C. A. 1903 ROWSON v. ATLANTIC COMPANY. intended to be in substitution for the various kinds of contracts prohibited by ss. 1 and 2; it is a clause in substitution for the existing state of the law. The section does not merely create an exemption in favour of the shipper, but it is a declaration TRANSPORT in favour of both shipper and shipowner. The question here then turns on the meaning of one phrase, "the management of said vessel." Was the act or neglect complained of a fault or error in the management of the vessel? In order to construe the phrase, Kennedy J. referred to the cases on "seaworthiness," and he says that, with regard to cargo," seaworthiness" is that quality of a ship which fits it for carrying safely the particular merchandise it takes on board. "Seaworthiness" is something more than a condition sufficient for keeping the ship afloat it means also the fitness of the ship for carrying the cargo, as in the bullion case: Queensland National Bank v. Peninsular and Oriental Steam Navigation Co. (1) The first point to consider is, What is a "ship"? A ship is not merely something that can be propelled through the water: it includes everything that can be included in a ship constructed for carrying a cargo. The shipowner is bound to put before the shipper a ship which can safely carry the cargo, and which consequently includes everything that is necessary to the safety of the cargo to be carried; and it is submitted that in the present case the refrigerating machinery is a part of the ship necessary for carrying this cargo; and so Kennedy J. has properly held, on the authority of the Maori King Case. (2) "Vessel" in the Act means "vessel with reference to the particular cargo carried"; it must be defined by reference to safe carriage Steel v. State Line Steamship Co. (3) Safe carriage is the primary object; propulsion is secondary. Here, this refrigerating machinery, whether fixed or loose, is part of the necessary instrument of carriage. The strongest case in favour of the defendants is The Rodney (4), where, upon s. 3 of the Act, it was held that "faults or errors in the management of the vessel" include improper handling of the ship, as a ship, which affects the safety of the (1) [1898] 1 Q. B. 567. (3) (1877) 3 App. Cas. 72, 77. (4) [1900] P. 112, 117. C. A. 1903 ROWSON v. ATLANTIC cargo. Thus, where by some neglect or oversight on board damage is caused to the cargo, that is a "fault or error in the management of the vessel" against which the shipowner is protected by s. 3: The Mexican Prince (1); The Strathdon. (2) The defendants therefore contend that this refrigerating machinery TRANSPORT is part of the ship, as a ship, necessary for carrying this particular cargo, and that the mismanagement of that machinery is mismanagement of the ship, and so covered by s. 3. J. A. Hamilton, K.C., in reply. VAUGHAN WILLIAMS L.J. This case seems to me to be rather on the border-line; but the question we have to decide is really one of fact, and not one of the construction of the sections that have been imported into these bills of lading from the Harter Act. Now, the decision, as I understand it, of Kennedy J. comes to this: he finds that the vessel, at the moment of starting on this voyage carrying this butter, was, in all respects, seaworthy and properly manned, equipped, and supplied; and having come to that conclusion, he comes to another conclusion in fact-namely, that the damage which admittedly occurred in respect of this butter by reason of its not being kept cool in the refrigerating chambers was a damage which arose in the management of the vessel. I do not think that any one dealing with these sections imported from the Harter Act would deny that, if those two conclusions in fact of Kennedy J. are right, his ultimate judgment is right. If it is really true that at the moment of commencing the voyage the ship was seaworthy and properly equipped and supplied, and if it is also true that the damage which has occurred to this butter is damage resulting from the management of the vessel, the conclusion would seem to be irresistible that the shipowner is relieved from liability in respect of this matter. Now, one has to consider first what are the facts in this case, and see whether the evidence is such, and the facts which are admitted are such, as to justify the conclusion of Kennedy J.; but before doing so I propose to make a few observations upon these sections which have been imported. - (1) (1897) 82 Fed. Rep. 484, 489. (2) (1898) 89 Fed. Rep. 374. COMPANY. C. A. 1903 ROWSON v. ATLANTIC TRANSPORT COMPANY. Vaughan Sect. 1 forbids the shipowner introducing into the bill of lading any clauses which shall relieve him from liability for the improper care of cargo. Sect. 2 is rather more complicated, and is as follows: [The Lord Justice read it, and continued:-1 Thus this section prohibits the shipowner relieving himself in any way, first, from the obligation of seaworthiness, and, Williams L.J. Secondly, from the obligation of taking proper care of the cargo. Now we have not to apply either of those two sections to the present case, for the question before us is not whether there are clauses in these bills of lading which are prohibited by the words of those sections. Mr. Hamilton and Mr. Robson take a different view of the three first sections of the Act as a whole. Mr. Hamilton says you must construe s. 3 in the light of ss. 1 and 2, and that when you find in ss. 1 and 2 the prohibition against introducing into a bill of lading or other shipping document anything which shall relieve the shipowner of his liability to properly and carefully handle and stow a cargo, and to care for and properly deliver the same, or by which such obligations shall in any wise be lessened, weakened or avoided, it is quite plain that you must not attribute to the words, "in navigation or in the management of said vessel," which occur in s. 3, any meaning which will neutralize or take away the effect of the provisions in ss. 1 and 2; and he says that the effect of coming to Kennedy J.'s conclusion, that the mismanagement of this refrigerating machine was mismanagement of the vessel, is to neutralize and reduce to nothing the provisions of ss. 1 and 2. Mr. Robson, on the other hand, says that ss. 1 and 2 constitute merely two independent prohibitions that these are things the shipowner shall not do. Then he says that s. 3 means this: "Instead of allowing you, the shipowner, and you, the shipper, to determine what your respective positions are, we, by s. 3, define what those obligations shall be for the future." That, he says, is the proper way of construing s. 3, and that you have no right to read it as connected with ss. 1 and 2. There is a good deal to be said for both views; but the conclusion I have come to myself is that neither view is quite right: that the one makes the dependence stronger than it really is, and the other assumes more inde C. A. 1903 ROWSON V. ATLANTIC COMPANY. pendence than we ought really to find in these sections. Taking that view, when I come myself to read these words, I so far agree with Mr. Hamilton that I think that "in the management of said vessel" means in the management of the vessel quâ vessel. I do not think that "the management of TRANSPORT said vessel" is at all the same thing as "in navigation." What one has to ask one's self is, in my judgment, this: Williams L.J. What, for the purpose of s. 3, is the meaning of the words “in the management of said vessel"? I say they mean "in the management of the said vessel quâ vessel." Now, under those circumstances, if in this case we found that in the refrigerating chambers containing the butter some appliance had been placed simply for the purpose of refrigerating the butter, I should have hesitated very much to say that the refrigerating apparatus was part of the vessel, and I should, I think, not have been able to persuade myself to come to the conclusion that mismanagement of that special apparatus was a mismanagement of the vessel; but it is not the fact here that this refrigerating machine was introduced into this ship with special reference to this butter. It was, to my mind, no more introduced into this ship with reference to this butter than the portholes, or the removability of the hatches for the purpose of ventilation, or any other ventilating apparatus, could be said to be introduced for the purpose of a particular cargo. I think that, on the evidence, this refrigerating machine was put into the ship for the purpose of cooling the ship. It is quite true that, when the refrigerating machine was once there, it could be applied either to cooling the butter, which in this case happened to be in chambers A, B, C, and D, or to cooling the ship's provisions, which happened to be in chambers E and F, constituting the ship's store-room in which the provisions for consumption on the voyage were kept. The machine could be used for any of those purposes; but, in my judgment, we ought not, sitting as a Court of Appeal, to say that Kennedy J. was wrong in holding, as he seems to me by his judgment to have held, that this particular refrigerating apparatus was part of the ship, and that the management of it was management of the vessel. Vaughan C. A. 1903 ROWSON v. ATLANTIC COMPANY. Vaughan 66 and, therefore, that the mismanagement of it was the mismanagement of the vessel. That is the conclusion at which I have myself arrived in this case. Though it is not necessary for me to construe ss. 1 and 2, yet I do construe them to this TRANSPORT extent: it is the contrast between the dealing with the stowage of the cargo, and the dealing with the vessel itself, Williams L.J. that leads me to say, when I come to s. 3, that management of the vessel" means management of the vessel quâ ship-not quâ navigation, but quâ ship. The moment I arrive at the conclusion that I cannot say Kennedy J. was wrong in finding as he did, in effect, find, that this refrigerating machine was a part of the vessel, it seems to me that all the rest of his conclusion follows. I think myself it was part of the vessel, and I think that the damage to this butter resulted from negligence in the management of this part of the vessel, and, therefore, of this vessel. ROMER L.J. I have come to the same conclusion. Under the first two sections of the Harter Act, it is clear that the common law liability of the shipowner regarding the necessity for due care being taken in respect of the cargo was carefully reserved, except so far as that liability may have been expressly cut down by the provisions of s. 3. Looking at s. 3, I think it is reasonably clear that the section was directly aiming at negligence of the owners, agents or charterers of the ship in respect of the navigation or the management of the vessel properly so called. The shipowners are free from negligence in the management of the vessel, regarded as, as has been said, a vessel; but I also agree that, in considering what is a vessel, one must bear in mind that it is to be regarded as a cargobearing carrier, and, moreover, it may be regarded specially by consideration of the particular cargo carried during the voyage. Cases of difficulty may, as in the present case, often arise as to whether the negligence which has resulted in an injury to cargo is to be regarded as negligence in the care of the cargo within the earlier sections of the Act, or negligence in the management of the vessel under s. 3. I think it is difficult, if not practically impossible, to attempt successfully to lay down |