in order to lighten the load, broke open heavy casks of liquor carried on deck. It was urged that the carrier was guilty of negligence, first, in attempting to come up the bay without a pilot and, second, in breaking the casks of brandy instead of throwing them overboard and taking the chance of recovering some or all of them by their floating ashore. After considering the facts, the court held that such loss was within the meaning of the phrase, "peril of the sea.” § 249. An interesting branch of inquiry under this question is, as to the rule of the carrier's liability for the loss of a deckload. Clearly, where the bill of lading declares that the goods are to be stowed on deck, and at the same time excepts perils of the sea or jettison, the exception must be construed with reference to the particular adventure which the contract of affreightment shows was contemplated by the parties.1 The shipper in consenting to have his goods carried on deck has entered into the contract and taken the increased risk in consideration of a reduced rate of freight. The carrier cannot consequently be held to so strict a measure of liability. As was said in The Milwaukee Belle,' the shippers have consented that the vessel should be by their own act rendered less manageable, and they cannot therefore sue for a loss consequent upon his own agreement on the ground that the stowage was improper. Lawrence v. Minturn' was the case of a libel filed against the ship Hornet, for the non-delivery of two steam boilers, shipped on board that vessel in the port of New York. The boilers were, under the terms of the bill, to be stowed on deck, and were jettisoned in rough weather, without, as the court found, "any fault or breach of contract by the carrier." The shippers urged that the vessel with the boilers on deck was unseaworthy, but it appearing that the ship was new and that the goods were stowed according to the contract, the carrier was discharged. 1 Lawrence v. Minturn, 17 How. Bing. N. C. 134; Gould v. Oliver, 2 100. M. & G. 208; Smith v. Wright, 1 Caines, 43; Lenox v. Ins. Co. 3 Johns. Cas. 178. 22 Bissel, 197. Johnston v. Crane, 1 Kerr (New Brunswick), 365; Gould v. Oliver, 4 417 How. 100. § 250. The presumption, however, is that goods are to be carried below deck and the burden of proving that the shipper agreed to deck stowage is on the carrier. Even where the bill of lading is silent as to the place of stowage, the law implies that the goods are to be stowed below deck. Parol evidence of an agreement that they may be carried on deck is not admissible. An established custom, as in the carrying of timber, may, however, be shown as entering into the contract.3 "If the goods are, without the consent of the merchant and contrary to established usage, stowed on deck and are, from being so placed, thrown overboard in tempestuous weather, the carrier will be answerable for the loss by the jettison." So in an early Connecticut case it was shown that gin was received as customary freight and was stowed on deck. The bill of lading excepted "dangers of the sea," and the goods were jettisoned. It was not pretended that the jettison was not necessary, but it was held that the carrier was liable unless he could show that such stowage was authorized by the consent of the shipper or by custom. In the recent English case of Royal Exc. Ship Co. v. Dixon it appeared that a ship grounded and portions of the cargo were properly jettisoned, among which was cotton carried on deck, shipped under bills of lading containing exceptions of "jettison." The court held that the ship-owners were liable, as the exception referred only to goods stowed under deck, and that they were not excused by a custom in the trade of loading cotton on deck. In the Enrique,' where the deck load consisted of cattle which were jettisoned in very rough weather, the bill of lading expressly excepted any loss that might arise through 1 The Peytona, 2 Curtis, 21. The Delaware, 14 Wall. 579. Even where the bill specifies that certain of the goods may be carried on deck, parol evidence respecting the carriage of the others may not be introduced. Sayward v. Stevens, 3 Gray (Mass.), 97. 3 Leggett on Bills of Lading, p. 200; Barber v. Brace, 3 Conn. 13; Gould v. Oliver, 4 Bing. N. C. 134 ; Same v. Same, 2 M. & G. 208; Da H. & N. L. J. Ex. Angell on Carriers, § 218, n., and cases cited. 5 Barber v. Brace, 3 Conn. 9. the cattle being washed overboard or jettisoned. It was urged that this exception was unreasonable and against public policy, but the court refused to so consider it. In the case of necessary jettison, the shipper, though deprived of his remedy against the carrier by the exceptions of the bill of lading, has nevertheless a right to compel contribution from the owners of the ship and cargo under the principle of general average. General average, however, does not apply to the jettison of a deck load unless the other parties have assented to such stowage. Where there has been no such assent and where the bill of lading contains such exceptions as those under consideration, the loss falls on the shipper alone. So, too, where the jettison results from the vice propre of the goods jettisoned, as where hemp or cotton, shipped in a damp state and likely to catch fire from heating, is jettisoned, there is no general average and, it is safe to say, no liability on the part of the carrier under his contract.3 1 Smith v. Wright, 1 Caines, 43; Lenox v. Ins. Co., 3 Johns. Cas. 178; Leggett on Bills of Lading, p. 200. 2 Chappel v. Comfort, 31 L. J. C. P. 58. 3 Johnson v. Chapman, 35 L. J. C. P. 23. 189 CHAPTER XVII. EXCEPTIONS CONTINUED-LEAKAGE AND BREAKAGE-LACK “Leakage and breakage,” § 251. Leakage and breakage-effect of negligence, § 252. "Obliteration of marks," § 259. Owner's risk-negligence, § 261. Leakage and breakage-burden of Owner's risk-effect of fraud or mis proof, § 253. "Lack of food and water," § 254. "Loading or unloading," § 255. furnish suitable cars, § 256. representation, § 262. Owner's risk in carriage of live stock, § 263. Loading or unloading-obligation to Construction of exception by English Rule in England, etc., § 257. courts, § 264. § 251. THE word "leakage," when used in a bill of lading, refers to loss by the leaking of the goods themselves and does not include damage done to other packages by a liquid escaping. So "breakage" does not cover the injury done to other goods by the cutting or rubbing of the broken article. Where the accumulation of molasses drainage upon the floor of the hold of a vessel was so deep that certain casks of sugar were half submerged in it and were thereby caused to heat, it was held that this did not come within the exception "not liable for leakage." So where one bale of piece-goods was damaged by oil having come in contact with it and others of the same shipment were injured by chafing during the voyage, it was held that the former damage did not come under the head of leakage nor the latter under breakage.3 402. 1 Thrift v. Youle, 46 L. J. C. P. ing and sinking." It was held that this was intended to insure only the seaworthiness of the barge. In Hill v. Sturgeon, 28 Mo. 323, the bill of lading provided: "The owners insure the freight shipped on the barge against leak ... 2 The Nepoter, 38 L. J. Adm. 630 3 Graham v. Hille, 10 Bom. H. Č. Rep. 60. 1 75. Leakage or breakage, within the meaning of the exception, is not mere average leakage or breakage.1 In Ohrloff v. Briscall' nearly half of the oil which the bill of lading covered had leaked through the casks in which it was contained and had been lost. It was urged that this was too great a part of the entire quantity to be within the exception. The Court said: "We do not think such a construction allowable. The condition that the ship-owners are not to be accountable for leakage does not, in its ordinary and grammatical sense, put any limit to the quantity of leakage and on principle, therefore, we do not think it would be justifiable to add any such limit to its terms; nor are we aware of any authority for doing 80."3 § 252. The general rule may be thus stated: the exception includes all such leakage and breakage as reasonable care and diligence on the part of the carrier could not prevent. The carrier is liable for the result of his negligence.* The question of negligence frequently resolves itself into a 1 The Invincible, 1 Lowell Deci- J. C. P. 168; Phillips v. Clark, 5 sions, 225. In some cases, however, Jur. N. S. 1081; The "Oriflamme," the bill of lading excepts "average 1 Sawyer, C. C. 176; The "David leakage and breakage," and the bur- and Caroline," 5 Blatch. 266; Vitriden then rests upon the claimants to fied, etc., Sewer Pipes, 5 Ben. 402; show that the leakage is greater than Carey v. Atkins, 6 Ben. 562; Steele the average. 630 Quarter Casks of v. Townsend, 37 Ala. 247; ThompSherry Wine, 14 Blatch. C. C. 517; son v. C. & N. W. Ry. Co., 27 Ia. opinion by Waite, Ch. J., affirming 7 561; Reno v. Hogan, 12 B. Monroe Ben. 506. (Ky.), 63; Arend v. Liverpool, etc., S. S. Co., 64 Barb. (N. Y.) 118; S. C., Lans. (N. Y.) 457; Mo. Valley R. R. Co. v. Caldwell, 8 Kan. 244; Baker v. Brinson, 9 Rich. (S. C.) 201; Hunnewill v. Taber, 2 Sprague, 1; The Jefferson, 31 Fed. Rep. 489; The Connaught, 32 Fed. Rep. 640; The Burgundia, 29 Fed. Rep. 607; Mark v. Surrey, 29 Fed. Rep. 608; The Polynesia, 30 Fed. Rep. 210; N. Y. Cent. v. Eby, 12 Atl. Rep. 482; West Manuf. Co. v. Guiding Star, 37 Fed. Rep. 641; The Barraconta, 40 Fed. Rep. 498. 235 L. J. C. P. 63; S. C. The Helen, 15 W. R. 202, 12 Jur. (N. S.) 675; 4 Moore P. C. C. (N. S.) 70; B. & L. 429; 14 L. T. (N. S.) 873. 3 The law in Louisiana seems to be otherwise, namely, that an exception such as "not responsible for leakage" excuses ordinary leakage merely but will not authorize the carrier to re-. turn empty casks. Brauer v. Barque "Almoner," 18 La. Ann. Rep. 266. Phillips v. Clark, 2 C. B. N. S. 156; S. C., 3 Jur. N. S. 467, 26 L. |