Boilers, steam.

As a general rule, independently of any contract, it may be true to say that a carrier who offers to carry goods by sea, undertakes that his vessel is reasonably fit for the purpose for which he offers it, and a right of suit for a breach of such implied obligation would not be affected by the special stipulations, if proved to be the result of gross negligence. Thus, in an action for not delivering cargo in proper condition, the same having been injured by steam, it appeared that the steam escaped through a crack in the steam-boiler occasioned by the frost, and the Court held, that at that season of the year in which such injuries by frost are likely to occur, it is gross negligence in the carrier to fill up his boiler overnight without keeping up a suitable fire to prevent such accidents.1

Where there is an absence of negligence or an absence of proof of it, the shipowner will be exonerated. Thus, where bales of cloth were shipped from Calcutta to Rangoon under a bill of lading exempting "accidents by boilers, steam, &c.," and on the voyage one of the boilers leaked, and steam and water escaping, some of the bales were damaged. It was held, that the damage was within the exceptions in the bill of lading, and therefore, that the defendants were not liable to make good the loss.2

In Cox v. The Star Navigation Company, where damage was done to a cargo of rice on a voyage

1 Siordet v. Hall, 4 Bing. 607.

2 Ibrahim Moosum v. The British India Steam Navigation Co. Ld., 8 Cal. W. R. 35.

3 Mit. Mar. Reg., 2nd June 1876.

from Calcutta to Liverpool, water having found its way into the engine room by means of a bilge-cock having been left unturned, and owing to a door being left open, this water got from the engineroom to the part of the vessel where the rice was stowed and damaged it; the question was, whether this fell within the excepted perils, viz., "boilers, steam, machinery, and their appurtenances." It was held, that being one of the excepted risks, the defendants were not liable.

The meaning of the word "jettison" is compre- Jettison. hensively expressed by the rule of the Rhodian law cited in Kent's Commentaries1 and in Abbott on Shipping.

"If goods are thrown overboard in order to lighten a ship, the loss, incurred for the sake of all, shall be made good by the contribution of all.” The goods must be thrown overboard; the mind and agency of man must be employed; if the goods are forced out of the ship by the violence of the waves, or are destroyed in the ship by lightning or tempest, the merchant alone must bear the loss. They must be thrown overboard to lighten the ship; if they are cast overboard by the wanton caprice of the crew or the passengers, they, or the master and owners, for them, must make good the loss. The goods must be thrown overboard for the sake of all; not because the ship is too heavily laden to prosecute an ordinary course through a tranquil sea, which would be the fault of those who had

shipped or received the goods; but because at a moment of distress and danger, their weight or their presence prevents the extraordinary exertions required for the general safety. When the ship is in danger of perishing from the violent agitation of the wind, or from the quantity of water that may have forced a way into it, or is labouring on a rock, or a shallow, upon which it may have been driven by a tempest; or when a pirate or an enemy pur sues, gains ground, and is ready to overtake it, no measure that may facilitate the motion and passage of the ship can be really injurious to any one who is interested in the welfare of any part of the adventure, and every such measure may be beneficial to almost all. In such emergencies, therefore, when the mind of the brave is appalled, it is lawful to have recourse to every mode of preservation, and to cast out the goods in order to lighten the ship for the sake of all. But, if the ship and the residue of the cargo be saved from the peril by the voluntary destruction or abandonment of part of the goods, equity requires that the safety of some should not be purchased at the expense of others, and therefore all must contribute to the loss.

The rule mentions goods only, but its principle extends also to the ship and its furniture, and all that I have hitherto said respecting the goods is to be understood also of the provisions, the guns, the boats, or other tackle of the ship: a fortiori, it is also to be understood of goods belonging to the owner or master of the ship, as well as of those belonging to the merchant."

Mr. Lowndes, after discussing the several authorities on the subject, thus summarises the law of deckload jettison. "A jettison of goods carried on deck is not made good by contribution, except where there is a general custom of trade, in the particular voyage, to carry deck-loads. Such a custom there is with regard to the timber trade from the Baltic and British North America. Even here, however, it is to be noted that wherever restrictions upon such deck-loading are imposed by a British statute, and are violated, as by carrying too large a deck-load, or more than is permitted for the particular season of the year, no claim can be made for a jettison of what was thus unlawfully laden. The occasional or surreptitious carrying of deck-loads, however frequent in particular voyages, as in the case of cotton in steamers from America, does not constitute a custom of the trade. Where there is no custom to carry deck-loads, there is no contribution, but the loss by jettison must fall on the owner of the goods, if he has agreed to that mode of stowage, or, if not, on the shipowner. The shipowner in either case must bear his own loss of freight on the goods jettisoned. And these rules cannot be modified by clauses in a bill of lading, or certainly not, if there be anything ambiguous about such clauses."

Willes, J., in Johnson v. Chapman," said :-" In order to make jettison the subject of a general average contribution, two conditions must be fulfilled. First of all, there must be common danger.

1 Lowndes on G. A. 4th Ed. 62.

235 L. J. C. P. 23.

It must be a maritime peril, and it must be common to the whole adventure; and then, secondly, there must be a sacrifice in the sense of intentional sacrifice. All the writers in this country and abroad appear to be agreed that the question is, whether there is common danger, and whether there is voluntary sacrifice."

If the vessel is seaworthy to carry a cargo under deck, and there is no general custom to carry such goods on deck in such a voyage, and the loss is to be attributed solely to the fact that the goods were on deck, and their owner had consented to their being there, he has no recourse against the master, owners, or vessel, for a jettison rendered necessary for the common safety by a storm, though that storm in all probability, would have produced no injurious effect on the vessel if not thus laden. It is not for him to say that in the first storm the vessel encountered, though not of unusual severity, she proved to be unable to carry the deck-load, and so was not of sufficient capacity to perform the contract into which the carrier entered. The carrier does not contract that a deck-load shall not embarrass the navigation of the vessel in a storm or that it shall not cause her so to roll and labour in a heavy sea, as to strain and endanger the vessel. In short, he does not warrant the sufficiency of his vessel, if otherwise staunch and seaworthy, to withstand any extraordinary action of the sea when she is laden. If the vessel is in itself staunch and seaworthy, and her inability to resist a storm arises solely from the position of a part of the cargo on deck, the owner