Meaher v. Lewis

Wheeler, J. This case was argued with great ingenuity ■and ability on behalf of the appellant; but we think the great weight of authority and the reason of the law so clearly with the decision of the Court below, as not to require an elaborate opinion. The general rule is indisputable and unquestioned, in the absence of any general usage or course of trade, that goods carried on deck and jettisoned, give no claim for 392 contribution. But where they are so carried according to the-common usage and course of trade on the voyage for which-they are shipped, that their jettison does give a claim for contribution is certainly supported by the great weight of authority, especially since the judgment of the Queen’s Bench in Milward v. Hibbert, (3 Ad. and E., 120 ; 43 Eng. Com. L. R.,. 659.) Many of the cases relied on to maintain the contrary are cited in the notes to Perkins’ edition of Arnauld on Insurance, (p. 888, 890, n.) and the doctrine they hold is accounted for from the fact of their having been decided before the case of Gould v. Oliver, (4 Bing., 135,) and Milward v. Hibbert. These cases are evidently considered by eminent jurists and commentators upon Maratime Law, as having settled the law as we have stated it; that is, that if goods are-laden on deck according to the custom of a particular trade,, they are entitled to contribution from the ship owners for a loss by jettison. (3 Kent, 240, n. a., 8th edit. ; Abbott on-Shipping, 481, 482, notes, Story and Perkins’ edit. ; 2 Phillips on Ins. 71; Flanders on Mer. L., Sec. 306; Parsons’Mer. L., 371.) This at present appears to be the doctrine universally admitted by the commentators upon the law of shipping, to which we have had reference. It is approved by the recent case of" Sproat v. Donnell, decided by the Supreme Court of Maine, (26 Maine, 185,) which however appears to have been decided without reference to the English cases we have cited, and the notes of reference in the late editions of elementary treatises. And to whatever weight this decision may be entitled, we do not think it sufficient to overbear the great weight of authority to-the contrary, and the very satisfactory reasoning upon which the cases are decided. We think the law must be regarded as well settled in opposition to the case of Sproat v. Donnell. It. might be interesting to follow the very ingenious argument of" counsel through the cases cited to support the doctrine con 393 tended for by the appellant. Butwe do not think it necessary. The references we have made are deemed sufficient to show what the true doctrine upon this subject is : they will be found amply sufficient to vindicate the propriety of our decision upon principle and authority. It is difficult to conceive how a clearer case for the application of the rule could be made out than the record before us exhibits. And we think it free from doubt that it was rightly applied in this instance. There-is nothing in the objection that proof of a custom was admitted to vary the law of the land. That, it is admitted, cannot be done. But it is in every days practice to admit proof of the common usage and course of trade, as in this instance, in order to apply the rule of law arising thereon, to the particular case. We are of opinion that there is no error in the judgment and it is affirmed. Judgment affirmed.