(dissenting). The appeEamt, Emery Company, shipped a fuE cargo of mahogany logs from Belize, British Honduras, to New York on the steamship 'Felix, in February, 1914. The vessel stranded during the voyage, and, in order to float her, it was necessary to jettison part of the deck cargo. The Felix was floated in the course of the jettison, but some damage was done to her hull and machinery. A general average was prepared by average adjusters in New York City. No aEowanee was made in this adjustment for the eargo jettisoned but an allowance was made in the court below, in favor of the shipowner, for the damage to the vessel and her equipment in the course of the jettison. The Insurance Company of North America guaranteed payment of any general average which might be due. Appellants appeal from that part of the decree which makes the allowance for damage to the ship, contending that it was not recoverable as general average.
The deck eargo was carried under a contract of affreightment which referred to the York-Antwerp Rules, as foEows: “General average payable according to York-Antwerp Rules, and as to matters not therein provided for, according to the usages of .the port of New York.” It was also stipulated *747to have been shipped as deck cargo in accordance with the custom and usage of the1 trade. In the absence of the application of the York-Antwerp Rules, if shipped in accordance with this custom, the deck cargo loss would have been the subject of contribution in general average. The Hettie Ellis (C. C.) 20 F. 507; John H. Cannon (D. C.) 51 F. 46. But rule I of the York-Antwerp Rules of 1890 reads:
“Jettison of Beck Cargo. — No jettison of deck cargo shaE be made good as general average. Every structure not built in with the frame of the vessel shaE be considered to be a part of the deck of the vessel.”
However, under the title of “Damage by Jettison and Sacrifice for the Common Safety,” rule II provides:
“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.”
Because of this rule, the court below allowed the vessel owner to recover as general average, the damage to the vessel caused by the jettison of the deck cargo.
The authorities speaking on this subject consistently state that damages which are considered incidental to a jettison — that is to say, that the jettison cannot be made without incurring them — are regarded as part of the loss sustained by jettison, and are included in the general average. GourHe on General Average, p. 109; Lowndes on General Average (6th Ed.) 83. It is the rule to aEow the loss of freight in general average where caused by an act of sacrifice, of the cargo, if the jettison of the cargo is aEowable in general average. Columbian Insurance Co. v. Ashby, 13 Pet., 331, 10 L. Ed. 186; Re Nathanial Hooper, Fed. Cas. No. 10032, 3 Sumn. 542. If goods or the ship are damaged “by reason of the opening of the hatches to throw the cargo overboard or from seas which break over the deck, aE such damage is properly and in practice made the subject of general average being the necessary consequence of the measure of safety. The rule is as old as the Roman law and may be regarded as universally accepted.” And “damage which is incidental to the jettison — that is, a jettison which cannot be made without incurring it — must be regarded as part of the laws of jettison and included in the general average.”. Lowndés on General Average, p. 83. It may be regarded as settled that, if the cargo jet-' tisoned is to be contributed for as general average, then the damages suffered by the vessel in such jettison are to be contributed for in the.same general average. The appellant argues that it should be equally clear that, if the cargo jettisoned is not to be contributed for 'in general average, then the damage to the vessel incidental to that jettison and a part of the loss by jettisoning cannot be considered in general average. Nor does rule II make possible such a recovery. The reason for aEowing the vessel to share in general average recovery is based upon principles of equity and natural justice. McAndrews v. Thatcher, 3 Wall. 347, 18 L. Ed. 155; Ralli v. Troop, 157 U. S. 386, 15 S. Ct. 657, 39 L. Ed. 742; Burton v. English, 12 Q. B. D. 218. The rights involved must be considered from the viewpoint of equity.General average is a contribution by all the parties in a sea adventure, to make good the loss sustained by one of their number- on account of the sacrifice voluntarüy made on the part of the" ship or cargo to save the .remainder and from an impending peril or extraordinary expenses necessarily incurred by. one or more of the parties for the general benefit of all interested embarking in the adventure. Barnard v. Adams, 10 How. 270, 13 L. Ed. 417. If the cargo jettisoned is not to be considered in general average, the damage to the vessel is of necessity collateral to the jettisoning of the goods. Unless there is a jettisoning for common safety, there is no common sacrifice, and no general average doc-0 trine of contribution may be invoked. There is no legal cause which produces the reason for invoking the principle, of general average. Rule I expressly excuses where deck cargo is jettisoned. It does not merely excuse contribution for the benefit of the cargo owner by signaling out the cargo owner’s loss for elimination from general average, but it refers to the jettisoning of deck cargo with aU that the phrase means. It is the act of jettisoning with aE its consequences. It is not. merely one of them, for the rule does not so provide.
Rule II and the other York-Antwerp Rules deal with the consequences of the act of jettisoning and specify in each instance what consequences are included within the scope of each rule, and to what interest the cargo or freight or either of them applies. For example, rule IH refers to damage to ■ the ship or cargo or either of them by water or otherwise in the extinguishing of fire on board the ship, and directs that such shall be made good as general average. It does not *748merely provide that extinguishing a fire on board ship shall be made good. Rule Y refers to loss or damage caused “to the ship, cargo, or freight or any of them” and that “intentional running on shore shall be made good as general average.” Rule YI provides damage to or a loss of sails or spars or either of them shall be made good. And no loss or damage caused to the ship eargo or freight or any of them shall be made good. Rule YII provides that damage caused to machinery or boilers of the ship shall be allowed in general average; rule IX, eargo, ship’s materials, and stores, or any of them, shall be.deemed as general average; rule XII, damage done to a ship or cargo — thus showing an | intent by each rule to specify items of damage and by the effect of the language chosen not to exclude the act of jettison with all its consequences but merely selecting one or more of them.
Below it is said that rule II could not by any reasonable implication be limited to a jettison of eargo other than deck cargo, and it was said: “All damage occasioned by a sacrifice for the common safety must be made good. To limit its application to a jettison of cargo which must itself be made good would violate the rule.” Rule I by its title refers to a jettison of the deck eargo, and, if it be clear that there can be no recovery for such loss in general average because of the act of jettison, rule II can only deal with a jettison of other than deck eargo in so far as it deals with jettisoning at all, and the type of jettison specifically referred to in rule II appears from its wording to refer to under-deck cargo, for it is phrased: “A ship’s hatches opened or other opening made for the purpose of making a jettison.” Since rule I deals with deck cargo, and rule II specifies, as much as it indicates anything, underdeck eargo, there is no liable damage as general average “occasioned by a sacrifice for the common safety” which “must be made good.” There is no limiting “its obligation to a jettison of eargo which must itself be made good.”
The deck eargo was jettisoned for the purpose of saving the rest of the adventure. The cargo owner can have no contribution for his loss. Although the sacrifice is made by him for such benefit without compensation, the vessel owner asks for a further sacrifice by him by way of contribution for damages done his vessel while jettisoning the deck cargo. Such a claim lacks every essential quality of an equitable demand. It would be a contradiction of terms to permit a ship owner to recover contribution from the cargo owner in respect to general average sacrifice without, on his part, contributing to the general average. The Jason, 225 U. S. 32, 32 S. Ct. 560, 56 L. Ed. 969. Rule II should not be construed to work out inequity between the parties. Any other construction in violation thereof should be avoided if possible and only accepted where the rule is plain. One of the persuasive reasons for rule I is to relieve the underdeck eargo from any and all consequences of the hazard jointly accepted by the deck cargo and the vessel when the owner of the latter sees fit to earn more hire by deck stowage. The vessel owner, for more freight money, accepts the, deck cargo and to some extent jeopardizes the safety of the underdeck eargo. Strang v. Scott (1889) 14 Appeal Cases, 609. The deck cargo owner owes no duty to the underdeck cargo, but the vessel does in providing a seaworthy vessel and properly navigated to destination. Rule II could not, with intent so to do, expect general average contribution for damages sustained by relieving the ship of a hindrance to navigation which the vessel owner accepts, in most instances, without the consent of the underdeek cargo. Wright v. Marwood (1881) 7 Q. B. D. 62.
But it is said that the change of rule II of the York-Antwerp Rules of 1877 to the present reading (1890), indicates an intention of allowing recovery as had below. The present rule II merely extends the right of the ship, in addition to the eargo, to share in the contribution of general average where it is allowed in the case of a jettison for the common safety. In the case of Hansen v. Becker'& Otten, decided by Bremen Landgericht, and on appeal in the Court of Appeals, Hanseatisehe Geriehtszeituñg, February, 1901, No. 11 (which was not the court of last resort of Germany), the view expressed below was sustained. That decision attempts to show that the 1890 rules as agreed upon were not intended to make any change in the effect of rule II, and it points out that the 1890 conference intended that there should be a general average where the sacrifice is made for the common safety. With the intention, as suggested by that court, to have the words “for the common safety” the equivalent of the expression used in the earlier rules, namely, “in case the loss by jettison is so made good,” it is difficult to see how damages sustained by a ship can be compensated for if the eargo jettison may not be regarded as in a contribution as general average. To be within the expression “for the common safely”- anticipates some act of jettisoning for which compensation may be *749awarded. I£ there is to be no contribution for jettisoning the deck cargo, there can be no general average for damage to the ship. No allowance in general average against the deck cargo owner should be granted.
I dissent.