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In Burton v. English (C. A. 1883), 12 Q. B. D. 218, 53 L. J. Q. B. 133, deck cargo was carried, upon a voyage upon which it was proved to be customary to carry deck cargo, and under a charter-party which stipulated (inter alia) — “the steamer to be provided with a deck load if required at full freight, but at merchant's risk." The Court of Appeal, reversing the judgment of the Queen's Bench Division, held that the stipulation did not exclude the right of the charterers to recover general average from the shipowners for the loss sustained. This was in accordance with decisions of the Queen's Bench upon the exceptions in a bill of lading: Schmidt v. Royal Mail Steamship Co. (1876), 45 L. J. Q. B. 646, and Crookes v. Allan (1879), 5 Q. B. D. 38, 49 L. J. Q. B. 201, 41 L. T. 800, 28 W. R. 304. But the reasons given by BRETT, M. R., involve the curious proposition that the claim to general average does not arise out of contract at all. If so, as is well pointed out by Mr. Maclachlan (Arnould's Insur., 6th ed., p. 860), the Courts of common law have for the last two hundred years usurped a jurisdiction that does not belong to them. The decision is rested by Lord Justice BOWEN upon a ground more becoming in the mouth of an exponent of English law; namely, that the limitation of liability by the words "all owners' risks" is a stipulation in favour of the ship"The sound principle," he says, "to be applied is that those who make exceptions in their own favour, and to relieve themselves from liability, ought to use clear words. If, therefore, shipowners desire to relieve themselves from liability for jettison, they should do so in clear terms. My judgment proceeds on the basis that the words of this stipulation are not clear enough." If it were necessary further to argue the reasons of BRETT, M. R., it would be sufficient to cite from the judgment of Lord BLACKBURN in Anderson v. Ocean Steamship Co. (1884), p. 409, post, where he says that the promise to contribute to general average "is one that would be implied by law in every contract for the carriage of goods."

owners.

AMERICAN NOTES.

This case is cited in Lawson on Usages and Customs, p. 221; also by Parsons (2 Marine Insurance, pp. 219, 223), who says the propriety of carrying goods on deck "should be determined in any case, we think, and certainly so far as the law of insurance is concerned, by the custom." Citing Rogers v. Mech. Ins. Co., 1 Story (U. S. Circ. Ct.), 603, a case of whale blubber stored on deck according to the custom. So of horses on deck. Browne v. Cornwell, 1 Root (Connecticut), 60; The William Gillum, 2 Lowell (U. S. Circ. Ct.), 154. So in Hazleton v. Manhattan Ins. Co., 12 Federal Reporter, 159; Wood v. Phoenix Ins. Co., 1 Federal Reporter, 235; Harris v. Moody, 30 New York, 267, citing

No. 84. - Gould v. Oliver. Notes.

the principal case; Dodge v. Bartol, 5 Greenleaf (Maine), 286; 17 Am. Dec. 233; The Delaware, 14 Wallace (U. S. Supr. Ct.), 604; Taunton Copper Co. v. Merchants' Ins. Co., 22 Pickering (Mass.), 108; Merchants', &c. Ins. Co. v. Shillito, 15 Ohio State, 559; 86 Am. Dec. 491; Gillett v. Ellis, 11 Illinois, 579; Toledo Ins. Co. v. Speares, 16 Indiana, 52.

In absence of custom, goods on deck do not generally constitute a general average loss. See cases cited in last note, ante, p. 399; Lawrence v. Minturn, 17 Howard (U. S. Supr. Ct.), 114.

The principal case is cited in Merchants' Ins. Co. v. Shillito, supra, which gives a remarkably exhaustive review of the English authorities, the Court observing: "The general rule before referred to was based on the usages adopted in the navigation of ordinary sailing-vessels; and the reason assigned for the usage not to stow goods on deck, and the rule founded thereon, is, that goods so carried are exposed to greater peril, and enhance the difficulties of navigation, and consequent danger to the ship and cargo. How far a rule of law based upon a usage of ordinary sailing-craft may be applicable to or binding upon vessels propelled and governed by steam is worthy of consideration. If the latter are so constructed and governed that the reason for the usage of the former fails, and the usage ceases, it would seem that the general rule should be so far modified as to make that class of vessels an exception. However that may be, it cannot be doubted that upon principle, where the mode of navigation, or the custom of a particular trade, is such that no usage of the kind upon which the general rule is based, obtains, and that is within the knowledge of the parties, their contracts made in relation to such navigation or trade are presumed to be made with reference thereto, and are not modified by a usage that has no connection with the subject-matter of the contract. Nor would this be inconsistent with the general rule as stated by the American editor of the Exchequer reports in a recent note to Miller v. Tetherington, 6 Hurl. & N. 288, based upon numerous American authorities cited, that In the absence of any contract, expressed or implied, from some particular custom of trade or navigation, it is settled that the loss or jettison of goods carried on deck creates no claim upon insurers or for general average on the rest of the cargo.' Mr. Phillips, in his treatise, makes substantially the same statement of the rule: sec. 460.

"But the chief difficulties upon which the authorities most differ arise where the policy merely names the article, and it is such as is sometimes carried on deck, and sometimes under, and as to the extent, proof is admissible in relation to particular usages, or the character and extent thereof.

"In analogy to the general principles before referred to, it would seem that if the goods covered by the policy are to be carried on a vessel so constructed, propelled, and managed, that goods may be as properly and safely stowed above as below deck; or if the description of the voyage or character of the goods be such that the underwriter may be presumed to be apprised of a usage to carry them either upon or under deck, the policy will attach to them when so carried. This proposition is substantially what Mr. Phillips, in the section before cited, amidst conflicting authorities, considered to be the result of established principles; and the later decisions support and tend to settle that as the correct rule of law."

No. 85.

· Anderson v. Ocean Steamship Co., 10 App. Cas. 107.

Rule.

In Harris v. Moody, supra, in the Court below (4 Bosworth, 210), the Court said: "The old rule was established when all vessels were propelled by sails, and when there was no machinery in the hold of the ship; but the introduction of steam into the marine service has wrought great changes in the situation of the motive power, and has rendered the steamboat deck the fitter place for the stowage of cargo. The reason of the rule has ceased, and the rule should perish with the reason." In the same case, in the ultimate Court (30 New York, 266), the Court reviewed the English authorities, including the principal case, and the Court concluded: "I arrive at the conclusion therefore that the rule laid down by the earlier writers, as applicable to sailing vessels upon a sea voyage, has no relation to the voyage of the steamer Connecticut, upon its voyage up the Sound from the port of New York to that at Allyn's Point; and that if it had, the usage established in this case to stow the goods on deck takes it out of that rule, and brings it within the exception, early recognized and so frequently followed. It results therefore that the vessel and cargo of the steamer became liable to contribute to the loss of the goods jettisoned, notwithstanding the same were stowed upon the deck of the steamer. It may also be observed that the rule is universal that goods stowed on deck, if saved, contribute to the general loss, and it is not perceived on principle why, as they contribute to the general loss, they should not also be entitled to be contributed for when destroyed for the general safety."

No. 85. ANDERSON v. OCEAN STEAMSHIP COMPANY.

(H. L. 1884.)

RULE.

WHERE the shipowner pays a just claim of salvage for preservation of ship and cargo, he is entitled (by implied contract) to a general average contribution from the owners of the cargo.

Anderson v. Ocean Steamship Company.

10 App. Cas. 107-118 (s. c. 54 L. J. Q. B. 192; 52 L. T. 441; 33 W. R. 433).

Ship. General Average Loss. - Liability of Cargo Owner for General [107] Average Contribution.

When ship and cargo are in peril, the fact that the shipowners have by the act of the master become bound to pay and have paid a sum of money for preservation of ship and cargo, and that the master in so binding them pursued a reasonable course under the circumstances, is not conclusive that the whole sum was chargeable to general average so as to bind the cargo owners to pay their proportion.

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The decision of the Court of Appeal reversed and a new trial ordered on the ground that the question of the amount chargeable to general average ought to have been submitted to the jury.

Appeal from an order of the Court of Appeal.

The facts proved at the trial of the action are set out at length in the report of the decision below (13 Q. B. D. 651).

For the purposes of the present report the following brief statement will suffice.

On the 2nd of June, 1880, the respondents' ship, Achilles, grounded on a sandbank on the river Yangtsze. After some time the master signalled to the Shanghai, which vessel passed a hawser to the Achilles, and towed her, and eventually the Achilles came off the bank. On the 6th of June an agreement was drawn up between and signed by the master of the Achilles on behalf of his ship and owners, and the master of the Shanghai on behalf of his ship and owners. The agreement was on a printed form, and was dated the 2nd of June, and framed as if the Achilles were still on the bank. It bound the master of the Shanghai to use his best endeavours to get the Achilles off by towing; the towage service not to exceed twenty-four hours, after which the Shanghai was to be at liberty to leave the Achilles whether afloat or not; if the Achilles was towed off in less than twenty-four [*108] hours the towage service to be considered complete; it bound the master of the Achilles whether towed off or not to pay the master of the Shanghai 10,000 taels, and to pay for all damage to the Shanghai, her tackle, &c. There was evidence that the Shanghai never assisted for a less sum. A long correspondence ensued between the respondents as owners of the Achilles and the owners of the Shanghai, and eventually the respondents paid the owners of the Shanghai £2691 19s. 6d., consisting of the 10,000 taels and further sums for commission and repairs to the Shanghai.

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The respondents claimed to treat this as a general average loss, and brought an action against the appellants as owners of part of the cargo in the Achilles to recover £162 11s. 7d. as their general average contribution, their proportion having been estimated at that sum by a general average adjuster. The appellants denied that there had been a general average loss, and denied their liability for the amount claimed, or for any amount. Further,

No. 85. - Anderson v. Ocean Steamship Co, 10 App. Cas. 108, 109.

they paid into Court £75 as enough to satisfy the plaintiffs' claim (if any) for general average.

At the trial the following questions were put by CAVE, J., to the jury; viz., 1. Did the master of the Achilles by his act make his owners liable to pay the 10,000 taels, or, in other words, did he signal the Shanghai to his assistance, knowing her terms? 2. Was that a reasonable course for him to pursue, under the circumstances? 3. Was the commission charged a reasonable commission? 4. Were the repairs charged for and done to the Shanghai reasonable?

The jury answered the above questions in the affirmative, and under the direction of the learned Judge found a verdict for the plaintiffs for the amount claimed, less the amount paid into Court, and CAVE, J., gave judgment for that amount.

The Queen's Bench Division (GROVE, LOPES, and MATHEW, JJ.) set aside the judgment for the plaintiffs and entered judgment for the defendants on the ground that there was no reasonable evidence for the jury of the agreement upon which the claim was based. The Court of Appeal (BRETT, M. R., BAGGALLAY and Bowen, L.JJ.), on the 21st of December, 1883, made an order reversing that decision and entering judgment for the plaintiffs (13 Q. B. D. 651).

* From this order the defendants appealed.

Nov. 14, 17, 18. Sir F. Herschell, S. G., and Cohen, Q. C. (J. Gorell Barnes with them), for the appellants :

[* 109]

The judgment of the Court of Appeal was wrong. The respondents were not obliged or compellable to pay the 10,000 taels for the services. The Achilles was, no doubt, in danger, and for the services rendered the Shanghai would be entitled to a quantum meruit. But they were rendered under circumstances showing that there was no agreement to pay the 10,000 taels. The alleged consideration for this agreement could not have been enforced against the Shanghai, that is, the remaining for twenty-four hours to assist. Therefore the agreement was invalid. These were not "salvage services," the essence of a salvage service being that the salvor gets nothing if he does not salve, and a large sum if he does. This agreement is for a very different thing, for services at the most for twenty-four hours only, though the ship might at the end of that time be in extreme danger; the 10,000 taels were to be paid, however short or slight the services might be. Such an

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