Page:Federal Reporter, 1st Series, Volume 1.djvu/247

WOOD V. PHŒNIX INS. 00. 339 �direotly. In the state courts, down to 1837, the English rule, as then applied, was foUowed, and the exceptions allowed elsewhere disregarded. Since that date these courts have differed, in some of the states adopting the exceptions now recognized in England, and in others disregarding them. Chancellor Kent (3 Kent's Corn, llth Ed. p. 323) and Parsons (in his work on Shipping, p. 333) express the impression that the weight of authority here is against the exceptions. While this impression may have been correct at the time it was expressed, it is not, in my judgment, at this time. Gil- lette V. Ellis, 11 Ind. 578; Meahrer v. Lufkin, 21 Texas, 383; Harris v. Moody, 4 Bosw. 210; Insurance Co. v. Spewra, 30 N. Y. 270. �Mr. Phillips, in his work on insurance, section 1282, after notieing the cases decided in this country and abroad, says : "Taking into consideration the whole jurisprudence on the subject the better doctrine, though opposed to some of the adjudications cited, ôeems to be that a jettison of deck load is to be contributed for in general average when the stowing of the jettisoned articles on deck is justifiable, and the other parties interested have notice, by the policy, or by usage, or other- wise, that such articles may be so carried, and there is no plainly established usage denying the right to claim contribu- tion." While this language is not free from ambiguity it will not admit of any other reasonable interpretation than that where the stowage on deck is justifiable and proper (as in cases of general custom or under contract) contribution may be had, unless indeed, there be a usage to the contrary. AU the author says is predicated of the stowage being proper. �Mr. Parsons, (2 Par. on Mar. Ins. 221,) after reviewing the cases, says: "The rule should be that, wherever, from the peculiar nature of the goods, or of the voyage, or, in fact, for any reason, a custom exists to earry on deck, and this custom is so well established and known that the insurers must be presumed to have known it, they should not only pay for them if lost, but should pay the owners of the goods [carried nnder deck] for their contribution for the goods if jettisoned to eave the ship and cargo." Where a custom is shown, knowl- ��� �