veyors' certificates by a vessel.47 But the better opinion seems to be that the possession of surveyors' certificates is not of great importance. The diligence required of vessels to enable them to claim the benefit of the Harter Act with reference to due diligence, is diligence with respect to the vessel, not in obtaining certificates.48 Sec. 381. Due diligence in manning vessel.-In order to avail himself of the exceptions contained in the third section of the Harter Act, a shipowner must use due diligence, not only to provide a seaworthy vessel, but he must also provide the vessel with a crew adequate in number and competent for their duty with reference to all the exigencies of the intended route; not merely competent for the ordinary duties of an uneventful voyage, but for any exigency that is likely to happen such, for example, as the striking of the ship on a reef of rocks—and the consequent imperative necessity for instant action to save the lives of passengers and crew. Thus a vessel cannot be said to be properly manned when the crew is composed mostly of Chinese to whom orders can only be given through the Chinese boatswain and who do not understand orders given them by other officers.49 And if the owners of the ship know of a custom of the crew that on the voyage, or at ports intermediate or otherwise, or on the seas, the fires will be banked, the water for steam allowed to get cold, that the captain and engineer will go ashore and the rest of the crew will go to sleep, that there is no method of being forewarned of leaks and that all equipment for avoiding injury therefrom will be rendered useless, and if the owners approve, suffer, or connive at such custom or practice, such vessel is not properly manned, nor do the owners intend that the initial equipment and crew shall perform the duties for which they are provided. If the Harter Act was expected to absolve district judge holding the ship liable was affirmed by the Circuit Court of Appeals. 47. The Jane Grey, 99 Fed. 582, s. c. 95 Fed. 693; The Guadeloupe, 92 Fed. 670. 48. The Abbazia, 127 Fed. 495. 49. In re Pacific Mail S. S. Co., 130 Fed. 76, 69 L. R. A. 71, 64 C. C. A. 410, reversing 126 Fed. 1020. See also The Fri, 140 Fed. 123. owners under such conditions it goes beyond its present understood purpose, and allows them to make provision for negligent acts and omissions, and for undoing on the voyage what they have done before the voyage began.50 Gross negligence on the part of the master will raise a strong presumption of fact that the master was not competent and will throw the burden on the shipowners to establish the proposition that they used due diligence with reference to his selection, whether the statute does or does not impose such a burden. Nor do the owners prove "due diligence" by simply showing that they had no knowledge or reason to believe that the master was not competent. "Due diligence" implies more than that.51 Especially would this be true where the master was of such intemperate habits, and so addicted to intoxication as to render him unfit for his position.52 There is no presumption that a vessel was not properly manned from the absence of a lookout. Whether a lookout is stationed forward or not, when the ship has a competent crew, depends wholly upon the management or direction of the offi cers; or, in other words, it is a part of the "management of the ship" for which the owners are not responsible to the shippers of cargo.53 Sec. 382. Faults or errors in management. "Due diligence" having been used "to make the said vessel in all respects seaworthy and properly manned, equipped and supplied," the shipowner is relieved from liability, among other things, for damage or loss resulting from "faults or errors in navigation or in the management of said vessel." Cases of difficulty may often arise as to whether the negligence which has resulted in an 50. The Valentine, 131 Fed. 352. 51. The Cygnet, 126 Fed. 742, 61 C. C. A. 348. Where the evidence shows that the master had been duly licensed by the United States inspector of steam vessels it will be presumed, in the absence of evidence to the contrary, that he was a licensed pilot in accordance with Sec. 4401, 52. The Guildhall, 58 Fed. 800; 53. The Rosedale, 88 Fed. 324; affirmed in 92 Fed. 1021, 35 C. C. A. 167. injury to cargo is to be regarded as negligence in the care of the cargo within the first section of the Act, or negligence in the management of the vessel under section three. Looking at section three it is reasonably clear that the section directly aims at negligence of the owners, agents or charterers of the vessel in respect of the navigation or management of the vessel, regarded as a vessel. But a vessel may also be regarded as a cargo-bearing carrier and moreover it may be regarded specially by the consideration of the particular cargo carried during the voyage. For faults or errors in the management of the vessel, regarded as a vessel, the shipowner is excused from liability. For faults or errors in the management of the vessel, regarded as a cargo bearing carrier, he is not excused from liability. But it is difficult, if not impossible, to attempt successfully to lay down any general principles as to when a particular set of facts falls within the operation of one rule and when it falls within the operation of the other. One must look at the facts of each case as it arises, and on those facts determine which rule to apply. The following special facts, however, are worthy of consideration in determining the question: "What was the act of negligence complained of? By whom was it committed? In particular was the man who was guilty of the negligence acting at the time as an ordinary member of the officers, engineers or crew of the ship? Was he, or not, acting in the ordinary course of his duties and on behalf of the vessel regarded as a whole, or was he acting solely, or in particular, in looking after the cargo and for the purpose of the cargo? Further, in some cases it may be important to consider whether the injury to the cargo was caused directly or indirectly by the act of negligence.' 1. The above questions are all refrigerating apparatus, whereby propounded in Rowson v. Atlantic in the course of the voyage the Transport Co., (1903) 2 K. B. 666, temperature of the chambers was 72 L. J. K. B. 811, affirming allowed to rise too high. The re(1903) 1 K. B. 114. In that case frigerating apparatus was not butter was delivered in a damaged used exclusively for the butter, condition, resulting from the neg- but was also used for the ship's ligence of one of the ship's engi- provisions. The air of all the neers in the management of the chambers, including those used Cases coming within section one of the Harter Act have already been treated in previous sections, and examples of cases which have been held to be faults or errors in the management of the vessel, regarded as a vessel, are given in the notes.2 Sec. 383. Faults or errors in navigation.-Very few cases of difficulty arise as to whether the negligence which has re for the ship's provisions, was cooled by one pipe, and so far as the engineer attending to that one pipe was concerned, all he had to do was to look upon it as it was, namely, as a pipe required for the general purposes of the vessel. His failure to look after the pipe, therefore, was an act of negligence by an officer of the ship in the performance of his duties to the ship as a ship, not with regard to any particular cargo, and was such an act as really concerned the management of the vessel as a whole, and, therefore, really came within the express limitation of section three. 2. In The Silvia, 171 U. S. 462, 19 Sup. Ct. R. 7, 43 L. Ed. 241, affirming 68 Fed. 230, 35 U. S. App. 395, the port holes of a compartment were furnished with the usual glass covers and with the usual iron shutters or deadlights. When The Silvia began her voyage, the weather being fair, the glass covers only were shut, and the iron ones were left open for the purpose of lighting the compartment. As no cargo was stowed against the ports so as to prevent or embarrass access to them in case a change of weather should make it necessary or proper to close the iron shutters, and as the ports were in a place where the iron shutters would be usually left open for the admission of light, and could be speedily got at and closed if occasion should require, there was no ground for holding that the ship was unseaworthy at the time of sailing, and if there was any neglect in not closing the iron covers of the port, it was a fault or error in the navigation or in the management of the ship. In The Wildcroft, 130 Fed. 521, 65 C. C. A. 145, affirming 124 Fed. 631 and 126 Fed. 229, damage to sugar arising from the flowing of fresh water into the hold, where the sugar was stored, through a sea cock which had been negligently left open while water from the river was being pumped into the engine tank on the discharge of the cargo, was held a fault in the "management" of the vessel, as a vessel. In The Merida, 107 Fed. 146, 46 C. C. A. 208, an accumulation of water in the bilges due to a lack of ordinary precautions through three engineers being prostrate with yellow fever and to the consequent failure to make use of the pump was held a fault in the "management" of the vessel, as a vessel. In The Sandfield, 92 Fed. 663, 34 C. C. A. 612, affirming 79 Fed. 371, an omission to open the sluice gate, designed to empty the sulted in an injury to cargo is to be regarded as negligence in the navigation of the ship. If a shipowner has used due diligence to make the vessel in all respects seaworthy and properly manned, equipped and supplied, he is not liable for damage to cargo resulting from navigation of the vessel, however faulty. Thus failure to heed the warning of a government light which bilges, for 20 days during heavy the drainage pipe in the foreweather, was held a fault in the "management" of the vessel, as a vessel. In The Guadeloupe, 92 Fed. 670, an error of judgment on the part of the master as to the extent of repairs necessary during a voyage, when he uses due diligence and acts in good faith, was held to pertain to the "management" of the vessel, as a vessel. In Steinwender v. The Mexican Prince, 82 Fed. 484, affirmed in The Mexican Prince, 91 Fed. 1003, 34 C. C. A. 168, where adequate provisions for removing water from compartments were made by means of a pipe line and pump running through each cargo compartment with an offset from the main line in each, which could be opened and closed by an easily tested Kingston valve, the vessel was held unseaworthy in respect of dry cargo near a water ballast tank by reason of the failure to provide deck sounding pipes, and the neglect of those in charge of the ship to test the valve by means of the pump or to count the turns of the spindle controlling the valve before discharging the water ballast was held to be a fault in the "management" of the vessel, as a vessel. In The Rodney, L. R. (1900) P. 112, 69 L. J. P. 29, the ship having met with rough weather, castle became choked and the forecastle was flooded with water. In order to allow the water to escape into the bilges, the boatswain endeavored to clear the pipe with a hammer and poker, with the result that a hole was driven in the syphon trap of the pipe, and the water, instead of escaping into the bilges, ran into the hold and damaged the cargo. The act of the boatswain was held to be an act done in the "management" of the ship. In The Glenochil, (1896) Prob. 10, 65 L. J. P. 1, the ship when she left New Orleans was in a perfectly seaworthy condition, but met with exceptionally heavy weather on the voyage, with the result that certain pipes and connections had broken owing to the straining, amongst others a sounding-pipe communicating with one of the water-ballast tanks. This tank it became necessary to fill with water, as the discharge of the cargo went on, in order to stiffen the ship, and the engineer thereupon opened the cock to admit the water without first having used the sounding rod or taken any steps to ascertain the condition of the sounding pipe. The result was that the water on being admitted to the tank forced its way up the broken sounding pipe and, escaping into the hold, |