Everett P. Wheeler, for appellant.

Walter F. Taylor, for appellees Aitken and others.

Wilhelmus Mynderse, for appellees Insurance Company of North America and others.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

COXE, Circuit Judge. The facts are stated with great care and accuracy by the District Judge and need not be repeated here. The Germanic (D. C.) 107 Fed. 294. His statement is challenged in a few unimportant particulars, but no error is pointed out which, in our judgment, affects the correctness of his conclusions. It is said, for instance, that the finding that the wind at the time of the first list to port was northerly is incorrect, the wind having suddenly shifted to the northwest about 4 p. m. It is also argued that the judge's estimate of the weight of ice on the steamer's decks and upper works at 213 tons is too high. We are inclined to regard this as a conservative estimate and much more reliable than the conjecture of the master who placed the weight at 180 tons. But even if the conclusions of the appellant in both these particulars be accepted as correct the same deductions follow. So far as the weight of the ice is concerned it is practically conceded by the libelants' counsel that the difference. in the two estimates is immaterial. He says:

"The exact determination of this amount is unimportant, and for the sake of the argument we assume the correctness of Judge Brown's figures."

The District Court found that the damages were caused by two sudden lurches to port, the first knocking off the cover of the coal port and the second carrying the bottom of the port below the water line, and that these lurches were produced by the unstable and topheavy condition of the steamer arising from the inconsiderate unloading of nearly all of her cargo without any regard to the great weight of ice and snow above her decks. We fully concur in these conclusions and in the reasoning by which they are supported and deem it unnecessary to add anything to the opinion of the district judge.

The contention that the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]) constitutes a complete defense to the action necessitates further observation. The first section of the act is evidently in the interest of the shipper and was intended for his protection. It provides that it shall be unlawful to insert in a bill of lading any agreement relieving the vessel or her owner 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." All words and clauses of such import inserted in bills of lading are declared to be "null and void and of no effect." It is plain that by virtue of this section a carrier cannot avoid liability for negligence in the loading, stowage, custody, care and delivery of merchandise.

The second section (27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]) is also in the interest of the shipper. It makes it unlawful to insert

in a bill of lading any agreement whereby the obligation of the owner of a vessel "to exercise due diligence properly to equip * * * and to make said vessel seaworthy * * * 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 the same, shall in any wise be lessened, weakened, or avoided." This section recognizes the obligation to use due diligence to provide a seaworthy vessel and carefully to handle, stow, care for and deliver the cargo and makes it unlawful to insert a clause whereby these obligations are avoided or weakened.

The third section (27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]), which is relied upon by appellant, is in the interest of the carrier and is evidently intended as a compensation for the loss of his right to limit his liability as provided in the preceding sections, the effort of the lawmakers, apparently, being to adjust the rights and obligations of each upon a fair and reasonable basis. The section provides that if the owner of a vessel shall exercise due diligence to make the vessel seaworthy and properly manned, equipped and supplied then and in that case neither the vessel nor her owner shall be responsible for damages "resulting from faults or errors in navigation or in the management of said vessel." Reading these provisions together and in the light of the interpretation placed upon them by the courts it seems plain that the carrier is still liable for negligence in the loading, stowage, custody, care, handling and delivery of the cargo and that neither the carrier nor the vessel is liable for faults or errors in the navigation or in the management of the vessel, but in order to avail himself of this exemption he must use due diligence to provide a seaworthy vessel properly manned and equipped.

The Supreme Court in the case of The Carib Prince, 170 U. S. 655, 18 Sup. Ct. 753, 42 L. Ed. 1181, decided that the act did not exempt the vessel from injury occasioned by a latent defect in the peak ballast tank caused by a broken rivet head which left a hole through which the water entered and injured the cargo. It was also decided that the third section exempted from liability only where the damage resulted from dangers of the sea or faults in the navigation or management of the ship. The C. W. Elphicke, 122 Fed. 439.

In The Irrawaddy, 171 U. S. 187, 18 Sup. Ct. 831, 43 L. Ed. 130, the court, at page 192, 171 U. S., page 833, 18 Sup. Ct., 43 L. Ed. 130,

says:

"Plainly the main purposes of the act were to relieve the shipowner from liability for latent defects, not discoverable by the utmost care and diligence, and, in event that he has exercised due diligence to make his vessel seaworthy, to exempt him and the ship from responsibility for damage or loss resulting from faults or errors in navigation or in the management of the vessel."

The court refused to extend the act so as to permit the owner to share in the benefits of a general average contribution to meet losses due to faults in management and navigation.

In the case of Knott v. Botany Mills, 179 U. S. 69, 21 Sup. Ct. 30, 45 L. Ed. 90, a cargo of wool was injured by drainage from wet sugar taken on at a subsequent port. At a third port cargo aft was

discharged so that the ship was two feet down by the head, causing the drainage to flow forward and injure the wool. The supreme court held the damage was the result of fault in the loading or stowage of the cargo and not of a fault in the navigation or management of the ship.

In The Manitoba (D. C.) 104 Fed. 145, the court refused to extend the exemptions of the Harter act to a case where, through insufficient care during loading, a cargo port was left open on sailing. It was held that the condition of the port being unknown to the officers of the vessel made her unseaworthy as to cargo stowed in that compartment and that there was also "a failure in the proper stowage and care of the goods" within the first section of the act. At page 155 the court says:

"To entitle the ship and owner, however, to exemption under the third section of the Harter act, it is not enough to show that some of the several causes therein named contributed to the loss. To exempt the shipowner, the statute requires that the damage must have 'resulted' from one or more of those causes; and this requires that some one or more of those causes must have been the real, substantial or efficient cause of the loss. But if the causes of the loss are several, and one of them is negligence of the carrier not within section three and a sea peril has become operative and produced damage not by itself per se, but only in consequence of the carrier's negligence, which has made it operative, then the rule long applied as between ship and shipper in the construction of bills of lading (and the same rule must be applied here), is that the negligence and not the sea peril, is to be deemed the efficient and proximate cause of the loss. * In such cases the damage does not properly 'result' so much from the sea peril as from the negligence that has given opportunity for the operation of that peril."

* *

The leading case in which the ship has been relieved from liability is The Silvia, 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241. The court there held that the vessel was actually seaworthy at the inception of the voyage and that the injury to the cargo was occasioned by the neglect to close the iron shutter of a port hole, the glass cover being broken during the voyage, and that this was a fault arising in the "navigation or management of the ship." The court says:

"This case does not require a comprehensive definition of the words 'navigation' and 'management' of a vessel, within the meaning of the act of Congress. They might not include stowage of cargo, not affecting the fitness of the ship to carry her cargo. But they do include, at least, the control, during the voyage, of everything with which the vessel is equipped for the purpose of protecting her and her cargo against the 'inroad of the seas."

In Int. Nav. Co. v. Farr & Bailey Co., 181 U. S. 218, 21 Sup. Ct. 591, 45 L. Ed. 830, the court refused to extend the doctrine of The Silvia to a case where damage resulted from water admitted through an open port as the vessel rolled in a heavy sea, it appearing that neither the glass cover nor the iron dummy was properly fastened when the vessel left Liverpool.

In The Glenochil (1896) Prob. Div. 10, 8 Asp. N. S. 218, the negligence consisted in the mismanagement of part of the appliances of the ship. In order to stiffen her so as to complete the discharge of the cargo it became necessary to fill one of the water ballast tanks. The tank was accordingly filled, but owing to an injury received during the voyage water was admitted from the tank to the cargo and

damage resulted. The filling of the tank was held to be an act done in the management of the ship.

The other authorities relied on by appellant, upon this branch of the case, are the decisions of foreign tribunals which it is unnecessary to examine in detail as they shed little light upon the point in controversy, especially in view of the opinions of the supreme court which, though based upon differing facts, seem to lead to contrary conclusions. These authorities, and many others bearing upon the construction of the Harter act, will be found in the comprehensive opinion of the court in The Manitoba, supra.

It must be admitted that the trend of judicial decision in the United States has been to construe the Harter act strictly and not to extend the carrier's exemption from liability to doubtful and uncertain cases. The tendency has been to leave the liability of the ship and the owner as it was defined and enforced by the law maritime and by the coinmon law unless the act plainly and unequivocally asserts a different liability. It is idle to disguise the fact that the circumstances in the case at bar naturally predispose the court to hold the vessel liable unless her exemption be made apparent by the express terms of the act. In other words, it is not a case where the act should be strained to shield the ship. Where a staunch and strong vessel arrives safely at her destination and subsequently sinks at her berth, after being made top-heavy by the careless and premature removal of cargo, the situation compels the conclusion that the lawmakers could not have intended that the loss should fall upon the innocent cargo owners and that there should be a complete exemption from liability on the part of those whose negligence caused the loss. Such a result would be foreign to the intent and purpose of the act.

It is obvious that "faults or errors in the management of the vessel" do not include "fault or failure in proper loading, stowage, custody, care or delivery of" cargo. If this were otherwise the first and third sections would be antagonistic and the vessel which is made liable for improper handling of the cargo by the first section is relieved from liability by the third section. This distinction between the vessel and her cargo and between the management of the vessel and the management of her cargo is distinctly recognized in the act and in the decisions interpreting it. It is true that the word “unloading" is not used in the first section, but as pointed out in the opinion below, and in the briefs, it is certainly excluded from the meaning of the phrase "management of the ship" and so the obligation to discharge the cargo properly remains as it existed prior to the passage of the act. Indeed, it would not be an unnatural or strained construction to hold that the prohibition against any attempt to relieve from liability for negligence in proper "loading, stowage, custody, care or delivery" of cargo includes negligence in unloading as well.

We are of the opinion that a condition of instability brought about by the improper unloading, care and custody of the cargo is not a fault in the management of the vessel. This distinction was clearly recognized in the Botany Mills Case, supra. In that case by the careless discharge of cargo at Para the vessel was trimmed by the head

and the drainage ran into the compartment near the bow where the wool was stowed and injured it. In the case at bar by the careless discharge of cargo at New York the vessel became top-heavy and lurched violently to port until an open coal port was carried down below the water line, sinking the ship and injuring all the merchandise on board. Other faults may have combined to produce this result, but the improper loading and care of the cargo was the initial cause and produced a condition of affairs which gave to acts and omissions, harmless and even laudable in themselves, the appearance of grave and culpable errors. Conceding, arguendo, that loading the coal in the side bunkers helped to produce the condition of instability and that it was done in "the management of the vessel," it is by no means conclusive of appellant's liability. The only deduction to be drawn is that this fault, for which the vessel is not liable, contributed with other faults, for which she is liable, to produce the disaster.

The same conclusion would follow were a similar concession made regarding the failure to supply a substitute for the lost port cover. Where a disaster is due to a combination of negligent acts liability is established by the proof of one of these acts and the party so charged will not be exculpated by showing that other faults for which he is not responsible contributed to produce the result. Whether this exemption from liability for these contributing acts be established by proof or is the result of an express statute is immaterial. It is enough that the party charged with negligence has been proved guilty of negligence.

The act complained of, namely, the hurried and improvident removal of the cargo, had no relation to the management of the ship, as such. It was not undertaken with the intent to benefit, influence or change her in the remotest particular. It dealt with the cargo as distinguished from the ship. The fact that the unskillful loading by a stevedore may affect injuriously the sailing qualities of the ship does not make the loading an act undertaken "in the management of said vessel" any more than the loading or unloading of a freight car can be regarded as part of the management of a railroad train. This proposition is well stated in the brief of the libelant Aitken, as follows:

"The fact that an act primarily having to do with cargo must incidentally affect the ship, does not bring it within the class of acts done in the management of the ship. If the particular manner of performance adopted is not adopted with a view to its effect on the ship, but does affect the ship in a way that causes damage to cargo, the ship is not exempted from liability. * The controlling fact is that the effect on the ship is produced without intention and by accident. The negligence is in the manner of performing the act intended, to wit, the act having to do with cargo. It is not in the management of the ship because no act intended to affect the welfare of the ship is being performed."

The evidence is overwhelming that after the Germanic was made fast she was given in charge of the "shore agents" of the owner and they alone assumed direction of the discharging and loading of cargo and preparing her for the return voyage. The officers and crew had nothing whatever to do with the employment of stevedores or the discharging, loading and coaling of the ship. All these operations. were carried on by the shore department under orders from the dock.