indicates the location of a reef, and in presuming upon the entire accuracy of the compass or course are faults or errors in navigation within the meaning of section three.3 So a steamer, towing a barge on which goods are loaded, is not liable for the loss of the goods due to the barge striking an obstruction in the river. And a mistake of the captain in going into a bay on an ebb tide, whereby, owing to shallow water, the steamer becomes stranded, is a fault in the navigation of the ship under section three.5

Sec. 384. Dangers of the sea.-Questions arising under the next exemption in the third section of the Harter Act against loss from "dangers of the sea or other navigable waters" are generally linked with questions concerning the initial seaworthiness of a vessel. All that need be said here is that where the condition of the vessel at the beginning of a voyage is shown

damaged the cargo. If the engineer had used the sounding-rod before admitting the water to the ballast tank, he would have ascertained that the sounding pipe was broken. His negligence was held to be a fault in the "management" of the vessel, as a vessel.

In The Cressington, L. R. (1891) Prob. 152, 60 L. J. P. 25. a bill of lading contained the usual exceptions as to perils of the sea and other accidents of navigation being excepted, even when occasioned by the negligence, default or error of judg ment of the pilot, master, mariners, or other servants of the shipowners. The cargo was damaged by sea-water which entered the vessel's hold through a rivet hole at the foot of one of the stanchions supporting the main rail, the rivet having become loose owing to the working of the ship during bad weather. The neglect of the

master, after discovering the leakage, to take proper measures to prevent its continuance was held to be within the exception in the bill of lading.

In The Ferro, L. R. (1893) Prob. 38, 62 L. J. P. 48, it was held that the words "neglect or default in the management of the ship" in a bill of lading did not exonerate the shipowners from damage to oranges caused by improper stowage.

3. The E. A. Shores, Jr., 73 Fed. 342.

4. The Nettie Quill, 124 Fed. 667.

5. In re Meyer, 74 Fed. 881.

A failure of the master to put in. for repairs when he could have done so is a fault in the navigation of the vessel. Corsar v. Spreckels & Bros. Co., A. -, 141 Fed. 260, modifying The Musselcrag, 125 Fed. 786.

C. C.

to have been good in all respects and it satisfactorily appears that the vessel incurred marine perils which might well disable a staunch and well manned ship and are sufficient to account for the defects in the vessel causing damage to cargo, the vessel owner will not be liable for such damage to the cargo.6

Sec. 385. The inherent defect, quality or vice of the thing carried. A shipowner who has used due diligence to make the vessel in all respects seaworthy and properly manned, equipped and supplied will not be liable for damage due entirely to "the inherent defect, quality, or vice of the thing carried." Thus cargoes of hay are apt to sweat during damp weather, especially where there is a lack of ventilation, and in a case where the hay was confined for an undue period, owing to no fault of the carrier, and it became affected and damaged by sweat, the court held that the carrier was not liable. But such a case is rad-' ically different from one where the cargo is only indirectly damaged by its own inherent defects and the direct cause of the damage is unseaworthiness of the ship brought about by a failure of the shipowner to guard against injury to the vessel from the well known characteristics of the cargo carried. The shipowner in such case will be liable for failure to use due diligence to make his vessel seaworthy.8

6. The Hyades, 124 Fed. 58, 59 C. C. A. 424, affirming 118 Fed. 85; Davidson S. S. Co. v. 119, 254 Bushels of Flaxseed, 117 Fed. 283; Grulman v. The Ontario, 115 Fed. 769, 53 C. C. A. 199, affirming 106 Fed. 324; The Marechal Suchet, 112, Fed. 440; The Sandfield, 92 Fed. 663, 34 C. C. A. 612, affirming 79 Fed. 371; The Warren Adams, 74 Fed. 413, 20 C. C. A. 486, 38 U. S. App. 356, writ of certiorari denied, 163 U. S. 679; The Sintram, 64 Fed. 884; The Marlborough, 47 Fed. 667.

In The Samuel F. Houseman, 108 Fed. 875, 48 C. C. A. 120, reversing 103 Fed. 663, it was held

that the sinking of a barge was due to a storm, and the consequent pressing together of two large steamships, between which she was lying, and not to unseaworthiness.

In The Homeric, 106 Fed. 960, a defect in the propeller after a tempestuous voyage was held to have arisen from perils of the

sea.

7. The M. C. Currie, 132 Fed.

125.

8. The Alvena, 79 Fed. 974, 25 C. C. A. 261, affirming 74 Fed. 252. A cargo of sugar was damaged in this case by water coming through the bottom of the ship.

Sec. 386. Effect of deviation.-Every vessel transporting merchandise and passengers to or from different ports-her owners having exercised due diligence to make her in all respects seaworthy, and properly manned, equipped and supplied-has the right to deviate for the purpose of saving life and property, even if the bill of lading contains no stipulation allowing such deviation for salvage purposes, but as soon as this duty is performed, her right of deviation ceases, and it becomes her duty then to pursue her regular voyage and fulfill her contracts by carrying her cargo and passengers to their port of destination. The Harter Act was not passed for the purpose of enabling vessels, saving life and property at sea, to earn salvage. That right is only incidental to such service.10

Sec. 387. Effect of the Harter Act on damages recoverable by cargo owner or on rights of a general average contribution. -It was not the intention of the Harter Act to allow the shipowner to share in the benefits of a general average contribution to meet losses occasioned by faults in the navigation and management of the ship.11 While the shipowner, however, freed from liability under the statutes, may not invoke an action for general average adjustment, to obtain payment of his own losses, the cargo owner may do so; but as the statutes prevent his recovering any damages based upon the shipowner's alleged negligence, the cargo owner may not, in the adjustment invoked

The hole was caused by a failure of the shipowner to guard against the well-known corrosive action of the sugar drainage upon the iron plate of the steamer, and the vessel was held liable.

The melting of asphalt in the warm climate of a port of shipment is not an "inherent defect, quality, or vice of the thing carried," but on the contrary it is one of its natural qualities in view of which a charterer may well stipulate in the charter for special fittings in the vessel.

Hine v. New York & Bermudez
Co., 68 Fed. 920.

9. In re Meyer, 74 Fed. 881; The Chinese Prince, 61 Fed. 697; see also The Wells City, 61 Fed. 857, 10 C. C. A. 123, 26 U. S. App. 76, affirming 57 Fed. 317.

10. In re Meyer, 74 Fed. 881.

11. The Irrawaddy, 171 U. S. 187, 18 Sup. Ct. 831, 43 L. Ed. 130; on certification from Flint v. Chrystal, 83 Fed. 987, 31 C. C. A. 593, and reversing Chrystal v. Flint, 82 Fed. 472; Trinidad Shipping, etc. Co. v. Frame, 88 Fed. 528.

by him, derive any benefit from such alleged negligence. In such case the usual rule of reciprocity of right and obligation exists, and the adjustment should be made as if there was no negligence in the case, there being none in fact on the part of the owners.12 Nor is the shipper entitled to look for damages to the vessels or owners, or to any funds in court representing such vessel and freight pending.13

The liability of one vessel to other vessels with which it may collide is not affected by the Harter Act which only applies to the relations between a vessel and her cargo.14 In relieving the carrier vessel and her owners from their responsibility for their half of the damage to the cargo, the Act was not designed to increase thereby the damage payable in such cases by the other vessel.15 Nor does the act affect the operation of the equitable. rule which gives priority to the claim of the innocent cargo owners over that of the vessel owner against the fund available for the payment of damages sustained through a collision for which both vessels have been adjudged in fault.16

12. The Strathdon, 94 Fed. 206. 13. In re California Nav. & Imp. Co., 110 Fed. 678.

14. The Viola, 60 Fed. 296, s. c. 59 Fed. 632; The Berkshire, 59 Fed. 1007.

15. The Rosedale, 88 Fed. 324, affirmed, 92 Fed. 1021, 35 C. C. A.

167.

16. The George W. Roby, 111 Fed. 601, 49 C. C. A. 481, modifying 103 Fed. 328.

CHAPTER VII.

OF THE LIMITATION OF THE CARRIER'S LIABILITY BY CONTRACT.

$ 388. Goods usually shipped un- § 403. Same subject-Such limitader contracts limiting liability.