(after stating the facts as above). Rules I and II of the York-Antwerp Rules 1890, read as follows:
“Rule I — Jettison of Deck Cargo. — No jettison of deck cargo shall be made good as general average. Every structure not built in with the frame of the vessel shall be considered to be a part of the deck of the vessel.
“Rule II — Damage by Jettison and Sacrifice for the Common Safety. — Damage done to a ship and cargo, or either of them, by or in consequence of a sacrifice made for the common safety, and by water which goes down a ship’s hatches opened or other opening made for the purpose of making a jettison for the common safety, shall be made good as general average.”
Were the York-Antwerp Rules not part of the contract of affreightment, the cargo loss by jettison, in a trade in which deck cargo is customary, would have to be made good as general average. The Hettie Ellis (C. C.) 20 F. 507; The John H. Cannon (D. C.) 51 F. 46; Lowndes, General Average (6th Ed.) 74. Damage to the vessel incidental to the jettison would be regarded as part of the loss by jettison and would likewise come into general average. Lowndes, General Average (6th Ed.) 83; Columbian Insurance Co. v. Ashby and Stribling, 13 Peters, 331, 343, 10 L. Ed. 186.
The York-Antwerp Rules, however, exclude the loss of deck cargo from being made good as general average. Appellants’ contention is that the ship’s damage incidental to the jettison is also excluded. Their argument is that, inasmuch as damage incidental to a jettison of cargo is included in general average when the. cargo loss is included, so, conversely, when the cargo loss is excluded from general average all incidental damage should follow in its train. They assert that the language of rule I, “No jettison of deck cargo shall be made good as general average,” shows an intention to exclude the act of jettison with all its consequences. Rule II they make harmonious with this interpretation by limiting rule II to damage done to jettison of underdeck cargo.
*746; Wo cannot accede to this construction of the rules, not only because it seems to us to •be a strained construction of the' words used, but also because it would result, as suggested by counsel for appellee, in most inequitable consequences. Suppose, for illustration, that, in making a jettison of deck cargo, a hatch is torn off and water damages the underdeek eargo belonging to an owner different from the deck cargo owner. According to the construction proposed by appellants, no allowance could be made for damage to ■the underdeek eargo, since such damage was a consequence of the act of jettisoning deck cargo; hence’ excluded by rule I and not ■saved by rule II, which is limited to a jettison of underdeek eargo. This appears to us ■a shocking, injustice to the owner of the un.derdeek eargo who has no control over the shipping of deck eargo or the terms upon which it shall be shipped.
On the other hand, if rule II is not so limited, the supposed damage to the under deck cargo would be protected by the phrase: “Damage done to * * * cargo * * * by or in consequence of a sacrifice made for the common safety * * * shall be made good as general average.”
. Appellants, however, contend that a sacrifice cannot be made for the common safety unless the sacrifice is one for which allowance is to be made in general average. This argument is based upon the premise that the Liverpool Conference of 1890, which adopted the York-Antwerp Rules of that year, intended to make no change in meaning of rule II of the York-Antwerp Rules of 1877. Counsel finds authority for this premise in the opinion of a German Case, The Skodsborg (Hansen v. Becker & Otten), decided by the Bremen Landgerieht, and on appeal, by the Court of Appeals, and printed in the Hanseatisehe Geriehts Zeitung of February ■7, 1901, No. 11. It may be mentioned in passing that the decision itself is directly opposed to the appellants’ contention and is the only authority which has been found on the precise point. Rule II of 1877 (Lowndes, General Average [6th Ed.] 807) reads:
“Damage done to goods or merchandise by water ■ which unavoidably goes down a ship’s hatches opened, or other opening made, for the purpose of making a jettison, shall be made good as general average in case the loss by jettison is so made good.
' .‘-‘Damage done by breakage and chafing or otherwise from derangement of stowage consequent upon a jettison shaE be made good, as general average in ease the jettison is so made good.”
By comparing rule II of 1890 with the above, it is apparent that the phrase, “for the common safety,” was twice substituted for the phrase, “in ease the loss by jettison is so made good,” which appeared in the earlier rule. We do not see how we can ignore such a change of language or say that the framers of the later rule intended no change in meaning. “Sacrifice for the common safety” is a phrase naturally adapted to include any jettison made to avert a common physical perE which threatens the whole venture. The question concerns the meaning of ordinary words; we should think, for 'example, that the jettison of the prophet in Holy Writ was probably regarded by the crew as a sacrifice for the common safety, however it appeared to the victim himself, despite his subsequent bizarre 'adventures. Moreover, the jettison of a portion pf the deck eargo may be deemed for the common benefit of all persons interested in the venture, including the deck cargo owner himself, the balance of whose cargo may be saved by the sacrifice of the portion cast overboard.
On the whole, we are satisfied that rule II covers damage to the ship caused by a jettison of deck eargo, and the decree is affirmed with costs to appeEee.