Dodge v. Bartol , 5 Me. 286 ( 1828 )

Weston J.

delivered the opinion of the Court.

The claim of the plaintiff against the defendants, as general owners, must be predicated upon one of two groundsj that fault or negligence, in the discharge of his duties, is imputable to the master ; or ■that they are liable upon the principles of contribution, or general .average. It is in evidence that the jettison, by which the plaintiff's loss was occasioned, was justified by the highest necessity ; nor is it preionded that the property could have been preserved, by any exertion on the pari of the master or mariners.

On the question of contribution, the commercial code of France provides, that the effects laden on tire deck of the vessel, contribute, if saved. If they be thrown overboard, or damaged by the jettison, the owner is not. admitted to make a demand of contribution ; his only remedy is agrinst the master. By the Ordinance of the marine, no contribution can be demanded for goods on deck, which have been thrown overboard or damaged 5 saving to the owners their remedy against tile master. It would seem, from these authorities, that the shipper might look to the master for his indemnity3 and if so, the owner might also be heiden, as liable for his default. Pothier, in his treatise 011 maritime contracts, nee. 118, explains the reason of this; which is, ho says, because it is the master’s fault to overload the ship, if there was no room below deck lor the goods 3 or if there was, it was his fault that he did not stow them there. In the present case, there was no such fault ia the master, of which the shipper has any right to complain, liis goods wore laden on deck, by his express permission and assent^ jtyfy ho paid but halt freight therefor. Valin, in his commentary on theOrEfhtance, says, this rulo does not apply to boats and small vessels, which sail from .port to port3 whore it is customary to load goods on deck, as well as in the hold. Admitting this exception of Valin to be“the law of this country, we do not perceive that it cam fairly be applied to the case under consideration. Boats and small vessels are classed together5 and by the latter we think ought to be understood such as ply from one port to the next adjoining port, or for short distances along the coast. We cannot find that the exception of Falin lias been adopted in this conn-try | and if it is to be considered as qualifying the law here, it cannot extend to vessel», like the one h question, nor to voyages of the magnitude and importance of that, in which she was employed by the plaintiff.

The general law, that jettison from the deck presents no case for contribution, has been recognized in New York, and in Massaehu*’ setts.

There can, we think, be little doubt, that in the excepted cases stated by Valin, depending on a usage to load on deck, as well as in the hold, full freight was paid for the whole goods. Indeed, from the limited nature of the navigation, those laden on deck might be nearly or quite as safe, as those laden in the hold ; and this may have constituted the principal reason for the exception. But in the case before us, goods on deck would be as much exposed, as in a foreign voyage. ' If the shipper has less protection, he pays less freight. He knows the increased hazard; and he deliberately assumes it. If he be entitled to contribution, and if his case be within the exception of Valin, he would lose no more by the jettison, than those whose goods are in the hold ; although the latter pay twice as much for their carriage. If the owner, of the vessel alone contributes, for which no usage, exception, or authority has. been cited, there seems to be no reason why he should not have full freight, for this increased hazard. The half freight, stipulated by the shipper, strongly indicates that this was, and ought to be regarded, as a case within the general law.

Placing our opinion upon this ground, we do not consider that the particular usage of the port of Portland, proved at the trial, in accordance with this principle, can affect the case. It did not require this support; and the decision must have been the same, if it had not been adduced.' The determination, therefore, of the question as to the competency of the witnesses objected to, becomes unnecessary. But as by law the owners are not liable, for the same reasons the insurers are not, and thus they are competent witnesses; although their testimony has no influence in the decision of the cause,

By the general maritime law, this is not a case for contribution. If this is by usage an excepted case, the burden of proof is upon the plaintiff to show it. The defendants are not bound, nor is it necessary for them, to prove a usage corresponding with the law.

Phillips, in his treatise on insurance, page 333, commenting upon the exception of Valin to the rule stated in the thirteenth article of the Ordinance, says, upon the principle of this exception, if it be the usage of the trade to carry part of the cargo on deck, a jettison therefrom is a subject of contribution. But he cites no authority, whieh supports this position to the extent stated. In whaling voyages, he adds, it is the practice “ to adjust, upon the principle of general average, oil thrown overboard from the deck, where it is carried for a short time, after being put in casks, before it can properly and safely be stowed in the hold.” This usage and practice, in regard to these voyages, arises from the particular nature of the business ; and as it applies to every part of the cargo, which must all undergo the same process, it is equal in its application. It. does not extend to goods carried on deck for the voyage ; but to such as are to be carried below deck, in their transit to their destination in the hold. If, by the usage, the goods are to be carried on deck for the voyage, this exception, even according to Philldps, does not uniformly apply ; for he states, in the same paragraph, that it is usual to carry on deck a part of the cargo of a vessel loaded with lumber, but that it does not appear to bo the practice to contribute for this part of the cargo, if it be thrown overboard. New trial granted.