the parties interested, is not required to dismiss the proceedings for that reason, but may by its own process or its own order surrender the other vessels and make the distribution of the entire fund.19 $6959. Interest of Owner in Freight Pending-Meaning of Terms. In respect to freight pending which the owner is required to surrender to obtain the benefits of the limitation act, the term "freight pending" is regarded as meaning "freight earned"; and when the voyage is broken up by the wrecking of the vessel before reaching her destination, no freight has been earned, for, although prepaid, it may, in absence of a special contract, be recovered back by the shipper.20 Where, however, the voyage is terminated by a stranding short of destination, and passengers have prepaid their passage under a contract providing against refundment, the passage-money will be considered the same as freight earned, and must be surrendered.21 The term "freight earned" will include freight at current rates on goods carried by the vessel belonging to the vessel-owner. 22 The word "voyage" in the term "freight for the voyage" means each trip between the two terminal points, and not a round trip, and hence does not require the surrender of freight for preceding voyages.23 §6960. Formal Abandonment Not Required in Case of Total Loss. -In the case of a total loss of the vessel and cargo, it is not required that there should be a formal abandonment to entitle the owner to the benefits of the limited-liability act.2* § 6961. Limitation Applies to All Marine Injuries.-The limitation act applies to all classes of marine injuries, including claims for injuries to the person and loss of life resulting from collision,25 and "Oregon R. &c. Co. v. Balfour, 90 Fed. Rep. 295; s. c. 33 C. C. A. 57. Pacific Coast Co. v. Reynolds, 114 Fed. Rep. 877; s. c. 52 C. C. A. 497; In re La Bourgogne, 117 Fed. Rep. 261. Vessel-owners, under the limited-liability act, should, in colision cases, be credited with the expense of salvage, and with the vesser's proportion of the general-aver. age charges accruing after the collision, but not with any apportionment of freight or wages for a like period: The Abbie C. Stubbs, 28 Fed. Rep. 719. Pacific Coast Co. v. Reynolds, 114 Fed. Rep. 877; s. c. 52 C. C. A. 497. And no deduction can be made because certain of the tickets were given to the passengers by the shipowner, nor on account of a sum paid by such owner for the transportation of the passengers from the place of the stranding to their port of destination: Pacific Coast Co. v. Reynolds, supra. 23 22 The Bristol, 29 Fed. Rep. 867. 24 U. S. Rev. Stat. 1901, §§ 4284, 4285. See Brown v. Wilkinson, 15 M. & W. 391; The Peshtigo, 2 Flip. (U. S.) 466. 25 The Annie Faxon, 75 Fed. Rep. 312; The Catskill, 95 Fed. Rep. 700; The City of Columbus, 22 Fed. Rep. 460; Quinlan v. Pew, 56 Fed. Rep. losses by an unjustifiable sale of the cargo by the master after condemnation of the vessel as unseaworthy.26 The provision does not cover injuries to buildings and goods on land, as such losses are not strictly marine torts.27 .28 nor § 6962. Waiver of Right to Claim Benefits of Limitation Act.The owner of the vessel will not be held to have waived his right to claim the benefits of the limitation act by reason of having denied all liability on the trial of the issue as to the cause of the collision;2 by a surrender of the vessel to the underwriters;29 nor by participation in an action in personam in a State court;30 nor by so letting his vessel that the charterers become the owners pro hac vice.31 But where he sells the wreck after the stranding to other parties, after the filing of the libel but before the usual time, he will be held to have intentionally waived his right to claim the statutory limitation.32 § 6963. Time at which Value of Vessel and Freight will be Determined. The time at which the value of the vessel and freight is to be taken for fixing the owner's liability, where the vessel is not surrendered, is the termination of the voyage; and where the vessel is sunk, her value for this purpose will be her value immediately after sinking.35 Her value for this purpose is not affected by the result of any subsequent salvage measures, whether undertaken by the owners or others.34 Where the owner, at great risk and expense, has succeeded in releasing a stranded vessel and having her towed to port, where she is valued, it has been held, under this principle, that there must be deducted from the valuation at port not only the expense incurred in her release, but also an allowance on account of the risk and hazard of the 111; The St. John, 95 Fed. Rep. 700; 26 The Giles Lowering, 48 Fed. Rep. 463. 27 The Plymouth, 3 Wall. (U. S.) 20; Goodrich Transp. Co. v. Gagnon, 36 Fed. Rep. 123. Otherwise in the case of an injury to a viaduct: In re Vessel Owners' Towing Co., 26 Fed. Rep. 169. 172. 29 The Benefactor, 103 U. S. 239. The City of Norwich, 118 U. S. 468. 30 Gleason v. Duffy, 116 Fed. Rep. 298; s. c. 54 C. C. A. 100. Laches in invoking the admiralty jurisdiction warrants the court in requiring the shipowner, as a condition to the granting of the relief sought, to pay the costs incurred by the plaintiff in the State courts: The Ocean Spray, 117 Fed. Rep. 971. 91 Quinlan v. Pew, 56 Fed. Rep. 111. 32 Thomassen v. Whitwell, 9 Ben. (U. S.) 403. The Great Western, 118 U. S. 520; The City of Norwich, 118 U. S. 468; Norwich v. Wright, 13 Wall. (U. S.) 104; Ex parte Wright, 10 Ben. (U. S.) 14. 34 Pacific Coast Co. v. Reynolds, 114 Fed. Rep. 877; The City of Norwich, 118 U. S. 468. salvage undertaking, which clearly affected her value as she lay before the salvage operations were undertaken.35 $6964. Where Proceedings may be Instituted.-Proceedings by the shipowner for limitation of liability under the Federal statute or the admiralty rules may be brought in the District Court for any district in which the owner may be sued in that behalf, on paying into court, or stipulating to pay, the appraised value of the vessel, or upon transfer of his interest to a trustee; and the presence of the vessel within the district is not essential to the court's jurisdiction;36 and this is the case although, at the time the petition is filed, no suit has been brought against the vessel-owner.37 The defense of limited liability may be set up to an action in the State court, the statute containing no restriction as to how it may be availed of.38 §6965. Insurance Not an Interest in the Vessel.-The interest of an owner in the vessel is confined to his property interest in the vessel, and does not extend to insurance thereon. Insurance is considered a collateral contract personal to the insurer, guarding him against loss of the property by fire or other casualty, but not conferring on him any interest in the property. That he already has; and where he sells the property, the insurance will not follow it unless the insurer consents to the transfer of the policy to the grantee of the property. The conclusion that the interest of the owner did not include insurance was not readily reached by the Supreme Court of the United States. In the decision announcing the principle, four judges united in a strong dissenting opinion. Merited stress was laid in the dissenting opinion upon the hardship worked on cargo-owners by the application of this principle; but, as argued by the controlling opinion, the fact of insurance on the vessel by its owners did not prevent or interfere with a like display of prudence on the part of the cargo-owners by insuring their property.30 *Pacific Coast Co. v. Reynolds, 114 Fed. Rep. 877; s. c. 52 C. C. A. 497. Gleason v. Duffy, 116 Fed. Rep. 298; s. c. 54 C. C. A. 100; Churchill 1. The British America, 9 Ben. (U. S.) 516; The John Bramall, 10 Ben. (U.S.) 495. The Alpena, 10 Biss. (U. S.) 436. *Loughin v. McCaulley, 186 Pa. St. 517; s. c. 42 W. N. C. (Pa.) 519; 40 Atl. Rep. 1030. 39 The Great Western, 118 U. S. 520 (Miller, Harlan, Matthews, and Gray, J. J., dissenting). See, in further affirmation of the principle of the text: Butler v. Boston &c. S. S. Co., 130 U. S. 527; The City of Norwich, 118 U. S. 468; O'Brien V. Miller, 168 U. S. 306; The Peshtigo, 2 Flip. (U. S.) 466; The Scotland, 118 U. S. 507. § 6968. Scope of Act.-The Harter Act supplements the older limitation acts, and in express terms disclaims any intention to modify or repeal the older provisions. This act, so far as it has application in the present connection, provides that if the owner of any vessel transporting merchandise or property to or from any port in the United States shall exercise due diligence to make the vessel in all respects seaworthy, and shall properly man, equip and supply her, neither the vessel nor her owners or charterers shall be liable for damages or losses resulting to her cargo from faults or errors in navigation or in the management of the vessel.1 The act applies to foreign vessels carrying goods to or from the United States. § 6969. Not Applicable to Passengers or Baggage.-The Harter Act has reference solely to the transportation of "cargo," and does not apply to the transportation of passengers nor to their baggage when not shipped as freight." § 6970. "Due Diligence" to Make Vessel Seaworthy.-The duty to exercise "due diligence" to make the vessel seaworthy in all respects is not fully performed by the mere exercise of a high degree of diligence. The duty of the vessel-owner in this respect is absolute, and is satisfied only where the vessel is seaworthy at the inception of the voyage. In this respect there has been no change from the rules 1 Act Cong. February 13, 1893, ch. Silvia, 171 U. S. 462; s. c. 19 Sup. 105, § 3. 2 The Chattahoochee, 173 U. S. 540; s. c. 19 Sup. Ct. Rep. 491; The Silvia, 171 U. S. 462; s. c. 19 Sup. Ct. Rep. 7; The Frey, 92 Fed. Rep. 667. 3 The Kensington, 88 Fed. Rep. 331; The Rosedale, 88 Fed. Rep. 324; The Oregon, 88 Fed. Rep. 324. The Carib Prince, 170 U. S. 653; S. c. 18 Sup. Ct. Rep. 753; The Ct. Rep. 7; The Manitou, 116 Fed. Rep. 60; Farr &c. Man. Co. v. International Nav. Co., 94 Fed. Rep. 675; s. c. aff'd, 181 U. S. 218; 21 Sup. Ct. Rep. 591; The C. W. Elphicke, 122 Fed. Rep. 439; s. c. 58 C. C. A. 421; aff'g s. c. 117 Fed. Rep. 279; The Sandfield, 92 Fed. Rep. 663; s. c. 34 C. C. A. 612; aff'g s. c. 79 Fed. Rep. 371. 5 of the maritime law. Every contract for the carriage of goods implies the warranty on the part of the shipowner that the vessel is seaworthy at the time of beginning her voyage. The diligence required by the act must be exercised before and up to the time of beginning the royage. It is not required that the vessel, to be seaworthy, should be impregnable to all the assaults of the elements: the test is whether or not she is reasonably fit for the voyage. Vessels have been deemed not unseaworthy at the beginning of the voyage under these circumstances:-Where the ports between decks, eight inches in diameter, and a few feet above the waterline, were closed only with the glass covers, and the hatches were battened down, but could be taken off in two minutes, and the cargo was so stowed as to afford free access to the ports, and they were provided with additional covers of iron, which could be closed if deemed necessary;8 where a water-pipe passing through a cargo compartment was obstructed by a piece of wood, at the outset of a voyage, so that the water entered the compartment, the defect being accidental and temporary in character; and where a convertible steamer, built to carry fluids in bulk as well as dry cargo, and having a pipe-line running through the separated cargo compartments, which was provided with suitable controlling-valves, was not furnished with deck sounding-pipes.10 It has been held that a vessel was unseaworthy at the beginning of the voyage so as to make the owner of the vessel liable for damages to a shipment by leakage through the decks, where the seams in the deck had not been calked for some eight or nine years, and were in such condition as to permit any water falling on the deck to leak through.11 § 6971. Negligence in Stowage.-The Harter Act will not relieve a ship from liability for damages to a cargo resulting from negligence in stowage.12 371. 'Pacific Coast S. S. Co. v. Ban- C. C. A. 612; aff'g s. c. 79 Fed. Rep. croft-Whitney Co., 94 Fed. Rep. 180; s. c. 36 C. C. A. 135; aff'g s. c. 78 Fed. Rep. 155; The Nellie Floyd, 116 Fed. Rep. 80; Neilson v. Coal &c. Co., 122 Fed. Rep. 617. The Silvia, 171 U. S. 462; s. c. 19 Sup. Ct. Rep. 7. 'The Manitou, 116 Fed. Rep. 60. Thus, the fact that a single rivet, among many thousands used in the construction of her hull, was not as strong as the average, and parted under the stress of extraordinarily stormy weather, does not raise a presumption of unseaworthiness, rendering the owner liable for resulting damage to the cargo: The Sandfield, 92 Fed. Rep. 663; s. c. 34 The Mexican Prince, 91 Fed. Rep. 1003; s. c. 34 C. C. A. 168; aff'g s. c. 82 Fed. Rep. 484. 10 The Mexican Prince, 91 Fed. Rep. 1003; s. c. 34 C. C. A. 168; aff'g s. c. 82 Fed. Rep. 484. 80. "The Nellie Floyd, 116 Fed. Rep. 12 The Mississippi, 120 Fed. Rep. 1020; s. c. 56 C. C. A. 525; aff'g s. e. 113 Fed. Rep. 985. A new steel steamship, admittedly first-class in construction, equipment, and in |