Page:Federal Reporter, 1st Series, Volume 7.djvu/508

 496 FEDERAL REFOBTEB. �ordinary liability to contribute in general average as owner of the ship wben a fire had occurred on board and the goods had been injured, not by the fire, but by water thrown down into the hold to extinguish it. �Such a construction cannot, it seems to me, be put upon the bill of lading in this case; for, unless the exemption for cattle jettisoned have reference to contribution, it can have no meaning at all, as, under the ordinary exception of perils of the sea in case of jettison, the ship could only be held for contribution. �It remains, then, to consider whether this restriction of the ship-owner's liability is so unreasonable, unusual, and ineon- sistent with sound public policy, that, looking to the situation of the parties, the court should refuse to uphold it. It is to be borne in mind that this limitation of responsibility in reference to a deck load is an exception to an exception, and that by it the general rule is made to prevail; the general rule being that goods carried on deck, though thrown over for the common benefit, ,give no claim for contribution. To this acknowledged and ancient rule exceptions have been recognized in more modern times, in cases where, by settled usage of trade or by the agreement of the parties, it is shown that the goods were properly to be carried on deck. �Tbe transporting of live cattle across the Atlantic is shown to be a new undertaking. The present libellant states that be thinks he was, perhaps, among the first to attempt it, which was only three years ago. The earlier shipments were made in the summer months, and proved encouraging, but ship- ments in the winter months, as in this instance, are still to be considered, I think, rather an experiment than an estab- lished business. The risks are known to be exceptionally great. A bigh rate of freight is exacted in advance, deter- mined by the number of cattle put on board and not by the number delivered, the underwriters demand a bigh rate of premium, and everything conneoted with the venture is mat- ter pf special agreement rather than of settled usage. Under these circumstances, why should not the parties be left to make their own bargains with regard to the transportation ��� �