of the cargo, who has consented to this mode of shipment, cannot recover from the ship or its owners, on the ground of negligence, or breach of an implied contract respecting seaworthiness.1

Where a general ship is carrying cargo both above and below deck, and there is no custom to carry goods on deck, and the voyage is not a coasting voyage, the owner of the deck-cargo that has been necessarily jettisoned in the course of a voyage, can have no claim for contribution against the shipowner or the other cargo owners, although the contract between him and the shipowner specifies that the goods are to be carried on deck.2

In consequence of a severe storm which the plaintiff's vessel encountered, her deck cargo of timber, which was lawfully stowed on deck according to the terms of the charter-party between the plaintiffs (shipowners) and the defendant, (the charterer,) broke adrift and knocked against the pumps, so that the captain was compelled, in order that the crew might work the pumps and to prevent damage to the bulwarks and pumps, and for the safety of the ship and all on board, to throw a portion of such cargo overboard-Held, that such jettison was the subject of a general average contribution from the plaintiff's to the defendant, it being both voluntary and to save all from the danger caused by the storm, which was common to the whole adventure.3

1 Lawrence v. Minturn, 17 How. 100; 21 Cur. 392.

2 Wright v. Marwood, L. R. 7 Q. B. D. 62.

3 Johnson v. Chapman, 35 L. J. C. P. 23.

In Burton v. English,' the plaintiffs, timber merchants, shipped on the defendant's vessel a cargo of timber, part of which was deck cargo, and also a cargo of iron, under different contracts. The ship had been chartered by the plaintiffs, but the goods were shipped under a bill of lading which referred to the charter-party. During the voyage part of the deck-cargo was jettisoned for the safety of the vessel and the rest of the cargo, and this action was brought for general average contribution against the shipowners, who contended that they were not liable by reason of the stipulation in the charterparty, "that the ship should be provided with a deck cargo if required at full freight, but at merchant's risk." Held, that the words "at merchant's risk" did not exclude the right of the charterers to general average contribution from the shipowners, in respect of deck cargo shipped by the charterers, and necessarily jettisoned to save the ship and the rest of the cargo.

2

Lord Watson, in delivering the judgment of the Judicial Committee of the Privy Council in Strang v. Scott, after referring to the remarks of Brett, M. R., in Burton v. English,' said :-" Whether the rule ought to be regarded as matter of implied contract, or as a canon of positive law resting upon the dictates of natural justice, is a question which their lordships do not consider is necessary to determine. In jettison, the rights of those entitled to

1 L. R. 12 Q. B. D. 218.

L. R. 14 App. Cas. 601; I. L. R. 17 Cal. 362.

contribution, and the corresponding obligations of the contributors, have their origin in the fact of a common danger which threatens to destroy the property of them all; and these rights and obligations are mutually perfected whenever the goods of some of the shippers have been advisedly sacrificed, and the property of the others has been thereby preserved. But the negligent navigation of the master cannot afford any pretext for depriving those shippers whose goods were jettisoned, of their claim to a general contribution. They were not privy to the master's fault, and were under no duty, legal or moral, to make a gratuitous sacrifice of their goods, for the sake of others, in order to avert the consequence of his fault. The Rhodian law, which in that respect is the law of England, bases the right of contribution not upon the causes of the danger to the ship and cargo, but upon its actual presence. The owners of goods thrown overboard, having been innocent of exposing the vessel and her cargo to the sea-peril, which necessitated jettison, their equitable claim to be indemnified for the loss of their goods, is just as strong as if the peril had been wholly due to the action of the winds and waves."

When the ship takes the ground under any extra- Stranding. ordinary circumstances of time or place by reason of some unusual or accidental occurrence, such an event is a stranding.1

It is not merely touching the ground that constitutes a stranding. If the ship touches and runs,

1 Wells v. Hopwood, 3 B. & Ad. 20; De Mattos v. Saunders, L.R. 7 C.P. 581.

the circumstance is not to be regarded. But if she is forced ashore or is driven on a bank and remains for any time upon the ground, this is a stranding without any reference to the damage she sustains.1

Where a vessel takes the ground in the ordinary and usual course of navigation and management in a tide river, or harbour upon the ebbing of the tide or from natural deficiency of water, so that she may float again upon the flow of the tide or increase of water, such an event is not stranding. The mere fact of a vessel sustaining an unexpected injury by reason of the hardness of the bottom (provided it be in a place where she is properly laid in the ordinary course of the voyage) will not turn the taking the ground into a stranding.2

The following have been held to be instances of stranding:

Striking upon a rock and remaining fixed for fifteen or twenty minutes, by which material injury was sustained.3

A ship, under charge of a pilot, was fastened at the pier of the dock basin by a rope to the shore and left there, and she took the ground, and when the tide left her, fell over on her side and bilged.*

In the course of a voyage along a canal it became necessary, in order to repair the canal, to draw off the water. The ship having been placed in what

1 Harman v. Vaux, 3 Camp. 429.

De Mattos v. Saunders, L. R. 7 C. P. 581; Magnus v. Buttemer, 21 L.J. C. P. 119.

3 Baker v. Towry, 1 Stark. 436.

Carruthers v. Sydebotham, 4 M. & S. 77.

appeared to be a safe situation, when the water was drawn off impinged upon some piles, the existence of which was not previously known.1

A ship was driven by stress of weather into a harbour, at the mouth of which she struck upon an anchor and was in danger of sinking, to prevent which she was warped higher up in the harbour, where she took the ground and remained fast half an hour.2

Vessel in a tide harbour. At the first low-tide she grounded on the mud, but on a subsequent ebb, the rope by which her head was moored to the opposite side of the harbour stretched, and the wind blowing at the same time, she did not ground entirely on the mud which it was intended she should do, but her fore part got on a bank of stones, rubbish, and sand near to the quay, and the vessel was strained.3

A ship ran on some wooden piles four feet under water in a river, erected about nine yards from the shore to keep up the banks of the river, and lay on these piles till they were cut away.1

A ship proceeding down river, a moderate wind suddenly took her ahead, and she went ashore stern foremost. There she remained fast for two hours until the tide flowed, when she got off and proceeded on her voyage.5

1 Rayner v. Godmond, 5B. & A. 225.

2 Barrow v. Bell, 7 D. & R. 244.

3 Wells v. Hopwood, 3 B. & A. 20.

Dobson v. Bolton, Shee's Marsh. Ins. 171,

Harman v. Vaux, 3 Camp. 429.