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were regular and that the sale ought to be consummated. Under those circumstances it is not inappropriate to refer to what was said in Mitchel v. United States, 9 Pet. 711,| 742 [9:283, 294], in reference to the validity of a grant in Florida:

"It was done on the deliberate advice of an officer responsible to the crown, which makes the presumption very strong, if not irresistible, that everything preceding it had been lawfully and rightfully done."

under the laws and orders of the government,
the proceeds from the revenues and the con-
tingents of the states.

"Art. 5. The revenue on powder, salt deposits, the proceeds from the revenue on tobacco that belong to the federation, national properties and vacant lands (cascos), contingents, customs, tolls, and all the branches pertaining to the public credit, shall be administered directly by the commissary. The revenue on tobacco in the places where Again, it must be noticed that according raised, that from the maritime customs, from to the report of the proceedings the money the mail and lotteries, shall continue under received for this land was paid into the pub-their special administration, subordinate in lic treasury, the entry on the account book all respects to the commissaries." being in these words:

Obviously these articles gave to this newly created officer the fullest powers in respect 232] Charged one hundred and sixteen dollars, to the national revenues. When an office is two reales and five grains paid by Don Jose created with such large powers as these, and Maria Serrano in the name of and as attor the incumbent thereof, reviewing proceedings ney for Don Leon Herreros, resident of the theretofore had by prior representatives of company of Pimas at Tubac, in the following the government, and finding that a sale made manner: One hundred and five dollars as by one of such prior officers has resulted in the principal value for which was auctioned the payment of the cash proceeds thereof by this intendencia one sitio and three quar-into the public treasury, confirms his action, ters of another of lands for raising cattle con- ratifies his proceedings and issues appropri tained in the place of San Jose de Sonoita, situated in the jurisdiction of said company; six dollars, one real and seven grains for the said half annual charge and eighteen per cent for transfer to Spain; two dollars, ten grains for the two per cent as a general charge, and the three dollars as dues for the extin

guished account, as is explained by the order
of the intendencia marked No. 32, $116 2r.5g.
Escalante.
Fuente.

Jose Maria Serrano.

ate titie papers therefor, it would seem that
any doubts which might hang over the power
of the prior officer were put at rest, and that
thereafter no question could be raised as to
the validity of the sale.

And, indeed, such seems to have been the

assumption on the part of the government of the time of the execution of these title papers Mexico, for there is no suggestion that from in 1825 up to the date of the cession, 1853, the government ever raised any question as to the validity of the sale or sought to disIt would seem not unwarranted and un-turb ine possession of the grantee. While of reasonable to refer to the familiar rule that course time does not run against the governwhere an agent, even without express author-ment, and no prescription, perhaps, may be ity, makes a sale of the property of his prin- affirmed in favor of the validity of this grant, cipal, and the latter with full knowledge re- yet the inaction of the government during ceives the money paid on account thereof, these many years is very persuasive, not his retention of the purchase price is equiva- merely that it considered *that the intendant[234] lent to a ratification of the sale. We do not had the power to make the sale, but that in mean, however, to state this as a general fact he did have such power. These considproposition controlling all municipal and erations lead us to the conclusion that this governmental transactions, but only as one grant was one which, at the time of the cesof the circumstances tending to strengthen sion in 1853, was recognized by the governthe conclusion that these acts of the intend- ment of Mexico as valid, and therefore one ant were not mere usurpations of authority, which it was the duty of this government to but were in the discharge of duties and the respect and enforce. exercise of powers conceded to belong to his office.

We pass, therefore, to a consideration of the second question, and that is, the extent Passing beyond the action of the intend- of the grant. It is claimed by the appellant ant, we find that in 1825 the commissary that the grant should be sustained to the exgeneral executed title papers, thereby rati- tent of the outboundaries named in the surfying the sale made by the intendant four vey. He insists that the accepted rule of years before. We have heretofore quoted the common law is, that metes and bounds articles 1 and 2 of the act of September 21, control area; that a survey was in fact made 1824, creating such office. We now quote and possession given according to such surarticles 3, 4, and 5: vey, and that although it now turns out that "Art. 3. These commissaries shall be, in the area within the survey is largely in exthe state or states and territories of their de-cess of the amount applied and paid for, the [233]marcation, head officers of all *branches of the grant must be held effective for the area exchequer. Consequently they are responsible within the survey.

for the prompt execution of the laws that We had occasion to examine this question govern their administration, and all employ-in Ainsa v. United States, 161 U. S. 208, 229 ees thereof shall be subordinate to them. [40:673, 680], and there said:

"Art. 4. They shall collect and disburse,

"So monuments control courses and dis

tances, and courses and distances control quantity, but where there is uncertainty in specific description, the quantity named may be of decisive weight, and necessarily so if the intention to convey only so much and no more is plain."

same time, that, continuing the measurement
along the cañon (because it was impossible to
go in any other direction on account of the
roughness of the ground), by reason of the
many turns that had to be made, so many
cords should be deducted from the total
number measured as would be calculated to
result in excess of the *real length measured (236
taken on a straight line, and considering
his demand reasonable I ordered the con-
tinuation of the survey as follows, to wit.

We think this case comes within the rule thus stated. The defendant in his answer alleges that the grant comprises 12,147.69 acres, while counsel for the government say that the measurements given by the surveyor make the area 22,925.87 acres. The amount of land appraised, advertised, sold and auc- "And in view of the suggestion made by tioned off was one and three quarter sitios the claimant to reduce the number of cords (7,591.61 acres). While, of course, any slight actually measured so much as might be caldiscrepancy between the area of the survey culated to be in fact in excess of the true and that ostensibly sold might be ignored, measurement by reason of the many turns of yet the difference between the amount which the cañon over which the survey was made, as was understood to have been sold and the it could not be carried on straight, I apamount now found to be within the limits of pointed for that purpose Lieutenant Don the survey is so great as to suggest the pro- Manuel Leon and the citizen Don Jose Ma. priety of the application of the rule laid down Sotelo who were unanimously of the opinion in Ainsa v. United States, supra. There can to deduct twenty-five cords out of the three be no doubt from the record of the proceed- hundred and twelve cords measured in the ings that one and three quarter sitios was all last survey down the cañon, the claimant conthat the purchaser supposed he had pur-senting thereto as just; the survey was cal [235]chased, all that the intendant supposed he culated to be two hundred and eighty cords, had sold, and all that was advertised or paid with which this survey was finished, result for. The original petition, after stating that ing from it one sitio and three fourths of anthere was a place known as San Jose de other sitio, registered by Don Leon Herreros Sonoita, declared that the petitioner for raising stock and for farming purposes." registered "in the aforesaid place two sitios The appraisers reported as follows: of land," which he desired to have surveyed, and to pay therefor the just price at which it might be valued. The petition therefore was not for any tract known by a given name, but for a certain amount of land in such place. The report of the survey is very suggestive. We quote from it as follows:

"In virtue thereof they said that according to and because of the examination they had made and being aware of the existing regulations on the subject, the price should be fixed at, and they fixed it at, sixty dollars for each sitio, because they have running water and several banks of arable land which can be made use of by cultivation."

The direction for the almoneda or offer of sale was of the lands "composed of one sitio and three fourths of another." The first almoneda was of lands "comprising one sitio and three fourths of another. and appraised in the sum of one hundred and five dollars, at the rate of sixty dollars per sitio." The property put up for sale was lands “comprising one sitio and three fourths of another,

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"In the ancient abandoned place of San Jose de Sonoita, on the 26th day of the month of June, 1821, I, the said lieutenant commander and subdelegate of the military post and company of Tubac and its jurisdiction, in order to make the survey of the land denounced by Don Leon Herreros of this vicinity, delivered to the appointed officials ■ well twisted and stretched cord, and in my presence was delivered to them a castilian appraised at one hundred and five vara, on which cord were measured and dollars, at the rate of sixty dollars each counted fifty regulation varas, and this be- sitio." The report of the promoter fiscal ing done, at each were tied poles, and stand-opens with this statement: ing on the spot assigned by the claimant as "The promoter fiscal of this treasury has the center, which was in the very walls of the examined carefully the expediente of the already mentioned Sonoita, there were lands surveyed in favor of Don Leon Hermeasured in a northeasterly direction sixty-reros, resident of the military post of Tubac, three cords, which ended at the foot of some by the Commissioner Don Elias Ygnacio low hills, a little ahead of a spring-a chain Gonzales, lieutenant commander of the 237] of mountains of a valley which goes on and post, in the place called San Jose de Sonoita, turns to the east, where was placed a heap in that jurisdiction, from which resulted one of stones as a monument; and being about sitio and three fourths of another, for raising to return to the center, the claimant ex-stock and horses, valued at sixty dollars each pressed a desire that the survey should be continued down the cañon until the two sitios should be completed, that on each side we should survey to him only twenty-five cords, because if the survey should extend further, by reason of the broken-up condition of the country and the rocky hills in sight, such land would be useless to him, saying, at the

sitio, which sums up one hundred and five dollars, as it has running water and some pieces of land fit for cultivation."

Subsequently to this report the direction was made for three public auctions, which were made, and the record of the first auetion, the others being similar, is in thes words:

who has exercised due diligence to make his vessel in all respects seaworthy, properly manned, equipped, and supplied, under the provisions of § 3 of the act of February 13, 1893, a right to general average contribution [189]for sacrifices made and suffered by him sub-ness is the result of latent defects. Richelieu & O. Nav. Co. v. Boston Marine Ins. Co. 136 U. S. 408 [34: 398]; The Edwin I. Morrison, 153 U. S. 199 [38: 688]; The Caledonia, 157 U. S. 124 [39: 644].

sequent to the stranding, in successful efforts
to save vessel, freight, and cargo?

In this condition of the law the so-called

Messrs. Wilhelmus Mynderse and
James C. Carter for appellants.
Mr. Harrington Putnam for appellees.

Harter act was approved on February 13, 1893 (27 Stat. at L. chap. 105), wherein, after providing in the 1st and 2d sections that it shall not be lawful for any owner, agent, or master of any vessel transporting merchandise or property from or between ports of

The answer we shall give to the question certified by the circuit court of appeals must be determined by the meaning and effect the United States and foreign ports, to which should be given to the act of February exempt himself from liability for loss or dam13, 1893, known as the Harter act. Admitted-age arising from negligence in the loading or ly, upon the facts conceded to exist in the proper delivery of such property, or to insert present case, the owner of the ship has no in any bill of lading any covenant or agreeright to a general average contribution from ment whereby the obligations of the owner to the cargo, unless such right arises from the exercise due diligence in manning and equipoperation of that act. ping the vessel, and to make such vessel seaworthy and capable of performing her intended voyage should be in any wise lessened, weakened or avoided, it was, in the 3d section enacted as follows:

Mr. Justice Shiras delivered the opinion of the court:

We shall first inquire why it is that, apart from the act in question, the owner of the ship is not entitled to a general average contribution where the loss was occasioned by the fault of the master or crew, and we find the rule is founded on the principle that no one can make a claim for general average contribution, if the danger, to avert which the sacrifice was made, has arisen from the fault of the claimant or of someone for whose acts the claimant has made himself, or is made by law, responsible to the cocontributors. We are not called upon either to trace the history of the rule, or to justify it as based on equitable principles, as it is conceded on both sides that such is the ordinary rule in the absence of statute or contract to modify it.

Nor is it necessary to inquire into the origin or nature of the law of general average. That has been so recently and thoroughly done in Ralli v. Troop, 157 U. S. 386 [39: 742], that it is sufficient to refer to the opinion of Mr. Justice Gray in that case.

and not merely that he does not know her to be unseaworthy at the time of beginning her voyage, or that he has used his best efforts to make her seaworthy; and that his undertaking is not discharged because the want of fit

Further, it has frequently been decided by this court that in every contract for the carriage of goods by sea, unless otherwise expressly stipulated, there is a warranty on the part of the shipowner that the ship is seaworthy at the time of beginning her voyage,

"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[191] manned, equipped, and supplied, neither the vessel, her owner or owners, agents, 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 the danger 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.”

Not only is the shipowner excluded from [190]contribution by way of general average when the loss arises from the ship's fault, but he is legally responsible to the owner of the cargo for loss and damages so occasioned. And it is the well-settled law of this court that a common carrier by sea cannot, by any stipu- "There is no doubt, I think, that the liabillation with a shipper of goods, exempt himself ity to indemnify the cargo owner is the sole from responsibility for loss or damage arising ground of the exclusion of the shipowner's from the negligence of the officers or crew; claim to general average compensation for that it is against the policy of the law to al- his expenses in rescuing the adventure from low stipulations that will relieve a carrier a peril caused by bad navigation. It therefrom liability for losses caused by the negli- fore seems necessarily to follow that in cases gence of himself or his servants. Liverpool where all such liability is abolished by law, & G. W. Steam Co. v. Phenix Ins. Co. 129 U. as it is under the circumstances of this case S. 397 [32: 788]. by the Harter act, no such exclusion can be justified; and that where no such liability exists on the part of the ship or her owner, his right to a general average contribution from the cargo arises necessarily by the same principles of equitable right that apply in or dinary cases of general average. Where due

The argument on behalf of the shipowner is clearly expressed by the learned judge of the district court in the following terms:

diligence has been exercised to make the ship | sage of the act, the owner could not contract seaworthy, and a common danger arises upon against his liability and that of his vessel for the voyage by 'fault or error in the naviga- loss occasioned by negligence or fault in the tion or management of the ship,' the third officers and crew, because such a contract was section of that act declares that neither the held by the Federal courts to be contrary to vessel nor her owner, agent, or charterer public policy, and, in this particular, the ownshall become or be held responsible for dam-ers of American vessels were at a disadvanage or loss resulting therefrom;' the previous tage as compared with the owners of liability of the shipowner to the cargo owner foreign vessels, who can contract with for faults of navigation is thus abolished in shippers against any liability for negligence all cases coming within the act. In such or fault on the part of the officers and crew. cases faults in the navigation or management This inequality, of course, operated unfavorof the ship are no longer, by construction of ably on the American shipowner, and Con[192]*law, faults of the owner, as heretofore; and gress thought fit to remove the disadvantage, the ship and her owner are now no more liable not by declaring that it should be competent to the cargo owner for his damages therefrom for the owners of vessels to exempt themselves than the latter is liable to the shipowner for from liability for the faults of the master and the resulting damages to the ship. Both are crew by stipulations to that effect contained alike strangers to the fault, and equally free in bills of lading, but by enacting that, if from all responsibility for it; and hence all the owners exercised due diligence in making expenditures or losses voluntarily incurred their ships seaworthy and in duly manning for the common rescue are no longer made and equipping them, there should be no liain the discharge of an individual legal obli- bility for the navigation and management of gation, or in diminution of a fixed liability the ships, however faulty. resting upon one of the parties only, but are Although the foundation of the rule that truly a sacrifice voluntarily incurred, and forbade shipowners to contract for exempfor the common benefit, as much and as truly tion from liability for negligence in their so when made by the shipowner as when made agents and employees was in the decisions of by the cargo owner alone. On principle, the courts that such contracts were against therefore, in such cases, the one is as much public policy, it was nevertheless competent entitled to a general average contribution for for Congress to make a change in the standhis sacrifice as the other. The appli- ard of duty, and it is plainly the duty of the cation of this new relation of nonresponsibil-courts to conform in their decisions to the ity under the Harter act to cases of general policy so declared. average does not, in fact, make the least But we think that for the courts to dechange in the principles of general average clare, as a consequence of this legislation, that contribution. The rule remains as before, the shipowner is not only relieved from liathat he by whose fault, actual or construct- bility for the negligence of his servants, but ive, the ship and cargo have been brought is entitled to share in a general average reninto danger cannot recover an average contri-dered necessary by that negligence, would be bution for his expenses in extricating them. in the nature of a legislative act. The act in And so the counter rule remains as before, question does, undoubtedly, modify the pubthat the interest which, being without fault, lic policy as previously declared by the makes sacrifices for the common rescue, is en-courts, but if Congress had intended to grant titled to an average contribution from what the further privilege now contended for it is thereby saved. Prior to the Harter act the *would have expressed such an intention in[ shipowner, under our law, was constructively unmistakable terms. It is one thing to exin fault for bad navigation and hence fell onerate the ship and its owner from liability within the former rule. The Harter act, by for the negligence of those who manage the abolishing his constructive fault and freeing vessel; it is another thing to authorize him from all responsibility, withdraws him the shipowner to do what he could not do befrom the former rule and entitles him to con- fore, namely, share in the general average tribution under the latter." 82 Fed. Rep. occasioned by the mismanagement of the mas472, 474-477. ter and crew.

We are unable to accept this view of the operation of the act of Congress.

What was the reasoning on which the courts proceeded in holding that it was Plainly the main purposes of the act were against public policy to permit shipowners to to relieve the shipowner from liability for contract for exemption from liability for the latent defects, not discoverable by the utmost negligence of their agents? Was it not that care and diligence, and, in event that he has such a state of the law would impel the shipexercised due diligence to make his vessel sea-owners to exercise care in the selection of worthy, to exempt him and the ship from those for whose conduct they were to be reresponsibility for damage or loss resulting sponsible? This being so, can it be reasonafrom faults or errors in navigation or in the bly inferred that Congress intended, when re[193]*management of the vessel. But can we go lieving shipowners from liability for the misfurther, and say that it was the intention of conduct of their agents, to confer upon them the act to allow the owner to share in the the further right to participate in a general benefits of a general average contribution average contribution, and that to the detrito meet losses occasioned by faults in the nav-ment of the shippers? Such an interpretaigation and management of the ship? tion of the statute would tend to relieve shipDoubtless, as the law stood before the pas-owners, to some extent at least, from care in

Upon the whole we think that in determin

the selection of the master and crew; and it
would likewise operate to influence the mas-ing the effect of this statute in restricting
ter in deciding, in an emergency, whether he
would make a case of general average by sac-
rificing the vessel, in whole or in part. If he
knew that the owner would participate in a
contribution occasioned by a loss, he would
be the less likely to exert himself and crew
to avoid the loss.

the operation of general and well-settled
principles, our proper course is to treat those
principles as still existing, and to limit the
elief from their operation *afforded by the[196]
statute to that called for by the language
itself of the statute.

Our conclusion accordingly 18, that the question certified to us by the Court of Ap peals should be answered in the negative, it is so ordered.

It is said that it has been decided by the English courts that when, by a contract in the bill of lading, the shipowner is exoner-and ated from liability for loss caused by the fault of the master or crew, he is entitled to share in a general average contribution.

Mr. Justice Brown, with whom was Mr. Justice McKenna, dissenting:

regard the 3d section of the Harter act as introducing a new feature into the law of carriage by sea, and as eliminating altogether the question of negligence in navigation. This section provides in substance that if the owner shall exercise due diligence to make his vessel in all respects seaworthy, and properly manned, equipped, and supplied, he shall not "be held responsible for damage or loss resulting from faults or errors in navigation or in the management" of his vessel.

An examination of the cases cited has not I am constrained to dissent from the opinconvinced us that there has been any such fi-ion of the court in this case. While I freely nal decision by the English courts. The case of concede that the owner of a ship is not by The Carron Park, L. R. 15 Prob. Div. 203, the general maritime law entitled to a generdoes, indeed, hold that the relation of the al average contribution, where the loss is ocgoods owner to the shipowner was altered casioned by the fault of the master or crew, by the contract; that the shipowner was not to be responsible for the negligence of his servants in the events which have happened; and that, therefore, the shipowner's claim for general average was allowed. On the [195]other hand, in the case of The Ettrick, L. R. 6 Prob. Div. 127, the ship owner claimed the benefit of a general average contribution rendered necessary by reason of negligence in navigation, and put his claim on the ground that, having availed himself of the limited liability laws by paying into court the £8 a ton, which is the limitation fixed by the statutes of Great Britain, he was thereby relieved from his liability on account of the negligence in the navigation, and stood in the position of an innocent party entitled to share in the contribution. But the court of appeals held otherwise, and Sir George Jessel, M. R., said:

As the steamer Irrawaddy was stranded on the coast of New Jersey, confessedly by the negligent navigation of her master, it will not be contended that she or her owners became liable to the owners of the cargo for any damages thereby occasioned. It is said, however, that while the Harter act may be appealed to in defense of any action by the cargo against the ship, it is not available by "The ground upon which the shipowner the shipowner in a suit against the owners of puts his claim is this: he says that the pay-the cargo for a contribution to the general ment of £8 per ton not only prevents his be-average expenses occasioned by such stranding answerable in damages for any more, but ing. If this be so, then the ship is thereby is equivalent to saying that he shall be in ex-made responsible for a fault in her navigaactly the same position as if no negligence tion to the exact extent to which she would had been committed, and nothing had been be otherwise entitled to a general average done by him or his agents that would give contribution, and the statute to that extent rise to any liability. But I cannot read the is disregarded and nullified. I consider this act so. All it says is that he shall not be an- a narrow and technical construction of the swerable in damages for any greater amount. act. I think the 3d section makes the quesIt does not make his acts right if they were tion of fault in navigation an immaterial one, previously wrongful. It does not give him and eliminates it from the relations of the [197] any new rights as far as I can see. It ship to the cargo. The section, therefore, seems to me that he could have no such right, becomes available to the shipowner either as for the statute does not destroy the effect of a weapon of defense or attack. If the shipall that had been done, as it simply diminishes owner stands in relation to the cargo as if or limits the liability in damages. If that is no fault had been committed, it is imposso, of course there is an end of the case." sible for me to see why he may not avail himself of this in whatever shape the question may arise.

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But whatever may be the English rulings as to the effect of contract immunity from negligence as entitling the shipowner to claim in general average, we do not think the cases are parallel. By the English law the parties are left free to contract with each other, and each party can define his rights and limit his liability as he may think fit. Very different is the case where a statute prescribes the extent of liability and exemption.

As the Harter act is a novelty in maritime legislation, of course it would be vain to search for authorities based upon a similar enactment; but cases are by no means wanting where a similar question has arisen upon stipulations in bills of lading exempting the owner of the ship from the consequences of faults or errors in navigation. While it is conceded in this country that such stipula

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