Page:Federal Reporter, 1st Series, Volume 6.djvu/641

 THE SCHOONEE MAY & EVA. 629 �of a portion of the cargo on deck, and that, by the American law in admiralty, there is no contribution in general average allowed for a deck load thus jettisoned. �The libellants have properly submitted the legal question to the determination of the court before proceeding further •with the cause. �The precise question is whether cargo which the shipper and master have both agreed shall be carried on deck is, as between them, the subject of general contribution. It is diffi- culte on principle, to perceive why it should not be so, al- though the books abound with decisions to the contrary. The cargo is taken on deck for the purpose of eaming freight. If jettisoned for the preservation of the vessel, why should she not contribute for its loss ? But the question is not an open one here. In a case of these same libellants against the schooner Sallie C. Morton, decided in this court during the June term, 1879, (2 New Jersey Law Journal, 301,) I had occasion to inquire, with some care, whether the owner of a deck load, which had been thrown overboard in a storm for the common safety of the vessel and the other cargo, could demand a contribution in general average from the property benefited by the sacrifice, and, in the midst of many conflicting authorities, I reacbed the conclusion that where the custom of the particular trade warranted the stowage of the lost cargo on the deck, or where there is an agreement between the master and shipper as to the deck stowage, the vessel might be held by a proceeding in rem for her contri- bution for the loss. These propositions are supported by the following cases : Gould v. Oliver, 4 Bing. (N. C.) 140 ; Milward V. Hibberts, 3 Ad. & El. (N. G.) 121, Lum. 406; The Dela- ware, 14 Wall. 602; Johnsonv. Chapman, 19 C. B. (N. S.) 563; The Watch/ul, 1 Br. Ad. 469. �There must be a decree for the libellants, on the pleadings, and, if the parties are not able to agree upon an adjustment of the average without a reference, the case must go to the clerk, as commissioner, to ascertain and report. �XoT». See Wood ce Oo. v. Phmnix Ins. Co., 1 Fed. Rep. 235. ��� �