Where, however, the responsibility for the stowage rests with the plaintiff, it is obvious that the carrier is not liable for the injurious results, if it be faulty. This may arise where the contract expressly or impliedly provides that the shipper shall see to the stowage,' or where the shipper voluntarily assumes that duty, as by sending stevedores to do the work, by saying that some one will come and superintend the stowing, or by personally superintending the work, the owner being ignorant of the character of the goods, or where he assents to the manner of stowage followed by the ship owner, or where the stowage is in accordance with an established usage, if the carrier be not otherwise in fault."

§ 244. If, however, the ship be chartered by third parties, the owners, by their servants, the master and crew remaining in possession, and the vessel be then offered for general freight without notice of the pre-existing charter party being given to the shippers, the owners will be responsible to a shipper who is ignorant of the charter party, for improper stowage, although the goods were stowed by a stevedore appointed by the charterers. So also the carrier will be liable if the goods in suit have been stowed in the usual way, but near goods, which were in bad condition when put on board, although but for their condition they would not be injurious. Where the fault was that of a third person, as of the shipper of the injurious goods,

894; Alston v. Herring, 11 Exch. 822; Gillespie v. Thompson, 6 El. & Bl. 477 n.; The Bark Colonel Ledyard, 1 Sprague, 530; Bearse v. Ropes, Id. 331; Mackinnon v. Taylor, Com. Ca. 514; Brusseau v. The Hudson, 11 La. Ann. Rep. 427; Rocherou v. The Bark Hausa, 14 La. Ann. Rep. 431; Cranwell v. The Fanny Fosdick, 15 La. Ann. Rep.

436.

Ohrloff v. Briscall, L. R., 1 C.

P. 231.

5 Hovill v. Stephenson, 4 Car. & P. 469; Mayor v. White, 7 Car. & P. 41.

6 Clark v. Barnwell, 12 How. 272. The shipper is said to be chargeable with notice of such usage. Baxter v. Leland, 1 Blatchf. 526. But see The Filia Maggiore, 2 L. R. Adm. 106.

Sandeman v. Scurr, supra. The

1 Angell on Carriers, § 212; Fletcher St. Cloud, Brow & L. Adm. 4, cited v. Gillespie, 3 Bing. 635.

24.

Angell on Carriers, § 212 n.; The

2 Murray v. Currie, L. R. 6, C. P. Filia Maggiore, 2 L. R. Adm. 106.

3 Swanston v. Garrick, 2 L. J. N.

S. Exch. 255.

The Bark Cheshire, 2 Sprague, 28.

and even when no fault is properly chargeable to any one, the carrier is, nevertheless, bound to answer for the consequences of defective stowage, though a remedy will lie in favor of the carrier over against the shipper of the offending article.1

§ 245. A few cases will serve to illustrate the foregoing principles.

In Allston v. Herring the plaintiff chartered the defendant's vessel for a voyage from Glasgow to Colombo. The plaintiff sent on board the vessel cambric goods and then agreed with a third party to carry goods for them for freight. This party shipped a quantity of sulphuric acid, which was stowed by the defendant near the plaintiff's goods. The master signed and delivered to the plaintiff bills of lading for both the cambric and the acid. No notice was given to defendant that the cargo contained sulphuric acid. In the course of the voyage the acid leaked and damaged the plaintiff's goods. In an action by the plaintiff on the bill of lading for not delivering the goods in good condition, it was held that the neglect of the plaintiff to give notice of the shipment of the sulphuric acid was no excuse for the defendant's breach of contract, since it was only a remote cause of the damage, the proximate cause being the act of the defendant in placing the acid where it was.

The stowage of iron bars in close proximity to copperas, by which they became encrusted with the sulphate of iron, is such negligent stowage as will bind the carrier, but it has been said that the stowage of iron and salt in the same cargo is not necessarily negligent. The stowage of salt and dry goods together and of corn and merchandise on top of hogsheads of sugar have been justified as customs of the trade.

§ 246. In the Filia Maggiore barrels of oil-cake had been stowed alongside of hogsheads of tobacco, oaken staves being placed between, and were damaged. Evidence to show that this was customary stowage was offered, but Sir Robert PHILLIMORE, giving judgment for plaintiff, said: "The answer to this is twofold. In the first place, the plaintiff, Simmonds, says that this

1 Alston v. Herring, 11 Exch. 822; The Bark Colonel Ledyard, 1 Sprague, 530; and cases cited above.

2 11 Exch. 822.

3 See section on "Rust."

4 2 L. R. Adm. 106.

is a practice which his firm have always protested against and in the second place, it is a practice which the ship-owner adopts suo penculo. He cannot, by the adoption of it, get rid of his obligation to carry the goods of a shipper in proper condition. It may be that in certain circumstances and in a vessel of a certain size, tobacco and oil-cake may be stowed together without injury, but in a case where injury to a very considerable extent, as it is alleged in the present case, does arise from the joint stowage of these articles, it does not appear to me that the shipper can be deprived of his remedy against the ship-owner, on the ground that such stowage is usual and that in many cases, or usually, no injury accrues from it."

In Pierio v. Windsor,' mastic, an article new in commerce, was shipped by a plaintiff from New York to San Francisco as common freight, but was so affected by the voyage that it injured other parts of the cargo in contact with it and involved an increased expenditure in discharging. The injurious character of the article was unknown either to the shippers or to the defendants and no actual fault was implied. The master had paid for the damage done to the rest of the cargo. It was held that this, with all the damage and expense occasioned by the peculiar character of the article, must be borne by the shippers.

Where the goods shipped were of a dangerous character, the shipper was, at common law, bound to give notice of their nature to the carrier. Failing in this, he was held to be liable to the carrier for the damage caused by them.2 The act of 36 and 37 Victoria specifically prohibits the sending of dangerous goods (that is to say)-aquafortis, vitriol, naphtha, benzoin, gunpowder, lucifer matches, petroleum, or any other goods of a dangerous nature without giving notice of the nature of such goods and the address of the sender, an offence punishable by a fine not exceeding one hundred pounds. If such goods be sent under a false description of the goods, or a false descrip

1 2 Clifford, 18.

2 Hutchinson v. Guion, 5 C. B. N. S. 149; Farrant v. Barnes, 11 C. B. N. S. 553; Herne v. Garton, 2 E. & E. 66; Williams v. East India Com

pany, 3 East, 192; Great Western Railway Co. v. Blower, L. R. 7 C. P. 655.

336 & 37 Vict., c. 85, §§ 23 to 28

incl.

tion of the sender, the penalty annexed is five hundred pounds. The master or owner of the vessel (British or foreign) may refuse to take on board any package or parcel which he suspects to contain such goods, and when such goods are discovered not marked as provided, or sent without notice, they may be thrown overboard by the master or owner without any liability, civil or criminal, being by him incurred. Such goods may moreover be declared by any court having admiralty jurisdiction to be forfeited and may be disposed of as the court directs.

The only provision similar to this to be found among the statutes of the United States is the act of 3 July, 1866,1 relating to the carriage, packing, and marking of nitro-glycerine, in which the carriage of this commodity upon a vessel or vehicle used or employed in transporting passengers is altogether forbidden, and the method of packing and marking is prescribed, and a penalty of not less than one thousand dollars nor more than four thousand dollars affixed to the breach thereof. It has further been held that the shipper who delivers to the carrier a package containing such goods, but not properly marked, is liable to the carrier for all the damage caused by the explosion of the goods while in the carrier's custody."

§ 247. The exception of goods lost by "jettison" is usually included in the bill. In the case of Bird v. Astcock, Lord COKE decided that where goods were thrown overboard in a great storm by a bargeman to save the lives of the passengers by lightening the barge, the carrier was exonerated from liability; while in Bancroft's Case, cited by Lord Chief Justice ROLLE, in Kenrig v. Eggleston, it is stated that where a box of jewels having been delivered to a ferryman, who knew not what it contained, and upon a sudden storm arising in the

1 R. S., §§ 5354, 5355, 4278, 4279. 2 Boston, etc., R. R. Co., v. Shanley, 107 Mass. 568. But where nitroglycerine was intrusted to the carrier without notice of its character, and exploded, injuring the building of a third person, it was held that the carrier could not be held liable, if he had

handled the package in a way in which packages not calculated to arouse suspicion are ordinarily to be handled. The Nitro-Glycerine Case, 15 Wall. 524.

2 Bulst. 280. 4 Aleyn, 93.

passage, he threw it into the sea, it was resolved that he should answer for it. Sir WILLIAM JONES conjectures that the real reason for the ruling in the latter case was the culpable negligence of the carrier in not preserving the goods intrusted to his care, so long as it was reasonably possible for him to do so. These two cases contain all the law as to the carrier's liability in case of jettison.

Jettison is defined as the heaving overboard of the goods in order to save the ship. To this may be added the explanation of Chancellor KENT: The goods "must be intentionally sacrificed by the mind and agency of man for the safety of the ship and the residue of the cargo. The jettison must be made for sufficient cause and not from groundless timidity. It must be made when the ship is in danger of perishing by the fury of a storm or is laboring upon rocks or shallows or is closely pursued by pirates or enemies."

It follows from these definitions that jettison may fall within the exceptions, "act of God," "perils of the sea,' ""the public enemy," and may probably be included in others of the excepted perils.

§ 248. The usual, implied provision with respect to negligence, however, obtains. Neither the exception, "perils of the sea," nor the exception "jettison" will exempt a carrier who has jettisoned the goods without sufficient reason, or has negligently placed himself in such a position that jettison is necessary, as by setting to sea in an unseaworthy vessel or by improper stowage.3

The circumstances of each case are to be inquired into. In Van Syckel v. The Thomas Ewing, a vessel entering Mobile Bay, at dusk, with a strong wind blowing in shore, and every prospect of bad weather, endeavored, for want of a pilot (there being none at hand), to follow the course of a pilot-boat in advance of her, and ran aground on a bar of mud. The master,

The Neptune, 16 L. T., N. S. ciple is alike applicable to exceptions Adm. 36.

2 Kent's Comm., iii. p. 233.

Nemours v. Vance, 19 How. 162; Laurence v. Minturn, 17 ib. 100; The Portsmouth, 9 Wall. 682. The prin

in bills of lading and in policies of insurance. The Portsmouth, supra, Ins. Co. v. Sherwood, 14 How. 365.

3 Clark (Pa.), U. S. C. C. 231; S. C. Crabbe, 405.