by the third section of the Harter Act, the owner of a seaworthy vessel (and, in the absence of proof to the contrary, a vessel will be presumed to be seaworthy) is no longer responsible, etc."

And in a later case, the court said:

1

"We repeat that even if the loss occur through fault or error in management, the exemption cannot be availed of unless the vessel was seaworthy when she sailed, or due diligence to make her so had been exercised, and it is for the owner to establish the existence of one or the other of these conditions."

It may be remarked in passing that the seeming contradiction between these passages as to the duty of establishing seaworthiness, may be explained by taking the word "proof" to mean evidence." The result is that while a vessel will be presumed seaworthy in the absence of evidence to the contrary, yet if evidence is given of unseaworthiness contributing to the loss, the owner, if he relies on the fact that his vessel was seaworthy, must establish it by a preponderance of evidence in his favor. It is clear that in the opinion of the court seaworthiness in fact is as good as diligence to make seaworthy.

Suppose, however, that there has been neither seaworthiness nor diligence to make seaworthy, yet that damage results solely from fault in navigation. A steamship has a cracked shaft that will be dangerous in rough weather, but by negligence the crack is not discovered and she is permitted to sail without repair. No rough weather occurs. The steamer crosses the ocean in safety, but negligently comes into collision in the harbor of destination. Is the owner, who would not have been made liable for damage to his cargo by the negligent failure to examine the shaft before sailing, provided it had not been cracked, to be rendered liable by the mere fact that a crack in it existed, although its existence had not the slightest connection with the damage? The proviso is whimsical, if for such an irrelevant accident it excludes the owner from an exemption he would otherwise receive.

No case has been found in which the owner was so excluded. Although the passage last quoted from the opinion of the Supreme Court may seem at first sight to say that he should be excluded, it will appear on examination that it does not say so. It means that if the cause of the loss is a failure to use care to make sea

1 International Navigation Co. v. Farr and Bailey Mfg. Co., 181 U. S. 218, 226.

worthy, the case is not within the exemption, even though such failure is a fault in management. It does not mean that exemption would be refused for a fault in management, because of a failure to use care to make seaworthy, distinct from the fault in management and not contributing to the loss.

The sole effect of the proviso seems to be that which has just been suggested. When section three says that the owner shall not be liable for fault in navigation or management, provided diligence has been used to make seaworthy, it excludes from fault in management all carelessness in preparing the vessel for the voyage. Under this interpretation, the act is reasonable and consistent, and its language is such as might naturally be used to express its intent. The interpretation is a literal one as well. For the diligence to which the proviso refers, is diligence which it is the carrier's duty to employ. But so far as concerns liability for damage to cargo, his only duty is to avoid such damage, and, if no damage results from his lack of diligence, the carrier is at liberty to be as careless as he pleases. If his lack of diligence does not contribute to the damage, he has used all the diligence that was due, and the proviso is fulfilled. That this is true when the vessel is seaworthy, has already been seen, and it proves that the act is not intended to deprive the owner of exemption, merely because he is careless in equipping his ship. If the carelessness meant by the proviso is not the carelessness which is a breach of moral duty, so as to make the carrier morally blamable, then it ought to be the carelessness which is a breach of legal duty, and makes him legally liable, that is, carelessness which results in damage. It is an argument in favor of this construction that the diligence required is held to be diligence on the part of all for whose conduct the owner is legally liable. If the phrase about due diligence of the owner is used in reference to legal liability as regards the persons who are to excrcise it and the work to be done, it would naturally be used in the same sense as regards the occasions on which its exercise is required. In short, it means, it is submitted, that the damage for which exemption is granted, must not be damage resulting from failure to employ that diligence in preparing the vessel for sea upon the exercise of which the act insists. The proviso is inserted only to make it clear that the exoneration granted is in no way to derogate from the obligation to take due care for seaworthiness. It was necessary to insert it because fault in management might otherwise be supposed to include fault in equipping

the vessel for sea. There are English cases in which even the phrase "improper navigation" was held to include such fault.1

APPLICATION TO CASES OF GENERAL AVERAGE.

Does the Harter Act have any application to cases of general average? If the peril which the sacrifice is made to avert, is incurred through fault in navigation, does the act change the ordinary rule which denies to a shipowner a right to receive contribution in average for a sacrifice made to avert a danger threatening the venture, when the danger arises through neglect of his servants? The Supreme Court in The Irrawaddy" held, by a divided bench, that the rule was not changed. The decision went upon the ground that the Harter Act does not abrogate the general principle of a shipowner's responsibility for improper navigation; that it only relieves him from responsibility so far as to say that he need not pay damages for cargo lost, but does not relieve him so far as to say that he may receive contribution in average. In other words, the principle of the decision is that the act must be interpreted as meaning only that, in case of improper navigation, the cargo owner shall no longer be entitled to throw upon the shipowner the burden of loss which has fallen upon the cargo. It is silent as to the right of the shipowner to throw upon the owner of cargo any part of the burden of loss which has fallen upon the ship, and hence it confers no such right. As it does not change the rule of law which prohibits contribution, it is immaterial

1 In The Warkworth, 9 P. D. 145, a collision due to a ship's failure to answer her helm was held to have been caused by improper navigation within the meaning of the English statute for the limitation of shipowners' liability, although the reason of the failure was a defect in the steering-gear caused by the neglect of the shore superintendent, and not discoverable in the ordinary management of the vessel after sailing.

In Carmichael v. Liverpool Sailing Ship Owners Assn., 19 Q. B. D. 242, a negligent failure to secure a port while loading cargo, which led to damage upon the voyage, was held to be improper navigation within the meaning of articles of mutual assurance against liability. Lord Esher said (at p. 248) : If something is negligently done or omitted to be done before the navigation of the ship begins, which has an effect on her navigation while she is being navigated, is that or is that not improper navigation within the meaning of these words?" And he considered it “a very sound answer to say, "Certainly [it is]. if that negligence affected the safe sailing of the ship with regard to the safety of the goods on board during the voyage." That this interpretation did not depend upon the character of the instrument in which the words were found, appears from his statement, in Canada Shipping Company v. British Shipowners Assn., 23 Q. B. D. 342, 343, that it was an interpretation according to the ordinary meaning of the words.

2 The Irrawaddy (Flint 2. Chrystall), 171 U. S. 187.

whether or not it takes away the reason upon which that rule was originally founded.

The decision seems correct, even upon this narrow ground; but it would appear that it might also have been put upon the ground that the right to average contribution is an equitable right, existing only where a loss has fallen upon one which ought in fairness to be shared by others; that where a man, who by the fault of himself or of his servants has brought the property of others into a position of peril, succeeds by his own efforts and at his own expense in averting the peril, he has done no more than he ought to do, and there is no unfairness in making him stand the loss. It was not deemed unfair before the Harter Act to make him stand it, as is clear from the fact that it was then thought proper to make him liable for the damage which happened to the cargo as well as for that which fell upon himself. If it was not unfair before the act, it is not unfair after it; and no equitable ground for contribution exists. The statute does not alter the relation in fact which exists between the owner and his servants. It does not alter the legal consequences which spring from that relation, except in so far as it prescribes that they shall be altered. It does not create an equitable ground for contribution, nor does it, under any ordinary construction, prescribe that contribution shall take place, in spite of the absence of any equity as between the parties which requires it.1

Whether a grant of a right to contribution ought to accompany the exemption from liability, is a matter for the legislature. It may strongly be urged that it ought to do so. For as the law

1 In England, a provision in a contract of carriage that the owner shall not be responsible for neglect of servants is held to enable the owner to maintain an action for contribution in general average for sacrifices made to avert a peril caused by neglect of servants. The provision is said to make the neglect foreign to the owner. This was decided in the recent case in the Court of Appeal, of Milburn v. Jamaica Fruit Importing Co. [1900], 2 Q. B. 540, following The Carron Park, 15 P. D. 203. Vaughan Williams, J., dissented in an able opinion. The Irrawaddy was nowhere noticed. While a contract will not necessarily receive the same construction as a statute, it seems probable that if the question should arise under a clause in a bill of lading the federal courts would follow the doctrine of The Irrawaddy. For the Dutch law, see The Mary Thomas [1894], P. 108. For the French law, see Hick v. London Assurance, Com. Cas. 244. The case of Le Normand v. Compagnie Générale Transatlantique, Dalloz, Jurisprudence Générale, 479, to which Mr. Justice Brown refers in his dissenting opinion in The Irrawaddy, as showing the law of France, seems to have concerned the right to contribution for payment of salvage which constituted a lien on the cargo, and so not to be inconsistent, in its decision at least, with The Irra waddy.

stands, the shipowner in a case, say, of negligent stranding, is not responsible for loss of cargo, nor for failure to make voluntary sacrifices to save it; and yet, if he makes such sacrifices, they are, in general, at his own cost. It may be to his interest to let the cargo perish. So far as the law of general average is needed in order to encourage sacrifice and to protect owners of cargo, it is needed in such a case. The Harter Act, in the cases which it covers, in effect deprives the cargo-owner of the protection of the maritime law of general average, as regards sacrifices made by the owner of the ship.

It is to be noted that in The Irrawaddy it appears that the shipowner had paid salvage charges against the cargo, and that for so much of his claim as arose from the payment of salvage, his right to reimbursement was not disputed, and was not before the court. The principle of the decision would not prevent such reimbursement. It would not prevent the shipowner's recovering a sum paid with authority, implied in fact, from the owner of cargo, or paid to discharge a lien that had already attached to the cargo. For when the lien attaches, the cargo-owner loses a beneficial interest in the property, corresponding to what the lienor gains, and for this loss the shipowner is not liable. When, therefore, the shipowner, acting not officiously, discharges the lien, he is entitled under the principles of quasi-contract to reimbursement to the amount of the benefit conferred. The owners of cargo, though not liable for payments made to avert losses that did not happen, should be liable for payments made in discharge of existing claims against them or their cargo.

APPLICATION TO CASES OF COLLISION.

In cases of collision where both vessels are to blame the effect of the Harter Act has proved a matter of some difficulty and doubt. Before the act, the owner of cargo could recover all his damage from either vessel; but if both vessels were before the court, he must first try to get half from each.2 As between the vessels, the total damage was equally divided. The one which suffered most was allowed a claim for one-half the excess of her damage over the damage to the other; but if the other had paid more than the first for damage to cargo carried on either ship,

1 The Atlas, 93 U. S. 302.

2 The Alabama and The Gamecock, 92 U. S. 695.