The general rule undoubtedly is, that goods shipped on deck, contribute if saved, but if lost by jettison, are not entitled to the benefit of general average. (Abbott on Shipping, part 4, chap. 10, sub. 3; 3 Kent's Com. 240; Smith v. Wright, 1 Caines, 43.)
But the rule has its qualifications.
1. It is strictly applicable only to those vessels which are expected to encounter the extraordinary perils of the sea, and not to those which navigate smoother waters, and are comparatively safe from extraordinary exposure. (2 Smith's Leading Cases, 531; Abbott, 481, 482.)
2. The custom and usage prevailing on the particular route navigated, as to the place on the vessel where the cargo is stowed or located, has a material bearing upon the right of the jettisoned cargo to contribution for loss. If by such usage the cargo is stowed on the main deck, and not under cover, then it becomes not only liable to contribution if saved, but entitled to contribution if lost. (2 Smith's Leading Cases, 531; Gould v.Oliver, 4 Bingham, N.C. 134; Brown v. Conwall, 1 Root [Cow.] 60; Barbour v. Bruce, 3 Conn. R. 9; Barbour v.Dodge, 5 Greenleaf [Maine], 286; 22 Pick. 116; 1 Parsons' Maritime Law, 307, 308, 309.) By the terms of the stipulation in this case, it is fairly inferrible not only that the main part of *Page 281 the cargo was actually stowed on the main deck, but that it was the only place in the vessel where it could be located. In such a position it was as safe as elsewhere from such perils as vessels of that description on the route which they pursued would be likely to encounter. To deny to a cargo thus placed the right to contribution for loss, in the event of a necessary jettison, would be practically to ignore all title to contribution in all ordinary cases. The rule of contribution would be nullified, and the practice of general average terminated.
The bank notes in question formed a part of the cargo of the steamboat. They were packed in a crate, and the crate paid freight. Whether such freight was an aliquot part of a fixed annual sum, or a reasonable and customary charge for the particular voyage, cannot alter the question. It was still freight paid for the transportation of the particular crate in which these bills were; and if for the crate, then also for its contents, for it was the contents of the crate and not the crate itself which induced the shippers to undertake the transportation and incur its expense. It was therefore a part of the cargo or burthen carried. It embraced the two important elements which enter into the definition of cargo, to wit: 1. A part of the load or burthen of the vessel. 2. A part of the articles which produced freight or compensation to the carrier. (Abbott on Shipping, part 4, chap. 10, sub. 12, p. 502.)
Nor were they within any of the various exemptions or exceptions which exclude certain articles from being considered as a part of the cargo, and therefore not liable to contribution.
1. They were not like small parcels of money or evidences of debt, wearing apparel or ordinary baggage attached to the person of the passenger and under his personal care and supervision. They were placed among the ordinary goods, wares and merchandize which constitute the cargo of the vessel, exposed to its perils and sharing its fate. (2 Arnould on Insurance, 888 [Am. ed.]); 1 Phillips *Page 282 on Insurance, 172 [2d ed.]; 2 do 152; 3 Kent's Com. 210; Nelson v. Belmont, 21 N.Y. Rep.)
2. They were within the protection of the contract made between the shipper and the carrier. We are entitled to infer, from the course of the business, that the carriers were entirely aware of the character of the packages conveyed by the express companies, and that they include packages of money as well as other small parcels of value.
3. They were also property, within the meaning of that term as applied to articles which might legitimately form a portion of the cargo of the vessel. They were money in the ordinary definition of that term, and among the most valuable kinds of property. They pass from hand to hand equally with gold and silver as a part of the ordinary currency of the country. They are liable to levy and sale on execution. (Handy v. Dobbins, 12 Johns. 220; Turner v. Fendall, 1 Cranch, 33. See Parsons on Maritime Law, 323.)
They were something more than mere evidences of debt, and, if not, were none the less articles of personal property. They were subjects of barter and sale, and if improperly detained or lost, could be recovered or sued for in replevin or trover. Nor could their place be supplied, in case of loss, by similar papers without loss of identity. True, evidence of the loss might in some cases be successfully procured and thus the loss wholly or partially remedied. A new note or bill might be substituted for the one lost; yet it would not be the same note or bill. It is not more than in other cases the loss of mere evidence or proof of property, but of property itself having intrinsic and appreciable value. If, on proof of loss, the amount of the bill or note should subsequently be recovered of the party liable to pay, the pursuit of this remedy should be imposed on the carrier and not on the owner. Prima facie the loss of the bills should be treated as a loss of the debt they represent. The payment of the loss by the carrier would transfer the title to him, and the burthen and risk *Page 283 of its subsequent recovery should devolve on him. (See 1 Park on Insurance, chap. 7, § 2, page 293; Abbott on Shipping, 502, part 4, chap. 10, sub. 12; Brown v. Stapleton, 4 Bing. 119.)
It is said that choses in action, bonds, bills, notes, mortgages, deeds, evidences of debt and of title are exempt from contribution, and therefore that bank bills should be. I do not understand that in cases similarly circumstanced to the present they would be so exempt. They are ordinarily exempt because accessory to the person, but not so in any instance when they pay freight and become part of the cargo proper.
It is said that subjecting bank bills to liability is the introduction of a new principle, and would be disastrous if practically carried out, because if liable to contribute when saved, they are equally entitled to contribution if lost, and that the large sums and extraordinary values thus brought into the account for contribution would absorb the price of less valuable property, and therefore dictate the rejection of the principle. This consideration cannot be indulged. In the first place, jettison of articles of such light weight and such great value, is not permitted except in cases of emergency, and therefore they are much more likely to suffer than to exact contribution. In the next place there is no practical injustice in allowing and enforcing contribution according to a just valuation; and in the third place the question does not here arise to what extent these bank bills shall be made to contribute; for the plaintiffs refused to recognize the lien altogether, and therefore the defendant was warranted in refusing to surrender the property if the lien existed to the slightest amount. It was a question of lien or no lien, and not of amount of lien.
In my opinion the bank bills were bound to contribute to the loss. The bills were justifiably detained to respond for such loss; and the judgment should be affirmed, with costs. *Page 284
INGRAHAM, J., concurred in above opinions, as to all except that bank bills are property, under the law relating to contribution and average. Upon that point he was for reversal.
All the other judges being for affirmance, judgment affirmed. *Page 285