Samuel Harris & Sons v. Moody & Telfair — 17 N.Y. Super. Ct. 210

Majority

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Samuel Harris & Sons v. Moody & Telfair.

Headnote

1. Jettisoned goods carried on deck, according to the custom of the trade by steamboats navigating the Sound that separates Long Island from the main land of New York and Connecticut, and stowed in the usual way, are entitled to contribution for general average loss.

2. Bank bills of the plaintiffs, so carried for them in a crate by an Express Company, which, by agreement with the owners of the steamboat, paid such owners a fixed annual sum for the carrying of a stated number oí portable crates with the contents thereof, are bound, when saved, to con-

. tribute for such a loss.

3. The bills, in the absence of -proof to the contrary, will be presumed to be of the value expressed on. their face, and must contribute in proportion to the amount of such value.'

(Before Hoffman, Pierrepont and Moncrief, J. J.)

Heard, December 15, 1858;

decided, February 19, 1859.)

This action comes before the Court on questions of law, arising at the trial, and which were there ordered to be heard in the first instance at the General Term.

It was tried before Mr. Justice Slossow and a jury, on the 21st of June, 1858-. It is brought to recover the possession of a package of bank bills.

The complaint states that the defendants have become possessed of and wrongfully detain one package of bank bills, the property of the plaintiffs, amounting to $1,171, “ said package being sealed in 'an envelope and marked “$1,171,” and directed to “ J. W. Clark & Co., Boston, Mass.; ” a demand of the package from the defendants; their refusal to deliver it; that it is of the value of $1,171; and prays judgment that the defendants deliver the pro

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perty to them; and for damages ($500) for the detention, and costs of suit.

The answer admits the defendants’ possession of the property, a demand of it, and their refusal to deliver it; but denies that their detention of it is wrongful.

It also alleges that, on the 17thof October, 1856, the steamboat Connecticut left the port of New York for Allyn’s Point, Connecticut, staunch, tight and strong; having on board many passengers and a large and valuable cargo; that while pursuing this voyage she encountered a heavy gale, and was much injured ; that it became necessary for the general safety to throw overboard some twenty-five tons of her cargo, which was done, whereby she was enabled to enter Huntington harbor, and was saved, with the residue of the cargo; that the cargo jettisoned was of the value of over $15,000; that the loss caused by such jettison is the subject of a general average contribution; that the said package of bills, which was saved, is liable to contribute; that they received and hold such package as agents of the owners of said steamboat, to secure the payment of its contributory share, and which is alleged to exceed $200; that they have offered to deliver the package to the plaintiffs, provided they would agree to pay the general average properly chargeable thereon; but that they refused to pay, or to agree to pay, any part thereof, insisting that the bank bills are not the subject of general average, and were exempt therefrom. It prays judgment that the bills be returned to them, and that the plaintiffs pay damages for the taking and detention thereof, with the costs of the action.

The entire testimony given and proceedings had at the trial were as follows, viz.:

The following stipulation was read in- evidence by counsel for the defendants:

“ It is stipulated and agreed, by and between the parties to this action, that the steamboat ‘ Connecticut,’ on a voyage from New York to Allyn’s Point, on the afternoon and evening of the 17th October, 1856, encountered a heavy gale, whereby she sustained great damage, losing her smoke stack and forward mast, and being greatly strained and injured. That the storm continued unabated, and it was evident that the vessel would go down unless she could be brought around; and in order to do this

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it became and was necessary, for the general preservation, to lighten the boat; and in consequence thereof, with a view to the general safety, a large amount of cargo was jettisoned, by means whereof the steamboat was enabled to turn, and finally to enter Huntington harbor in safety, whence she was brought to New York on the succeeding day.

“ That the cargo which was jettisoned was not under cover, but, according to the established usage and custom of the trade by steamboats running between New York and Allyn’s Point, was carried on the main deck of the steamer; the space below that deck being, as usual, occupied by the engine, boilers, coal, &c., and by the passengers.

“ That most of the cargo jettisoned was laden upon the upper or main deck of said boat along each side of the ladies’ cabin, and between, the stern of the boat and the paddle boxes, being the space, according to usage and custom, appropriated to cargo. A cabin is built upon the said deck, and occupies a space in the centre of the vessel, and equi-distant from each side of the boat, and between the sides of the cabin and the sides of the boat the said cargo was stowed.

“ That the bank bills, for the recovery of which this action is brought, belonged to the plaintiffs, and were by them entrusted and delivered, at Baltimore, to Adams & Co.’s express agents and forwarders, to be by them transported to and delivered at Boston to the plaintiffs’ agents, and that said bills were ip a crate or case belonging to Adams & Co;, which was laden on board the said vessel at the time of the said jettison.

That by the agreement between Adams & Co. and the owners of said steamboat, the said Adams & Co. were, in consideration of a fixed annual sum, permitted and allowed to transport on said boat, a stated number of portable crates, with the contents thereof; and the said Adams & Co. made and collected their own charges for the transportation of the contents of the said crates from the parties-who employed them,

“ That the owners of the said boat, claiming that the said bills were liable to contribute in common with the other property saved to the payment of the general average loss occasioned by said jettison, retained the said bills and delivered them to the defend- . ants in this action, who were, at the commencement thereof, in

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the possession of the same, as the agents of the said Awnersft^j secure the payment of the contributory share of such general average loss for which the said owners and said defendants insisted: that the said bills are liable to contribute, as part of the cargo of the vessel.

“ Dated June 19th, 1858.”

"It was admitted that the bank bills mentioned in the complaint were, upon the requisition of the plaintiffs, taken from the possession- of the defendants, and delivered to the plaintiffs.

“ The testimony hereupon closed; the counsellor the defendants thereupon insisted, as matter of law, that on the facts admitted the property in the complaint mentioned was liable to contribute to the payment of the general average loss occasioned by the accident, in the pleadings and stipulation mentioned, and that the defendants were rightfully entitled to hold and retain the said property, and that they were entitled to a verdict. The Court so decided, and directed the jury to find a verdict for the defendants. To such decision and direction the plaintiffs’ counsel excepted. The jury, under the direction of the Judge, rendered a verdict in favor of the defendants, and assessed the value of the property at $1,171, and the damages of the defendants at $134.33.

“ And the Court ordered that the questions of law raised on the said trial, and the plaintiffs’ exceptions, should be heard in the first instance at General Term, judgment in the meantime to be suspended.”

J. E. Burrill, for the plaintiffs.

I. The cargo jettisoned was stored on deck, and is not entitled to- the benefit of general average. (Abb. on Ship., part IV., ch. X., sub. 3, p. 481; Stev. on Av., 65; Smith v. Wright, 1 Caines’ R., 43; Dodge v. Bartol, 5 Greenl. R., 286; Cram v. Aiken, 13 Maine R., 229; Sproat v. Donnell, 26 id., 185; Lenox v. United States Ins. Co., 3 Johns. Cas., 179 .)

II. Bank notes, by reason of their peculiar character, are exempt from liability to the payment of a general average loss.

1. A loss occasioned by - jettison is chargeable on the ship, freight and" cargo,, and the principle on which it is so chargeable, is, that without the sacrifice of the property jettisoned, the particular contributory interest would have perished, and that by

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means of such sacrifice, and by it alone, was such contributory interest saved, or, in other words, that the property sacrificed was the price of safety of that which is made to contribute to its payment. (3 Kent’s Com., Lec. 47, pp. 233, 234; Williams v. Suffolk Ins. Co., 3 Sumn. R., 270; Scudder v. Bradford, 14 Pick, 13 ; Bradhurst v. Columbian Ins. Co., 9 Johns. R., 9; 2 Phil. on Ins., §§ 1293-1298.)

2. Bank notes are the mere evidences of debt, which debt is not impaired by the loss of the evidence, and which evidence, in case of loss, may be supplied by other evidence equally good. (2 Phil, on Ins., § 1397.)

3. Title deeds, bonds and mortgages and choses in action, are necessarily exempted from contribution, and on principles' which apply equally to the exemption of bank notes.

All the books, in speaking of articles liable to contribute, allude to goods, chattels and money, and in speaking of money, refer to gold and silver coin. (2 Phil. on Ins., §§ 1393-1398; 1 Park on Ins., ch. 7, § 2, p. 293; Abb. on Ship., 502, part IV., ch. X., sub. 12; Hill v. Patten, 8 East. R., 375; Brown v. Stapyleton, 4 Bing. R., 119; Stev. on Av., ch. VI., art. 1, p. 206.)

III. Under the arrangement between Adams & Co., and the owners of the Connecticut, the bank notes in question paid no freight, and did not form any part of the cargo of the vessel, and on that ground are exempted from liability to contribution. (Abb. on Ship., 502; 4 Bing., 119; 8 East. R., 375; Stev. on Av., ch. VI., art. 1, p. 206.)

IV. The plaintiffs were entitled to judgment.

Francis B. Cutting, for the defendants.

I. The bank bills were packed in a crate or case, and transported as merchandise for hire. They became a part of the regular cargo of the vessel. As such cargo, they were liable to contribute to the general average loss which occured.

1. Money, bills of credit, choses in action, &c., are only excepted, when carried like clothes and baggage under the personal care of a passenger or seaman; and not when carried as' cargo for hire, or when they are to be saved or lost like other cargo, merely from the general care and conduct of the persons controlling and managing the vessel. (2 Arn. on Insurance, 919, and

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authorities referred to; 1 Phil. on Insurance, 2d ed., 172, and cases cited; 2 id., 2d ed., 152; 3 East., 375; Thomas v. Royal Exchange Association Company, Man. Dig., 164; h. i. No. 5; Peters v. Milligan, Park on Ins., 211; Mil., 244; Brown v. Stapyleton, 4 Bing., 119; Stev. & Ben., 206, 248; Emer. on Insurance, Mer., ed., 492, 497.)

2. A steamboat becomes a common carrier of money or bills, the same as of other property, when it takes one of these express crates, filled, as is well known, with small parcels of value. (11 John. R., 109; 2 Wend., 339 ; 6 How., 344 .)

The owners being responsible for negligent losses of the crate with all its contents as cargo, should have the like inducements and compensation to save it from sea perils. There is no principle upon which it can be excepted.

3. The plaintiff seeks to maintain replevin for the bills as a distinct- parcel; (not as so much money for which the defendants as agents would be answerable only to their immediate principal.) He thus concedes and treats the parcel as merchandise.

4. The bank bills are not shown to be uncurrent, and are not to be treated as mere choses in action or evidences of debt. They are payable to bearer, and used as a currency; and could be levied on as goods. ( 13 Wend., 102 .)

II. The jettison from the main deck of the steamer, the recognized and only place for carrying freight in such a vessel by established usage, was not subject to the exception applied to goods “ carried on deck ” of a sea-going sailing vessel. The exception itself is not absolute and universal; but governed by the customs and usage of vessels on the voyage for which they are shipped. The upper deck is not required to be so strong or close as on the ocean; and the crate was not in any place affecting the management of the vessel, nor subject to peculiar exposure to a jettison. (2 Arn., 888; Abb., 481, 482; Valin., tom. 2, p. 189, [goods in open boats or small vessels;] Da Costa v. Edmunds, 4 Camp., 142; Gould v. Oliver, 4 Bing., N. C., 135; Milward v. Hibbert, 3 Queen’s Bench, 120; S. C., 2 Gale & Davis., 142; Harley v. Milward, 1 Jones & Cary, 224, 229.)

[Even if otherwise, it only affects the amount of general average. The vessel had to bear away to a port of necessity, and

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goods on deck, when not contributed for, must contribute to a general average loss.]

III. There was no tender of payment or security, nor authority given to open the package and separate and retain a part; nor does it- appear when the demand was made; so that no question arises but the naked one, whether there was a lien for a general average loss, of which there can be no doubt. (8 Sum,, 808; Abb., 508; marginal page and notes to Story & Perkins’ ed., and authorities .there referred to.)

IV. The defendants are entitled to judgment.

This case comes before us by direction of the Judge below, and presents the following facts:

The steamboat “ Connecticut,” on her voyage from Hew York to Allyn’s Point, pn the 17th of October, 1856, encountered a heavy gale, and for general safety it became necessary to throw a large amount of her cargo overboard. Most of the cargo jettisoned was stowed on ■ the main deck, in accordance with established usage of the trade by steamboats running on the Sound.

The space below the main deck was, as usual, occupied by the engine, boilers, coal, &c., and by passengers.

Upon the deck was a crate of Adams & Co., express agents and forwarders. In the crate was a package of bank notes belonging to the plaintiffs, amounting to $1,170, which they had entrusted to Adams & Co., to transport to Boston for hire.

By agreement between Adams & Co. and the owners of the steamboat, Adams & Co. were allowed to transport on said boat a stated number of portable crates with their contents, and for this privilege they paid the owners of the boat a fixed annual sum, and Adams & Co. collected their own charges for whatever they transported in the crates.

The owners of the boat, claiming that the bank bills saved were liable to contribute in general average towards the loss occasioned by the jettison, retained the bills, to secure the payment of their contributory share of such loss. The' plaintiffs brought this action to recover the bills.

This case presents the important question touching the liability of goods stowed on the deck of a steamer, to contribute in gen

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eral average for jettisoned cargo. The necessity of the jettison is admitted, and the jettisoned goods were stowed on deck.

Laws were written upon the subject of general average contribution for jettisoned cargo before the Roman Code, and the law of ancient Rhodes was transplanted into the Roman law, and appears duly accredited in the Pandects of Justinian. (Digest, lib. 14, tit. 2, ch. 2.)

The Digest states it thus:

“ Lege Rhodia cavetur, wt si levandce navis gratid, jacius mercium foetus est, omnium, contributions sarciatur, quod pro omnibus datum est."

If goods are thrown overboard in order to lighten a ship, the loss incurred for the sake of all shall be made good by the contributions of all. But ancient as is the law upon this subject, an embarrassment arises out of the distinction made between deck-stowed goods and other cargo; and it must be confessed that the law yet remains in some confusion.

Chancellor Kent says (without qualification): “ Goods shipped on deck contribute, if saved; but if lost by jettison, they are not entitled to the benefit of general average; for they, by their situation, increase the • difficulty of navigation, and are peculiarly exposed to peril.” (3 Kent Com., 240, and cites Smith v. Wright, 1 Caines’ R., 43; Lenox v. United States Ins. Co., 3 Johns. Cas., 178 , and other authorities, in support of that doctrine.)

In Abbott on Shipping, we find it stated thus: “ The ^French ordinance in express terms excludes from the benefit of general average, goods stowed upon the deck of the ship, and the same rule prevails in practice in this country.” (Abb. on Ship., 482, citing many authorities.)

Judge Story says: “ Our law is the same. A jettison of goods stowed on deck cannot be brought into general average.” (In note to Abbott in his edition.)

Bell, in his Commentaries upon the Laws of Scotland, says: “ Goods stowed on deck, and thrown overboard, are not to be relieved by contribution.” (Yol. 1, p. 586.)

In Kent’s Commercial and Marine Law, 231, it is said: “ Goods shipped on deck are not entitled to the benefit of general average, if lost.”

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The reason assigned for this rule, is, that goods thus stowed tend to embarrass the navigation of the vessel, and to increase the danger. The American authorities are numerous and seem ,to sustain the above rule. (Cram v. Aiken, 13 Maine R, 229; Sproat v. Donnell, 26 Maine R., 185; Barber v Brace, 3 Conn., 9 ; Dodge v. Bartol, 5 Greenl., 286; Hampton v. Brig Thaddeus, 4 Martin N. S., [Lou.,] 582; Lenox v. United States Ins. Co., 3 Johns. Cas., 179 ; Smith v. Wright, 1 Caines’ R., 43.)

Mr. Arnould, however, says: “ That goods carried on deck are • not contributed for if jettisoned, unless they are so carried according to the common usage and course of trade on the voyage for which they are -shipped; but that on proof of such usage, they are contributed for like other goods.” (2 Arn. on Ins., 888.)

And in Gould v. Oliver, (4 Bing., N. C., 185,) it was held that goods laden on deck, according to the custom of a particular trade, are entitled to contribution for a loss by jettison.

In the case of Milward v. Hibbert, (3 Queen’s Bench, 120, S. C.; 2 Gale & Davis., 142,) it appears that a quantity of pigs, in the course of a voyage from Waterford to London, were thrown overboard from the deck where they were stowed. It was insisted that for the deck-stowed pigs no contribution could be claimed. The Court held otherwise. Lord Denman, in pronouncing the opinion of the Court, makes the following very pertinent remarks : “ The practice appears to have been, not to lay it down as a rule of law, that for goods stowed on the deck the owner of them shall be' excluded from the benefit of general average, but to receive the evidence'of commercial men respecting the usage of the trade, and the general understanding of those engaged in it, (and. in insuring,) which may obviously vary and require, from time to time, fresh evidence and different explanations.”

These views of Lord Denman will, I think, commend themselves to every man of business knowledge or good sense.

The old rule was established when all vessels were propelled by sails, aiid when there was no machinery in the hold of the ship; but the introduction of steam into marine service, has wrought great changes in the situation of the motive power, and has rendered the steamboat -deck the fitter place for the stowage of cargo. The reason of the rule has ceased, and the rule should perish with the reason. In the common law there is

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a wise flexibility which yields to the progress of science and to the. changes in the mode of business, and we are prepared to hold that cargo, stowed upon the deck of a steamboat, in accordance with established usage of the trade, must contribute, in general average loss occasioned by jettison, the same as goods stowed elsewhere. (Harley v. Milward, 1 Jones and Cary, 229.)

The plaintiff contends, under his third point, that under the arrangement between Adams & Co. and the owners of the Connecticut, the bank notes in question paid no freight, and did not form any part of the cargo of the vessel, and on that ground are exempted from liability to contribution.

.Adams & Co. paid freight for the crate and its contents, not for the empty crate alone. It would be as reasonable to hold that the goods in boxes paid no freight, but only the boxes. The fact that Adams & Co. paid by the year, can make no difference in the principle of this case.

It was ably pressed upon our consideration at - the argument that, as the whole doctrine of contribution for jettisoned goods rested upon the ground “ that the property sacrificed was the price of safety of that which is made to contribute,” (3 Kent’s Com., Lec. 47, p. 233,) it would be most inequitable to make a light package of bank notes mo^e valuable -than the whole cargo, (and which could have been taken in the hand from the crate,) contribute in proportion to their value; so disproportionate to the risk and to the real price of safety. And Lord K a méis in his Principles of Equity, (116,) contends that the contributions should be according to weight and not value. But it is now well settled that gold coin and diamonds must contribute. A dollar bill occupies more space than four gold dollars, and a diamond, worth $40,000, occupies scarce the space of ten one dollar bills.

“ The general rule is, that all merchandise, of whatever kind, or to whomsoever belonging, contributes according to its value, however small the size or weight in comparison to the value. (3 Kent’s Com., 240; Abb. on Shipping, 502, and the numerous authorities cited.)

But this case presents another question of some embarrassment, and about which the books are in direct conflict; and that is, whether bank notes which are not money, but only the evidences of debt are liable to contribute for general average loss. Mr.

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Philips thinks they are not liable. (2 Phil. on Insurance, 155, §§ 1397, 1295.) Weslcett (an old writer)) thinks they are. (Wesk., tit. Cont.¡ 1.) Arnould makes no positive statement; he says, Weskett’s “ seems to be the better opinion,” but cites no authority.

The industry of the counsel who argued this cause with so much care on either side, did not furnish us with a single decision upon this point, nor have I been able to find one.

By the Rhodian law it was deemed just that all should contribute to whom the jettison had been of advantage, and the amount was apportioned according to the value of the goods. It extended to the apparel of every person, even to the ring upon the finger, though the ring and clothes paid no freight. By the English law personal jewels and wearing apparel do not contribute. (Abb. on Shipping, 503.) (roods, wares, money, jewels and all other property transported as merchandise contribute in proportion to their value. (3 Kent’s Com., 240.)

Bank notes are not money,- they will.not satisfy an execution, they are not a legal tender. Recovery may be had against an individual upon his promissory note lost or destroyed and so also against a bank where the.bank note is destroyed; hence it is argued, that the bank bill being only the representative of property or evidence of debt, is not bound to contribute.

In Handy v. Dobbin, (12 J. R., 220,) the opinion of the Court was delivered by Judge Speuceb, holding expressly that bank bills were goods, and subject to levy on execution. (Turner v. Fendall, 1 Cranch., 117 .)

This action is instituted to recover the possession of personal property, and the plaintiff swears that the package of bills are his goods. .

The thief who steals bank bills, finds that the law treats him as though he had stolen goods. If one converts the bank bills of another to his own use, an action will lie'as for the conversion of personal property. If one burns or throws into the sea the bank bills belonging tcf another, an action lies, and the amount of damage is the face of the bills if the bank be solvent. In the absence of all proof to the contrary, the law will presume that the bank notes are worth their nominal value.

We therefore conclude that jettisoned goods, carried on deck, stowed in the usual way, and according to the custom of the

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trade of a steamer navigating the Sound, are-entitled to contribution for general average loss.

That bank bills, so carried in a crate by an express company, for hire, are to be treated as other goods, and are bound to contribute when saved.

And that, in the absence of proof to the contrary, the value of the bills is the amount expressed upon their face, and contribution must be made proportionate to that value. And hence, that in this case, judgment should be entered for the defendants, with costs.

The case is an interesting and a new one. We are indebted to the counsel on both sides for the care with which • it has been brought before us.

Gan bank bills be made to contribute in general average under any circumstances? Can those of the plaintiffs be made to contribute in this particular case ? Such are the questions to be solved. I shall consider, in the first place, the facts in this particular action, and the points raised upon them.

1st. The contract which was made between the plaintiffs, and the Adams’ Express Company in Baltimore, constituted the latter the agents of the plaintiffs, and made -the mode of transportation pursued, by that Company precisely the same, as to all obligations and rights, as if prescribed or sanctioned by themselves. Especially is this the case, when these agents pursued, in this instance, their ordinary method and means of transportation. The case of the N. J. Steam Nav. Co. v. The Merchants' Bank, (6 How. U. S. R., 344,) settles this point.

The cargo-which was jettisoned was on-deck; but was there according to the established custom of steamboats between New York and Allyn’s Point. It is true that, by the general maritime law, goods stowed upon the deck are not the subjects of general average when jettisoned. (Abb. on Shipping, 481, 8 ed., and Mr. Shee’s note; Emer., p. 492; Dodge v. Bartol, 5 Greenl., 286; Lenox v. United Ins. Co., 3 Johns. Cas., 178 .)

But when the goods are transported coastwise in a steamboat; when the usage is uniform to carry all, or the bulk of the cargo on deck, the space under being apprppriated to the machinery and other purposes; and when that usage is so general that con

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structive notice of its prevalence may be inferred in ail, deck goods thrown over' are as much to be contributed for as goods in any other situation. The present case sufficiently falls within this rule.

I have examined with care the following authorities: The ordinance of Louis XIV, and the 421st and 229th articles of the Code of Commerce of France'; the exception to the general rule arising from a usage on a coasting voyage, stated by Valin, and the comments of Boulay Paty & Rocron upon it. (Valin, tom. 2, art. 12, p. 189; Boulay Paty, tom. 4, pp. 567-569; Rocron, tit. Avarie, art. 421; Gould v. Oliver, 4 Bing. N. C., 134; 2 Scott C. B., 241; 2 Man. & Gr., 208; Milward v. Hibbert, 3 Queen’s Bench R., 120; 2 Gale & Dav., 142; Harley v. Milward, 1 Jones & Cary, 224; Dodge v. Bartol, 5 Greenl., 286; and Hampton v. Brig Thaddeus, 4 Martin’s Lou. R., 582.) I think the rule I have stated is warranted by them. Such as appear to be hostile may be distinguished on satisfactory grounds.

The reasoning of Boulay Paty, upon the two sections of the Code of Commerce, (421 and 229,) appears to me conclusive; and, I observe, in the Journal de Palais, (sup., vol. 1, p. 152, Astor Library,) that a case was decided in the Court of Cassation in 1845, holding that goods carried coastwise on deck were to be contributed for. '

2d. The counsel of the defendants next insists that, under the arrangement between Adams & Co. and the owners of the steamboat, the bills in question paid no freight, and did not form any part of the cargo, and on that ground are exempt from liability.

But the fixed annual sum which Adams & Co. paid for the transportation of their crates was in the nature of freight, and the charge for transportation, paid by the plaintiffs, contributed' to the payment of that amount. In substance, these bills paid freight.

3d. The next and general question, whether bank bills are liable to contribute in general average, is,the material inquiry.

In the first place, we have the great principle of general average, that whatever is saved ought to bear a portion of the loss, of what has perished to procure the safety.

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Although the Rhodian law, which was the basis of the Maritime Code of Rome, and is eulogized by Cicero for its wisdom, must be deemed to be lost in its integrity; yet there can "be no doubt that the compilation which bears its name is of great antiquity. The very writers who have- displaced its high claims, quote it as of an ancient date. (Emer. Pref., 32, and quotations passim; see Chief Justice Dube’s Lect. on Ins., vol. 1, pp. 24-46.)

By the rule of that Code, everything on board a vessel, even the baggage of passengers, their apparel, and ornaments, though worn upon their persons, was liable to contribute. The writers of the general civil law adopt this doctrine. They are quoted by Emerigon. (Chap. 12, § 42, Mer. ed., 492; Vinnius, p. 211.)

The Guidon de la Mer made everything liable, even what the passengers carried about them. (Chap. 5, art. 26.) Their persons were exempted. Duarenus, quoted by Emerigon, declares that it is the general rule that all which has been preserved and is susceptible of being valued, is to contribute to the jettison. In short, the rule of the civil law proper was, that nothing was exempt but provisions intended for consumption, and the persons of free passengers. The pride of the Roman dictated the latter exception, as the person of a. freeman was incapable of estimation.

Pothier treats the Code of Commerce, in exempting nothing expressly but the clothes of the crew, as leaving all else liable. (Tit. des Avaries, No. 125.) Boulay Paty would distinguish between clothes and jewelry on the person, and those in a trunk or elsewhere. (Tom. 4, p. 562.)

But it cannot be asserted that the civil law rule is now our law. “It is not every object of value which is liable for a contribution of average, but only such things as are termed Merces. Merces has never been held to extend to provisions, but includes only the cargo put on board for the purpose of commerce, and the practice shows that this has been the ■ understanding of all .times. Magens, Molloy, Beames, Stevens and other writers all expound the word Merces in this way. They concur in saying, that things of little weight, but of considerable value, must contribute, if they belong to the cargo, but not if they belong to the passengers.” “ The rule is, that all merchandise put on board for the purpose of traffic, is liable to be brought into contribu

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tion; and in merchandise is included all property of great value, unless attached to the persons of the passengers, but property so attached does not contribute.”

These are the positions of Best, Oh. J., and Park, J., in Brown v. Stapyleton. (4 Bing., 119.)

And in Peters v. Milligan, (cited in Park on Ins., 211,) it was held that gold, silver, jewels and precious stones contribute. (Abb. on Ship., 502; 2 Arn. on Ins., 919.)

Weskett on Insurance, (Tit. Contrib., Ho. 1,) says, that bank bills ought to contribute a part to make up a loss from jettison.

Mr. Phillips (vol. 2, p. 149, art. 1897,) refers to this authority, and observes: “ But as these are not so properly actual property as the evidence of demands, which evidence may be'supplied by other, in case of their being lost, if sufficient precautions are taken by-the holder to prove what notes they were; this circumstance distinguishes them from specie or other property, which is usually made to contribute.”

This is all the authority I have found directly to the point.

There is another general rule which may be invoked to assist us. Magens states, that what does not pay freight, does not pay average. (Yol. 1, p. 62.) This may be sometimes unjust, and probably is not an unexceptionable rule. Goods of the master, not paying freight, ought. to contribute. (Stevens, part 1, eh. 1, p. 52.)'

But the converse of the rule may perhaps be unexceptionable. "What does pay freight ought to contribute.

But the main argument- of the plaintiffs’ counsel remains. Hothing was saved in "saving the bills. Ho damage would have occurred to the plaintiffs had they been lost. They were not property, the destruction of which was irretrievable. They were evidences of debt, which debt could be established by other proof. It is substantially the view presented by Mr. Phillips.

But is this so? Was it nothing to save these bills from going to the bottom? According to the rule of the Supreme Court of * our State, as stated by Justice Marct, if a bank bill be lost to the owner, he cannot recover, but if destroyed, he may. ( 6 Wend., 378 .) Yet that recovery depends upon his ability to prove destruction, ownership and identity. It is inevitable that some damage, delay and difficulty must in all cases arise to him.

p. 225

Proof must be given. From this he is saved by the preservation of the bills. The bank might be justified in demanding either delay, to ascertain whether efforts to recover the property would not be available, or indemnity. Nothing but an equity suit would, perhaps, then avail. (See Will. Eq. Jur., 52, 54.)

We have, in this case, bills of a bank carried as part of the cargo, paying what is in truth freight for the transportation, and exposed in the crate to as much risk of loss as any part of the cargo—certainly as much as any costly articles, such as laces, contained in the crate—I cannot but think contribution ought to be made. It is not necessary to say, and it does not inevitably result, that because the bills should contribute they would be the objects of contribution if sacrificed.

. The general rule undoubtedly is, that contribution and to be contributed for, are convertible obligations and rights; but this rule is not without exceptions. The clothes of sailors are exempt, and yet are to be paid for if cast overboard. Munitions of war and provisions appear to be governed by the same rule. (Emer., ch. 12, § 42; Mered. ed., 493, 494.) Perhaps there may exist a distinction in the case of bank bills. At any rate, upon a question so very new, I think it should be left for a decision when necessary.

The defendants are entitled to judgment.

Moncrief, J., concurred in ordering judgment for the defendants.

Judgment accordingly.