Upon the whole we think that in determin the selection of the master and crew; and it 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 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- 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. 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. tions are of no avail, it is equally well settled | rise to any liability. But I cannot read the In In the case of The Carron Park, L. R. 15 Prob. Div. 403, a charter party contained a stipulation that the shipowners were not to be responsible "for any act, negligence, or default whatsoever of their servants during the said voyage." The cargo having been damaged by water pouring through a valve, In the case of The Carron Park the stipunegligently left open by one of the engineers, lation exempted the ship from the consequenthe owners brought suit against the vessel, ces of all negligence in her navigation. and the owners of the ship counterclaimed The Ettrick the act simply limited the liafor a general average contribution. It was bility of *the owner in damages to a certain[199 held by the admiralty division that the ship sum per ton. The operation of the merwas exonerated in the suit against her by the chants' shipping act was evidently intended owners of the cargo, and was also entitled to to be merely defensive. The Ettrick, though her contribution. In delivering the opinion, cited by counsel, was not referred to by the Sir James Hannen, President, observed: court in The Carron Park, and was evi"The claim for contribution as general aver-lently regarded as standing upon a different age cannot be maintained where it arises out footing. of any negligence for which the shipowner is responsible; but negligence for which he is not responsible is as foreign to him as to the person who has suffered by it. The loss would not have fallen upon the shipowner, and the expenditure of sacrifice made by him is not made to avert loss from himself alone, but from the cargo owner." The case of Strang v. Scott, L. R. 14 App. Cas. 601, was cited to the proposition that the conditions ordinarily existing between parties standing in the relation of ship and cargo owners may be varied by special contract. The French law in this particular is the same: The case of Le Normand v. Compagnie Generale Transatlantique, 1 Dalloz. Jurisprudence Générale, 479, before the French court of cassation, was an appeal from the court of Rouen, which had treated as general average the expenses of salvage and towage of the steamer Amerique, after having found that the abandonment of the ship was imputable only to the master and crew, and had held that a contract exempting the ship from the consequences of negligence permitted the owners of the ship to recover from the own [198] *It is true that the case of The Carron Parkers of the cargo their share in contribution was not one arising upon a statute but upon a of the expenses of salvage. In the opinion of stipulation in a charter party; but I think it the court of cassation upon appeal it was can make no possible difference in the legal said that in this bill of lading the defendant aspect of the case whether the exemption be company, the owner of the Amerique, had conceded by contract or granted by statute. formally excepted the acts of God, of enemies, The case of The Ettrick, L. R. 6 Prob Div. pirates, fire by land or sea, accidents proceed127, is not in point. In that case the owner ing from the engine, boilers, steam, and all of a ship, sunk by a collision in the Thames, other accidents of the sea caused or not admitted the collision to be his fault, and caused by the negligence, fault, or error of paid into court £8 a ton in a suit to his lia- the captain, crew, or engineers, of whatever bility. The ship having been subsequently nature these accidents were, or whatever raised at the expense of the owner, he sought were their consequences. It was further said to recover in general average against the car-that no law forbade the owners of ships from go its contributory portion of such expenses. stipulating that they would not answer for It was held that this could not be done, the the faults of the captain or crew; that such court basing its opinion upon the language of an agreement is no more contrary to public the merchants' shipping act, § 54, which mere-policy than to fair dealing; that in upholding ly declared that the owners of the ship should this clause in the bill of lading by which the not be answerable for damages in respect of defendant company declined responsibility losses to ships or goods to a greater amount for the faults of the crew, the decree appealed than £8 per ton of the ship's tonnage. In from violated no law. It was thereby estabdelivering the opinion of the court, Sirished that the ship had been abandoned at George Jessel observed: "That is merely the sea, after consultation with the crew; that it limit of the liability for damages. It does had afterwards been picked up by three Engnot in any way alter the property. lish vessels, which had towed it to Plymouth Now, property not being altered, the ground where it was voluntarily stranded, and that upon which the shipowner puts his claim is the defendant company had reclaimed it from this: He says that the payment of eight the salvors by paying the expenses of salvage pounds per ton not only prevents his being and towage; and thereupon the court held answerable in damages for any more, but is that this was a damage voluntarily suffered, equivalent to saying that he shall be in ex- that the expenses were incurred *for the com-[200) actly the same position as if no negligence mon safety of the ship and cargo, and withhad been committed, and nothing had been out the payment of which the salvors would done by him or by his agents that would give not have been obliged to deliver over the ves sel,and that such expenses constituted a claim curred through negligence, but where by the bills of lading the owners of the ship were not responsible for that negligence." These are all the cases I have been able to find directly upon the question under consideration, but there is a class of analogous cases which, I think, have a strong bearing in the same direction. It is well known that by the law of England a ship is not responsible to another for a collision brought about by the negligence of a compulsory pilot. Of course where such ship is solely to blame the rule is easy of application. No recovery can The case of Crowley v. Saint Freres, 10 Revue Internationale du Droit Maritime, 147 also came before the French court of cassation in 1894. In this case, an English ship, the Alexander Lawrence, on voyage from Calcutta to Boulogne, with a cargo of jute, took fire through the carelessness of a sailor. The ship put into Port Louis, an intermediate port, with the cargo still burning, and ex-be had against her. But where the faults of tinguished it, subsequently arriving at her port of destination. By a clause in the charter party the ship was exonerated from responsibility for negligence. It was held that the expenses of putting into the port of ref uge should be classed as general average, and not as particular average, as it had been held by the court below. The decree of that court (of Douai) was therefore reversed. the two vessels are mutual, a different question arises: and in the case of The Hector, L R. 8 Prob. Div. 218, it was held that, where a collision occurred by the mutual fault of two vessels, and one of such vessels had on board a compulsory pilot, whose fault contributed to the accident, the owner of that vessel was entitled to recover a moiety of the damages sustained by her without any deduction on A case arising from the same disaster to account of the damage sustained by the the Alexander Lawrence, between the owners other; in other words, she was not responand the underwriters (11 Revue Inter-sible for any portion of the damage done to nationale, 41), subsequently came before the the other vessel, but might recover the half court of appeals of Orleans, on appeal from of her damages from such other vessel. Said the tribunal of commerce of Boulogne, where the master of the rolls, in delivering the opina similar ruling was made, and the expenses ion: of putting into port classed as general average under the stipulation in the charter party, although in the absence of such stipulation they would have been chargeable to the ship. *"With regard to the Augustus, she was[202] found to blame for the collision, therefore she is, in the first instance, liable to pay all the damage which the Hector has suffered. With regard to the Hector, it is found that her owners are not to blame, but that her navigation was to blame; but that was the fault of the pilot. been proved, but the liability of the owners of the Hector is disproved, and they are dismissed from the suit. Therefore no balance is to be calculated; the owners of the Hector are not liable for a single pennyworth of the damage done to the Augustus. The owners of the Augustus must go against the pilot and get what they can out of him; but the Hector is entitled to succeed." The same question came before the tribunal of commerce of Antwerp, Belgium, in the case of The Steamer Alacrity, 11 Revue The owners are not liable for Internationale, 123, where the cargo was held this default, therefore they are not liable for to contribute to the expenses of putting into anything to the owners of the Augustus. a port of refuge, in consequence of a colli- What is the result? That the liability of the sion due to the fault of the captain, the ship-owners of the Augustus is declared to have owner being exonerated by his contract from the consequences of this fault. In this case the parties had stipulated that general aver age expenses should be payable under the York-Antwerp rules, and that the ship should not be responsible for the faults of [201]the captain or crew. It was held that. by the Belgium law, parties might contract with reference to these rules, which declared the expenses of putting into a port of refuge general average; that there was no difference between such expenses when occasioned by an inevitable accident or in consequence of the It seems to me that the cases above cited fault of the captain; that the parties having show an almost uniform trend of opinion stipulated that the ship should be exonerated against the principle laid down by the court from the consequences of such fault, the own-in this case. I do not contend that the deers of the cargo were bound for their contrib-cisions of the English, French, and Belgian utory shares. See also Dudman v. Dublin Port and Docks Board, Ir. Pep. 7 C. L. 518; Spaight v. Tedcastle, L. R. 6 App. Cas. 217. courts should be recognized by us any furFrom the case of The Mary Thomas ther than their course of reasoning com[1894] P. 108, it would seem that the Dutch mends itself to our sense of justice; but upon law is different; but it was said by Mr.Justice questions of maritime law, which is but a Barnes in this case (p. 116) that if the ques- branch of international law, I think the opintion had arisen in this country (England) ions of the learned and experienced judges of "the point could hardly have occurred, as it these courts are entitled to something more has done, because it has already been decided than respectful consideration. It is for the by Lord Hannen, in the case of The Carron interest of merchants and shipowners, whose Park, that the cargo owners would be liable relations and dealings are international in for the contribution in general average under their character, that the same construction circumstances where the accident had oc- I should, so far as possible, be placed upon the |