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makes the claim for contribution to the shipowners' sacrifices, in such a case, the subject of express agreement instead of leaving it to inference or construction.

See Proceedings of the International Law Association, 21st Rep. Antwerp, 1903, p. 231; Carver's Carriage by Sea, 5th ed., p. 980.

As to the impolicy of adopting any general rule which will tend to exempt one class of sacrifices from contribution rather than another, the decisions of this court are in accord with those of Massachusetts and of England. The Star of Hope, 9 Wall. 203, 230, citing Emerigon, p. 467; Marwick v. Rogers, 163 Massachusetts, 50; Johnson v. Chapman, 19 C. B. N. S. 563, 582; The Strathdon, 94 Fed. Rep. 206; 101 Fed. Rep. 600.

The second question, which asks whether, in view of the provisions of § 3 of the Harter Act, and of the general average clause, the cargo-owners have a right to contribution from the shipowner for sacrifices of cargo made subsequent to a negligent stranding in order to save the joint interests from common peril, should be answered in the affirmative. Section 482, Rev. Stat. There is a similar statute in England. The Roanoke, 46 Fed. Rep. 297; 53 Fed. Rep. 270; affirmed, 59 Fed. Rep. 161; The Rapid Transit, 52 Fed. Rep. 320; The Santa Ana, 154 Fed. Rep. 800; Schmidt v. Royal Mail S. S. Co., 45 L. J. Q. B. 646; White Cross Co. v. Savill, 8 Q. B. D. 653; Greenshields v. Stephens (1908), 1 K. B. 51; affirmed (1908), App. Cas. 431; Phoenix Ins. Co. v. Erie Transportation Co., 117 U. S. 312.

It seems impossible to make up an adjustment according to the accepted principles of general average, under the rule stated in the Court of Appeals' opinion.

The third question, which asks whether in view of the general average clause, the cargo-owners, in a case of stranding arising from faulty navigation, can recover contribution from the shipowner in respect of general

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Argument for The Jason.

average sacrifices of cargo, without contributing to the general average sacrifices and expenditures of the shipowner made for the same purpose, should be answered in the negative. The Strathdon, 94 U. S. 206.

Reciprocity of contribution is a fundamental idea in the law of general average. Birkley v. Presgrave, 1 East, 220, 228; Svendsen v. Wallace, 13 Q. B. D. 69, at p. 73.

Definitions of general average identical in substance, if not in form, are found in other English decisions. Robinson v. Price, 2 Q. B. D. 91; The Bona (1895), Probate, 125, 129, 131, 138-141; and in the Federal and state courts of this country, Ins. Co. v. Ashby, 13 Pet. 331, 338; McAndrew's v. Thatcher, 3 Wall. 347, 366; The Star of Hope, 9 Wall. 203, 228; Sturges v. Cary, 2 Curtis, 59 and 382; Potter v. Ocean Ins. Co., 3 Sumn. 27; The Strathdon, 94 Fed. Rep. 206; International Navigation Co. v. Atlantic Mutual Ins. Co., 100 Fed. Rep. 304, 312; Watson v. Ins. Co., 7 Johns. (N. Y.) 57, 62; Providence & Stonington S. S. Co. v. Phoenix Ins. Co., 89 N. Y. 559; Lowndes on General Average, 5th ed., p. 42.

The doctrine of reciprocity is found in nearly all the continental codes of Europe, substantially in the form in which it is found in the " Ordonnance" of Louis XIV, Tit. 7, Arts. 2 and 3; 4 Pardessus, 380.

The only important exceptions to the doctrine of reciprocity of contribution that have been admitted in practice, in England, or in this country, relate to passengers' baggage and to deck loads; and these exceptions are not based on equitable principles.

Contribution to passengers' baggage has been allowed in this country. Though ordinarily it does not contribute, yet if sacrificed it does contribute. Heye v. North German Lloyd, 33 Fed. Rep. 60; 36 id. 705. There are no decisions on the point in England. See Lowndes, 5th ed., p. 375; Arnould on Insurance, 8th ed., p. 936.

The second important exception relates to deck load.

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This, also, is not based on equitable grounds. The exception, indeed, is by no means universal. Contribution to a deck load loss is exacted where it is customary, in particular trades, to carry a deck load. Lowndes, 5th ed., pp. 59, 71, 745; Brown v. Cornwell, 1 Root (Conn.), 60, decided in 1773; Johnson v. Chapman, 19 C. B. (N. S.) 563; Strang v. Scott, 14 App. Cas. at p. 609; Wright v. Marwood, 7 Q. B. D., 62, 67, 68.

The case of deck-load is, therefore, no authority for the claim that reciprocity of contribution is not an essential condition of general average, and that the shipowner's sacrifices could be denied the right of contribution without violating the fundamental rule of general average. The Strathdon, 94 Fed. Rep. 210, 211.

Mr. Lawrence Kneeland for the cargo-owners:

The bill of lading clause, to which the first question relates, in so far as it imposes upon the cargo-owner the obligation to contribute in general average to the ship's sacrifices made to save the vessel, freight and cargo from a situation of peril resulting from the negligence of her master and crew, is contrary to public policy and invalid. N. Y. & Cuba Mail S. S. Co. v. Ansonia Clock Co., 139 Fed. Rep. 894.

Whether this bill of lading clause is valid or invalid depends upon whether it is one such as the law can recognize as reasonable and not inconsistent with sound public policy. Express Company v. Caldwell, 21 Wall. 264. See The Irrawaddy, 171 U. S. 187.

The limitation of the right to contribution is well settled and established by the English and American authorities. Lowndes on General Average; Gourlie on General Average, p. 15; The Ontario, 37 Fed. Rep. 220; Snow v. Perkins, 39 Fed. Rep. 334; Schloss v. Heriot, 14 C. B. (N. S.) 59; The Nicanor, 44 Fed. Rep. 504, 509; Strang v. Scott, 14 A. C. 601.

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Argument for the cargo-owners.

This court has, therefore, declared that, prior to the enactment of the Harter Act, sound public policy forbade the participation by a shipowner in a general average contribution when the danger which necessitated the general average sacrifices was occasioned by the negligence of the shipowner's servants, and that that act has not changed the law in that respect.

The Harter Act confers no right to contract for such right, and indeed confers no right to contract for any exemption. The act itself gives and measures the exemption and no right to contract for any further exemption or privilege exists.

The master of a vessel in a situation of peril occasioned by faulty navigation is bound to exert himself and to exercise his best judgment in rescuing the property which has been imperilled by his neglect.

No obligation whatever rests upon the cargo-owner. The Nicanor, 44 Fed. Rep. 504.

The acceptance of a bill of lading containing a contract of waiver is not the voluntary act of the shipper, for he has no real choice. Liverpool Steam Co. v. Phœnix Ins. Co., 129 U. S. 441; The Portsmouth, 9 Wall. 682, 687.

If the property can be saved only by a sacrifice of some part thereof, it is the master's duty to make such sacrifice, irrespective of any question of contribution thereto.

The decisions of the English courts and of the courts of certain continental countries cited on the brief of counsel for the Jason are based upon a different view from that taken by this court. The Carron Park, 15 P. D. 203; Mary Thomas (1894), Prob. 104; Millburn v. Jamaica Co. (1900), 2 Q. B. 540.

Question nevertheless exists as to what decision will be reached by the highest English court upon this question. See Greenshields v. Stephens (1908), 1 K. B. 51.

The principal controversy in England, at the present time, appears to be whether a mere exception in a bill

Argument for the cargo-owners.

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of lading has any effect whatever upon contribution in general average. See Mr. Carver's position in Journal of the Society of Comparative Legislation, 1903, Vol. 5, p. 227.

The same difference in view as to public policy is involved in the continental decisions.

The French law, like the English, permits the utmost freedom of contract. La Normand v. Compagnie Gen. Trans., 1 Dalloz, 479; Rassija, cited on the brief for the Jason; German Maritime Code, § 702.

As to the decisions of the Belgian and Italian courts, the codes of both countries declare that sacrifices or expenditures occasioned by unseaworthiness of the ship or negligence of the captain or crew or by vice propre of the cargo are particular average. Italian Code, §§ 643646; Belgian Code, § 103.

As to the second question certified, whether the Harter Act is a defense to the cargo-owners' claim for contribution to their general average sacrifices and losses, neither exemptions in a bill of lading nor statutory exemptions from liability relieve a shipowner from contribution to general average sacrifices of cargo. Schmidt v. Royal Mail S. S. Co., 45 L. J. Q. B. 646; Crooks v. Allan, L. R., 5 Q. B. D., 218; Burton v. English, L. R., 12 Q. B. D., 218; The Roanoke, 59 Fed. Rep. 161.

Neither & 4282 of Rev. Stat. nor clauses in the bill of lading providing that the carrier should not be liable for loss or damage arising from fire or wetting, or that the carrier should have the benefit of any insurance on the property, release the carrier from liability to contribute towards general average. The Santa Ana, 154 Fed. Rep. 800; The Wm. J. Quillan, 175 Fed. Rep. 207.

While in none of the cases did the danger result from negligence, negligence of the carrier's servants cannot affect his liability to contribute. The Strathdon, 94 Fed. Rep. 208.