The Harter Act, so-called, does not relieve the ship owner from
liability for damages caused by the unseaworthy condition of his
ship at the commencement of her voyage.
Nor is the ship owner exempted from liability under that act,
"for damage or loss resulting from faults or errors of navigation,
or in the management of said vessel" unless it appears that she was
actually seaworthy when she started or that the owner bad exercised
due diligence to make her so in all respects.
The mere fact that the owner provides a vessel properly
constructed and equipped is not conclusive that the owner has
exercised due diligence within the meaning of the act, for the
diligence required is diligence on
Page 181 U. S. 219
the part of all the owner's servants in the use of the equipment
before the commencement of the voyage and until it has actually
commenced, and the law recognizes no distinction founded on the
character of the servants employed to accomplish that result.
Whether a ship is reasonably fit to carry her cargo is a
question to be determined on all the facts and circumstances, and
the difference in the facts of this case from those in
The
Silvia, 171 U. S. 462, was
such that the court of appeals was at liberty to reach a different
result.
This was an action brought by the Farr & Bailey
Manufacturing Company against the International Navigation Company,
owner of the steamship
Indiana in the District Court of
the United States for the Eastern District of Pennsylvania, in
admiralty, to recover the sum of $2,084.15, for damages to twenty
bales of burlaps which were delivered to the navigation company at
Liverpool, England, on board that steamship, in good order and
condition, for carriage to the manufacturing company at
Philadelphia. Upon the arrival of the steamship at Philadelphia,
the burlaps were found to have been damaged by sea water. The case
was heard in the district court, and the libel sustained, and the
cause referred to a commissioner to determine the extent of the
loss. 94 F. 675. The navigation company applied for a reargument,
which was had, and thereupon the libel was dismissed. 94 F. 678.
From this decree the manufacturing company appealed to the Circuit
Court of Appeals for the Third Circuit, and that court, one of its
members dissenting, reversed the decree of the district court and
held the navigation company liable. 98 F. 636. The case was then
brought to this Court on certiorari.
In the first opinion of the district court it was stated that
--
"In May, 1895, twenty bales of burlaps in good condition were
received by the vessel in Liverpool, consigned to the libellant, in
Philadelphia, and a bill of lading was given therefor. The bales
were stowed with some other goods in compartment No. 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 very 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
Page 181 U. S. 220
port on the starboard side was admitting water freely as the
vessel rolled. Both covers of the port were unfastened and open,
but there was no sign of injury to either or to the surroundings of
the port. No severe weather had been encountered, and no accident
was known to have happened to the vessel. The ports in the
compartment were inspected the day before the vessel sailed, and
were believed to be closed, but several hours elapsed between the
time of inspection and the time of sailing. The libellant's burlaps
were injured by the water thus taken into the ship, and the present
suit has been brought to determine the respondent's liability."
"We have little difficulty in coming to the conclusion that the
vessel was a staunch boat, properly manned, equipped, and supplied,
and that she was in all respects fit for the voyage except in the
one respect of which the libellant complains -- the condition of
the after port on the starboard side in compartment No. 3."
And it was found "as a fact" that the port in question was
either not fastened at all or was insecurely fastened when the
vessel left Liverpool.
In the second opinion it was said:
"It seems to me that, although the owners of the vessel provided
the proper equipment for the porthole under consideration, and
although the failure to close it properly was due to negligence in
the use of such equipment, nevertheless the result was
unseaworthiness, because the vessel set sail with a hole in her
side that was not only unknown to her officers, but was believed
not to exist. She was therefore not in a condition to afford due
protection 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 circuit court of appeals said that --
"These goods were stowed in a compartment on the lower
Page 181 U. S. 221
steerage deck in such manner as to admit of free access being
had to the port through which the water subsequently entered. This
port, and others similarly situated, were inspected on the day
before the vessel sailed, and they were believed to be closed and
properly fastened; but, after the
Indiana had proceeded
for four or five days upon her voyage, water made its appearance in
the compartment, and a day or two later, investigation disclosed
that both the glass cover and the iron dummy of the port in
question were open, and that through this opening the water was
admitted. There had been no severe weather, no accident was known
to have happened, and the port, its covers, fastenings, and
surroundings, did not appear to have been in any way broken or
impaired."
And found as to the port:
"The impression made upon us by the evidence is that it was
probably closed, but, be this as it may, certain it is that it was
not securely fastened, and we are of opinion that, by reason of
this fact, the vessel was unseaworthy."
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Counsel for petitioner states that the question raised on this
record is:
"Was the
Indiana unseaworthy at the time of beginning
her voyage from Liverpool to Philadelphia, or was the failure to
securely fasten the port covers and keep them fastened a fault or
error in the management of the vessel under the exemption of the
'Harter Act?'
* "
Page 181 U. S. 222
The courts below concurred in the conclusion that the
Indiana was unseaworthy when she sailed because of the
condition of the porthole, but the district judge on the reargument
felt constrained to yield his individual convictions to the rule he
understood to have been laid down in
The Silvia,
171 U. S. 462.
The Silvia was decided, as all these cases must be,
upon its particular facts and circumstances. The case is thus
stated by MR. JUSTICE GRAY, who delivered the opinion of the
Court.
"
The Silvia, with the sugar in her lower hold, sailed
from
Page 181 U. S. 223
Matanzas for Philadelphia on the morning of February 16, 1894.
The compartment between decks next the forecastle had been fitted
up to carry steerage passengers, but on this voyage contained only
spare sails and ropes and a small quantity of stores. This
compartment had four round ports on each side, which were about
eight or nine feet above the water line when the vessel was
deep-laden. Each port was eight inches in diameter, furnished with
a cover of glass five-eighths of an inch thick, set in a brass
frame, as well as with an inner cover or dummy of iron. When the
ship sailed, the weather was fair, and the glass covers were
tightly closed, but the iron covers were left open in order to
light the compartment should it become necessary to get anything
from it, and the hatches were battened down, but could have been
opened in two minutes by knocking out the wedges. In the afternoon
of the day of sailing, the ship encountered rough weather, and the
glass cover of one of the ports was broken -- whether by the force
of the seas or by floating timber or wreckage was wholly a matter
of conjecture -- and the water came in through the port, and
damaged the sugar."
And again:
"But the contention that the
Silvia was unseaworthy
when she sailed from Matanzas is unsupported by the facts. The test
of seaworthiness is whether the vessel is reasonably fit to carry
the cargo which she has undertaken to transport. The portholes of
the compartment in question were furnished both with the usual
glass covers and with the usual iron shutters or dead lights, and
there is nothing in the case to justify an inference that there was
any defect in the construction of either. When she began her
voyage, the weather being fair, the glass covers only were shut,
and the iron ones were left open for the purpose of lighting the
compartment. Although the hatches were battened down, they could
have been taken off in two minutes, and no cargo was stowed against
the ports so as to prevent or embarrass access to them in case a
change of weather should make it necessary or proper to close the
iron shutters. Had the cargo been so stowed as to require much time
and labor to shift or remove it in order to get at the ports, the
fact
Page 181 U. S. 224
that the iron shutters were left open at the beginning of the
voyage might have rendered the ship unseaworthy.
But as no
cargo was so stowed, and the ports were in a place where these
shutters would usually be left open for the admission of light, and
could be speedily got at and closed if occasion should require,
there is no ground for holding that the ship was unseaworthy at the
time of sailing."
In the present case, the compartment in which the burlaps were
stowed was used exclusively as a cargo hold; the glass and iron
covers were intended to be securely closed before any cargo was
received; the persons whose duty it was to close them or see that
they were closed supposed that that had been properly done, and the
hatches were battened down with no expectation that any more
attention would be given to the port covers during the voyage; but
in fact the port was not securely covered, and there was apparently
nothing to prevent the influx of water, even under conditions not
at all extraordinary, the port being only two or three feet above
the water line.
We are of opinion that the difference in the facts between the
two cases was such that the court of appeals was at liberty to
reach a different result in this case from that arrived at in
The Silvia. The latter decision simply demonstrated the
justness of Lord Blackburn's observation in
Steel v. State Line
S.S. Co., L.R. 3 App.Cas. 72, that the question whether a ship
is reasonably fit to carry her cargo must be "determined upon the
whole circumstances and the whole evidence."
On the question of fact in this case, we have the concurrent
decisions of the two courts that the
Indiana was
unseaworthy at the commencement of the voyage, and as we find no
adequate ground to conclude that the finding was erroneous, the
settled doctrine that it should be accepted is applicable.
The
Carib Prince, 170 U. S. 655.
But it is contended that, in spite of the fact that the
condition of the porthole rendered the ship unseaworthy when she
sailed, the omission to securely cover it was a fault or error in
management and within the exemption of the third section of the
Harter Act. The proposition is that, if the owner provides a vessel
properly constructed and equipped, he is exempted from
liability
Page 181 U. S. 225
no matter how unseaworthy the vessel may actually be at the
commencement of the voyage, through negligent omission or
commission in the use of the equipment by the owner's servants. Or,
to put it in another way, if the unseaworthiness is not the result
of error or fault in management, the third section does not apply,
and even if it were, the exemption still cannot obtain unless it
appears that the owner used due diligence to make the vessel
seaworthy. And it is said that the owner does exercise such
diligence by providing a vessel properly constructed and equipped,
and that, while he is responsible for the misuse or nonuse of the
structure or equipment by his "shore" agents, he exercises due
diligence by the selection of competent "sea" agents, and that he
is not responsible for the acts of the latter, although they
produce unseaworthiness before the commencement of the voyage.
We cannot accede to a view which so completely destroys the
general rule that seaworthiness at the commencement of the voyage
is a condition precedent, and that fault in management is no
defense when there is lack of due diligence before the vessel
breaks ground.
We do not think that a shipowner exercises due diligence within
the meaning of the act by merely furnishing proper structure and
equipment, for the diligence required is diligence to make the ship
in all respects seaworthy, and that, in our judgment, means due
diligence on the part of all the owner's servants in the use of the
equipment, before the commencement of the voyage and until it is
actually commenced.
The ruling in
Dobell & Co. v. Steamship Rossmore
Co., (1895) 2 Q.B. 408, is in point. The
Rossmore
left Baltimore with a port improperly caulked, which rendered the
vessel unseaworthy, through the negligence of the ship's carpenter,
who was a competent person. Sea water entered through this port and
damaged the cargo. The bill of lading incorporated the Harter Act
by reference, and it was held, as correctly stated in the syllabus,
that
"to exempt the shipowner from liability, it was not sufficient
merely to show that he had personally exercised due diligence to
make the vessel seaworthy, but that it must be shown that those
persons whom he employed to act for him in
Page 181 U. S. 226
this respect had exercised due diligence, and that therefore the
negligence of the ship's carpenter prevented the exemption from
applying, and the shipowner was liable."
The obligation of the owner is, in the language of section two
of the act,
"to exercise due diligence, to properly equip, man, provision,
and outfit said vessel, and to make said vessel seaworthy and
capable of performing her intended voyage,"
and that obligation was not discharged when this vessel sailed
with a hole in her side under the circumstances disclosed, whether
the duty of seeing that it was closed devolved on officers of the
ship, or the foreman of the stevedores, or on all of them. The
obligation was to use due diligence to make her seaworthy before
she started on her voyage, and the law recognizes no distinction
founded on the character of the servants employed to accomplish
that result.
We repeat that, even if the loss occur through fault or error in
management, the exemption cannot be availed of unless the vessel
was seaworthy when she sailed, or due diligence to make her so had
been exercised, and it is for the owner to establish the existence
of one or the other of these conditions. The word "management" is
not used without limitation, and is not therefore applicable in a
general sense as well before as after sailing.
It is, of course, not to be understood as intimated that failure
to close portholes necessarily creates unseaworthiness. That
depends on circumstances, and we accept the finding of the district
court and of the court of appeals that it did so under the
circumstances of this case.
Nor do we say that the liability rests alone on the ignorance of
the officers that the port covers were not securely fastened. This
is not a case where it appears that the port would ordinarily have
been left open, to be closed as the exigency might require, and
where failure to close it during the voyage might be an error or
fault in management. The importance of this point is well
illustrated by Dallas, J., in the court of appeals, thus:
"But in the present case, the port in question was not
designedly left open, and its shutters ought not to have been left
unfastened. They would not 'usually be left open for the
Page 181 U. S. 227
admission of light,' or for any purpose. They were believed by
all concerned to have been securely closed, and that they would
remain so throughout the voyage. It was neither intended nor
expected that they would require or receive any attention at sea.
It was not supposed that any control of them in the course of
navigation and management would be necessary, and no duty to
exercise control existed, simply because no need nor occasion for
it could have been foreseen or perceived."
Decree affirmed.
* Act of February 13, 1893, 27 Stat. 445, c. 105, entitled "An
Act Relating to Navigation of Vessels, Bills of Lading, and to
Certain Obligations, Duties, and Rights in Connection with the
Carriage of Property." The first, second, and third sections
read:
"Be it enacted by the Senate and House of Representatives of the
United states of America in Congress assembled, That it shall not
be lawful for the manager, agent, master, or owner of any vessel
transporting merchandise or property from or between ports of the
United States and foreign ports to insert in any bill of lading or
shipping document any clause, covenant, or agreement whereby it,
he, or they shall be relieved from liability for loss or damage
arising from negligence, fault, or failure in proper loading,
stowage, custody, care, or proper delivery of any and all lawful
merchandise or property committed to its or their charge. Any and
all words or clauses of such import inserted in bills of lading or
shipping receipts shall be null and void and of no effect."
"SEC. 2. That it shall not be lawful for any vessel transporting
merchandise or property from or between ports of the United States
of America and foreign ports, her owner, master, agent, or manager,
to insert in any bill of lading or shipping document any covenant
or agreement whereby the obligations of the owner or owners of said
vessel to exercise due diligence, properly equip, man, provision,
and outfit said vessel, and to make said vessel seaworthy and
capable of performing her intended voyage, or whereby the
obligations of the master, officers, agents, or servants to
carefully handle and stow her cargo and to care for and properly
deliver same, shall in anywise be lessened, weakened, or
avoided."
"SEC. 3. That if the owner of any vessel transporting
merchandise or property to or from any port in the United States of
America shall exercise due diligence to make the said vessel in all
respects seaworthy and properly manned, equipped, and supplied,
neither the vessel, her owner or owners, agent, or charterers shall
become or be held responsible for damage or loss resulting from
faults or errors in navigation or in the management of said vessel,
nor shall the vessel, her owner or owners, charterers, agent, or
master be held liable for losses arising from dangers of the sea or
other navigable waters, acts of God, or public enemies, or the
inherent defect, quality, or vice of the thing carried, or from
insufficiency of package or seizure under legal process, or for
loss resulting from any act or omission of the shipper or owner of
the goods, his agent or representative, or from saving or
attempting to save life or property at sea, or from any deviation
in rendering such service."
