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International Nav. Co., 98 Fed. G3R, 39
C. C. A. 197, affirmed in 21 S. Ct. 591, 181
U. S. 218, 45 L. Ed. 830.

5. Failure to properly close and secure
portholes in a vessel before the com-
mencement of a voyage constitutes un-
seawortliiness. International Nav. Co. v.
Farr, etc., Mfg. Co., 181 U. S. 218, 45 L.
Ed. 830, 21 S. Ct. 591, explaining The
Silvia, 171 U. S. 462, 43 L. Ed. 241, 19
S. Ct. 7.

Whether the term "management of
the ship," within the third section of the
Harter act, does or does not include the care
of the ports in the immediate preparation
for the voyage, negligence in the care of
the ports, so far as necessary to sea-
worthiness, is not excused by that sec-
tion, because the shipowner is himself
made answerable by that section for due
diligence in the fitness of the cargo com-
partments, including the closing of the



4063



LIMITATIONS OF UABIUTY.



§ 4537



•close port holes necessarily creates unseaworthiness under all conditions.
That depends on circumstances, and the supreme court will accept the finding
of the district court, and of the circuit court of appeals, that it do so under
the circumstances of the case.^

What Constitutes Due Diligence to Make Vessel Seaworthy. — A ship-
owner does not exercise due diligence within the meaning of tlie act by merely
furnishing proper structure and equipment, for the diligence required is dili-
gence to make the ship in all respects seaworthy, and that means due dili-
gence on the part of all the owners' servants "in the use of the equipment be-
fore the commencement of the voyage and until it is actually commenced J
Due diligence to make a vessel seaworthy at the commencement of her voy-
age, which will entitle the carrier to the exemptions given by Harter Act Feb.
13, 1893, c. 105, § 3, 27 Stat., 445 [U. S. Comp. St., 1901, p. 2946], must be
exercised in the work itself, and not merely in the selection of agents to do
the work, and must be adequate to accomplish the result intended, except as
to latent defects not discoverable by the utmost diligence.^ To constitute due
•diligence on the part of a shipowner to make the vessel "in all respects sea-
worthy" at the beginning of a voyage so as to entitle him to the benefit of
the exemption contained in § 3 of the Harter Act, it is not sufiicient to pro-
vide her with proper structures and equipment, but due diligence must also
Tdc exercised by the owner's servants in the use of such equipment before and
up to the time of the beginning of the voyage.^ The obligation to exercise
•due diligence is not . discharged when the vessel sailed with a hole in her
side ; ^^ where the vessel's seams were improperly calked ; ^^ where there was
a failure to have a mechanical fog horn in good condition for use at the
•commencement of a voyage; i- where a pipe leading into a tank usable for



ports or other acts necessary to sea-
■\vorthiness of the vessel, so that he is
answerable or a faihire by any of his
servants in that regard. The Manitoba,
104 Fed. 145.

A ship can not be said to be fit, as to
condition, when both the iron and glass
•coverings of a port, which it is the usual
•custom to close and fasten before sail-
ing, though structurally fit, are, through
inadvertence, insecurely fastened, so that,
although the vessel does not encounter
bad weather or rough seas, such covers
become open, and admit sea water, which
•damages the cargo. In such case the
damage must be held to result from the
unseaworthiness of the ship, and not
from any fault or error in navigation, or
in the management of the vessel, for
which the owners are exempted from lia-
bility by § 3 of the Harter Act, as the
master was justified in supposing that
the port had been securely closed before
sailing, in accordance with the usual cus-
tom, and was not chargeable with fault
in failing to cause it to be thereafter ex-
amined, although the cargo was so stored
that it was accessible. Decree 94 Fed.
675, reversed in Farr, etc., Mfg. Co. v.
International Nav. Co., 98 Fed. 636, 39
C. C. A. 197, affirmed in 21 S. Ct. 591, 181
U. S. 218. 45 L. Ed. 830.

6. International Nav. Co. v. Farr, etc..
Mfg. Co., 181 U. S. 218, 45 L. Fd. 830,
21 S. Ct. 591.

7. What constitutes due diligence to
make vessel seaworthy. — International



Nav. Co. V. Farr, etc., Mfg. Co., 181 U.
S. 218, 45 L. Fd. 830, 21 S. Ct. 591; The
Southwark, 191 U. S. 1, 48 L. Ed. 65, 24
S. Ct. 1.

8. Nord-Deutscher Lloyd v. Insurance
Co., 110 Fed. 420, 49 C. C. A. 1.

9. The Manitou, 116 Fed. 60, aftirmed in
127 Fed. 554, 63 C. C. A. 109.

A shipowner does not comply with the
requirement of § 3 of the Harter
Act, so as to be entitled to the exemp-
tions therein provided, by merely furnish-
ing proper equipment of the vessel prior
to the commencement of the voyage, but
he is bound to see that his servants ex-
ercise due diligence in its use to make the
vessel seaworthy at the time the voyage
actually commences. The C. W. El-
phicke, 117 Fed. 279, decree affirmed in
122 Fed. 439, 58 C. C. A. 421.

10. International Nav. Co. v. Farr, etc.,
Mfg. Co., 181 U. S. 218, 45 L. Ed. 830,
21 S. Ct. 591.

11. Seams improperly calked. — Due dil-
igence was not exercised to make a
lighter seaworthy and fit for the busi-
ness in which it was employed, where the
seams were so improperly calked that
they opened and admitted water into the
hold when the boat was rocked by a
slight swell from a passing steamer; the
defect being one which could have been
discovered by examination. Nord-Dcutscher
Lloyd V. Insurance Co., 110 Fed. 420, 49
C. C. A. 1.

12. Failure to have a mechanical fog
horn in good condition for use at the



§ 4537



CARRIERS.



4064



water ballast is not screened to prevent the entrance of foreign substances
which might foul the valves connecting the pipe with the sea;^^ where there
is a failure to properly inspect the cement lining over the limber spaces ; ^^
where there is no inspection to see that portholes properly closed, made the
last thing before access to the ports were cut oft' ;i'' and where refrigerating



commencement of a voyage shows want
of due diligence in equippinj? the vessel,
and is not a fault in her management, so
as to excuse the owners from liability
under the Harter Act. The Niagara, 77
Fed. 329, affirmed in 84 Fed. 902, 28 C.
C. A. 528.

13. Failure to screen pipe connecting
valve with sea. — A ship wa's equipped
with a tank usable for cargo or water
ballast, into which extended a pipe 5^
inches in diameter, reaching nearly to the
bottom, and having its lower end open.
This pipe could be connected by valves
with the sea, and was used both for fill-
ing the tank and pumping it out. During
a voyage on which sugar was stowed in
the tank, the valve closing such pipe be-
came obstructed by a stick 5 inches long,
which the evidence tended to show was
drawn into the pipe from the tank when
the pumps were being tried; and sea
water entered through the opening,
which damaged the cargo. Held, that
the failure to place a rose or screen on
the lower end of the pipe to prevent the
entrance of foreign substances which
might foul the valve was a failure to ex-
ercise due diligence in equipment to
make the ship seaworthy at the begin-
ning of the voyage, and which rendered
her liable for the damage, under § 3 of
the Harter Act (Act Feb. 13, 1893, c.
105, 27 Stat. 445 fU. S. Comp. St., 1901,
p. 2946]). Decree 138 Fed. 743, affirmed
in The Brilliant, 159 Fed. 1022, 86 C. C.
A. 671.

A ship had a distribution box in the
pumproom, containing three valves; one
closing a pipe leading into a water-tight
tank usable for cargo or for water bal-
last. Such valve was controlled by a
spindle, and could be used to fill or empty
the tank, but, when the spindle was dis-
connected, became a nonreturn valve,
through which the tank could be pumped
out, but which would not permit water
to enter. There was a pipe connecting
the distribution box with the sea, con-
taining a sea valve. On the termination
of a long voyage at New York, it was
found that sea water had entered the
tank, and damaged sugar cargo stowed
therein. A survey showed that the sea
valve had become incrusted and leaked
slightly; also that the tank valve was ob-
structed by a stick five inches in length,
which prevented it from closing tightly.
There was also evidence that the spindle
was unshipped. Held, that whether or
not it was so disconnected was imma-
terial, since, if it was, the valve was
equally effective to prevent the entrance



of water, and the ship would not be for
that reason unseaworthy. Held, also, on
the evidence, that the obstruction lodged
in the valve while the pumps were being
tried during the voyage, and that the ship
was not unseaworthy at the beginning of
the voyage because of the defective con-
dition of either valve; it being shown
that they were properly constructed, and
were in good condition at that time. De-
cree 138 Fed. 743, affirmed in The Bril-
liant, 159 Fed. 1022, 86 C. C. A. 671.

14. Failure to inspect lining. — Sugar in
the hold of an iron steamship was dam-
aged by water coming in through a small
hole made by corrosion of the acid of
sugar drainage and sea water, which
reached the plate through cracks in the
lining of Portland cement. The evidence
was insufficient to show that the cracks
were caused by any accident after sailing.
Respondents relied on an exception in
the bill of lading of damage from unsea-
worthiness, provided "all reasonable
means have been taken" to make the ship
seaworthy, and also on the Harter Act^.
which exempts the carrier if he has ex-
ercised "due diligence" to make the ship
seaworthy, etc. Held that, in the in-
spection prior to the voyage, a failure to
take up one of four ceiling boards in
a passageway over the limber spaces, un-
derneath which the leak occurred, in or-
der to examine the cement, was a lack of
"due diligence" and "reasonable means"
to make the ship seaworthy, and the car-
rier was not exempted under the statute.
The Alvena, 74 Fed. 252, affirmed in 79
Fed. 973, 25 C. C. A. 261.

15. A steamship originally constructed
for passengers, but later used for the car-
riage of goods, had ports in the lower
between-decks, which were submerged
when she was fully loaded. They were
equipped with glass bull's-eyes, and shut-
ters for properly closing the same. On
commencing to load cargo at Batoum the
ports in a compartment were examined
and found properly closed, and the com-
partment was then partially filled with
wool. The vessel stopped at a number of
other ports on the Black Sea and the
Mediterranean, and took on more cargo;
the hatchway leading to such compart-
ment being used, and finally closed when
she started on the voyage for New York.
Shortly afterward water was discovered
in the hold under such compartment, and
on examination it was found that one of
the glass bull's-eyes had been stolen, and
that the water had entered through such
port and damaged the cargo. The brass
pins holding the bull's-eyes in a num.ber



4065



LIMITATIONS OF LIABILITY.



§ 4537



apparatus in good order and competent for the transportation of the cargo is
not furnished.^** But reasonable care of a vessel does not require docking
for examination more than once a year, in the absence of some known ne-
cessity for it.i"

Failure of Responsible Agent of Corporation to Inspect. — In an action
for loss of cargo, a contention on the part of respondent that its liability
should be limited to the value of the boat will not be sustained, where the
responsible agent of the company neglected to avail himself of an opportunity
to ascertain the unseaworthy condition of the boats. ^^

Affirmative Proof of Fact of Seaworthiness. — The immunity afforded by
the Harter Act by reason of the third section can not be had upon a pre-
sumption of law that the vessel was seaworthy at the beginning of the voy-
age.^^ But the burden is on the shipowner to prove, to establish by testimony,
that the vessel was seaworthy at the time of beginning the voyage, or that
due diligence had been used to make her so.^o This is the rule in all cases and



of the other ports had also been removed.
No inspection of the ports had been made
after the loading commenced at Batoum.
Held, that due diligence on the part of
the owners to render the vessel sea-
worthy when she commenced the voyage
required that such inspection should have
been made the last thing before access
to the ports was cut off, and that the
damage to cargo was due to unseaworth-
iness for which the vessel was liable. De-
cree 137 Fed. 443, affirmed in The Tene-
dos, 151 Fed. 1022, 82 C. C. A. 671.

16. Refrigerating apparatus.— See The
Southwark, 191 U. S. 1, 48 L. Ed. 65, 24
S. Ct. 1. _

The furnishing of a refrigerating ap-
paratus in good order and repair, com-
petent for the safe transportation of a
cargo of dressed beef which a vessel has
undertaken to carry, is within the obli-
gation to use due diligence to provide a
seaworthy vessel, imposed upon the
owner by the Harter Act (Act Feb. 13,
1893, c. 105, 27 Stat. 445 [U. S. Comp.
St., 1901, p. 2946]), as a condition prece-
dent to the enjoyment of the benefits of
that act in limiting the owner's liability
as provided therein. Judgment, The
Southwark, 108 Fed. 880, 48 C. C. A. 123,
reversed in 24 S. Ct. 1, 191 U. S. 1, 48
L. Rd. 65.

17. Docking.— The Sandfield, 79 Fed.
371, decree affirmed in 92 Fed. 663, 34 C.
C. A. 612.

18. Failure of responsible agent of cor-
poration to inspect. — Sanbcrn v. Wright,
etc., Lighterage Co., 171 Fed. 449, decree
affirmed in 179 Fed. 1021, 103 C. C. A. 666.

19. Affirmative proof of fact of sea-
worthiness.— Tlic Wildcroft, 201 U. S.
.'i78, 50 L. Ed. 794, 26 S. Ct. 467, saying:
"It is not a case where there is eitlier
the necessity or propriety of resorting to
presumptions."

It, therefore, became incumbent upon
the shipowner to show that a due and
proper inspection had been had and the
vessel ascertained to be in all respects sea-
worthy and fit to carry the cargo which



she had undertaken to transport, or that
due diligence to that end had been used.
The Wildcroft, 201 U. S. 378, 50 L. Ed.
794, 26 S. Ct. 467. See, also, The Edwin
I. Morrison, 153 U. S. 199, 38 L. Ed. 688,
14 S. Ct. 823; The Southwark, 191 U. S.
1, 48 L. Ed. 65, 24 S. Ct. 1.

20. The Wildcroft, 201 U. S. 378, 50 L.
Ed. 794, 26 S. Ct. 467; The Southwark, 191
U. S. 1, 48 L. Ed. 65, 24 S. Ct. 1; Inter-
national Nav. Co. V. Farr, etc., Mfg. Co.,
181 U. S. 218, 45 L. Ed. 830, 21 S. Ct.
591; The Edwin I. Morrison, 153 U. S.
199, 38 L. Ed. 688, 14 S. Ct. 823.

A carrier by water can only avail him-
self of the exemptions from liability for
errors of management and navigation pro-
vided by Harter Act Feb. 13, 1893, c. 105,
§ 3, 27 Stat. 445 [U. S. Comp. St., 1901, p.
2946], by affirmative proof that the vessel
was seaworthy at the beginning of the
voyage, or that due diligence had been
used to make her so, and such affirmative
proof cannot be supplied by inferences or
presumption. Decree 145 Fed. 569, af-
firmed in Bradley v. Lehigh Valley R. Co.,
153 Fed. 350, 82 C. C. A. 426.

Where, in an action against a shipowner
for merchandise lost, the shipowner set
up exemption from liability by Act Cong.
Feb. 13, 1893, c. 105, § 3 27 Stat. 445 (U.
S. Comp. St., 1901, p. 2946), commonly
known as the "Harter Act," and assumed
the burden of proof, and the evidence was
conflicting as to whether the shipowner
exercised "due diligence to make the ves-
sel in all respects seaworthy and properly
manned, equipped, and supplied" at the
commencement of the voyage, a charge
that, in order for the sinking of a vessel
a few hours after leaving port to raise a
presumption of unseaworthiness at the
time it left port, it would be necessary for
the evidence to show that the vessel sank
because of some fault in its construction,
or the stowage of its cargo, or of fault in
some respect which would make it un-
seaworthy at the time it left port, or that
it was not properly manned or equipped
or supplied, was confusing, and tended to



4537-4538



CARRIERS.



4066



is not limited to cases of conflicting proof. -^ But a shipowner is not deprived
of the protection given by § 3 of the Harter Act (Act Feb. 13, 1893, c. 105,
27 Stat., 445 [U. S. Comp. St., 1901, p. 2946]) against liability for injury to
cargo resulting from a broken suction pipe because it was not proved that
the pipe was inspected at the commencement of the voyage, where it is shown
that it was in good condition after the voyage commenced, that the break was
new, and it was sufficiently accounted for by the straining of the ship during
very rough weather on the voyage. -^

§ 4538. Instances of Fault or Error in Navigation or Management of
Vessel. — Neglect to open the sluice gates designed to empty the bilges, -^ or fail-
ure by reason of the sickness and death of the engineers during the voyage,^^



impress on the jury that it was incumbent
on the shipper to sliow that the vessel
was unseaworthy, rather than on the ship-
owner to show that it had exercised due
diligence to make the vessel in all respects
seaworthy, etc. Levy's Son & Co. v. Gib-
son Line, 61 S. E. 484, 130 Ga. 581.

Where, in an action against a ship-
owner for merchandise lost, the loss is
admitted, the burden is on the shipowner
setting up exemption from liability, un-
der Act Cong. Feb. 13, 1893, c. 105, § 3, 27
Stat. 445 (U. S. Comp. St.. 1901, p. 2946),
commonly known as the "Harter Act,"
providing that, if a shipowner shall ex-
ercise due diligence to make the vessel in
all respects seaworthy and properly
manned, equipped, and supplied, he shall
not be responsible for loss resulting from
errors in navigation or in the manage-
ment of the vessel, to prove that it exer-
cised due diligence to make the vessel in
all respects seaworthy and properly
manned, equipped, and supplied at the
commencement of the voyage. Levy's
Son & Co. V. Gibson Line, 61 S. E. 484,
130 Ga. 581.

Under a contract of affreightment to
carry wheat to the port of New York and
there deliver it on board a vessel for ex-
port, where the wheat on reaching that
port was loaded into a canal boat for
transport and delivery to the designated
vessel by the carrier's tug, the carrier is
lial:)le for its loss through the sinking of
the canal boat, whether resulting from un-
seaworthiness or from the negligence of
the towing tug or of the master of the
boat; its seaworthiness not being affirma-
tively shown. Decree, 145 Fed. 569, af-
firmed in Bradley v. Lehigh Valley R.
Co., 153 Fed. 350, 82 C. C. A. 426.

21. The Wildcroft, 201 U. S. 378, 50 L.
Ed. 794, 26 S. Ct. 467, citing and approv-
ing International Nav. Co. v. Farr, etc.,
Mfg. Co., 181 U. S. 218, 45 L. Ed. 830, 21
S. Ct. 591, and The Southwark, 191 U. S.
1, 48 L. Ed. 65, 24 S. Ct. 1. But see The
Chattahoochee, 173 U. S. 540. 43 L. Ed.
801, 19 S. Ct. 491, in which it is said: "By
the third section of that (the Harter) act,
the owner of a seaworthy vessel (and, in
the absence of proof to the contrary, a
vessel will be presumed to be seaworthy)



is no longer responsible to the cargo for
damage or loss resulting from faults or
errors in navigation or management."

22. The Indrani, 177 Fed. 914, 101 C.
C. A. 194.

23. Neglect to open sluices.— The open-
ing of a sluice gate designed to empty
the bilges was neglected for 20 days, dur-
ing heavy weather. The accumulating
water overflowed the bilges, and damaged
the cargo properly stowed in the hold.
Held, that the neglect to open the sluices,
if a fault, was one pertaining to the
"managing of the ship," within § 3 of the
Harter Act, and that the ship and owners
were exempted thereby from liability for
the resulting damage. Decree 79 Fed.
371, affirmed in The Sandfield, 92 Fed.
663, 34 C. C. A. 612.

24. Failure to pump out hold or bilge.
— -A cargo of hides and similar articles
shipped from South American ports to
New York was found at the conclusion of
an unusually long voyage, during warm
weather, to be seriously damaged from de-
cay. The bills of lading recited that the
cargo was received in apparent good or-
der and condition. The cargo .owners
alleged that the damage was caused by
sea water entering the ship through some
defect or unfitness, or by want of proper
care, while the defense was that the in-
jury resulted from sweating, heat, or nat-
ural decay, or from latent defects or
dampness existing prior to shipment. The
voyage was without storms or unusual
weather. Held, upon a consideration of
all the evidence, that there was no dam-
age by sea water through any leaks or
imperfection of the ship, which was
shown to be in good condition and thor-
oughly equipped for the removal of any
accumulation of water in the bilges,
which nothing in the circumstances of
the voyage rendered excessive; that the
damage was due either to an excess of
moisture in the cargo before shipment,
which procured the decay during the
long voyage, or to an accunuilation of
water in the bilges because of their not
having been given proper attention by
reason of the sickness and death of three
of the engineers from yellow fever during
the voyage, in which case the failure to



4067



LIMITATIONS OF LIABILITY,



§ 4538



to use the pumps to prevent accumulation of water in the holdr^ or in the
biljE^e ; lack of attention to vessel's pumps which might have disclosed a leak ; ^s
failure to test the valves before removing water ballast through a pipe passing
through cargo compartments ; ^' allowing water to escape from a pipe in trim-
ming a vessel by pumping out water ballast ; -'^ failure to close sea valve con-
necting with a pump used to pump out a cargo at port of destination ; -^ leav-
ing open a valve while water was being pumped into the engine tank ; ^^ the
tipping of a vessel by the head while discharging cargo for the purpose of ex-
amining her propeller; 31 are acts of management of the vessel for which the
owner is not liable under the Harter Act. The failure of the master to ascer-



use the pumps was a fault in the manage-
ment of the vessel, for which the owners
were exempted from liability by § 3 of
the Harter Act. The Merida, 107 Fed.
146. 46 C. C. A. 208.

25. The ballast tank of an ocean steamer
sprung- a leak during a voyage, and the
water accumulated in the hold above in
sufficient quantity to damage the cargo
stowed therein. The leak was known to
the engineer and carpenter, who failed to
report it to the chief officer, to give it a
proper examination, or to use the pumps
with sufficient frequency to prevent the
accumulation of water in the hold. The
pump was sufficient, and the proper use
of it would have prevented injury to the
cargo. Held, that such negligence was
the direct cause of the injury, and con-
stituted negligence in the "management
of the ship," for which the carrier was
exempted from liability by § 3 of the
Harter Act. The Ontario, 106 Fed. 324,
affirmed in 11.5 Fed. 769, 53 C. C. A. 199.

26. Lack of proper attention to a ves-
sel's pumps, which might have disclosed
a leak, and prevented damage which re-
sulted therefrom to the cargo, was negli-
gence in the "management of the ship,"
for which the ship was not liable under
the Harter Act. Decree 89 Fed. 872, af-
firmed in The British King, 92 Fed. 1018,
35 C. C. A. 159.

27. Failure to test valves before remov-
ing water ballast. — Failure of those in
charge of a vessel, before removing water
ballast through a pipe passing through
cargo compartments, to test the valves by
the means provided to ascertain whether
they were closed, is a neglect in the
"management of the ship," within the
meaning of the Harter Act. and the ves-
sel is not liable for resulting damage to
cargo. Decree The Mexican Prince. 82
Fed. 484. affirmed in 91 Fed. 1003, 34 C.
C. A. 168.

28. Escape of water from pipe in trim-
ming vessel. — Damage to cartro from
water allowed to escape from a pi])e in
trimming the vessel by pumping out water
ballast held due to a fault or error in the
management of the vessel within the
meaning of § 3 of the Harter .Act, for
which the owner was not liable. Jay

4 Car— 61



Wai Xam v. Anglo-American Oil Co., 202
Fed. 823, 121 C. C. A. 130.

29. Failure to close sea valves when
pumping out cargo. — Damage to a cargo
of molasses, through its dilution by sea
water while being pumped out at the port
of destination, held to have been due to



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