which provides that if the owner of any vessel transporting property to or from any port of the United States shall exercise due diligence, etc.," applies to vessels engaged in commerce on the Great Lakes, notwithstanding that sections 1, 2 and 4 are expressly confined to shipping "between ports of the United States and foreign ports. 11 The act will also be applied to foreign vessels in suits brought in the United States, and when the vessel owner sets up the act, he must take the burdens with the benefits, and cannot claim a greater limitation of liability under the terms of a bill of lading.12

Damages for personal injuries received by a passenger or for loss of his personal baggage are not within the provisions of the Harter Act.13

Sec. 348. Harter Act only modifies relations between a vessel and her cargo.-The whole object of the act is to modify the relations previously existing between a vessel and her cargo. This is apparent not only from the title of the act, but from its general tenor and provisions, which are evidently designed to fix the relations between the cargo and the vessel, and to prohibit contracts restricting the liability of the vessel and owners in certain particulars connected with the construction, repair and outfit of the vessel, and the care and delivery of the cargo. The liability of a vessel to other vessels

11. The E. A. Shores, Jr., 73 A. 262, 35 U. S. App. 395, 64 Fed. Fed. 342. 607; The Frey, 92 Fed. 667, reversed in 106 Fed. 319, 45 C. C. A. 309 on another point.

12. The Germanic, 196 U. S. 589, 25 Sup. Ct. R. 317, aff'g, 124 Fed. 1, 59 C. C. A. 521 and 107 Fed. 294; Knott v. Botany Worsted Mills, 179 U. S. 69, 21 Sup. Ct. R. 30, 43 L. Ed. 90; affig Botany Worsted Mills v. Knott, 82 Fed. 471, 27 C. C. A. 326, 51 U. S. App. 467, and 76 Fed. 582; The Chattahoochee, 173 U. S. 540, 19 Sup. Ct. 491, 43 L. Ed. 801; aff'g 74 Fed. 899, 21 C. C. A. 162; The Silvia, 171 U. S. 462, 19 Sup. Ct. R. 7, 43 L. Ed. 241, aff'g 15 C. C.

The third section applies to the negligence of the pilot of a vessel in a foreign port. The Etona, 71 Fed. 895, 18 C. C. A. 380, 38 U. S. App. 50, aff'g Doherr v The Etona, 64 Fed. 880.

13. The Rosedale, 88 Fed. 324, affirmed 92 Fed. 1021, 35 C. C. A. 167; Moses r. Packet Co., 88 Fed. 329; In re California Nav. & Imp. Co., 110 Fed. 678; La Bourgoyne, C. C. A.

144 Fed. 781.

with which it may come in contact was not intended to be affected,14 nor was the relation between owners and charterers.15

Sec. 349. Stipulations in bills of lading contrary to section one of Harter Act are void.-Under the first two sections of the Harter Act, it is clear that the common-law liability of the ship owner regarding the necessity for due care being taken in respect of the cargo was carefully preserved, except so far as that liability may have been expressly cut down by the provisions of section three.16 The courts have given full effect to the words of section one, and stipulations in bills of lading seeking to exempt shipowners from liability for loss or damage arising from negligence in loading, stowage, custody, care or proper delivery of the cargo have been held to be null and void.17

Sec. 350. Meaning of word "loading" in section one of Harter Act. The word "loading" in section one is not synonymous with the word "stowage" in the same section. It refers to the proper use of the means used for the transference of the goods to the vessel. Thus if taking a cargo to a vessel in lighters be part of the loading of the vessel, a stipulation in a

14. The Delaware, 161 U. S. 459, 16 Sup. Ct. R. 516, 40 L. Ed. 771. 15. Lake Steam Shipping Co. v. Bacon, 129 Fed. 819.

16. Rowson v. Atlantic Transport Co. (1903) 2 K. B. 666, 72 L. J. K. B. 811, aff'g (1903) 1 K. B. 114.

17. Calderon v. Steamship Co., 170 U. S. 272, reversing, 69 Fed. 574, 16 C. C. A. 332, 35 U. S. App. 587 and 64 Fed. 874; The Manitoba, 104 Fed. 145. In The Southwark, 191 U. S. 1, 48 L. Ed. 65, 24 Sup. Ct. R. 1, reversing 108 Fed. 880, 48 C. C. A. 123, the following printed stipulation was held void: "It is expressly provided that the goods shipped hereunder are abso

lutely at the risk of the owners in every respect, and that the carrier is responsible for no loss, delay or damage thereto, however arising, including stowage, and all risks of breakdown and injury, however caused, whether to its refrigerator or machinery, even though arising from defect existing at or previous to the commencement of the voyage."

In Bethel v. Mellor & Rittenhouse Co., 131 Fed. 129, a notation on the bills of lading that the ship was "not responsible for broken or cut bales" could not protect the ship from responsibility for negligent loading and stowage.

bill of lading relieving the carrier from failure to provide a fit lighter is prohibited by section one.18

Sec. 351. "Stowage" used in two senses in section one of Harter Act. The word "stowage" in the first section is used in two senses. It is used, first, with a view to the proper distribution and placement of the cargo, having in mind. its inherent and natural characteristics, and, second, with a view to the proper trim of the vessel and the ease with which it will be able to carry its cargo when at sea. We will treat the latter aspect first.

Sec. 352. Stowage with a view to the proper trim of the vessel. Stowage, with a view to the proper trim of the vessel and the ease with which it will be able to carry its cargo when at sea, calls for the exercise of the greatest skill and care on the part of the ship-owner.19 Consequently a lack of care and skill, such as will render the carrier liable for damages resulting to the cargo, is shown when a ship, in other respects seaworthy, is so laden under the carrier's orders as to become top heavy at starting, with the result that part of her cargo is jettisoned in a gale which otherwise could have been weathered in safety.20 So if a barge is so heavily laden that it shows signs of listing and unsteadiness while being towed, its owners will be liable for the loss of the cargo if it sinks at the dock.21

Sec. 353. Responsibility for such stowage rests upon the carrier alone. Questions pertaining to the proper distribution of heavy and light cargo, or proper ballasting and stowage in order to make the ship sufficiently easy and safe are not questions that devolve upon the shipper to determine, nor is he in any way responsible for their solution. The responsibility 18. Insurance Co. of North 260, modifying The Musselerag, America v. North German Lloyd 125 Fed. 786. Co., 106 Fed. 973; aff'd in NordDeutscher Lloyd v. President, etc., of Insurance Co., 110 Fed. 420, 49 C. C. A. 1.

19. Corsar v. Spreckels & Bros. Co., C. C. A. -, 141 Fed.

20. The Whitlieburn, 89 Fed. 526; Master and Owners of S. S. "City of Lincoln" v. Smith, L. R. (1904) App. Cas. 250.

21. The C. B. Boren, 132 Fed.

887.

is upon the carrier alone.22 He alone must judge whether the vessel is being overloaded, and if, in his judgment the vessel is being overloaded, he should stop it. If the vessel cannot carry, without straining, the load put upon her, the vessel's owner will be liable for any damage resulting to the cargo.23

Sec. 354. Stowage with reference to the natural characteristics of the cargo carried-Effect of custom.-Improper stowage, used in the sense of the distribution and placement of the cargo with reference to its inherent and natural characteristics, will render a ship-owner liable under the Harter Act.24 But in determining what is proper stowage the customs and usages of the place of shipment are to be considered, and, if these customs are followed, and if none of the known and usual precautions for safe stowage are omitted, no breach of duty or negligence can be imputed to the ship, and in case of damage under great stress of weather the injuries will be ascribed to perils of the seas.25

22. The Frey, 92 Fed. 667, reversed in 106 Fed. 319, 45 C. C. A. 309 on question of fact.

23. The William Power, 131 Fed. 136; The Giles Loring, 48 Fed. 463.

Provisions in a charter party that charterer's stevedores be employed by the master and paid by him does not affect the liability of the ship, or the owners, for improper stowage, since the stevedores in such case are held to be in the employ of the captain and under his direction and control as the representative of the owners. Bethel v. Mellor & Rittenhouse, 131 Fed. 129.

consequently lost or damaged, the Harter Act will not relieve the steamship company from the consequences of its own gross negligence in the appointment of that agent. Parsons v. Transportation Co., 111 Fed. 202, 49 C. C. A. 302. 24. The Palmas, 108 Fed. 87, 47 C. C. A. 220.

In the Victoria, 114 Fed. 962, the carrier was held liable for the improper stowage of a piece of marble.

In Crooks v. The Fanny Skolfields, 65 Fed. 814, the ship was held liable for the damage due to placing heavy casks of oil on small casks of plumbago.

But in The Tjomo, 115 Fed. 919, the court held that proper skill had been exercised in stowing cat

If a steamship company appoints a shipping agent who is wholly incompetent for that line of business, and the shipping tle. agent loads cargoes on vessels which are not suited for that class of cargo, and the cargoes are

25. The Tjomo, 115 Fed. 919; see also The Colima, 82 Fed. 665.

Sec. 355. Stowage of liquid cargo. The stowage of liquid cargo requires especial care on account of its liability to leak and injure cargo under or near it. In this connection it has been held that it is not improper stowage to place it in the between-decks, over dry cargo in the hold, provided the decks are permanently laid, in thorough order, well caulked and tight, and provided with sufficient scuppers for the escape of leakage.26 But to stow a liquid cargo in the same compartment with other cargo peculiarly susceptible to injury from liquids, when other compartments are available, is such negligence as will render the carrier liable.27

Sec. 356. Duty of ship to provide proper dunnage.— It is the duty of a ship to dunnage the cargo in a manner reasonably sufficient to protect it from what is naturally to be expected, and in accordance with the usages of the port of shipment. For failure to use such reasonable care and customary dunnage as would have protected the cargo, even in extraordinary weather if such weather ought to have been expected, the ship remains liable.28 The ship must provide proper dunnage even though the goods are loaded by the charterers' stevedores. The stevedores cannot be supposed to have notice that, by the construction of the ship, dunnage is necessary unless dunnage is provided for their use.29

26. This has been held with regard to Ceylon cocoanut oil which, partly by reason of its inherent qualities and partly because of bad cooperage, always leaks greatly from the casks. The Dunbritton, 73 Fed. 352, 19 C. C. A. 449, 38 U. S. App. 369, reversing Crooks v. The Dunbritton, 61 Fed. 764.

The same holding has been made with reference to molasses. The Centurion, 68 Fed. 382, 15 C. C. A. 480, 35 U. S. App. 332, reversing Bregaro v. The Centurion, 57 Fed. 412. If the hatch is not absolutely tight, the vessel will be liable for damage to the cargo

below. The Mississippi, 113 Fed. 985, affirmed. 120 Fed. 1020, 56 C. C. A. 525.

27. In The Orcadian, 116 Fed. 930, the vessel was held liable for the negligent stowage of barrels of cod oil in a compartment filled with wool, when another compartment was available, the wool, in consequence, having become saturated with the cod oil.

28. The Aspasia, 79 Fed. 91, affirmed without opinion. (C. C. A.) 80 Fed. 1003.

29. Robinson Franklin Sugar Refining Co., 70 Fed. 792.