breach of the warranty where the vessel is pierced by an unknown obstruction while receiving cargo at a dock and the owners of the vessel are solely liable for a resulting injury to part of the cargo.4

When a voyage consists of several stages, the vessel must be made seaworthy at the commencement of each stage of the voyage she then enters upon.5

Sec. 369. Vessel liable for initial instability.-Where damage can be traced directly to the initial instability of a ship, the shipowner is not relieved from the consequences of that fault by the Harter Act. Nor can he, in such case, be relieved by pleading the usages of the time and port. However material usages may be in questions relating to the equipment of the ship, the carrying of a deck load, or of different kinds of cargo on the same voyage, the amount and arrangement of dunnage, the proximity of different kinds of goods to each other, and the mode of stowing and securing them, usages can have little application to questions affecting the stability of the ship. For no custom can validate navigation by unstable ships, nor can custom determine whether a given vessel with a given loading is

4. Bowring v. Thebaud, 56 Fed. 520, 5 C. C. A. 640, 11 U. S. App. 648, affirming 42 Fed. 795.

In McFadden v. Blue Star Line (1905) 1 K. B. 697, Channel, J., came to the following conclusion: "The ordinary warranty of seaworthiness, then, does not take effect before the ship is ready to sail, nor does it continue to take effect after she has sailed; it takes effect at the time of sailing, and at the time of sailing alone."

5. McFadden . Blue Star Line, (1905) 1 K. B. 697; The Vortigem, (1899) Prob. 140, 68 L. J. Prob. 49, 80 Law T. (N. S.) 382, 47 W'kly Rep. 437; Thin v. Richards & Co., (1892) 2 Q. B. 141, 62 L. J. Q. B.

6. In The Oneida, 128 Fed. 687, 63 C. C. A. 239, reversing 108 Fed. 886, faulty loading produced a list, and in order to readjust the cargo it became necessary to open a cargo port in the lower between decks. Opening the port, followed by the sudden lurch of the ship, caused the damage to the cargo, for which the ship was held liable. In the opinion of the court a ship cannot be said to be seaworthy which has at the inception of the voyage little, if any, positive metacentric height, a list of eight or nine degrees, and which has her cargo so distributed that her instability must increase as she proceeds.

stable or not. Ships vary greatly in model, and the requirements of loading in order to insure stability vary accordingly. These requirements are matters of positive knowledge, which no usage can affect or vary. Each ship presents its own problems. Custom has little, if any, scope for application. And as the limits of stable loading are determinable by rule for any given ship, no usage or practice can justify a departure from it.7

Inferences as to the instability of a ship, however, may be drawn from the circumstances surrounding an injury to it. Thus if a vessel is not able to withstand the swells of passing vessels, the inference is that she is in need of repairs and is not seaworthy. So also there is a presumption of unseaworthiness when a vessel capsizes and sinks in less than twenty-four hours after leaving port without having encountered any storm or other known cause sufficient to account for the catastrophe," or if a steamship, in an ordinary storm, when not disabled, can neither keep out of the trough of the sea, nor ride safely over it.10 But if other facts material to the inquiry as to the seaworthiness of the vessel are proved, those facts must also be considered; and they must be weighed against such presumptive evidence, and unless the balance of the evidence warrants the conclusion that the vessel was unseaworthy when she sailed, such unseaworthiness cannot be properly treated as established.11

Sec. 370. Presumption of unseaworthiness when leaks soon happen in ordinary weather.-Leaks soon happening in ordi

7. The Colima, 82 Fed. 665.

8. Forbes v. Express & Trans portation Co., 111 Fed. 796.

9. Ajum Goolam Hossen & Co. v. Insurance Co., L. R. (1900) App. Cas. 362.

10. The Colima, 82 Fed. 665. Steamers ought not to capsize, except under most extraordinary circumstances. As respects stability, they have naturally a double advantage over sail vessels, in the great weight of their engines and

boilers below, and in the absence of heavy sails and

spars aloft. They should be stable enough to lie safely, in ordinary storms, in the trough of the sea, because they are liable at any time to be forced into that situation, and often are forced into it for considerable periods by the accidental disabling of their machinery.

11. Ajum Goolam Hossen & Co. . Insurance Co., L. R. (1900) App. Cas. 362.

nary weather, and without cther adequate causes of injury, are presumptive evidence of unseaworthiness at the time of sailing. The law will intend the want of seaworthiness because no visible or rational cause other than a latent or inherent defect in the vessel can be assigned for the result.12 But where it satisfactorily appears that the vessel incurred marine perils which might well disable a staunch and well-manned ship, no such presumption can be invoked.13 And where for a considerable time she has incurred such perils, and shown herself staunch and strong, any such presumption is not only overthrown, but the fact of her previous seaworthiness is persuasively indicated.11

Sec. 371. Leaking decks or hatches.-There is no presumption that a vessel was unseaworthy merely because the decks or hatches began to leak after she had encountered a continuous gale or hurricane.15 But it is manifest that a vessel commencing her voyage with hatches so improperly or negligently covered, or with decks so improperly caulked, that water in large quantities can find its way through them, is not seaworthy especially when the voyage is undertaken at a season of the year when it is to be anticipated that the vessel will encounter heavy seas and that her decks will be constantly flooded.16

Sec. 372. Defective rivets or bolts.-Unseaworthiness may consist of defects in rivets or bolts on tanks or boilers or on parts of the vessel adjoining the cargo.17 Thus water entered

12. The Warren Adams, 74 Fed. 413, 20 C. C. A. 486, 38 U. S. App. 356, s. c. 163 U. S. 679; The Sintram, 64 Fed. 884; The Artic Bird, 109 Fed. 167; The Nellie R. Bohannon, 64 Fed. 883.

13. The Warren Adams, supra; The Simtram, supra.

47

14. The Warren Adams, supra. 15. The Marechal Suchet, 112 Fed. 410; The Marlborough, Fed. 667; The Hyades, 124 Fed. 58, 59 C. C. A. 424, affirming 118 Fed. 85.

439, 58 C. C. A. 421, affirming 117 Fed. 279.

A cargo of cement is peculiarly susceptible to injury from water, and if the deck is not properly caulked, the vessel is unseaworthy as to such cargo. Neilson v. Coal, etc., Co., 122 Fed. 617, 60 C. C. A. 175, affirming The Nellie Floyd, 116 Fed. 80.

17. The Carib Prince, 170 U. S. 655, 18 Sup. Ct. R. 753, 42 L. Ed. 1181, reversing Id. 68 Fed. 254, 15 C. C. A. 385 and Wupperman v.

16. The C. W. Elphicke, 122 Fed. The Carib Prince, 63 Fed. 266.

around the bolts fastening the scroll work of the figurehead on the bow of a vessel, and injured sugar stored in the main peak. Five or six bolts were sufficiently loose to admit the water to the main deck, from which it flowed through small holes to the main peak. The vessel was held liable for the damage to the sugar,18

But the fact that one rivet among thousands in the hull of a vessel parted under the stress of heavy weather, is insufficient to raise a presumption of unseaworthiness at the inception of the voyage.19

Sec. 373. Unfastened ports. Whether an unfastened port on sailing renders a vessel unseaworthy or not, evidently depends on the situation of the port, its relation to the cargo or passengers, and the means provided for closing it on the voyage when necessary. If its situation is such that it is safe in moderate weather and all the requisite means and conditions are provided for closing it on the voyage when necessary, the vessel is not unseaworthy; and if, when closing becomes necessary on the voyage, those means are not made use of, the case is one of neglect or error in management within the meaning of section three of the Harter Act.20 But knowledge that a cargo port is open, is one of the indispensable requisites and conditions for securing the closing of it when necessary on the voyage. Without that information all other provisions are useless; so that where no further inspection is expected or ordinarily required

18. The Aggi, 107 Fed. 300, 46 C. C. A. 276, affirming 93 Fed. 484.

19. The Sandfield, 92 Fed. 663, 34 C. C. A. 612, affirming 79 Fed. 371.

In Grubman v. The Ontario, 115 Fed. 769, 53 C. C. A. 199, affirming The Ontario, 106 Fed. 324, damage was caused by the giving way of two rivets about 8 inches apart on the top of a ballast tank upon which, properly dunnaged, wool was stowed. The evidence showed

that the usual and ordinary tests had been applied before sailing. The court held that the breaking of the rivets occurred through the heavy weather encountered, and not because the ship was unseaworthy.

20. The Silvia, 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241, affirming 64 Fed. 607, 35 U. S. App. 395; The Manitoba, 104 Fed. 145; see also Steel v. Steamship Co., 3 App. Cas. 72.

to be made, and no knowledge that the port is open can be expected to be acquired by the officers on the voyage, a port supposed to be closed but in fact open and blocked by cargo and not likely to be discovered to be open, must be considered unseaworthiness on sailing, in so far as it is likely to imperil ship and cargo, though no farther.21 In the case of ports situated only two or three feet above the water line22 or of ports situated so low in the vessel as to be submerged when the vessel is fully loaded, such a rule is especially applicable, and the owners of the vessel will not be heard to say it was a fault in the "management" of the vessel.23 The same rule obtains where no test is made of a port before sailing, and damage is caused by a badly fitting blind and glass door through which streams of water spurt at every roll of the ship.24

Sec. 374. Water and steam pipes, etc.-The water or steam pipes in a vessel should be carefully inspected and placed in a serviceable condition before sailing. Existing leaks should be stopped25 and the pipes should be suitably protected against frost.20 Suitable casing should be provided27 and valves in

21. The Manitoba, 104 Fed. 145; Dobell & Co. v. Steamship Co., 64 L. J. Q. B. 777, (1895) 2 Q. B. 408. In this latter case the cargo was injured by sea water coming into the vessel during the voyage through a port hole which the ship's carpenter, whose duty it was to do so, had omitted properly to close before the vessel started upon her voyage. The port hole in question was used for shipping cargo, and was intended to be closed when the loading was completed and before the vessel started. Once the ship had started on her voyage the port hole could not be promptly closed nor without shifting a considerable portion of the cargo. It was held that the damage to the cargo resulted from the unseaworthiness of the

ship at starting, and not from faults or errors in navigation.

22. International Navigation Co. v. Farr & Bailey Mfg. Co., 181 U. S. 218, 45 L. Ed. 830, 21 Sup. Ct. R. 591, affirming Farr & Bailey Mfg. Co. v. International Navigation Co., 98 Fed. 636, 39 C. C. A. 197.

23. The Tennedos, 137 Fed. 443. 24. The Phoenicia, 90 Fed. 116, affirmed on opinion of lower court, Id. 99 Fed. 1005, 40 C. C. A. 221.

25. Northwestern Transp. Co. v. Leiter, 107 Fed. 953, 47 C. C. A. 97.

26. There is a lack of suitable care in loading cargo into a compartment which contains a waterservice pipe, not suitably protected against frost and without inspection as to its condition which