FARR &; BAILEY

·.

NAV. CO.

.675.

fereMe the Qf tlIe saddles of. the priQf structures. ,. T.QlVerv. Pencil Co. (April, 4, 94 Playi{lg-Card Co. v. (April 24, 1899) Id. 822. ,B,ill

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FARR & BAiLEY MFG. CO. v. INTERNATIONAL NAV. CO. (District Court, .E .. D. Pennsylvanit;.
1.

April 28, 1899.)

SHIPPING-INJURY TO CARGO-SEAWORTHINESS-EFFECT OF HARTER

ACT. , Section 3 of tbe Harter act (2 Supp. Rev. St. p. 81) does not relieve tbe owner from the duty of furnishing a seaworthy vessel at the beginning of the voyage, nor affect Ws liability for damage to the cargo arising from unseaworthiness, but only exempts him from liability for damage arising from the risks therein ,designated 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 n' seaworthy vessel by the less extensive obligation to exercise due diligence to that end, and it cannot be extended by construction beyond its terms.,

2.

SAME-)<'AULT IN MANAGEMENT OF VESSEL.

After a vessel had been out of port only four or five days, and had encountered no severe weather Or known accidents, both covers of one of her ports were found to be open, and water had entered and damaged cargo in the compartment into which the port opened. Neither the covers nor the surroundings of the port were injuTed, and the hatches had been battened down since the beginning of the voyage. Held, that neither evidence that the vessel was inspected the day before sailing, and the port believed to be' closed, nor even the positive testimony of witnesses that the covers were closed and screwed fast when the vessel sailed, was Elufficient to establis;h,such fact, but that, 'under the rule laid down in The Sylvi;a, 19 Sup. Ct. 7, 171 U. S. 462, the condition of the port did not render ,the, vessel unseaworthy, and tIW failure to close it before the injury was received by the cargo was a fault or error in the management of the vessel during the voyage, for which the owners are relieved from liability under section 3 of the Harter act.

This was'a libel in admiralty to recover for damage to cargo alleged to have arisen from unseaworthiness of the vessel. John F. Lewis and Horace L. Cheyney, for libelant Biddle & Ward and J. Rodman Paul, for respondent. McPHERSON, District Judge. This action is brought to recover damages to cargo under the following state of facts: The respondent is the owner of the steamship Indiana, a vessel plying between the ports of Liverpool and Philadelphia. In May, 1895, 20 bales of hurlaps, in good condition, were received by the vessel in Liverpool,: consigned to the lib.elant in Philadelphia. and a bill of lading was given therefor. The bales were stowed, with some other goods, in compartment Ko. 3 of the .lower steerage deck; but the compartment was not full, only one tier of cargo, two or three feet high, covering the floor, so that access to the .ports was easy and ,unobstructed. Four or five days after the vessel left Liverpool, water was discovered in the compartment; and when the hatches were opened, a.day or two later, it was found that the after port on the starboard side was admitting water freely ,as the vessel rolled. Both covers of the port

,and but tnet-,e was' no sign, ,of' injul'1',to either,' surroUJidings of' the port. No severe I weather had been encountered, and 'no accident was known to ha'\'ehappened to the vessel. The ports in the compartment were inspected the day before the veSS sailed, and were believed to be closed, but several hours l elapsed between the time of inspection and the time of sailing. The hurlapswere injured by the,rwater taken into the ship, suit has been brought to determine the respondent's and the ' liability. ,', It:isconceded that the ClUle requires the court to decide what beari'Ug the s?-called "Harter Act" of July 1, 1893 (2 Supp. Rev. St. p.81), the rights of the parties; for)t is clear that, if this statute bali! wade, nQ change in the relSpondent's obligation to furnish a seaworthy vessel, the 'libelant is entitled to recover.' As was said in The'Edwin . Morrison, 153 U. S. 215, USup. Ot. 829: ' I.

Ori', to, the

,.

.;

"The obligation rested on the owners to make such inf>pection as would ascertain that the cnpsand plates were secure. Their wnrranty that the vessel was seaworthy in fact did not depend on their knowledge or ignorance, their care or negligence. The burden, :was: upon them to ,shQcw seaworthiness, arid, if they did not do 'so, they failed to sustain that burden, even though owners are in the 'habit of not using precautions which would demonstrate the fact;" :

l'hisb:Ul'den the present resp()hdent also, did, not sustain, for the evidence l'1efore us does not show affirmatively .the vessel was seaworthy wben the voyage began. ,The best that can be said of the proof illl: that it leaves in doubt the .question how and when the port to'oe and such uncertainty would not'l'eUeve the carrier fr,Om Uatiilify,underthe rule aboveq'Uoted. contends, bowever, that tbethird section of the act of 1893 provides the needful relief. The positions are-First, that the respondent used due diligence to make the vessel Indiana in all respectElseaworthy, and properly manned, equipped, and supplied, and therefore that tbe respondent cannot be obliged to make good the libelant's loss. because such loss arose from a fault or error in navigation or in the management oftbe vessel; second, that, even if the loss occurred, not from a fault of navigation or management, but from at the beginning of the voyage, the act has so inodified the respondent's obligation to furnish a seaworthy vessel that, if due diligence was used in that behalf, the respondent is not liable to' make good the loss. 'Paking up the second position first, it must be conceded that the third 'section 'of the statute arouses some such expectation as the respondent'stlpposes to be enacted into law. The section begins by saying "that if the owner of any vessel transporting merchandise or propeMy to or from any port in the' United States of America shall to make the said vessel in all respects seaexercise due worthy and properly manned, equipped and 8upplied-"; and, after this beginning, 'one naturally expects to hear that, if the statutory eondition of diligence be fulfilled, tbevessel and her owners shall be relieved fromatleast some of the liabilities caused by unseaworthiness. But we' do not bear this at all. Eveni! the framers of the statute in-

FARR & BAILEY MFG. CO. V. I1'OTEHNATIONAL NAV. CO.

677

tended to replace the carrier's obligation to furnish a seaworthy vessel by the less extensive obligation to use due diligence to furnish such a vessel, the intention has not been expressed. The section goes on to provide, not that the carriel"'s warranty of seaworthiness shall be modified, but merely this: "Neither the vessel, her owner or own· ers, agent or charterers, shall become or be held responsible fol" damage or loss resulting' from faults or errors in navigation or in the man!lgement of said vessel; nor shall the vessel, her owner or owners, charterer? agent or master, be held liable for losses arising from dangers of the sea or other navigable waters," or from other' causes not now important. In other words, the section doE'S not touch, and therefore leaves unchanged, the carrier's liability for unseaworthiness; and this, as we understand the decisions of the supreme court, has already been decided by that tribunal. In the case of The Delaware, 161 U. S. 459, 16 Sup. Ct. 516, the general scope of the act was considered, and it was decided that its whole object was "to modify relations previously existing betwE'en the and her, cargo." It was accordingly held that the general language of section 3, which is broad enough to cover a cas'e of collision, did not relieve an offending vessel from liability for such a wrong,. although it was caused by a fault in the navigation or management of the vessel. In The Carib Prince, 170 L. S. 655,18 Sup. Ct. 758, the court say distinctly, referring to section 8:
"The exemption of the owners or charterers from loss resulting from 'faults or errors in navigation or in the management of the vessel,' and for certain' other designated· causes, in no way implies that, because the owner is HillS' exempted when he has been duly diligent, thereby the law has also relieved, him from the duty of furnishing a seaworthy vessel. The immunity from risks of a, described character, when due diligence has been used, cannot be so extended as to cause the statute to say that the owner, when he has been duly diligent, is not only exempted in accordance with the tenor of the statute from the limited and designated risks which are named therein, but is also relieved, as respects every claim of every other description, from the duty of furnishing a seaworthy ship."

In the latest opinion upon the statute, to be found in The Silvia, 171 U. S. 462, 19 Sup. Ot. 7, the effect of the deeision in The Cm'ib Prince was stated to be that the act "has not released the owner of a ship from the duty of making her seaworthy at the beginning of her voyage." 'Phese cases furnish a suffieient reply to the respondent's second position. We understand them to rule that the obligation of the owner to furnish a seaworthy ship is now just what it was before the act of 1893 was passed. In order to fulfill that obligation, he must show more than due diligence. He must show, as heretofore, that he htiS in fact furnished a seaworthy vessel; and, if he fails in his proof, he is still liable for an injury arising from an unseaworthy condition. This brings us to the consideration of the first position. whieh might present two questions of fact: First, was the respondent's ship unseaworthy when she left the port of Liverpool, and did this condi· tion cause the loss? And, second, if the loss was caused. not bv unsea worthiness, but by faults of navigation or management, had the

678
at

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"IL'

94 FEDERAL REPORTER.

1

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.

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it 'wil,l Qply be

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,a,.s reqJ*,eq ,! neCessary, to, t9'

act?, As ,we look

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the, first question. vessel

,Ill the . one, respect<)f; after on the fit,arboard sI4e mcompartment No., the condition 0r:this port at the', of the, the te3timony is Some of the respondent's, tes'tIfy ,with positiveness, that both covers were closed and screwed fast when the vessei d',',a,no" if, im,on,y" lJ3,',,'fl,ec, it the fact that, the port was properly But some of the WItnesse,s upon .this point !lrre :scarcely and we regard the others as mistaken. The effect of the respoIl-dent's, testimonY is at.Ieast balanced, not overbflla.\lced, by that, although tpe ship expeI:ienc;ed no severe an(l llisplayed no. mark of to .theport, nevertheless both cc;vers were 'fouJ;ld open a few (l,ays after the :her voyage. In QUf,9pinion, this' condifairly" eit)1er ,by suppqsing ,that tion of, affairs cl\n only; the whotestlfied>with the port ,WilJ;l nqt properly wh:en vesselleft Liverpool (although they may have honestly. supposed to .be in II proper or}:!,Y suppqSill-.g that, aft.e,r, tbe witnesses ",;110 testified that the port was closed had seeN it t;he SOVe ers were opened by some unknown person. EIther supposIhonls more probablethall to suppose .that the port was in by a that llO:Sign, or ,w3i'! openeifpYll p rson whoforced his way into the compartment after the, hatches hlld', dowp. We therefore find: as a fact, that the'port in question was either not fastened .at all, 'or 'was when the vessel left Liverpool. Ip'eIther that the vesse1wm( not seaworthy. In our. view of the case"this finding is deci§iv,e, Q'f the contrtnrersy: and accordingly wediuect a decree to be entered "adjudging, the respondent to be liable for the damage complaillsdof',by the libelant, and refeJ;'ring, the casy,to a,c()mmissioner to determine. the extent of the loss. ' On

boat, IP. all. re!'pects. fit"

K?f the vOYll;ge,

be

(June

:22,

1899.)

. The only question to be considered upon this reargument is whether the court was right in concluding that the vessel was unseaworthy when'she left Liverpool. 'If 'the point for the first time, so that itniight:be decided in accordance '''ith tMJrensoniug th;lt appeals most to my judgment, I should adliere to the Mncfusidn, already' stated.' I seems to' me that,' although the' oWilers of the vessel provided: the 'for the! 'Porthole duder consideration, andaltlioli'gh the :failure to close i't'pl'0ilt.'rly was due to negTigence irrtheuse of, such nevel;theless the result was unseaworthiness', be'catlse thee 'tessel:sefsailwith a holeiu her side that was ilot :only uI1knbwn but was believed not to exist. She-was, therefore,not ina condition to afIord due protection
.i .IJ:)

FARR & BAILEY rrU'G. CO. V. IKTlWKATIOXAL KAV. CO.

679

to the cargo in this particular compartment. If the hole had been caused by collision while she lay at her berth, and she had been sent upon her voyage without repair, it could not be successfully asserted that she was seaworthy, although the proper tools and materials might have been among the ship's stores, and the failure to repair might be properly said to have been due to negligence in failing to use the equipment at hand. The state of affairs produced by negligence seems to me to be more important than the character of the negligent act; and therefore; if, at the time when a voyage is begun, there is an open port in a cargo compartment, I should incline to the opinion that one element; at least, of unseaworthiness was present. This might not be decisive, it is true; for' another important inquiry, I think, should be this: Was it known to the proper officers that the port was either open or inl'lecurely fastened ?Obviously it would be unreasonable to require a ..vessel to leave her berth with all her portholes her peril during the voyage: But closed, andto,keep them a porthole that Is. known to be open in.a cargocompartmeht, and a porthole thati'Srnistakerily supposed to be. closed when the voyage begins, arelikelyto receive different degrees of attention, and might give rise'to different degrees of liability. Such a port, when known to be open, must be borne in mind by those responsible for the care of the vesselllnd of her cargo, and must be promptly closed .when danger threatens." Therefore, the port should be readily acce\3sible, so that it may be closed in a few minutes; and the. ship would be unif the, be so disposed that the port could not be easily reached.. But a port in such a compartment, when misfakenly supposed closed1,vhile it is actually. open or insecurely fastened, isno longer an object of attention or care. Whether, therefore, it be accessible or not,seems to be of little importance; for there is no into it for any purpose until the voyage is over. Meanwhile may be water may be invading the compartment and damaging the cargo, whl1c the master of the vessel is relying upon his mistaken belief that the porthole was closed when the voyage began. Such a mistake, as it seems tome, is not accurately described as a fault or error in the navigation or management of the vessel. Failure to close an accessible port would, no doubt, be such a fault or error in management, if the port was known to be open; but, if the port was mistakenly supposed to be shut when the voyage was begun, this appears rather to be a fault fitting the ship for the voyage, and a fault that is committed before the vessel sets sail. The master leaves the dock with a cargo compartment supposed to be tightly closed. If he owes to the cargo a duty continually to inspect the ports, and damage is done by reason of neglected inspection, 'such. neglect might be a fanlt in management. But it has not been suggested that such a duty exists under ordinary circumstances, and I do not dearly see what other duty of management the master can be said to neglect. There is a duty to provide against the danger that water may enter an open port; but, in the case supposed, the master believes that the duty to close was performed before the voyage began, and has no knowledge that the port is open. If, therefore, he has no ground to suspect that the port is open, and is ordinarily under no duty

94 FEDERAL ,REPORTER.

it seems1Upre r.easonable, to rest, his liability maybe done,upon the mista;ke in pl'eparfp,g, the for the voyage; " Tb.ere is some I tlUnk, in the tpf such a mistake cannot a fault or e,r1'01' IP. or managem-ent that had not then been begun. Jnight, said la", regards such a mistake as re,peated during ev,ev;Y; moment of :Ule'v:oyage;, butl think ,this would be of legl;l.l'iiction, not for the accomplishment of j\lstice. true tJ;1: it not always eR8Y to draw a line that may properJybe said to con!1tituteunseawol'thinesl:1,aIldomisl3ions' or acts thn:t, p:i*j be more properly' described as or errors of navigation or rn.1piagement. I .Failure to provide a corn.Pa,I:11l,Jorexample, mightfalliIito either "and so with other install,ce!l tpat might be specified., I But this would only be to say courts are continually sayin&, ,tMt nc;> rple could be laid down f(ll"allcases, and for: that reason I should prefer to confine my ,attention to .tM particular 'questjo'n before the court in a given case. " foregoing is perhaps a, indication of the reasons thatappeal)o my judgIIi¢nt in behalf of the disputed conclusion, must admit thatfu,rther consideration has convinced me that r I/.m not at liberty to allow them to' control the decision. Some of" the cases cited by the respondent can be, distinguished withqui difi]'cWty, and some are not of blnding authority; but I am un'able to a'v?id the effect of the decision in The Sylvia, 171 U. S.462, 19 Sup. Ot., 7. I am afraid that I B()Illewhat more than half shut my eyes to the facts of that Case. 'J,'hey are strikingly like the facts in the present controversy; so li:ke, ,'indeed, that I feel myself bound to accept the, conclusions drawn from, them by ttie" supreme court. I obey the authority of tribunal, therefore, aM now hold that the condition of the porthole when the ;£ndiana left!4verpool did not reno del' the vessel unseaworthy. It follows that failure to close the port .was a fault or error in management, comrnitteddliring the voyage, relieves the I'flspondentfrom lhibility for such and that the act of a fault. A decree will be entered dismissing the libel, with costs.
'.I'

to, lnspeqt

THEIDVANGEU (District L' N. D. May 26, 1899.)

MARITTMlIl'LmNS-MONEy'!!!UPPI.JltD TO VESSEL.

The maritime law gives a lien for' money' supplied for the use of 11 ship and necessary to enable her to on her voyage similar In all Its es, sentlal fi:!atu,res to maritime liens for other .kinds of necessary supplles. 1
. ,

. "

.. SAME-EFFEC,T OF SALE OF VESSEl, I;N ADMIRALTY.

All liens upon a vessel, whether Illlpressed by general maritime law or local iltatutes,or created by bonds or mortgages, are completely and finally extinguished by a sale of the vessel, ,pursuant to an admiralty decree In rem, and,nC) lien for a pre,exlsting 4ebt can thereafter be created or re, to The George Du.

1 For maritime liens for supplies anQ,;Il,l;)n-ices, see mois, 15 C.' p. A. 679. ' . '., ' . .