Page:Federal Reporter, 1st Series, Volume 1.djvu/246

238 FEDSBAL BEPOBTEB. �on deck and the vessel, -where the goods are bo carried by agreement, the latter is liable to contribution for jettison, but not the ownera or the underwriters of the under deck cargo." �In Hireley v. Millivard, Johnson y. Chapman, and in every other case f ound in which the claim for contribution was based on an agreement to earry on deck, the suit "was against the vessel or its owners alone. �Lownds on General Average, at 41 and succeeding pages, says, (after noticing the change elïected by Gould v. Oliver, and the other cases cited:) "Where the provision for carrying on deck is inserted in the charter-party the loss for jettison is replaced by contribution between the ship-owner and the owner of the deck load. It is adjusted in the same manner as a general average would be, but it is a general contribution. Payment by general contribution is enforced from no one who bas not, by express contract, made himself a party to the stowage on deck. If there are on deck gpods belonging to a third party, such party is not held liable to pay any share in the contribution. No insurer is asked to replace what his assured bas contributed unless there is a clause in the policy assenting to the deck shipment. The principle of these adjustments is that, as between the assenting parties to such stowage, the deck must be taken to be a proper place for such stowage, which is thence to be treated as if stowed below; but, as regards ail parties who bave not thus assented, the old rule remains in force, and from them there is no general average." �There is no proper warrant for the suggestion that ownera below deck, and underwriters, may be held to an implied assent that goods shall be carried above, from knowledge that the master bas contracted so to carry. The author just quoted, when remarking upon the general terms employed by the court in Johnson v. Chapman, and other cases, says: "These observations must be understood with reference to the question before the court ; that is, to the right of the owner of the deck load to contribution from the owner of the ship." �Tn our own country the question bas escaped the federal courts, except in a single instance, which will be noticed ��� �