This is a suit for loss of cargo of lumber stowed on deck, as the result of being lost overboard and/or jettisoned in a storm.
The shipment being upon a clean bill of lading, it is conceded that stowage on deck amounts to a deviation (see The Delaware, 14 Wall. [81 U. S.] 579, 20 L. Ed. 779; The St. Johns N. F. [C. C. A.] 280 F. 553; see, also, same case in Supreme Court, 263 U. S. 119, 44 S. Ct. 30, 68 L. Ed. 201, 1923 A. M. C. 1132), unless respondent can prove a custom of the port to so ship. The Delaware, supra; Rosenberg Bros. & Co. v. United States Ship. Board E. F. Corp. [D. C.] 7 F. [2d] 893, 1925 A. M. C. 1427; Id. [C. C. A.] 12 F. [2d] 721, 1926 A. M. C. 855; The Gualala [C. C. A.] 178 F. 402. I have carefully examined the evidence in the light of the authorities, and I find that the custom alleged and relied upon did not exist.
Respondent contends further that there was an accord and satisfaction growing out of the assertion by the Kirby Lumber Company and payment by the respondent 'of a claim for the amount of deck-stowed lumber, not jettisoned or washed overboard, but converted by the agent of the ship at destination. To this claim libelant replies (1) that there was no settlement of the elaim in controversy; and (2) if there was, the libelant was powerless to effect the settlement, since, as plainly appears in the correspondence, libelant had been paid by its cargo underwriters for the lumber which was jettisoned and washed overboard, and, the insurance companies having a right in law and under their contracts to subrogation to the elaim of libelant against the carrier, libelant was without power to' settle the claim, if it had attempted to do so.
I agree with libelant that the elaim now in suit was never submitted for settlement or compromise, and that while the form of the release presented to, but not signed by, the Kirby Lumber Company, covered all claims arising out of the cargo stowed on deck, there was never any contention between libelant and respondent as to the elaim mow in suit, and it would be a giving effect to form, rather than substance, to say that the parties had under discussion, and made a compromise of, the elaim in suit.
In addition, I think it plain that libel-ant had no authority to make such an accord and satisfaction, and that the evidence shows plainly that it was understood between libel-ant and respondent that this matter, having been taken up with the insurance company, was not then at issue between libelant and respondent.
Finally, respondent claims that, because of the clause in the bill of lading giving the carrier the benefit of cargo insurance, the libelant cannot recover against the carrier, for the benefit of the insurers, the amount of loss which was covered by insurance, and which the underwriters had already paid. Whether respondent could successfully invoke the clause in the absence of deviation (see Luckenbach v. W. J. McCahan Sugar Ref. Co., 248 U. S. 139, 39 S. Ct. 53, 63 L. Ed. 170, 1 A. L. R. 1522; The Turret Crown [C. C. A.] 297 F. 766, 1924 A. M. C. 253), it is not necessary to consider, for there was a deviation as to this lumber, the effect of which was to abrogate the contract and deprive the ship of the benefit of any of the restrictive clauses. See Rosenberg Bros. & Co. v. United States Ship. Board E. F. Corp. (D. C.) 1925 A. M. C. 1427; Blumenthal v. United States (D. C.) 21 F.(2d) 798, 1927 A. M. C. 1726; St. Johns N. F. Shipping Corporation v. S. A. Companhia Geral Commercial Do Rio De Janeiro, 263 U. S. 119, 44 S. Ct. 30, 68 L. Ed. 201; The Willdomino *1012(C. C. A.) 300 F. 5, 1924 A. M. C. 903; G. F. Brady, 1927 A. M. C. 1621.
Let a decree go for libelant for the amount sued for, with interest and costs.