51 F. 46 (D.Md. 1892), The John H. Cannon
|Citation:||51 F. 46|
|Party Name:||THE JOHN H. CANNON. v. THE JOHN H. CANNON. HUNTING et al.|
|Case Date:||June 13, 1892|
|Court:||United States Courts of Appeals, Court of Appeals for the Fourth Circuit|
(Syllabus by the Court.)
Held, that there is no local usage in the port of Baltimore by which, in case of jettison of lumber cargo lawfully carried on deck, the vessel and freight are exempted from contributing in general average.
Brown & Brune, for libelants.
Robert H. Smith, for claimants.
MORRIS, District Judge.
This suit is brought by the owner of a deck load of lumber shipped on the schooner John H. Cannon, 200 tons, to recover from the vessel a contribution in general average on account of the jettison of part of the deck load for the benefit of the vessel and the rest of the cargo. The libelant chartered the schooner to carry a cargo of lumber from South Carolina to Baltimore, and she received on board from him 574,050 shingles, and 35,147 feet of lumber, of which, as stated in the bill of lading, about 179,950 of the shingles were to be carried on deck. It is admitted that there is a general usage of the lumber shipping trade between Baltimore and southern ports to carry part of the cargo on deck, and that in this case the deck cargo was lawfully carried there, both by the general usage and by the express agreement of the parties contained in the bill of lading and the charter party. By stress of weather the schooner was driven into Hatteras inlet, where she grounded, and it became necessary to jettison the deck cargo, in order to lighten the ship, and save her and the rest of the cargo.
It is conceded that it is the general and uniform usage of all vessels in the lumber trade between Baltimore and southern ports to carry a portion of their lumber cargo on deck, and that this schooner was built with a view to that usage, and could not be profitably employed in that trade unless she carried a considerable deck load. On behalf of the schooner it is not denied that ordinarily, whenever there is an established usage in any trade or on any class of vessels to carry cargo on deck, the vessel and freight are liable to contribute in general average if such deck cargo is jettisoned; but the defense to this libel is put solely upon the contention stated in the answer, that 'it is a well-established, uniform, general, and notorious custom in the lumber trade in the port of Baltimore that in no case does the...
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