It has been held that the carrier of goods cannot defend against an action for injury to them, on the ground that the sender, a corporation, could not acquire legal title to them. (rr)

Nor is the carrier liable where the goods are thrown overboard from necessity, to save life or property; (s) if to save property, all the property that is saved must contribute to make up the loss, under what is termed in the mercantile law, a general average. (t) Nor if the goods perish from inherent defect, (u)

(rr) Farmers Bank v. Detroit, etc. R. R. Co. 17 Wis. 372.

(s) Mouse's case, 12 Rep. 63; Bird v. Astcock, 2 Bulst. 280; s. c. 2 Roll. Abr. 567; Halwerson v. Cole, 1 Speers, 321. In Kenrig v. Eggleston, Aleyn, 93, it is said that Rolle, C. J., cited Barcroft's case, "where a box of jewels was delivered to a ferryman, who, knowing not what was in it, and being in a tempest, threw it overboard into the sea; and resolved that he should answer for it." But Sir William Jones, in commenting upon this case, says: " I cannot help suspecting that there was proof in this case of culpable negligence, and probably the casket was both small and light enough to have been kept longer on board than other goods; for in the case of a Gravesend barge, cited on the bench by Lord Coke, it appears that the pack which was thrown overboard in a tempest, and for which the bargeman was held not answerable, was of great value and great weight; although this last circumstance be omitted by Rolle, who says only that a master of the vessel had no information of its contents." See Jones on Bailm. 108.

(t) But the owners of goods shipped on deck, and thrown overboard in a storm, are not entitled to general average; nor is the owner of the vessel liable for them as a carrier, in such case. Smith v. Wright, 1 Caines, 43; Lenox v. United Ins. Co. 3 Johns. Cas. 178; The Rowena, Ware, 322. But in Gillett v. Ellis, 11 Ill. 579, where goods stowed on the main deck of a propeller were necessarily cast overboard in a tempest by the order of the master, to preserve the vessel and crew, it was held, that the owner of the goods was entitled to the benefit of a general average. And per Treat, C. J.: "It is insisted that the plaintiff cannot claim contribution, because his goods were stowed on the deck of the vessel. The general rule undoubtedly is, that the owner of the goods which are placed on the deck of a ship, and are swept overboard by the action of the wind or waves, or cast into the sea by command of the master, in order to protect the vessel and crew, is not entitled to the benefit of a general average. The cargo on deck, from its situation, increases the difficulty of navigating the ship, and is more exposed to peril than that which is under cover; and, if swept away or cast overboard, the owner must bear the loss, without contribution from the owners of the vessel and the cargo under hatches. But this case does not fall within the operation of this rule. Propellers are a class of vessels but recently introduced in the navigation of the lakes, to which, from the peculiarity of their construction, and the general usage respecting them, this general rule is not applicable. They are double-deckers with two holds. By the general custom prevailing in reference to them, goods stowed on the main deck, or upper hold, are regarded as under hatches, and as safe as those stowed in the lower hold, or where the cargo in ordinary vessels is only considered as under cover. The master is allowed by this general custom to stow the cargo either in the hold, or on the main deck, at his convenience. No distinction is made in the price of transportation by the carrier or in the rates of insurance by the underwriter. The cargo below and between decks is put on the same footing. This universal usage, resulting from the character of the vessel, must govern the rights and liabilities of the owners of the vessel and cargo. The owner of goods, which are stowed on the main deck of a propeller, and necessarily cast overboard by the direction of the master, to preserve the vessel and crew, is, therefore, entitled to the benefit of a general average, as much as the owner of goods that are stowed in the hold would be, under like circumstances."

(u) Farrar v. Adams, Bul. N. P. 69; Clark v. Barnwell, 12 How. 272.

* nor if the owner or shipper has been negligent or fraudu lent in not disclosing the peculiar nature of goods requiring peculiar care, by the want of which care they have perished or suffered injury. (v) But the carrier is bound to take all such reasonable care of goods as he knows or should know to be necessary for them.

If the carrier, on the ground of his liability for damages to the goods he undertook to transport, pays for such damages, it is equivalent to a delivery of them in safety, and re-establishes his claim for freight. (w)