delivered the opinion of the court.
This is an action by the master of the.,brig Good Return, to recover the freight of a number of bales of cotton, from St. Marks to New-Orleans, and which were delivered to the defendants as consignees. The bill of lading shows that seventy-eight bales were put on deck, with the consent of the shipper,. at a lower rate of freight than those which were shipped in the hold.
The answer admits that the cotton was transported on board the brig and consigned to them, but they aver that it was put on board in good condition, and that by the fault and negligence of the plaintiff or others on board, it was delivered |/0 them not in good condition, but on the contrary, in a > ¡ ' •>3 damaged and unsaleable state, and they estimate the damage at ^ve hundred and ninety-five dollars, for which sum they Pray judgment against the plaintiff in reconvention,
Judgment being rendered in favor of the plaintiff for the amount of the freight, the defendants appealed.
The evidence shows, that the cotton on its arrival in New-Orleans was received without objection by the consignees, but that twenty-three bales were much wet with salt water, 14 was admitted by one of the defendants, that the damaged bales formed a part of the deck load. We are satisfied from . . . all the circumstances of the case, particularly the nature and limited extent of the damage, that such was the fact; and *39the only question is, whether such damage arose from accidents against which the shipper was his own insurer, by consenting that the cotton should be conveyed on deck. .
The owner or master of a vessel, is not liable for damage done to deck freight, arising from the dangers and waves of the sea, and the necessary exposure of the property on deck, stowed there by the consent of the shipper. In relation to underwriters without special agreement, and other owners of the cargo under deck, and in cases of jettison, it is well settled that goods stow-' ed on deck form no part of the cargo. , As between the owner of the goods and the carrier, the latter is bound by the same obligation to carry the deck freight as the rest of the cargo, save only the damages which result from its exposed situation.Neither party has furnished us any direct and positive evidence as to the cause of the damage. As a general rule, it is undoubtedly true that the carrier is bound'to prove the casualty, or vis major, which occasioned the loss or deterioration of the property which he undertook to convey, and to deliver in good condition, according to the terms of the bill of lading. But • when the goods have been delivered aiid received without objection, particularly where the damage was apparent upon simple inspection, a rigid enforcement of the rule might operate a great injustice. There is an apparent compliance on the part of the carrier, with the conditions of the bill of lading; and by receiving the goods, the consignees became liable for the freight. Abbott on Shipping, 299.
The defendants in their reconventional demand, expressly aver that the damage was occasioned by the fault or negligence of the captain or his crew. In the absence of any positive evidence on that point, we are left altogether to the guidance of presumptions arising from the nature and extent of the damage done, and the necessary exposure of the property on deck, with the consent of the shipper. We have already said that we assume as a fact, that the damaged cotton formed a part of the deck load. The voyage was in the winter, from the port of St. Marks to New-Orleans,' by the way of the Balize, and’ the damage such as would naturally arise from exposure to spray in the open sea. In the absence of all proof to the contrary, the presumption arising from these facts, that the- damage was occasioned by dangers of the sea, for which the master is not liable, must stand. In relation to underwriters without special agreement, and in relation to other owners of the cargo under deck, in cases of jettison, it is well settled that goods stowed on deck form no part of the cargo. As between the owner and the carrier, it is otherwise, and the carrier is bound by the same obligation, as for the rest of the cargo, save only the damage which may *40result from its exposéd situation. In the present case, we think he has shown sufficient,' under all the circumstances, to exonerate himself from liability.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.