. The Rebecca, Ware, R. 188, cited in Story on Bailm. note to § 530 a; Smith v. Wright, ub. sup.; Lenox v. U. Ins. Co. ub. sup. ; Waring v. Morse, 7 Ala. R. 343.

2 Barber v. Brace, 3 Conn. R. 9.

3 Smith, Mer. Law, 260; Story on Bailm. § 583.

4 See Abbott on Shipp. Pt. 3, ch. 8; Stevens on Average.

5 Story on Bailm. § 389, 584, and ante, § 42, 43.

CHAPTER VII.

OF THE RESPONSIBILITY OF COMMON CARRIERS AS RESTRICTED, LIMITED, AND QUALIFIED, BY SPECIAL CONTRACT, AND BY STATUTE.

§ 220. In addition to the two instances of exemption from the responsibility of common carriers, (losses by the act of God and the public enemy,) which are accorded by the Common Law, there is the instance of exemption by their own act, viz. that of a special acceptance. The principles of the Common Law are to be understood with the limitation that there is no special contract between the parties, which varies the general obligation of carriers, for if there clearly appear such a contract, it governs the case.1 The right of admitting qualified acceptances of common carriers, seems to have been asserted in early times. Thus, a special acceptance is recommended by Lord Coke in a note to Southcote's case, in which he says, that if goods be delivered to one to be delivered over, it is good policy to provide for himself in special manner, for doubt of being charged by his general acceptance. Sir Matthew Hale, in giving judgment in Mors v. Slue, says, that, "if the master would, he might have made a caution for himself, which he omitting, and taking in goods generally, he shall answer for what happens." Although in these cases, the point was not expressly adjudged, that a common carrier may restrict his liability by express

1 See ante, § 59.

2 Southcote's case, 4 Co. R. 84; and see the case cited ante, note to § 20.

3 Mors v. Slue, 1 Vent. R. 238, (24 and 25 Car. II.); and see Kenrig v. Eggleston, Aleyn, R. 93.

contract, yet such was assumed to be good law; and it was only so assumed by Mr. J. Yates, in Gibbon v. Paynton,1 and by Lord Ellenborough, in Leeson v. Holt.2 In Nicholson v. Willan, the last named learned Judge found no direct adjudication, that a common carrier may limit his Common Law responsibility, by a special contract; but he relied on the fact, that such an exemption had never been, by express decision, denied. But there was a direct adjudication, in the year 1800, in an action of assumpsit, at nisi prius, before Lord Kenyon, against the defendant, as a common carrier, for not safely carrying a chest of tea from London to Leeds. The carrier demanded a certain sum for booking, and refused to take charge of the tea unless such sum was paid; and it was held, that he was not liable to an action if the tea was left without being paid for and was lost. Lord Kenyon said: "When no rate is fixed by law, the carrier is entitled to say on what terms he will carry; he is not obliged to take every thing which is brought to his warehouse, unless the terms on which he chooses to undertake the risk are complied with by the person who employs him. The old mode of declaring used to be on the custom of the realm; but this is in assumpsit, it is founded in contract, and the contract must, therefore, govern the parties." The doctrine is considered to be now fully recognized and settled, beyond any reasonable doubt, in England.5

§ 221. The subject was fully considered in Gould v. Hill,

1 Gibbon v. Paynton, 4 Burr. R. 2301.

2 Leeson v. Holt, 1 Stark. R. 186.

3 Nicholson v. Willan, 5 East, R. 513.

4 Anonymous v. Jackson, Peake's Add. N. P. Cas. 185.

5 Story on Bailm. § 549; Clay v. Willan, 1 H. Bl. R. 298; Harris v. Packwood, 3 Taunt. R. 264; Smith v. Horne, 8 Ib. 146; Riley v. Horne, 5 Bing. R. 217; and see English cases cited in Hollister v. Nowlen, Appx. p. xviii., and in Cole v. Goodwin, Appx. p. xxxiii.