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common carrier, but a bailee to transport
as a private carrier for hire, and a condi-
tion in such a contract, to which the Har-
ter Act (Act Feb. 13, 1893, c. 105. 27 Stat.
445 [U. S. Comp. St., 1901, p. 29471), re-
lating to exemptions from liability has



§ 4533



CARRIERS,



405S



Instances Where Stipulation Void. — A stipulation that the law of the ship's
flag shall govern in a bill of lading of a foreign ship on a voyage to the United
States,"^ ^ a stipulation seeking to relieve the carrier from the initial duty of
furnishing a seaworthy vessel/^ or restricting liability for the construction,
repair and outfit of the vessel, a stipulation exonerating the carrier from all
responsibility for goods exceeding a specified value J ^ for neglect in loading
or stowing/^ and the care and delivery of the cargo/ *^ and for faults of com-



no application, exempting the shipowner
from liability on account of the careless-
ness of the employees, is not contrary to
public policy. Decree, 140 Fed. 123, re-
versed in The Fri, 154 Fed. 333, 83 C.
C. A. 205.

72. Stipvilation that law of flag shall
govern. — A stipulation that the law of the
ship's flag shall govern, in a bill of lading
for goods in a foreign vessel on a voyage
from a foreign port to the United States,
is nullified and overridden by Harter Act
Feb. 13, 1893, c. 105, § 1, 27 Stat. 445
[U. S. Comp. St. 1901, p. 2946], which
prohibits contracts against liability for
negligence in loading and stowing the
cargo. Decree, Botany Worsted Mills v.
Knott, 82 Fed. 471, 27 C. C. A. 32(5,
affirmed in 21 S. Ct. 30, 179 U. S. 69, 45
L. Ed. 90.

73. Restricting obligation of seaworthi-
ness.— The Southwark, 191 U. S. 1, 48
L. Ed. 65, 24 S. Ct. 1; The Kensington,
183 U. S. 263, 46 L. Ed. 190, 22 S. Ct.
102; The Delaware, 161 U. S. 459, 40 L.
Ed. 771, 16 S. Ct. 516.

Stipulations in a bill of lading can not
relieve a carrier from the discharge of
his initial duty under the Harter Act (Act
Feb. 13. 1893, c. 105, 27 Stat. 445 [U. S.
Comp. St. 1901, p. 2946]) to use due dil-
igence to furnish a seaworthy vessel.
Judgment, The Southwark, 108 Fed. 880,
48 C. C. A. 123, reversed in 24 S. Ct. 1,
191 U. S. 1, 48 L. Ed. 65.

Where owner used due diligence. —
Under the Harter Act the owner may,
when he has used due diligence to fur-
nish a seaworthy ship, contract against
the obligation of seaworthiness. The Ca-
rib Prince, 170 U. S. 655, 42 L. Ed. 1181,
18 S. Ct. 753.

74. Limiting value to specified sum. —
Calderon v. Atlas Steamship Co., 170 U.
S. 272, 42 L. Ed. 1033, 18 S. Ct. 588; Chi-
cago, etc., R. Co. V. Solan, 169 U. S.
133, 42 L. Ed. 688, 18 S. Ct. 289.

A stipulation exempting the carrier
from liability for loss of goods "which
are above the value of $100 per package,"
unless their value is expressed in the bill
of lading, is intended to release the car-
rier from any liability for packages worth
more than $100, and not merely for the
excess over $100, and is therefore void
under the Harter Act as well as the gen-
eral maritime law. Decree, 69 Fed. 574,
16 C. C. A. 332, reversed in "^alderon v.
Atlas Steamship Co., 18 S. Ct. 588, 170
U. S. 272, 42 L. Ed. 1033.



75. Restricting obligation as to loading
or stowing. — The Southwark, 191 U. S.
1, 48 E. Ed. 65, 24 S. Ct. 1: The Kensing-
ton, 183 U. S. 263, 46 L. Ed. 190, 22 S.
Ct. 102; The Delaware, 161 U. S. 459, 40
L. Ed. 771, 1-6 S. Ct. 516.

Damage to wool stowed on the for-
ward side of a temporary wooden bulk-
head, by drainage from sugar stowed aft
of the bulkhead, when it results from the
fact that for a short time the vessel was
trimmed by the head after discharging a
part of the cargo, until she was again
trimmed by the stern at another port,
arises from negligence in loading or
stowage of the cargo, which makes the
vessel liable under Harter Act Feb. 13,.
1893, c. 105, § 1, 27 Stat. 445 [U. S. Comp.
St. 1901, p. 2946], notwithstanding any
stipulations to the contrary in the bills
of lading; and it is not a damage from
fault or error in the navigation or man-
agement of the ship. Decree, Botany
Worsted Mills v. Knott, 82 Fed. 471, 27
C. C. A. 326, affirmed in 21 S. Ct. 30, 179
U. S. 69, 45 L. Ed. 90.

Failure to provide fit lighter. — If tak-
ing a cargo to a vessel in lighters be part
of the loading of the vessel, a stipula-
tion in the bill of lading relieving the
carrier from fail'ure to provide a fit
lighter is prohibited by Harter Act Feb.
3. 1893, c. 105, § 1, 27 Stat. 445 [U. S.
Comp. St. 1901, p. 2946], declaring it un-
lawful for the owner of a vessel engaged
in transporting merchandise to stipulate
against liability for loss from negligence
in loading. Insurance Co. v. North Ger-
man Lloyd Co., 106 Fed. 973, affirmed in
110 Fed._ 420, 49 C. C. A. 1.

76. Stipulations against neglect in care
or delivery of cargo.— The Southwark,
191 U. S. 1, 48 L. Ed. 65, 24 S. Ct. 1;
The Kensington, 183 U. S. 263, 46 L.
Ed. 190, 22 S. Ct. 102; The Delaware, 161
U. S. 459, 40 L. Ed. 771. 16 S. Ct. 516.

Delay in delivery due to negligent
stowing.— A stipulation in a bill of lading
that, if any goods can not be found dur-
ing the steamer's stay at the port of de-
livery, they shall be forwarded at the
earliest opportunity, without liability of
the_ ship for delay or otherwise, is in-
valid, under the Harter Act, as applied tO'
a case where goods were neg'ligently
stowed and no effort was made to find
them, and they were subsequently lost
at sea. Decree, 69 Fed. 574, 16 C. C.
A. 332, reversed in Calderon v. Atlas
Steamship Co., 18 S. Ct. 588, 170 U. S.-
272, 42 L. Ed. 1033.



4059



LIMITATIONS OP LIABILITY,



§§ 4533-4535



mission or omission on the part of his servants/'^ are within the prohibition
of the first and second sections of the Harter Act and void.

Stipulations against Loss While on Quay or Loss by Thieves. — A gen-
eral clause in a bill of lading, exempting a shipowner from liability for loss of
goods while on the quay, or loss by thieves, is not to be construed as applying
to cases where such loss arises through the carrier's negligence or failure in
proper custody or care, so as to render it invalid, under § 1 of the Harter
Act {27 Stat. 445), providing that "any and all words and clauses of such im-
port inserted in bills of lading or shipping receipts shall be null and vojd," nor
is it rendered void, under such provision, by a subsequent clause extending all
exemption provisions to cases of negligence, the two clauses being separable ;
but the carrier is entitled to the benefit of the exemption, unless it is found
that its negligence or fault contributed to the loss.'''^

Latent Defects in Refrigerating Apparatus. — A stipulation, in a contract
for the transportation of frozen meat, exempting the carrier from liability for
loss or damage to the cargo in consequence of latent defects in such apparatus,
which is not due to any fault or negligence on his part, is not in violation of
section 2 of the Harter Act.'^^

§ 4534. Effect on Stipulations in Passenger Tickets. — The United
States circuit court of appeals has held that the provisions of § 2 of the Harter
Act as to the limiting of liability by bills of lading or shipping documents do
not apply to passenger tickets,^"^ but the supreme court declined to decide this
point in The Kensington, 183 U. S. 263, 46 L. Ed. 190, 22 S. Ct. 102.

§§ 4535-4547. Loss or Damage to Which Applicable— § 4535.
Losses for Which Carriers Liable Generally. — The carrier is liable under
the first section of the Harter Act from loss or damage arising from negli-
gence, fault or failure, '^^ in proper loading,^- stowage, ^^ custody, care,^'* or



77. Neglect of servants. — The South-
wark. 191 U. S. 1, 48 L. Ed. 65, 24 S. Ct.
1; The Kensington, 183 U. S. 263, 46 L.
Ed. 190, 22 S. Ct. 102._

78. Stipulations against loss while on
quay or loss by thieves. — Cunard Steam-
ship Co. V. Kelley, 115 Fed. 678, 53 C.
C. A. 310.

79. Latent defects in refrigerating ap-
paratus.— Tlie Prussia, 93 Fed. S37, 35 C.
C. A. 625, affirming decree, 88 Fed. 531.

80. Effect on stipulation in passenger
tickets. — The Kensington, 94 Fed. 885, 36
C. C. A. 533, affirming decree, 88 Fed.
331, which is reversed in 22 S. Ct. 102,
183 U. S. 263, 46 L. Ed. 190.

81. Losses for which carriers liable
generally. — Knott v. Botany Worsted
Mills. 179 U. S. 69, 45 L. Ed. 90, 21 S.
Ct. 30.

Where the negligence of the carrier in
failing to make delivery is clearly proven,
he is liable under the Harter Act. Calde-
ron V. Atlas .Steamship Co., 170 U. S.
272, 42 L. Ed. 1033, 18 ,S. Ct. 588.

"Loss or damage" arising from neg'li-
gence, fault or failure in proper loading,
stowage, custody, care or proper delivery
of cargo within § 1 of the Harter Act.
See Knott v. Botany Worsted Mills, 179
U. S. 69, 45 L. Ed. 90, 21 S. Ct. 30; The
Germanic. 196 U. S. 589, 49 L. Ed. 610,
25 S. Ct. 317.

82. Where, during the unloading of a



barge in the usual manner, which caused
an uneven keel for a few hours, she
sprang a leak, and the remaining cargo
was damaged bj^ water, such damage was
not caused by fault or error in the man-
agement of the vessel within § 3 of the
Harter Act (Act Feb. 13, 1893, c. 105, 27
Stat. 445 [U. S. Comp. St. 1901, p. 2946]),
but from unseaworthiness, or from neg-
ligence, fault, or failure in proper loading
within § 1, for which the vessel is liable.
Donaldson v. Perry Co., 138 Fed. 643, 71
C. C. A. 93.

83. Negligence in loading and stowage.
— Bales of wool stowed in the forward
compartment of a steamship were dam-
aged by the drainage of wet sugar next
aft, caused by a change in the trim of
the ship through changes in loading at
a port of call. Held, that the negligence
in permitting the ship, in the absence of
forward scuppers or a tight bulkhead, to
get down by the head at the port of call,
so that the wool would become damaged
by the sugar drainage forward, was neg-
ligence in the general loading and stow-
age of cargo, within section 1 of the Har-
ter Act, and not "in the management of
the vessel." within the third section of
that act. Botany Worsted Mills v. Knott,
76 Fed. 582, decree affirmed in 82 Fed.
471, 27 C. C. A. 326, and 21 S. Ct. 30, 17»
U. S. 69, 45 E. Ed. 90.

Mere stowage is an altogether difTorcnt



4535-4536



CARRIERS.



4060



proper delivery ^-^ of cargo. It is the duty of a ship to pay attention to any
extraordinary circumstances that evidently affect her stability v^hile discharg-
ing, and to regulate her mode of discharge accordingly, so as not to endanger
the cargo. Negligence in such regard, which results in damage to cargo, is
not a fault in the "management of the ship," within the exemption of the third
section of the Harter Act, but rather in the care or proper delivery of the cargo,
within the meaning of the first section, from which she is not exempt from
liability.^*^ The unloading of cargo in the port of discharge by stevedores has
no relation to the "management of the vessel,^' within the meaning of the third
«;ection of the Harter Act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp.
St.. 1901, p. 2946]), not being an act done with any view to such managefuent,
but relates to the "care or delivery of cargo," within the meaning of the first
section ; and where by the negligent and improper manner in which it was
done it brought about a condition of instability in a ship, which, owing to a
large accumulation of ice above her upper deck, rendered her topheavy, and
she rolled over and sank at her dock, injuring the remaining cargo, she is lia-
ble for the damage, although other acts done or omitted in the management
of the vessel may have contributed to the injury.^"

Liability as Bailee. — Congress by the Harter Act merely intended to relieve
shipowners of certain liabilities as common carriers, leaving untouched their
liability as bailees. ^^

§§ 4536-4539. Loss from Latent Defects, Fault or Error in Naviga-
tion or Management of Ship— § 4536. In General.— Where a shipowner
has discharged the obligation imposed upon him by the Harter Act, neither the
vessel nor the owner in charge is liable for loss or damage among other things,
for faults or errors in navigation or in the management of the vessel, '^^ over



matter from the management of the ves-
sel. Knott V. Botany Worsted Mills, 179
U. S. 69, 45 L. Ed. 90, 21 S. Ct. 30; The
Silvia, 171 U. S. 462, 43 L. Ed. 241, 19
S. Ct. 7.

84. Permitting oil leaking from barrels
to remain in bilges. — The action of the
master of a vessel in permitting whale
oil, which leaked from barrels, to remain
in the bilges, with the object of saving
it at the end of the voyage, did not per-
tain to the "management of the vessel,"
within § 3 of the Harter Act (Act
Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S.
Comp. St., 1901, p. 2946], but injury to
other cargo from such oil arose from
"failure in proper care of the cargo,"
within § 1, for which the vessel was
liable. The Persiana, 185 Fed. 396, 107
C. C. A. 416, reversing decree, 156 Fed.
1019.

85. Words "in case the goods can not
be found for delivery," in stipulation seek-
ing to limit liability construed, see Calde-
ron V. Atlas Steamship Co., 170 U. S. 272,
42 L. Ed. 1033, 18 S. Ct. 588.

86. The Germanic, 107 Fed. 294, mod-
ified in 124 Fed. 1, 59 C. C. A. 521, af-
firmed in 25 S. Ct. 317, 196 U. S. 589, 49
L. Ed. 610.

87. Decree, 107 Fed. 294, modified in
The Germanic, 124 Fed. 1, 59 C. C. A.
521, affirmed in 25 S. Ct. 317, 196 U. S.
589. 49 L. Ed. 610.

Damage to cargo from the sinking of



a ship after arriving in port, due to hur-
ried and imprudent unloading, which
brought the center of gravity of the ship
too high for safety, does not result from
faults or errors in navigation or in the
management of said vessel within the
meaning of Harter Act Feb. 13, 1893, c.
105, § 3, 27 Stat. 445 [U. S. Comp. St.,
1901, p. 2946], exempting the owner of
the vessel from liability, but arises from
negligence, fault, or failure in proper load-
ing, storage, custody, care, or proper de-
livery of merchandise, imder § 1 of that
act, so as to preclude any stipulation
of exemption. Decree, The Germanic,
124 Fed. 1, 59 C. C. A. 521, affirmed in 25
S. Ct. 317, 196 U. S. 589, 49 L. Ed. 610.

88. Liability as bailee. — Maliory Steam-
ship Co. V. Bahn, etc.. Optical Co. (Tex.
Civ. App.), 154 S. W. 282.

Where a steamship company receives a
consignment for which it is not liable as
a carrier by reason of Rev. St. U. S.,
§ 4281 (U. S. Comp. St., 1901, p. 2942),
exempting a carrier from liability for
goods wrongfully marked, it is still lia-
ble as a private bailee for hire for failure
to exercise ordinary care in transporting
and delivering the goods. Maliory
Steamship Co. v. Bahn, etc., Optcal Co.
(Tex. Civ. App.), 154 S. W. 282.

89. Loss from latent defects, faiUt or
error in navigation or management of
ship.— The Southwark, 191 U. S. 1, 48 L.
Ed. 65, 24 S. Ct. 1; The Chattahoochee,



4061



LIMITATIONS OF LIABILITY.



§§ 4536-4537



which he has not direct control »" for loss or damage resulting from latent de-
fects, not discoverable by the utmost care and diligence, and, in event that he
has exercised due diligence, to make his vessel seaworthy ; ^^ or for loss from
inherent defect, quality or vice of the thing carried. ^2

§ 4537. Seaworthiness as Condition Precedent. — The relief afforded
by the Harter Act, to the owner of a vessel, is conditional or depends upon the
exercise of due diligence upon his part in discharging the primary duty of
providing a seaworthy vessel. It is incumbent upon the shipow^ner to furnish
a seaworthy vessel at the commencement of the voyage or use due diligence
to make her so.''^ This rule should not be relaxed by judicial interpretations
or constructions.^'* Even if the loss occurred through fault or error in man-
agement, the exemption can not be availed of unless the vessel was seaworthy
when she sailed, or due diligence to make her so had been exercised.^' A ship-
owner is not exempted by the Harter Act from liability for damage to cargo
resulting from her unseaworthy condition at the commencement of the voyage,
although it is showai that he exercised due diligence to make her in all respects
seaworthy. ^'^^ The statute does not so change the maritime law as to relieve
the owner from his obligation to provide a seaworthy ship, and substitute
therefor an obligation merely to use due diligence to see that she is seaworthy .^"^



1-^3 U. S. 540, 43 L. Ed. 801, 19 S. Ct.
491; The Wildcroft, 201 U. S. 378, 50
L. Ed. 794, 26 S. Ct. 467; The Irrawaddy,
171 U. S. 187, 43 L. Ed. 130, 18 S. Ct. 831.

Failure to close covers of port holes. —
See The Silvia. 171 U. S. 462, 43 L. Ed.
241, 19 S. Ct. 7.

Careless opening of valve. — See The
Wildcroft, 201 U. S. 378, 50 L. Ed. 794,
26 S. Ct. 467.

90. The Wildcroft. 201 U. S. 378, 50 L.
Ed. 794, 26 S. Ct. 467.

91. The Irrawaddy, 171 U. S. 187, 43
L. Ed. 130, 18 S. Ct. 831; The Southwark,
191 U. S. 1, 48 L. Ed. 65, 24 S. Ct. 1.

92. The Southwark, 191 U. S. 1, 48 L.
Ed. 65, 24 S. Ct. 1. _

93. Limitation of liability for latent de-
fects,— The Southwark, 191 U. S. 1, 48 L-
Ed. 65, 24 S. Ct. 1; International Nav.
Co. V. Farr, etc., Mfg. Co., 181 U. S. 218,
45 L. Ed. 830, 21 S. Ct. 591; The Wild-
croft, 201 U. S. 378, 50 L. Ed. 794, 26 S.
Ct. 467; The Carib Prince, 170 U. S. 655,
42 L. Ed. 1181, 18 S. Ct. 753; The Silvia,
171 U. S. 462, 43 L. Ed. 241, 19 S. Ct. 7;
Knott V. Botany Worsted Mills. 179 U.
S. 69, 45 L. Ed. 90, 21 S. Ct. 30; The Irra-
waddy, 171 U. S. 187, 43 L. Ed. 130, 18
S. Ct. 831.

94. The Southwark, 191 U. S. 1, 48 L.
Ed. 65, 24 S. Ct. 1.

95. International Nav. Co. v. Farr, etc.,
Mfg. Co., 181 U. S. 218, 45 L. Ed. 830,
21 S. Ct. 591; The Southwark, 191 U. S.
1, 48 L. Ed. 65. 24 S. Ct. 1; The Wild-
croft, 201 U. S. 378, 50 L. Ed. 794, 26 S.
Ct. 467.

"The word 'management' is not used
without limitation, and is not, therefore,
applicable in a general sense as well be-
fore as after sailing." International Nav.
Co. V. Farr. etc.. Mfg. Co., 181 U. S. 218,
45 L. Ed. 830, 21 S. Ct. 591.

96. The C. W. Elphicke, 122 Fed. 439,



58 C. C. A. 421, affirming decree, 117 Fed.
279; The Sandfield, 92 Fed. 663, 34 C. C.
A. 612, affirming decree 79 Fed. 371.

97. The provisions of the Harter Act
making it unlawful to insert in the con-
tract a provision exempting from liability
for damage from unseaworthiness where
due diligence has not been used (§ 2), and
also exempting from loss from faults or
errors in the navigation or management of
the vessel, if due diligence has been used
to furnish a seaworthy ship properly
manned, equipped and supplied (§ 3),
do not so change the general maritime
law as to relieve the owner from his ob-
ligation to provide a seaworthy ship, and
substitute therefor an obligation merely
to use due diligence to see that she is
seaworthy. The Carib Prince, 18 S. Ct.
753, 170 U. S. 655, 42 L. Ed. 1181, revers-
ing decree 68 Fed. 254, 15 C. C. A. 385.

Section 3 of the Harter Act (2 Supp.
Rev. St., p. 81) does not relieve the owner
from the duty of furnishing a seaworthy
vessel at the beginning of the voyage, nor
afifect his liability for damages to the
cargo arising from unseaworthiness, but
only exempts him from liability for dam-
age arising from the risks therein desig-
nated when due diligence has been used
to make the vessel seaworthy, etc. There
is no expressed intention in the statute to
replace the carrier's obligation under the
general maritime law to furnish a sea-
worthy vessel by the less extensive obli-
gation to exercise due diligence to that
end, and it can not be extended by con-
struction beyond its terms. Farr, etc.,
Mfg. Co. V. International Nav. Co., 94 Fed.
675, reversed 98 Fed. 636, 39 C. C. A. 197,
affirmed in 21 S. Ct. 591, 181 U. S. 218, 45
L. Ed. 830.

In respect to losses from causes other
than those designated. — Harter Act Feb.
13, 1893, c. 105, § 3. 27 Stat. 445 [U. S.



§ 4537



carrie:rs.



4062



What Constitutes Seaworthiness. — To constitute a ship seaworthy she must
be fit in design/''* structure/'*^ condition/ and equipment. Thus, a vessel can
not be said to be seaworthy where there is a leake in a water ballast tank at
the inception of the voyage,^ where a hatch is not properly closed ; ^ or when
the coverings of a port hole are not properly closed,'* or are unsecurely port-
holed ■'' before sailing. It is, of course, not to be understood that failure to



Comp. St., 1901, p. 2946], providing that if
the owner of a vessel engaged in trans-
porting merchandise exercise due dili-
gence to make it in all respects seaworthy,
and properly manned, equipped, and sup-
plied, it or the owner shall not be liable
for loss from fau'lts or errors in naviga-
tion or in the management of it, or the
dangers of the sea, does not lessen the
owner's obligation to furnish a seaworthy
sliip at the inception of the voyage in re-
spect to losses arising from causes other
than those designated. It is not enough
that he uses due diligence, but the ship
must be seaworthy. Insurance Co. v.
North German Lloyd Co., 106 Fed. 973,
affirmed in 110 Fed. 420, 49 C. C. A. 1.

98. Design. — Farr, etc., Mfg. Co. v. In-
ternational Nav. Co., 98 Fed. 636, 39 C. C.
A. 197. affirmed 21 S. Ct. 591, 181 U. S.
218, 45 L. Ed. 830.

99. Structure. — A barge held unsea-
worthy, from the manner of her construc-
tion, for a voyage between St. Michael and
Nome, Alaska, in October, and her owner
for that reason not entitled to exemption,
under § 3 of the Harter Act, from liability
for the loss of cargo taken on board for
such a voyage. Parsons v. Empire Transp.
Co., Ill Fed. 202, 49 C. C. A. 302.

1. Farr, etc., Mfg. Co. v. International
Nav. Co., 98 Fed. 636, 39 C. C. A. 197, af-
firmed in 21 S. Ct. 591, 181 U. S. 218, 45
L. Ed. 830.

2. Leak in water-ballast tank. — Sugar
cargo stowed in a hold was damaged
during a voyage by seawater, which
leaked from a water-ballast tank, through
a manhole, opening into the hold. After
the vessel sailed, the valve admitting
water to the tank was opened, and neg-
ligently allowed to remain open longer
than necessary to fill the tank, and it was
during the time it was so open that the
leak was discovered. But it appeared
that while in port the manhole cover had
been taken off and replaced, and it was
not shown that before sailing it was
tested with such pressure as it was aft-
erwards subjected to. Held, that the
damage must be attributed to the un-
seaworthy condition of the vessel at the
commencement of the voyage, due to
negligence, for which the owners were
not exempted from liability by the
Harter Act (27 Stat. 445 [U. S. Comp. St.,
1901, p. 2946]). American Sugar Refin.
Co. V. Rickinson, 120 Fed. 591, decree re-
versed in 124 Fed, 188, 59 C. C. A. 604.

3. Failing to cover hatch. — The provi-
sions of the Harter Act do not relieve a



ship from liability for damages to cargo-
resulting from negligence in failing tO'
properly cover a hatch to prevent leak-
age. The Mississippi, 120 Fed. 1020, 56
C. C. A. 525, affirming decree 113 Fed.
985.

4. Failure to close ports. — If a ship
starts on a voyage with a port negli-
gently left open, causing damage to the
cargo, her owners are liable for failing to-
provide a ship seaworthy at the begin-
ning of the voyage, and are not protected
by § 3 of the Harter Act (Act Feb. 3,
1893, c. 105, 27 Stat. 445 [U. S. Comp.
St., 1901, p. 2946]), on the ground that the
fault was one in navigation or the man-
agement of the vessel, although proper
appliances for closing the ports were fur-
nished; and this rule is especially appli-
cable where the ports were so located as
to be submerged when the vessel was
fully loaded. ^Decree 137 Fed. 443, af-
firmed in The Tenedos, 151 Fed. 1022, 82
C. C. A. 671.

Negligence in failing to have the port-
holes in a compartment of a vessel
closed when the voyage begins, whereby
the vessel is rendered unseaworthy, and
in consequence injury is sustained to
cargo by water coming through such
portholes during the voyage, renders the
shipowner liable under Harter Act Feb.
13, 1893. c. 105, § 3, 27 Stat. 445 [U. S.
Comp. St., 1901, p. 2946] since the neg-
ligence is not a mere fault or error in navi-
gation or in the management of the ves-
sel, but amounts to a failure to exercise
due diligence to make the vessel sea-
worthy. Decree, Farr, etc., Mfg. Co. v.



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