PROVIDENCE W ASHINGTh,N INS. CO. 'V. BRADLEY FERTILIZER CO.
685
tion are alleged, and the right to damages on another are provedj and, In admiralty proceedings amendments both in matters of form and substance are very liberally allowed and parties are permitted, whenever the substantial merits and justice require it, to introduce new allegations and new proof. Dunl. Adm. Pro 211, et seq. Admiralty rule 24 provides for amendments in matters of substance, upon such terms as the court shall impose. See The Charlesllforgan, 115 U. S. 69, 5 Sup. Ct. Rep. 1172. Considering that the case as presented in the libel, may have some foundation in fact, so far as means were resorted to to keep libelants aboard after they had shipped, (and on this point the failure to produce or account for the aggressive mate is the main circumstancej) and that the fault in stating the case may not be wholly libelants', I am disposed to allow, an amendment showing the actual facts, before entering a final in: the case. On proper amendment, a decree will be entered giving'judgment in favor of the libelants, as follows: Tom Walker, $13.50; hiss $3, teqderedincourtj Albert Lee, $13.50, lessS,5, tendered in courtj Dick Norris, $13.50j Louis Barlow, $l1.50j Tom Young; $l1.50jand condemning libelants to pay all costs, after applying thereto the $8 heretofQre, tendered in court. ' , ., to do justice on the ease made, the libelants must amend.
PROVIDENCE WASHINGTON INS.
Co.
'V. BRADLEY FERTILIZER
(District Court, D. Rnode I8land. February 18,1888.) , ,'(
SHIPPING-GENERAL AVERAGE-JETTISON-DECK·LoAD.
An under-deck cargo of fish-scrap, on a coasting voyage, is not .liable to contribute in general average for the jettison of a deck-load of oil in barrels, although there is a custom in the trade to carry oil in barrels on deck: wilen the under-deck cargo consists of fish-scrap, and the oWller of the under·deQk cargo is chargeable with notice of such custom. .
In Admiralty. . Libel in admiralty brought to recover, by subro?;ation. for a geueral average loss claimed to have been sustained by the jettison of a deck-load of of oil, loaded on board schooner John H. Perry. The evidence at Tiverton an under-deck cargo of fishshowed tha,t the, !3qhooner to and insured by the Insurance C()mpauy of North America, and gave a bill of lading for its delivery in Weymouth, Massachusetts. The s-1hooner also loaded a deck-load of barrels of oil belonging to Joseph Churlilh & Co., insured by libelant, and billed to Gloucester 1 Massachusetts. For ,the purpose of showing that the defendant is chargeable with knowledge of the deck-load shipment, .the libelant introduced evidence ,tending to show that Joseph Church & Co. were the agents of the defendant company to attend to the chartering of the vessel, and the shipping of the fish-scrap. There was also evidence tending to show that there is a custom, in the fish-oil and guano trade,
1386
FEll>ERAL'· REPORTER.
to ship 'oil on deck in barrels on coasting voyages, and that there is no settled as to whether Such deck-load shall or shaH ;not be entitled to contribution in general average,in case ofl08s on such voyages, the questioribeirig in doubt with shippers and insurers. The vessel sailed from Tiverton August 19, 1885,!and thereafter stranded on Eldredge Shoal,. To lighten ship, mostofihe oil was thrown overboard, and the vessel afterwards floated, and arrived at Gloucester August 23, 1885. The question argued was whether the uncier-deck cargo is liable to contribute' in· general average for the Jettison of the· deck-load. ,WillWmi,t'G.. :".Roelker, for libelant._' _ . ' {' (. . _ _ _ : ,.: _. T!J.e right to contribution arises a's matter of law, independent of any custom. ''l;heKoodsbeing properly on deck,under the custom of the trade, must be contributed for by all persons who embarked on the voyage, because they must be presumed to have had· notice' that, by virtue of the custom, goods might properly be shipped them. 1;11 this case the d,efendant had actual noWood y. 00.,1. Fed. Rep. 235. 8 Fe(l. Rep. 27; The William 154;Wrinht v. Marwood, 7 Q. :8. Div.62; Gould v. Gillum. 2 ,Low. Oliver, 4 U.134; Johmm v; Ohapman, 19 C. B.(N. S.) 563; Harrisv. MoodYj' SO N. Y. 266. "., " Theodore Jr., for defendant. The general rule is that there is no liability to contribute in general average for the jettison of a deck-load. Sturgis v. Oary, 2 Curt. 382; 1 story, Eq. Jur. § 490; The Pm'ugon, 1 Ware, 326; The :Delaware, 14 Wall. 579; 3 Kent, Comm.240; Wolcott v. Insu1'ance Co., 4 Pick. 429; Oopper 00. v. Insumnce 00., 22 Pick. 108; Adams v. Insurance 00., Id. 163; Smith v. Wriflht, 1 Caines, -t3; Lenol»' v. Insurance 00.,3 Johns.'Cas.178;:Oram v. Aike'l, 13Me. 229; Sproat v. Donnell, 26 Me. 185; Doane v. Keating, 12 Leigh, 39h Triplet v. Van.. 0",0.,332; The Mil1.oaukee Belle, 2 Biss.197. Abu. Shipp, (12th Ed.) 520; Lown. Av. (3d Ed.) 31; Miller v. Tetherington, 6 Hurl. & N. 278. Where tbe,<;arriage of the deck-load isjustifiedbygeneral,usage, thernle wisbeen extended so as to allow the, shipper to recover contribution for its jettison against the Ship-owner only on the ground that be COnsertted hHlIiCh carriage; and received freight for jt,o:, Gould v. Uliver, 4 1:>4: (}'rmld v. &G. 208; Johnson v. Chapman, 19 C. B. (N. S.) 563; Wright v. Marwood, 7 Q. B. Di'V; 62; The Watchful, Brown, Adm. 469; The May & B'va, 6 Fed. H.ap. 628; Hazleton v. Ins.umnc6 00.,12 Fed. Rf>p.159; The William Gillum, 2 Low. Dec. 154. Woodv.lnaura'hc(, Co.; '1 Fed. Rep; 135, 8 27, is sustainable on the,grollod that tbeshippersreqej.;"ed the benefit .(}f reduced 'On tbe deck·load, and so. to h1l ve of .co,1\1rl 9ut!Qll"'· n ,",sage he int() 11)e legal obligati(}ns of umler-4eck, DI ust»e not II. usage t? carry deck-load, bUt a usage to pay fof ,its'jettison'., Seccomb 10 AHe1I,305; Dickinsonv. Gail. 7 Allen.. 29, 'and eases above cited,i.' .., .. :' .' :: . . I 1
0
that-I find: as -a Jact, for ,the P'lllposes ofthis case, that-there is a custom in ;tbe'trllqe 'toearry oil in 'ba.Trels on deck, iO: coasting voyages, ,when the 'unclel'oodeck it;largo:cohsists, of, :fish-scrap, and that the defendant is chargeable with. knowledge ofdhis custom. ,The then, iswhether the' existence of this custom is to beheld. to. iin pose a liability to' cOllltribute on the uhder-deck cargo. After mature consideration I am
CAR.PJtNrrER"J. I shall not<re{er to the e\T-idenceAurther than,to say
THE BENBRACK.
687
satisfied that it cannot be so held. I see no consideration moving to the shippers of the under-deck cargo which could furnish an equitable ground for the imposition of increased liability on them. Where a custom exists, as in this case, to carry a particular kind of goods on deck under particular circumstances I think the shippers of under-deck cargo might be so far affected as that they could not maintain any claim for the in.. 'Creased risk resulting from such shipment. But I can' see no reason why their rights and liabilities should be otherwise affected. There will bea decree dismissing the libel, with costs.
THE BENBRACX. J POWER 11. THE BENBRACX.
(Dutrkt
E.
D. Virginia. :tanuary 12, 1888.)
SJlIPPING-'-LUlULITY Oil' VESSEL BOR TORT-INJURY TO STEVEDORE-LATENT DlllFEC',r. " , ' . , , , i,
Qn" 01 a, of men engaged In loading ,a s)1ip was injured by falling upon !iim. The aCcident was caused by the breakage of, the hook which was used in raising the cotton and lowering it into the hold.'I;'he hook was, furnished by the ship, and on account ,of a latent Held, that the ship was not liable.
a balil of
In .Admiralty. ,Libel for damages. Nu),y for . .Harma,nsqn '&: 'Heath, for ,respondent. , ,
J. The leading facts of this case are as follows: The steame,r Benbrapk came from Liverpool to Norfolk for a' cargo of cotton. She llad, as partpfher outfit, the engine,winch, tackle, and appliances to the convenient loading of bales of cotton. The tackle consisted the usualropes, puIlies, and hooks which constitute what is called, a " On arriving att.he port of Norfolk, the steam-ship contracte<;l \'Vith asteYEldore here for the- :proper loading of the cotton and stowing it on, board. , It was part of the contract that the ship should allow hl¥' l"inch, fall, etc., to be used for this work, including the hook,on which' tl;1e of. were suspended when theywere lifted from the deck 'of thestelitl1ler. The work of loading the cotton cOinmen.ced on the seventh December last, and went on withoutaceident ' day of that month, when two of the bales suspende<ito hqok, oBhe tackle, in being passed to the deck from the wharf, throughlitnopen one of them striking the lilJelant, breaking his nose, and seriously and bruising him inother respects, from he was d.isabled, and has been laid up to the. present day, (ninth 1888.) He is stiUunable to go to work, and is likely to're·
of
lReported by Robert M. Hughes, Esq., of the Norfolk bar.