Upham T. Cram v. Jesse Aiken & als., 13 Me. 229

The opinion was delivered at a subsequent term by Weston C. J. By the commercial law, goods shipped on deck, and lost by jettison, are not entitled to the benefit of general average. Such is the law of France. Commercial code, b. 2, art. 421, which upon this point follows the ordinance of the marine of Louis the fourteenth. Such is the English rule, as laid down by Abbott, in support of which, he refers to a trial before Lord Ellenborough, and another before Chambre J. Abbott on Shipping, 344. No opposing decision in the English courts, has been adduced.

The rule does not appear ever to have been questioned or controverted there. In Smith et al. v. Wright, 1 Caines, 44, it was held that the owners of cotton in bales, laden on deck and thrown overboard for the preservation of the ship and cargo, could not recover for the jettison, against the owner of the ship. The same view of the law was taken in Lenox v. The Un. Ins. Co. 3 Johns. Cases, 178. And thus it has been regarded as settled in New York, in accordance with the general maritime law. 3 Kent. 240.

The New York cases were cited with approbation as evidence of the law, in the opinion of the court in the case of Wolcott v. The Eagle Ins. Co. 4 Pick. 429. To the same effect is the decision of this court in Dodge v. Bartol et als. 5 Greenl. 206, where the commentary of Valin on the ordinance of the marine is cited, in which he notices some exception to the French rule in regard to boats and small vessels, which must be peculiar to their navigation, as we find no evidence that it has been adopted elsewhere.

While the general law has been admitted in argument, it is insisted that this should be an excepted case, because the plaintiff paid full freight. Neither the master nor the owner can be chargeable with any fault, in putting his goods on deck. The plaintiff must be understood to have assented to their being placed there, as he knew that they could not be carried in the hold. In Dodge v.

Bartol, the payment of half freight upon the goods there, was noticed as a reason why, upon principle, the owner should have less protection ; but it is not the reason generally given for withholding from goods laden upon deck, and lost by jettison, the benefit of general average. The cause assigned is, because goods there laden are peculiarly exposed to peril, and increase the difficulty of the navigation. It is desirable that uniformity should be observed, in deciding upon questions of maritime law, in which all commercial nations are interested.

Exceptions to be allowed, should be as well established as the rule; and we find no sufficient authority for the exception contended for, in the case under consideration. Nonsuit confirmed.