Page:Federal Reporter, 1st Series, Volume 1.djvu/243

 WOOD V. PHŒNik INS. GO. 235 �WooD & Co. V. The Phcbnix Insurance Co.* �(District Court, E. D. Pennsylvania, March 23, 1880.) �GooDS CAnniKD on Deck — General Avebage — Exception — Custom — BuRDEN OF Proop. — The general rule ia that goods carried on deck are not entitled to the benefit of general average. To this rule there are the f ollowing exceptions ; First, whorc the goods are can-icd on deck in pursuance of a general custom ; second, where they are carried on the deoks of steam vessels ;' third, where tliej' are carried on deck by con- tract and the suit is against the vessel only. î'Ae Milwaukee Belle, 2 Biss. 197, disapproved ; Lawrence v. Minium, 17 How. 105, distinguiahed. Where the exception is claimed on the ground of custom, the burden of proof is on the party alleging the custom, and the evidence should be clear. �Cargo Loaded Abovb and Below Deck — Evidence.— The owner ol a cargo loaded both above and below deck insured the portion below deck, the underwriter knowing of the storage of the balance above deck. During a storm the goods above deck were jettisoned. HM, that in the absence of clear evidence of a general ci s om so to carry the goods, the owner had no claim against the underwriter for contribution. �Libel by owner of goods jettisoned against the underwriter of the balance of the cargo to recover contribution by general average. The facts are sufficiently stated in the opinion. �Henry G. Ward, for libellant. �Henry Flanders, for respondent. �Butler, J. On the fourth of October, 1879, the libellants shipped on board the "Mary and Eva," then lying at Mill- ville, New Jersey, a cargo of iron pipe, loaded in part above and in part under deck, 31 tons of which were to be delivered in New York and the remainder at West Point. In the course of the voyage the vessel encountered tempestuous weather, and it became necessary to throw a portion of the deck cargo overboard. The respondent had insured what was under deck with knowledge that similar cargo was to be carried above. The libel asserts "that it is the custom of the trade, in ship- ping cargo of iron pipe, to load a part thereof on deck, " and claims that the respondent is liable to contribution by general average. The answer denies the existence of such a custom and of ail liability for the loss. It would seem that the deck �*Kepoited by Frank P. Prichard, Esq., of the Philadelphia bar. ��� �