pipes through which water or steam might find its way into cargo compartments should be closed.28 Unless those things are done the vessel is unseaworthy as to cargo which may be injured by the escape of water or steam from the pipes. Unseaworthiness, however, cannot be predicated of accidental and temporary obstructions in pipes which could not fail to be removed by application of the tests prescribed by the shipowner's instructions,29 unless, indeed, the shipowner has failed to use due diligence at the beginning of the voyage in equipping the ship with appliances at the end of the pipes to prevent the entrance of foreign substances which might foul the pipes.30 Nor are the owners of a vessel called upon to test a manhole joint by a much greater pressure than is produced by the normal conditions of navigation.31 Sec. 375. Bulkheads.-Bulkheads are often used for other purposes than to make water-tight divisions of the hold, and hence in such cases are not expected to be water-tight; and even when they are designed to be tight, for the greater safety of the ship or the better preservation of the cargo, mere imperfection in carrying out this design cannot be said to constitute unsea could have been readily discovered and easily remedied. The Catania, 107 Fed. 152. In McFadden v. Blue Star Line, (1905) 1 K. B. 697, the vessel was held liable for defective packing of a valve-chest. 27. The Glenmavis, 69 Fed. 472; Gilroy v. Price, (1893) App. Cas. 56. 28. The Manitou, 127 Fed. 554, 63 C. C. A. 109, affirming 116 Fed. 60. 29. Steinwender v. The Mexican Prince, 82 Fed. 484; affirmed on opinion of trial court in The Mexican Prince, 91 Fed. 1003, 34 C. C. A. 168. 30. A ship cannot exempt herself by bill of lading from liability for damage to cargo from sea water, as a peril of the seas, where such water entered because of the obstruction of a valve in a pipe leading to a tank used for the stowage of cargo, when the obstruction of the valve was due to the failure to use due diligence in equipping the ship at the beginning of the voyage with a rose or screen on the lower end of the pipe to prevent the entrance of foreign substances which might foul the pipe and thus allow the water to enter the tank and injure the cargo there stored. The Brilliant, 138 Fed. 743. 31. American Sugar Refining Co r. Rickinson Sons & Co., 124 Fed. 188, 59 C. C. A. 604, reversing 120 Fed. 591. worthiness, when the absence of bulkheads altogether has no such effect. If there has been any express or implied warranty or representation that a vessel's bulkheads are water-tight, any damage resulting from leaking, must in that case be sought upon the ground of a breach of warranty or for the false representation, and not for unseaworthiness; and the pleadings must aver, and the evidence sustain, such a case.32 Where cargo is stowed against a water tank, or against a bulkhead serving as one side of a tank, if the tank or bulkhead is not tight, the vessel, though seaworthy as respects navigation, may be unseaworthy as respects cargo, since the direct natural consequences of the leak in that case is to damage the cargo, and the ship, therefore, is not in a reasonably fit condition for its transportation.33 But that is a wholly different case from a mere leak between adjoining cargo compartments. In the latter case, if the ingress of water in the first compartment is due to sea-perils, or to negligence in the "management" of the ship, the extension of the damage to an adjoining compartment by a leak in the bulkhead is of the same nature, unless some representation or warranty can be invoked as a separate ground of liability.34 Sec. 376. Insufficiency of coal.-A vessel may be unseaworthy through an insufficiency of coal to complete the voyage.35 If a vessel was unseaworthy on that account at the beginning of the voyage, an exception in the bill of lading covering negligence of the engineer in not informing the master that the coal. 32. The British King, 89 Fed. 872, affirmed on opinion of trial court, 92 Fed. 1018, 35 C. C. A. 159. 33. 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. The Carib Prince, 63 Fed. 266. In The Palmas, 108 Fed. 87, 47 C. C. A. 220, the chain locker of a steamship which extended from the bottom to the main deck was not water-tight, and sugar stored next to the locker was damaged by sea water entering through the chain pipes. The ship was held liable in damages. 34. The British King, supra. 35. The Vortigem, (1899) Prob. 140, 68 L. J. P. 49, 80 Law T. (N. S.) 382, 47 W'kly Rep. 437; The Abazzia, 127 Fed. 495. supply was short will not protect the shipowner from liability for damage to the cargo resulting from such unseaworthiness.36 Sec. 377. Defective fog horns. So a failure to have a mechanical fog horn in good condition for use at the beginning of a voyage shows a want of due diligence in equipping the vessel. The shipowner cannot be exempted from liability in such case by claiming that it was a fault in the "management" of the vessel.37 Sec. 378. Deviations in compass.-But a slight deviation of a fraction of a point in a compass cannot be regarded as ground to condemn a vessel as unseaworthy, especially in the absence of any showing of its continuance for a sufficient time to raise a presumption of notice.38 Sec. 379. Vessel should be cleaned and repaired often and well. In general it may be said that a vessel should be often examined and thoroughly inspected so as to be sure of its condition. It should not be used after it has become, from age, or decay, or injury, unfit for use, and should be repaired often and well, so long as, by repairing, it can be used safely, and no longer.39 If a vessel's bottom is unusually foul and is so covered with grass and slime below her load line that her progress is materially retarded, the existence of that condition for a long time prior to and during a voyage will constitute unseaworthiness as to the cargo carried.40 So if plates in the hold of a vessel are worn out, and their condition could easily be ascertained if the owner uses due diligence in examination, until that defect is repaired the vessel is unseaworthy as to cargo.41 And in a case where a cargo was injured by sea water which entered the vessel through a hole which had been eaten by corrosion through the iron bottom of a valve chest three-eighths of an inch thick, and it did not appear that the valve chest had ever been taken out for examination during the nine years previous to the damage, 36. The Vortigem, supra. 37. The Niagara, 84 Fed. 902, 28 C. C. A. 528, 55 U. S. App. 445, affirming 77 Fed. 329. 38. The E. A. Shores, Jr., 73 Fed. 342. 39. The Northern Belle v. Robson, 154 U. S. 571, 14 Sup. Ct. R. 1166, 19 L. Ed. 748. 40. The Abbazia, 127 Fed. 495. 41. The Flamborough, 69 Fed. 470. the ship was held liable for the damage to the cargo.42 But if a vessel has been adequately repaired prior to the commencement of the voyage and her classification has been kept up on repeated surveys, the presumption of seaworthiness thus arising will not be overcome by evidence to the effect that the parts repaired were found in a worse condition than before, after the vessel had met with unusually heavy weather.43 44 Sec. 380. What is due diligence-Vessel owner responsible for acts of his agents.-The third section of the Harter Act provides that if the owner "shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or be held responsible for damage or loss resulting" from certain specified causes. It should be remembered that the diligence required is diligence to make the ship in all respects seaworthy. That means diligence to equip and supply the vessel with all the requisites, and to do all the things mentioned in the preceding sections. It must be diligence adequate to the occasion, requiring such watchful caution and foresight as the circumstances of the particular service demand. It must be due diligence in the work itself, and not merely in the selection of the agents to do the work; otherwise, shipowners might escape all responsibility merely by selecting agents of good reputation, and would be relieved whether such agents exercised due care or not to make their vessel seaworthy, and any responsibility would be frittered away. The clear intent of the act is to require due diligence, not merely in the personal acts of the owner, but also on the part of the agents he may employ, or to whom he may have committed the work of fitting the vessel for sea.45 42. The Friesland, 104 Fed. 99. 43. The Guadeloupe, 92 Fed. 670. 44. 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 Naviga tion Co., 98 Fed. 636, 39 C. C. A. 45. International Navigation Co. 1 Proof of inspection only of a general character is insufficient, and a shipowner cannot escape liability, where proof of general inspection only is made, by claiming that a defect in the vessel arose from the inherent qualities of the cargoes carried.46 few cases some weight has been given to the possession of sur President, etc., of Insurance Co., 110 Fed. 420, 49 C. C. A. 1, affirming Insurance Co. v. North German Lloyd Co., 106 Fed. 973; The Colima, 82 Fed. 665; The Flamborough, 69 Fed. 470. Due diligence is not used in making a vessel seaworthy when seams start from rocking of the vessel due to the swells from a passing steamer. Nord Deutscher Lloyd v. President, etc., of Insurance Co., supra. Due diligence "to make the ship in all respects seaworthy" includes diligence to secure the fitness of all cargo compartments, and every other element of initial seaworthiness. The Manitoba, 104 Fed. 145. In The Mary L. Peters, 68 Fed. 919, affirmed on opinion of trial court in 79 Fed. 998, 25 C. C. A. 681, 26 U. S. App. 784, due diligence was held not to have been used in repairing leaks in waterways, hatches and decks. 46. In The Alvena, 79 Fed. 974, 25 C. C. A. 261, affirming 74 Fed. 252, a cargo of sugar was damaged by water coming through the bottom of the ship. The hole was caused by the corrosive action of the sugar drainage upon the iron plate of the steamer. This corrosive action being well known, iron steamers intending to carry sugar cargoes ought to have, as the Alvena had, a layer of Portland cement covering the entire bottom where the sugar is expected In a to be stored, which layer of cement should be kept solid and free from cracks. The accepted explanation was that through some crack in the cement the sugar drainage had worked down so as to corrode the plate beneath. The bill of lading stipulated against any liability, loss or unseaworthiness of the ship provided all reasonable means had been taken to make her seaworthy. The acid had eaten out a small hole. It was contended on the part of the ship that the cement had been broken by some blow on the outside. The court said that rested on conjecture only, without such evidence of actual facts as was necessary to sustain it, and that that did not dispense with proof of such inspection of the ship before commencement of the voyage as the nature of the case admitted and required. Proof of inspection was only of a general character and the accident arose from a lack of repair at the time the crack occurred or of the requisite inspection afterwards. "For such fault the Harter Act, even upon the broadest construction of it, affords no exemption of liability," the court said, "even though the corrosive action of sugar drainage was one of its inherent qualities. The ship was bound to the exercise of due diligence before the com mencement of the voyage to prevent the access of drainage to the iron plates." The decree of the |