They had charge of the unloading and loading of cargo, determined the place of stowage and the order in which cargo was taken in. It is probably true that the master has the right to interfere to protect the ship from the carelessness of the stevedores, but it is an authority seldom exercised. The general agent of the claimant at New York testified that he was unable to give an instance where the master has interfered with the judgment of the superintendent of the pier. There have been occasions, however, when the master has protested against the action of the superintendent in placing weight in certain parts of the ship and, upon appeal to the general agent, the protest has been sustained. As to the general proposition there can be no doubt that the stevedores had nothing to do with the management of the ship and the master and crew had nothing to do with the handling of the cargo. If to the negligent unloading of the stevedores can be imputed the primal fault, it does not become a fault in the management of the ship because the master used his best endeavor to remedy it. He did not cause the unstable condition, the damage did not result from his management; he simply endeavored to prevent the threatened disaster.

The merchandise loaded on the Germanic in New York for the outward bound voyage stands upon a somewhat different footing from that of the incoming cargo. În no respect, however, are the points of In divergence favorable to the claimant and it is, therefore, unnecessary to discuss them. We are of the opinion that the damage was produced by negligent unloading, that this was not done in the management of the vessel, and that the vessel is not relieved from liability by the third section of the Harter act.

The decree of the District Court is affirmed with interest and costs.

WALLACE, Circuit Judge (dissenting). For the loss accruing to that part of the cargo of the Germanic which she carried from Liverpool, I think the libelants are not entitled to recover. As respects this part of the cargo, inasmuch as when its carriage began the Germanic was in all respects seaworthy, and properly manned, supplied, and equipped, if the loss resulted from "faults or errors in navigation or in the management" of the vessel, the vessel and her owners are exonerated from liability by the third section of the Harter act. The loss was caused by the sinking of the vessel at her dock at the termination of her voyage, while her cargo was being unladen, whereby water damage accrued to the part which had not been removed. It appears that she arrived at her dock Saturday, February 11th, at noon, with a list to starboard caused by the ice which had accumulated during her voyage to such an extent that it incrusted all her forward parts, including the bridge, rigging, and spars as high as the foreyard. On Monday, in the afternoon, when a large part of her cargo in the lower hold and on her orlop and steerage decks had been discharged, she suddenly rolled over to port, and in making this roll lost the cover to one of her coal ports. Thereupon her master undertook to rectify her instability by shifting some of the cargo in the lower hold from the port to the starboard side, and within an hour she rolled back again to her former starboard list. The discharge of her cargo was

then resumed, and coal was taken on board for her next voyage, with the effect of somewhat increasing her starboard list; but shortly after 9 o'clock p. m. she suddenly rolled over again to port, carrying the open port beneath the water line. The water flowed in through this opening faster than the pumps could control it, and she sank at her dock before outside relief could be obtained.

The District Judge found that the two lurches of the vessel to port were attributable to unloading the greater part of her cargo in the lower hold, and on the orlop and steerage decks, when she was topheavy and unstable because of the ice upon and above her upper deck, and that the disaster was caused by negligence in these respects and in omitting to protect the open coal port. In his opinion he reasoned

thus:

"Both contributed to the result-the first, by knocking off the coal port and leaving a large opening exposed; the second, by carrying the bottom of that opening below the water line. Without the second roll, the first would have produced no damage to the cargo. Without the first, the second would probably have carried away the cover, as the first did, and have resulted in substantially the same damage."

After the event it is apparent that it was injudicious, and perhaps culpable, to unload the lower parts of the vessel in her top-heavy condition; but I am not fully satisfied that this was a manifest risk at the time, or one which ought to have been foreseen, or that the unloading would have capsized the vessel, if it had not been for the fierce gale, which sprung up on Monday afternoon, and, deflecting from the building on the pier, bore against the starboard beam of the vessel. The assumption of the District Judge that, if the cover of the coal port had not been knocked off by the first roll, it probably would have been by the second, is merely conjectural. If it would have been knocked off by the second roll, the omission to protect it was not a contributory fault. For present purposes, however, I shall assume that the disaster was caused by the negligence of those in charge of the vessel.

If the acts of negligence were faults in the management of the vessel, it is quite immaterial that they were committed while she was in port. It is also immaterial that the unloading of the vessel was committed mainly or wholly to stevedores, and the suggestion that the master did not exercise any supervision over them, if warranted by the evidence, has no legitimate bearing upon the inquiry. The power of management resided with the master, and it was his duty to exercise it for the safety of the vessel during the time she was being unladen, as well as while she was at sea, and so long as he continued in command. As was said in The Glenochil (1896) Prob. 10:

"It may be that 'navigation' is a term applicable to something done during the voyage, but 'management' is a broader term and applies to everything done and which should be done for the safety and benefit of the vessel while her cargo is on board."

It is not fairly open to debate that the omission to protect the coal port was a fault in the management of the vessel. It was just such an omission which this court and the Supreme Court held to be within

the exemption of the Harter act in the case of The Silvia, 35 U. S. App. 395, 68 Fed. 230, 15 C. C. A. 362; Id., 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241. This fault, however, was not the proximate cause of the disaster. "The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidents of a superior or controlling agency are not the proximate causes and the reasonable ones, though that may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster." Insurance Company v. Boon, 95 U. S. 117, 130, 24 L. Ed. 395. The real inquiry, therefore, is whether the fault which consisted in not maintaining the stability of the vessel, or in not correcting her instability, was a fault in the management of the vessel. In other words, is it mismanagement of a vessel for the master to direct or permit such a distribution or disposition of the cargo as will endanger the vessel?

It seems to me this question is only capable of being answered in one way, and that any act done or omitted which necessarily affects the safety of the vessel herself, by those in charge of her management, is a fault in the management of the vessel. To read the statute as intended only to comprehend such acts as are intentionally or deliberately done or omitted with a view to the management of the vessel would be to read into it something which it does not contain.

It is urged, however, that the fault here was a fault in the management of the cargo; and that is the view which was adopted by the court below and is accepted by the opinion of this court. If this were correct in fact or in legal theory, it would neither be controlling nor persuasive. There was no fault in the management of the cargo, qua cargo, and the assertion is merely juggling with words. But, if it was a fault in the management of the cargo, it was also one in the management of the vessel, and therefore within the immunity of the third section. In the recent case of Rowson v. Atlantic Transport Company (1903) L. J. Rep. 72, K. B. D. 87, butter carried in the refrigerator of a vessel was injured upon the voyage by neglect in the management of the refrigerating apparatus. The court was of the opinion that, the refrigerating apparatus being a part of the vessel, the fault was one in the management of the vessel, within the meaning of the section. In that case there was more obvious fault in the management of the butter than there was in the management of the cargo in this case; but, because there was a fault in the management of a part of the vessel, it was held to be within the exemption of the third section. Here there was no want of care of the cargo itself.

The exemption created by the third section is not qualified by the terms of the first section. The first section of the statute interdicts shipowners from protecting themselves by special contract with shippers from losses arising from negligence in "proper loading, stowage, custody, care, or proper delivery" of any property committed to their charge. This section refers to acts which directly or primarily affect the cargo. In a broad sense any mismanagement of the vessel which imperils the cargo is a fault; and Congress could hardly have intended by the first section to prohibit shipowners from relieving themselves

from liability for faults in the custody or care of cargo, and by the thud. section to relieve them from such liability.

The case of The Glenochil, which has been referred to, is directly in point upon the general question. In that case, after the arrival of the vessal at her port of destination, and during the discharge of the cargo, in order to give her stability for the purpose of discharging her cargo, the engineer ran water into the ballast tank, but neglected to ascertain the condition of some of the connections, which had become broken in the heavy weather of the voyage, and through which the water damaged part of the cargo. The principle of the decision was that the fault was not in a matter affecting the cargo, but one in the management of the vessel "in doing something necessary for the safety of the ship herself." In that case what was done was done affirmatively in connection with the management of the vessel. In the present case the act was one of omission instead of commission.

The case of Knott v. Botany Mills, 179 U. S. 69, 21 Sup. Ct. 30, 45 L. Ed. 90, is distinguishable from the present case. The fault there consisted in stowing wet sugar in such juxtaposition to certain bales of wool that, when a certain other part of the cargo was discharged, the drainage from the sugar injured the wool. No injury would have resulted from the original stowage of the wool near the wet sugar, if the discharge of the cargo had not altered the trim of the ship. But the stowage was improper in view of what was subsequently done, and what should have been anticipated as likely to be done. The stowage was the original and proximate cause of the loss, although that cause became operative through a different cause. The court said:

"The wool should not have been stowed forward of the wet sugar, unless care was taken in the other loading, and in all subsequent changes in the loading, to see that the ship should not get down by the head."

I think that, in construing the Harter act, the judgment of the court has been unduly influenced by the supposed hardship of the case. It is suggested in the prevailing opinion that Congress could not have intended that losses should fall upon "innocent" cargo holders under circumstances of such culpable negligence as this case is assumed to disclose. In enacting the statute Congress had under consideration. the interests of innocent ship owners, as well as the interests of cargo owners and the underwriters who insure the vast majority of cargoes carried by sea for compensation which they deem adequate for the risks. The language of the statute implies the intention of Congress, on the one hand, to exact the highest diligence on the part of ship owners to provide vessels in all respects seaworthy and properly equipped, supplied, and manned, and, on the other hand, when they have exercised it to relieve them from the consequences of the faults of those over whom, as their business is usually conducted, they have no immediate control, and to whom they must commit the navigation and management of their vessels. The statute does not discriminate between gross faults and trivial faults, and when a loss has been caused by a fault of navigation or management of the vessel, and the ship owner has fully performed his obligation, it is the meaning of the statute that he shall not be liable.

For the loss accruing to that part of the cargo which was not carried by the Germanic from Liverpool, but was put on board at New York late on Monday afternoon and shortly before she sank, I think the libelants are entitled to recover. When it was taken on board the vessel was not in a seaworthy condition. Crippled with ice, unstable, and with an exposed port hole, she was not in a condition to carry cargo safely.

I am therefore of the opinion that the decree of the court belov should not be affirmed, but should be modified.

SEBECK V. PLATTDEUTSCHE VOLKSFEST VEREIN.

(Circuit Court of Appeals, Second Circuit. July 1, 1903.)

No. 129.

Plain

1. NEGLIGENCE-AMUSEMENT GROUNDS-FIREWORKS-CARE REQUIRED. Defendant was the owner of a park, at which it held public amus ments, for admission to which it charged a fee. Plaintiff attended a festival held at the park, at which defendant gave an exhibition of fireworks, which were manufactured and furnished by a skilled manufacturer, who had previously furnished the same to defendant. tiff was injured by fragments of a mortar, which burst by the premature explosion of a bomb, alleged to have resulted from negligence in its construction. Held, that an instruction that it was incumbent on defendant to use the care and prudence which would have been exercised by an ordinarily prudent and intelligent man to protect plaintiff from unnecessary risks, and that if defendant, by its amusement committee. who were not experts, exercised due care to employ a competent and skillful person to manufacture, produce, and discharge the fireworks, and exercised proper precautions to protect spectators by keeping them at a reasonable distance from the place of discharge, it was not guilty of negligence, was proper.

2 SAME-INSPECTION.

Where plaintiff was injured by the premature explosion of a bomb, discharged as a part of certain fireworks on an amusement field, which he attended as a spectator, and the evidence tended to show that the accident may have resulted from the improper charging and timing of the bomb, but such defect, if it existed, was not apparent or discoverable on inspection, a failure on the part of the owners of the amusement field to ascertain such defect was not negligence.

8. SAME.

Where plaintiff, a spectator at a park where certain fireworks were discharged, was injured by the premature bursting of a bomb, and it appeared that defendant exercised proper precautions for the protection of the spectators by keeping them a reasonable distance from the place of danger, the fact that one witness testified that the place where the fireworks were discharged was so narrow that it was not a safe one to set off bombs of the character used did not require a charge that, if the jury found that the place was so small as to render it a dangerous one, they must find for plaintiff; the court having charged that it was a question of fact for the jury whether the place in which they were set off, in view of the precautions which were taken to keep the audience a proper distance away, was reasonably safe.

11. Negligence causing injury to persons at public entertainment or exhibition, see note to Texas State Fair v. Brittain, 56 C. C. A. 502.