" Mr. Justice SHIPMAN in the Circuit Court of the United States for the Eastern District of New York, "The duty to store under deck is deemed a condition of every bill of lading, whether expressed or not; unless the liability is expressly excluded by the terms of the contract, it will always be deemed one of its provisions. This is a general rule of maritime law arising out of the general usage of the commercial world." Deck stowage is therefore prima facie negligence on the part of the carrier unless authorized by the bill of lading. It is, hence, not unusual to insert some such provision as the expression under consideration with the terms of the contract where the circumstances of the case make deck-stowage a necessity, for the purpose of giving the carrier authority to make such stowage and of placing the liability for the increased risk upon the shipper. The subject will be discussed at some length in connection with the exception, jettison. The question, what is deck-stowage? is thus answered in Lowndes on General Average. "Whether a ship's poop or a house built on deck is to be considered as a proper place for cargo so as to entitle goods carried there to the privileges of under deck cargo in the matter of jettison, is a question which has given rise to much doubt. The practice is to treat the poop as under deck, and to follow the same rule with such houses as are permanently built into the ship either by forming part of its frame or by being let down into the beams and solidly secured with iron keys or in some equally substantial fashion. Cargo in mere temporary erections not so secured is treated as if on deck." In The Neptune, the case in which the stringent rule respecting stowage below deck above quoted was pronounced by Mr. Justice SHIPMAN, it was held that when on the short voyage from Boston to New York, goods were stowed on the main deck of a steamship which was bulwarked entirely round and under cover of the upper deck, and were well stowed except they were not stanchioned down from the top and that The Neptune, 16 L. T. Adm. 36. The Peytona, 2 Curtis, 21; The Delaware, 14 Wall. 579; Barber v. Brace, 3 Conn. 9. $ P. 48. 16 L. T. Adm. 36. no bulkheads were built behind them, these goods were stowed in sufficient compliance with the rule as laid down by the court. A custom of the trade may be introduced to prove the right to deck stowage, but it may be modified by a custom not to pay for it if jettisoned.' In the first case of Gould v. Oliver,2 in 1837, the plea on behalf of the owner of the vessel against a claim for general average was that there was not and never had been a custom for the ship-owners to make contribution by way of general average towards the jettison of a deck-load of timber. This was held to be bad; but on the same facts coming before the court, in a second case of the same name in 1840, evidence was introduced to show that it was not only customary to carry timber on deck but also customary for such loads to be at the risk of the ship-owner, and inasmuch as the shipper had not consented to that method of stowage, the carrier was liable. This decision led to the practice of inserting in the contract for carriage a provision permitting deck stowage, and then in event of jettison being necessary, a "general contribution" in the nature of a general average between the owners of the ship and of the owners of the timber jettisoned (but not affecting other shippers) was held enforceable. This doctrine, the learned author above quoted says, obtains with respect to deck shipments of wooden goods, tar, and perhaps resin." The effect of provisions in the bill of lading restricting liability upon this practice is of interest. Where, for example, the bill of lading or charter-party provides that the deck stowage is to be "at the ship's risk," the same author holds that the right of compelling contribution from the owners of the deck cargo is clearly excluded, but that where such phrase is not Gould v. Oliver, 4 Bing. N. C. 134; Same v. Same, 2 M. & G. 208; Miller v. Tetherington, 6 H. & N. 278; S. C. 30 L. J. Ex. 217. Affirmed 7 H. & N. 954. Cory v. Robinson cited Lowndes on General Average, p. 42; Mellor v. Chapple, same. 4 2 4 Bing. N. C. 134. Gould v. Oliver, 2 M. & G. 258. ✦ Johnson v. Chapman, 19 C. B. N. S. 563; 35 L. J. C. P. 23. 5 Lowndes on General Average, p. 44, 45. used the better opinion would seem to be that the owner of the goods is liable for his share. From these analogies it would seem, where the clause "at shipper's risk" is used in this connection, that even in the case of timber or other goods customarily carried on deck, the carrier who has not been guilty of negligence is wholly exempt from the responsibility for loss. § 240. In Cragin v. New York Central Railroad Company, under the terms of the bill of lading the shipper had assumed all risks of injuries from "heat, suffocation, etc." The shipment was a car-load of hogs. The hogs died from the effects of the heat and from the neglect of the carrier's servants to water and cool them. It was held that the stipulation of the bill of lading exempted even from a responsibility for the results of negligence; for, said EARL, C., "if it be held that this stipulation simply exempts the defendant from liability for injuries to the hogs from heat without any fault on its part, then it gets nothing, for in such case without the stipulation it would not be responsible." Whether this is a true exposition of the law in New York may be questioned. It certainly is not the law elsewhere. In Illinois, etc., Railroad Company v. Adams' hogs were transported by a railroad under contract that they were "to be fed and taken care of by owner." The conductor of the train neglected to cause water to be poured over the hogs when they became overheated (which, it was shown, is usually done in such cases by placing the car under the spout of one of the railroad's watering tanks) and many of them perished. The carrier was held liable. This agrees with the law as set forth in a Missouri case. Where the bill of lading excepted loss by "suffocation," it was held that if the suffocation resulted from the negligence of the carrier, the owner was entitled to recover for the loss. So in Leniv v. Dudgeon, where a ship with cattle on board came out of the Maese River to sea with insufficient ballast, in consequence of which she was thrown on her beam ends by a ground swell and most of the cattle were thrown overboard or suffocated. This being a case of culpable negligence, the exception "suffocation" in the bill of lading was of no effect. § 241. The exception "heat" is frequently employed with respect to the injury to merchandise by warm weather or by fer. mentation. Here, too, the liability of the carrier depends upon the question of the existence of negligence.1 "It has been established in the superior courts of law," says a learned writer, " that a ship-owner is not liable for the heating of grain nor for damage arising from decay or depreciation from natural causes." In Warden v. Greer3 the action was brought against the owners of a steamboat on account of the loss on a cargo of two hundred barrels of molasses, stated in the bill of lading to have been received in good order and well conditioned. Upon the delivery at Pittsburgh two of the barrels were missing, seven were empty or nearly so and others were only half full. The evidence showed that it was the nature of molasses to ferment and expand in handling in hot weather and to vary greatly in bulk from time to time. It further appeared that the article loses inevitably by leakage in transportation. It was conceded that the two barrels lost must be paid for, but the court held that the loss due to leakage or contraction was unavoidable and that the carrier could not be held to answer for it." $242. Where the heat or fermentation is the result of defective stowage the carrier is liable, as in the Nepoter," where 1 Mendelsohn v. The Louisiana, 3 Woods, 46; Beard v. Ill. Cent. R. Co., 44 N. W. (Iowa), 800. 2 Leggett on Bills of Lading, citing The Anna Maria, Adm. Ct., 31 July, 1871. 36 Watts (Pa.), 424. "So where a cargo of wheat, on its arrival at Dublin on a voyage from Caen, was found to be heated and after delivery the merchant issued an admi ralty writ for damage to the cargo, sugar became heated and was much damaged through the lack of necessary drainage, or in the Freedom, where oil cake was caused to heat by being covered by a quantity of bones stowed in bulk. In the Alexandra, however, on an allegation that the damage to the cargo originated from defective stowage and heat and fermentation arising from the cargo being stowed in too close conjunction with other cargo, it was held that the plaintiffs must establish affirmatively that the cargo on its arrival at its port of destination was in a damaged condition, and that the onus then falls on the ship to prove that the original stowage was good, and that the perils of the sea subsequently occurring, created the damage. § 243. The rule respecting the carrier's liability for a careful and prudent stowage of the goods shipped is rigid. No phrase or exception of the bill of lading can exonerate from responsibility for the results of a negligent or faulty stowage. If the goods arrive in port in a damaged state, it has been said that it is for the carrier to show that the stowage was good,5 and certain it is that wilful and personal neglect need not be shown to charge the carrier. The mere fact that the loss resulted from the character of the stowage will be sufficient to make a prima facie case against him. It follows as a corollary from these principles that the carrier must so stow and arrange different articles of cargo that they may not injure each other and that failing to do so he will be liable to the shipper for the damage done to the goods by the injurious effects of other goods, even without the allegation or proof by the owner of any wilful or negligent default on his part." 1 L. R., 3 C. P. 594. 2 14 L. T. 742. Where cargo belongs entirely to one shipper it may be assumed that he knows the effect of one sort of goods upon another. Ohrloff v. Briscall, L. R., 1 C. P. 231; S. C., 35 L. J., C. P. 63. The Star of Hope, 17 Wall. 651; Baxter v. Leland, 1 Abb. Adm. 348; Dedekam v. Vose, 3 Blatchf. 44. The Alexandra, 14 W. R. 466; 14 L. T., N. S. 742. 6 Brass v. Maitland, 6 El. & Bl. 470; Swainston v. Garrick, 2 L. J. Ex. 255; Hayn v. Culleford, 48 L. J., Q. B. 372; Gillespie v. Thompson, 2 Jur. N. S. 713 n.; S. C., 6 El. & B. 477 n.; 36 Eng. L. & Eq. 227; Hills v. Mackill, 36 Fed. Rep. 702. 7 Sack v. Ford, 13 C. B. N. S. 90; Blackie v. Stembridge, 6 C. B. N. S. |