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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

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

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

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

Mr. Justice Shiras delivered the opinion of
the court:

& 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].

In this condition of the law the so-called 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 The answer we shall give to the question master of any vessel transporting merchancertified by the circuit court of appeals must dise or property from or between ports of 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 present case, the owner of the ship has no right to a general average contribution from the cargo, unless such right arises from the operation of that act.

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.

proper delivery of such property, or to insert in any bill of lading any covenant or agreement whereby the obligations of the owner to exercise due diligence in manning and equipping the vessel, and to make such vessel seaworthy and capable of performing her intended voyage should be in anywise lessened, weakened or avoided, it was, in the 3d section enacted as follows:

"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 The argument on behalf of the shipowner for loss and damages so occasioned. And it is clearly expressed by the learned judge of is the well-settled law of this court that a the district court in the following terms: 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 & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397 [32: 788].

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,

where all such liability is abolished by law, as it is under the circumstances of this case 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 ordinary cases of general average. Where due

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 truly a sacrifice voluntarily incurred, and for the common benefit, as much and as truly so when made by the shipowner as when made by the cargo owner alone. On principle, therefore, in such cases, the one is as much entitled to a general average contribution for his sacrifice as the other.

Although the foundation of the rule that forbade shipowners to contract for exemption from liability for negligence in their agents and employees was in the decisions of the courts that such contracts were against public policy, it was nevertheless competent for Congress to make a change in the standThe 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 shipowner, under our law, was constructively in fault for bad navigation and hence fell within the former rule. The Harter act, by abolishing his constructive fault and freeing him from all responsibility, withdraws him from the former rule and entitles him to contribution under the latter." 82 Fed. Rep. 472, 474-477.

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

*would have expressed such an intention in[ unmistakable terms. It is one thing to exonerate the ship and its owner from liability for the negligence of those who manage the vessel; it is another thing to authorize the shipowner to do what he could not do before, namely, share in the general average occasioned by the mismanagement of the master and crew.

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 responsibility for damage or loss resulting from faults or errors in navigation or in the [193]*management of the vessel. But can we go further, and say that it was the intention of the act to allow the owner to share in the benefits of a general average contribution to meet losses occasioned by faults in the nav-ment of the shippers? Such an interpreta. igation and management of the ship?

those for whose conduct they were to be responsible? This being so, can it be reasona bly inferred that Congress intended, when relieving shipowners from liability for the misconduct of their agents, to confer upon them the further right to participate in a general average contribution, and that to the detri

tion of the statute would tend to relieve ship

Doubtless, 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.

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 ated from liability for loss caused by the fault of the master or crew, he is entitled to share in a general average contribution.

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

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

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

I am constrained to dissent from the opinconcede that the owner of a ship is not by the general maritime law entitled to a general average contribution, where the loss is occasioned by the fault of the master or crew,

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 convinced 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 The Carron Park, L. R. 15 Prob. Div. 203, does, indeed, hold that the relation of the goods owner to the shipowner was altered 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.

But whatever may be the English rulings as to the effect of contract immunity from negligence as entitling the shipowner As the Harter act is a novelty in maritime to claim in general average, we do not think legislation, of course it would be vain to the cases are parallel. By the English law search for authorities based upon a similar the parties are left free to contract with each enactment; but cases are by no means wantother, and each party can define his rights ing where a similar question has arisen upon and limit his liability as he may think fit. stipulations in bills of lading exempting the Very different is the case where a statute owner of the ship from the consequences of prescribes the extent of liability and exemp-faults or errors in navigation. While it is tion. conceded in this country that such stipula

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 all cases coming within the act. In such cases faults in the navigation or management of the ship are no longer, by construction of [192]*law, faults of the owner, as heretofore; and the ship and her owner are now no more liable to the cargo owner for his damages therefrom than the latter is liable to the shipowner for the resulting damages to the ship. Both are alike strangers to the fault, and equally free from all responsibility for it; and hence all expenditures or losses voluntarily incurred for the common rescue are no longer made in the discharge of an individual legal obligation, or in diminution of a fixed liability 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.

shippers against any liability for negligence or fault on the part of the officers and crew. This inequality, of course, operated unfavorably on the American shipowner, and Congress thought fit to remove the disadvantage, not by declaring that it should be competent for the owners of vessels to exempt themselves from liability for the faults of the master and crew by stipulations to that effect contained in bills of lading, but by enacting that, if the owners exercised due diligence in making their ships seaworthy and in duly manning and equipping them, there should be no liability for the navigation and management of the ships, however faulty.

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 shipowner, under our law, was constructively in fault for bad navigation and hence fell within the former rule. The Harter act, by abolishing his constructive fault and freeing him from all responsibility, withdraws him from the former rule and entitles him to contribution under the latter." 82 Fed. Rep. 472, 474-477.

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

*would have expressed such an intention in[ unmistakable terms. It is one thing to exonerate the ship and its owner from liability for the negligence of those who manage the vessel; it is another thing to authorize the shipowner to do what he could not do before, namely, share in the general average occasioned by the mismanagement of the master and crew.

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 responsibility for damage or loss resulting from faults or errors in navigation or in the [193]* management of the vessel. But can we go further, and say that it was the intention of the act to allow the owner to share in the benefits of a general average contribution to meet losses occasioned by faults in the nav-ment of the shippers? Such an interpretaigation and management of the ship?

those for whose conduct they were to be responsible? This being so, can it be reasonably inferred that Congress intended, when relieving shipowners from liability for the misconduct of their agents, to confer upon them the further right to participate in a general average contribution, and that to the detri

tion of the statute would tend to relieve ship

Doubtless, as the law stood before the pas-owners, to some extent at least, from care in

the selection of the master and crew; and it Upon the whole we think that in determin-
would likewise operate to influence the mas-ing the effect of this statute in restricting
ter in deciding, in an emergency, whether he the operation of general and well-settled
would make a case of general average by sac-principles, our proper course is to treat those
rificing the vessel, in whole or in part. If he principles as still existing, and to limit the
knew that the owner would participate in aelief from their operation afforded by the[196]
contribution occasioned by a loss, he would statute to that called for by the language
be the less likely to exert himself and crew itself of the statute.
to avoid the loss.

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 ated from liability for loss caused by the fault of the master or crew, he is entitled to share in a general average contribution.

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

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

I am constrained to dissent from the opin

concede that the owner of a ship is not by the general maritime law entitled to a general average contribution, where the loss is occasioned by the fault of the master or crew,

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 convinced 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 The Carron Park, L. R. 15 Prob. Div. 203, does, indeed, hold that the relation of the goods owner to the shipowner was altered 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 As the Harter act is a novelty in maritime to claim in general average, we do not think legislation, of course it would be vain to the cases are parallel. By the English law search for authorities based upon a similar the parties are left free to contract with each enactment; but cases are by no means wantother, and each party can define his rightsing where a similar question has arisen upon and limit his liability as he may think fit. stipulations in bills of lading exempting the Very different is the case where a statute owner of the ship from the consequences of prescribes the extent of liability and exemp-faults or errors in navigation. While it is conceded in this country that such stipula

tion.

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