the loss was a loss by the perils of the sea; or, to speak more accurately, the perils insured against, or not. If the policy had only contained the ordinary printed language of a policy, we might have had to do what there is very little authority to assist us in doing, namely, to put a construction upon the ordinary general words at the end of the clause enumerating the risks, "all other perils, losses, or misfortunes that shall come to the hurt, detriment, or damage of the said goods, &c." This is not necessary, for the same reasons as have been already referred to. On reading the words inserted in the margiu, and those describing the subject-matter of insurance and the duration of the risk, and looking to the words introduced which expressly provide that "this policy, in addition to all the perils and casualties herein specified, shall cover every risk and contingency attending on the conveyance and successful laying of the cable," until the specified number of words have been transmitted, it is quite clear that the parties have decided this very question for themselves, unless it should appear that in fact the peril by which the loss occurred is to be attributed to some inherent vice or other implied exception, if any, to the contract of insurance contained in the policy. It appears that the vessel set sail: the cable was laid down for a considerable length, and then one morning it was discovered that the current did not pass, and a portion of the cable had to be hauled back. While this was being done the cable parted, and the broken end fell into the sea. The weather is described in the ship's log at and about the time of the accident as fair with a light westerly wind. There is no suggestion of any mala fides. Attempts were made to recover the cable, but the grappling iron broke, and it was again lost. The adventure was then brought to an end and failed. Now we are not called upon to decide upon the facts; the only question is, whether they was any evidence to go to the jury, and it is impossible on these facts to conclude that there was no evidence upon which the jury might properly say that the loss happened by a contingency attending upon the "successful laying" of the cable. It is not suggested that the cable was itself defective. One may imagine that some kink may have formed in the part being drawn in which caused the cable to part. This suggestion I make only by way of argument, not professing to be practically acquainted with the details of the matter, but still it affords a sound argument enough to show that the learned judge could not have withdrawn the case from the jury. Then we come to the question whether there was a total loss. Now Mr. Brett well said, if the insurance was on the cable there was no total loss; but it is unnecessary to enter into that, because we have come to the conclusion on the construction of the policy that the insurance was not upon the cable, but upon the profits of the adventure, and that being so, there was either a total loss if, as I am inclined to think, the adventure was limited to the voyage, of the profits insured-that is, the profit to be made by laying the cable on that occasion--or there was as much a total loss by reason of the parting of the cable, according to the language of the agreement itself, as when a ship is totally lost by capture, though there are friendly ships of war about in such number as to make it not improbable that it may be

recaptured. Whatever subsequent events might happen, the just conclusion, on the principles of insurance law and on the contract, is that the loss was presumably and conventionally total when the accident occurred. To conclude, therefore, the insurance was on the plt.'s interest valued at 2007, on shares in an adventure by which it was sought to obtain profit by laying down a cable so as to transmit messages to and fro on that particular trial,

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or on the interest which he had in the adventure not limited to that occasion, but taking it to be assumed that all chance of ever succeeding would be gone if it were impossible to lay it on the occasion to which the insurance referred. Martin, B. appears to have put the entire argument shortly and well when he said that the insurance was on the adventure. We are for these reasons all of opinion that the decision of the court below must be affirmed

BLACKBURN, J.-I am of the same opinion, and I would only add a few words to what has been already said on the subject. With respect to the proposition that this contract is a wager, I apprehend that this policy is a contract to indemnify against loss of some interest in the case of any of the perils insured against occurring. I do not know a better definition on this subject than that given by Lawrence, J. in the case of Barclay v. Cousins, 2 East, 544. Here the plt. was the owner of certain shares in this company; they were about to lay down a cable; if successful he would have been advantaged; but the event did not happen and he was the worse; consequently he was interested in the event, and therefore, if proper words be used to give a right to be indemnified, this is a perfectly good policy. Then have such words been used? If he had said that he insured the cable he would not have properly described his interest; if the ship, it would have been the same; but he has used the words which we now have to consider, and I will only say that, looking at his situation and these words, there seems to me no doubt that he meant to stipulate that if that interest which he had in respect of his shares was frustrated by the ordinary perils of the sea, or the "other perils" usually insured against, or the additional perils especially included in this insurance, he should be indemnified against such loss. The loss that really happened, if not one of the "other" perils, was certainly included by the words "every risk and contingency attending the conveyance and successful laying of the cable." Those words would have absolutely no sense at all unless they cover this risk. As to the second question, this loss is of his interest in having the cable laid on this voyage. That is totally lost. Looking at it in another, though I rather think not the correct way, his interest is in having it laid this or any other time; but though there may remain in this point of view a chance of ultimate success by which the underwriters would be entitled to benefit, I do not think the character of the loss is altered.

KEATING, MELLOR, SMITH, and LUSH, JJ. concurred. Judgment affirmed.

Held by the court, that these goods were stowed in compliance with the rule requiring them to be stowed under deck:

That steam-vessels making such short voyages, on which the speedy transit of goods is an object of moment to shippers as well as to shipowners, are not bound to exercise the same elaborate and dilatory precautions against the vicissitudes of the sea as on longer and more perilous voyages:

That these goods were stowed with reasonable care, skill, and prudence, considering the nature, extent, and usual perils of such a voyage:

That the proximate cause of the damage, therefore, was one of the dangers of the sea, against which the owners were not bound to provide further than they

did.

On Nov. 29, 1865, the firm of Mixen, Whitmore, and Co. shipped on board the steamship Neptune, at Boston, twenty-nine casks of sperm oil. The vessel was bound to New York, and left Boston in the afternoon. She usually arrives at New York about seven o'clock next morning, going round Cape Cod and then through Long Island Sound. The oil was shipped under a bill of lading, containing the usual exception of the "dangers of the seas." About midnight, before she reached the Sound, she encountered a heavy blow and a violent cross sea, which lasted several hours, during which the oil broke loose and some of the casks were stove. The shippers filed this libel to recover their damages, in which they alleged that the loss was chargeable to the carelessness of those in charge of the ship in improperly stowing the oil. This was denied by the owners of the ship, who alleged that the damage was occasioned by the dangers of the

seas.

Smith for libellants, and

Benedict, Tracy, and Benedict for the steamship.

SHIPMAN, J.-From the facts, which are uncontradicted, it will be seen at a glance that the main question to be determined is, whether this oil was well stowed so that the damage is chargeable to the danger of the sea. The evidence separates this question into two branches-first, whether the oil was put in the right place on the ship; and, second, whether it was properly secured in stowing. On both these points the testimony is very conflicting. It is familiar doctrine that the master and ship are responsible for the stowage of the cargo under deck, and that, if it is stowed on deck without the consent of the owner, and is lost or damaged in consequence, even by dangers of the seas excepted in the bill of lading, the carrier is responsible: (The Paragon, Ware R. 322.) This duty to stow under deck is deemed a condition of every bill of lading, whether expressed or not. Unless the liability is expressly excluded by the terms of the contract, it will always be deemed one of its provisions. This is a general rule of maritime law arising out of the general usage of the commercial world. Sometimes, however, a well-established uniform local custom, or usage of a particular trade, forms an exception to the general rule, and relieves the bill of lading of this implied condition. The doctrines pertaining to this subject were discussed by this court in the case of John H. Chubb et al. v. 7800 bushels of oats, June 1864, and it is believed, accurately stated. In the present case, evidence was gone into for the purpose of proving that such a custom existed in this trade between New York and Boston; but I do not think any such custom is involved here. The steamer Neptune is a large propeller, belonging to a well-known class of vessels which ply out of this port, with

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an upper or hurricane deck upon which no freight is carried-a main deck between decks where a very large part of the freight is stowed, and a hold floored off several feet above the kelson, where her engines, water, boilers, coal and engines and propeller shaft are placed, and where there is room for some freight. Her construction necessarily requires that a large quantity of freight should be carried on this main deck. It is bulwarked entirely round, and wholly under cover of the upper deck. Upon the degree of strength of the bulwarks and upper deck no question properly arises here. They appear to have been tight and sufficient. At all events no damage resulted to this oil from any

defects in these parts of her structure. The right lating any implied clause of the bill of lading, to carry freight on this main deck without vioresults, in the judgment of the court, not from a mere usage, but from the necessities of the trade. This vessel, as a freight-boat, for which she is principally designed, would be of little or no value without the use of this deck. This fact is known to all the world as a peculiarity of this and some other classes of steam-vessels, to shippers as well as shipowners; and the former, who seek for the more rapid transit of their goods than sailing vessels furnish, must be deemed to assent to such disposi tion and arrangement of the cargo as the peculiar construction of these steam vessels necessarily involves. But further, I am decidedly of the opinion that the stowage of a cargo on this main deck of a vessel so constructed is a compliance with the implied claim of a bill of lading requiring it to be stowed under deck. Any other view involves the doctrine that the owners of such ships are liable to shippers for damages to goods resulting from the dangers of the sea, provided that they are stowed on this deck. These vessels, then, must carry no more cargo than they can stow in that part of their holds not occupied with engines, water, coal, boilers and propeller shaft, or become insurers against all marine perils resulting from the violence of the wind and waves. I should require very strong and cogent reasons to bring me to a conclusion, the effect of which would require these vessels either to run with very light freights, or to assume responsibilities that in the end would involve this carrying trade by steam over this and similar routes in ruin, and probably lead to its extinction. If the doctrine contended for by the libellants is to prevail, a steamer like the Neptune might have her whole upper works swept off by a resistless hurricane, and the main part of a full cargo carried overboard, and yet her owners be liable, provided the freight in the hold escaped destruction. By this peculiar construction of these and similar classes of steam-vessels, great capacity for carrying freight is combined with rapid transit, and this enures as well to the benefit of the shipper and the commer cial world generally as to the shipowner; for if steamers are to be allowed to carry no more freight than they can stow in their holds, without be coming absolute insurers against all perils of the sea, it is evident that this mode of transportation must be abandoned, or the rates of freight so much enhanced as to render it impracticable. The evidence in the present case shows that it is a common practice, as it must necessarily be, to stow oil and similar articles in this class of vessels on the main decks. This is proved by the claimant's wit nesses, and by Capt. Fish, one of the witnesses for the libellants. The latter, who is master of a propeller plying between New Bedford and New York, testifies that he carries oil mostly in casks of all sizes, holding from one to ten barrels, and that he always stows on this deck when he has filled his hold; but, as already intimated, the court does not rest the right of the carrier on these steam-vessels

to stow freight on this main deck on mere usage. It is grounded on the necessities of transportation by this class of vessels, which have to be constructed with reference to this mode of arranging the cargo, and to which shippers must be deemed to have consented. The conclusion is, that the placing of this oil on the deck where it was stowed was, of itself, no breach of duty or violation of any implied stipulation in the bill of lading. There is another feature of the evidence for the libellants, as to the propriety of putting this oil on the main deck, which requires to be noticed. Some of their witnesses say that, in their judgment, it should have been put below to correct the rolling of the ship; and Capt. Arnold, an intelligent shipmaster, testifies that the Neptune was not seaworthy, with the freight she had on deck and nothing in the hold. His experience, though very great, I infer from his testimony, has been confined to sailing vessels, and generally to long voyages at sea. Now the captain of the Neptune states that, with water, engines, boilers, coals, &c., his ship had 600 tons of ballast below, and that she had not more than 100 or 150 tons of freight on deck. The evidence on this point, as to the effect of putting this oil below, is conflicting, and I am not satisfied that stowing these twenty-nine casks there would have materially prevented or modified the rolling of the ship. The remaining question to be considered is, whether the oil was properly stowed where it was placed. The captain of the Neptune states that it was stowed under his superintendence, four casks in a tier, fourteen on one side of the engine-room and fifteen on the other. Lard in casks was placed between the oil and engine-house, on heads. The oil was dunnaged, bilge free, bung up, chime and chime, each cask chocked separately, and where the oil would not fill up, lard was put in and scantling between driven in thoroughly, so that it would not stave the head of the cask or work, and the scantling nailed to the bed and decks at the after tier. He states that he has had experience in stowing, and that this was well done. Upon the question of whether this was good stowage or not a number of experts were called on both sides. Their testimony is very conflicting. Those examined by the libellants do not agree in details as to what the stowage should have been. I think, however, that one of them, Captain Arnold, states accurately and clearly what the stowage was in fact, and what it might have been. He says: "I think that there is no difficulty in stowing a cargo so that it will stand the rolling of the sea, so long as you have the control of your vessel. I think that if this cargo had been properly stowed in port, there would have been no damage. The cargo was very well stowed with the exception that it was not stanchioned down. It should have been floored over the top and stanchioned down. The outer tiers should have been stanchioned from one deck to the other, so as to form a bulkhead. These stanchions should have been cleated down at each end. This should have been done, or the outer tier of chocks should have been spiked down so as to have held the casks." The testimony of this witness is in some particulars confirmed by Captain Story, who was also examined by the claimants, and who says that the dunnage was proper, but that the casks should have been stanchioned down. He says, however, that it is not usual to nail the chocks. As already stated, the libellants' experts do not agree as to all the details necessary to be observed in stowing such material as this oil. But I think that upon the whole evidence, it is clear that this oil was well stowed for any voyage, with the exception of flooring off and stanchioning down the casks from above, and stanchioning between the decks fore and aft of the outer tiers so as to form bulkheads. The first precaution would probably have kept the casks MARI. CAS.-VOL. II.

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from being thrown out of their beds by the violent motions of the ship, and the latter would have kept them from rolling. Whether the jumping of the casks in their beds set any of them leaking, independently of their rolling about after they broke loose, does not appear, and therefore it cannot be determined with certainty whether bulkheads alone, of the kind suggested, would have secured them against all injury. The opinion of Captain Arnold (and I think it is the better one) appears to be that both precautions were necessary to prevent injury, under the circumstances. Now it is evident that these precautions are those required on the longest voyages and through the most tempestuous seas, where heavy gales are almost certain to be encountered before the port of destination is reached. They are such as would protect the cargo under any rolling of the ship, however violent, at least until her navigators should lose all control over her. The question here naturally arises, were they such precautions as are required by the exercise of ordinary skill and prudence, over the route on which the Neptune was running, and which was traversed in a single night? In other words, must vessels, and especially steam-vessels, on short, even daily trips, where the speedy transit of goods is an object of great moment to shippers as well as shipowners, and which is eagerly sought to be obtained by both, and where to such celerity of transit prompt loading and unloading are indispensable, be held to the exercise of the same degree of skill and prudence, and the same dilatory and elaborate precautions against the vicissitudes of the sea, as on longer and more perilous voyages? In determining this question it is necessary to see what are understood, in the law, as excusable perils. It is now settled by a decided preponderance of authorities, that, while common carriers by sea, in the absence of a special contract, are subject to the same rigid liabilities as carriers on land, the term "dangers" or "perils of the seas" usually inserted in bills of lading operates as a limitation of these responsibilities to some extent. It is held, or rather assumed, in the case of Williams v. Grant, 1 Conn. R. 487, that the phrase "perils of the sea" includes no more than is comprehended by the "act of God." This is not now generally received as sound_doctrine. "Perils of the sea" is now understood and held to have a broader scope than the term "act of God," and to include the natural accidents incident to the navigation of seas: (Johnson v. Friar, 4 Yerg. 41; _Gordon v. Buchanan, 5 Yerg. 72, 82; Williams v. Branston, 1 Murphy, 417; Plaisted v. The Boston and Kennebec Navigation Company, 27 Maine 182.) Mr. Justice Story declares, in the case of the schooner Reeside, 2 Sum. 571, that "The phrase 'dangers of the seas,' whether understood in its most limited sense, as importing only a loss by the natural accidents peculiar to that element, or whether understood in its more extended sense, as including inevitable accidents upon that element, must still, in either sense, be clearly understood to include only such losses as are of an extraordinary nature, or arise from some irresistible force or some overwhelining power, which cannot be guarded against by the ordinary exertions of human skill and prudence." Now the question immediately suggests itself: What is ordinary skill and prudence? Chancellor Kent, who is always very high authority, in his Commentaries, vol. 3, p. 217, says: "It is often a point difficult to determine, whether the disaster happened by a peril of the sea, or by unavoidable accident, or by the fault, negligence, or want of skill of the master. What is an excusable peril depends a good deal upon usage, and the sense and practice of merchants, and it is a question of fact, to be settled by the circumstances peculiar to the case." The very terms "ordinary skill and 2 H