Page:Federal Reporter, 1st Series, Volume 1.djvu/249

•WOOD V. PHŒNIX INS. CO. 241 �custom. The vessel was not propeîled by Bteam, nor was the respondent party to a contract to carry on deck. Has a cus- tom so to carry been shown? The voyage, as vie have seen, was from Miliville, New Jersey, to New York and West Point, and the cargo consisted of iron pipe. The respondent knew that a part was to be carried on deck ; but this knowledge, in the absence of a general custom rendering such carnage proper, is unimportant. It imposed no obligation. If any existed it is because the trade had determined, and declared by its custom, that such carriage is safe, and therefore proper. Nor can importance be attached to the respondent's payment for a previous loss. It is not clear that the circumstances were correctly uriderstood, and, if they were, the payment is entitled to no weight in determining the legal responsibility involved here. Was the cargo carried on deck in pursuance of a general custom of the trade? On this point there is the testimony of a single witness, the libellarit's former book- keeper. His knowledge on the subject does not seem to es- tend beyond his employer's business, and his testiinony is virtually confined to a statement of their practices. His gen- erai expressions of belief are of no value. There is no evi- dence that it is customary to carry generally on deck between Miliville or other adjacent ports and New York and West Point, nor so to carry freight of the particular description here involved. The testimony need not have been confined tg the carriage of iron pipe, for it may be that this has not been BufËcient to establish a custom. It might have extended to other bulky cargo of similar character. The burden of proof is on the libellants, and to establish a custom so as to take their case out of the general rule of law the evidence should be clear. It is not, and their claim cannot therefore be allowed. Coxe v. Heisley, 19 Penn. 343. �In this connection the language of Judge Story in the case of The Schooner Redside, 2 Sumner, 584-586, may be read with a,dvantage : "I own myself no friend to the almost indiscrim- inate habit of late years of setting up particular usages in almost ail kinds of business and trade to control, vary, or �vl,no.4— 16 ��� �