is given on condition that the carrier will exercise due diligence to make his vessel seaworthy, the burden to prove compliance with this condition is on the carrier.21 Some of the nicest questions in connection with the act have arisen in reference to the proper management of her portholes. The question as to responsibility for leaving a porthole open or insecurely fastened at sailing depends largely upon its location, and upon the question whether harm could reasonably be expected to come from leaving it open. In the Silvia, 22 a porthole was knowingly left open by the crew at the time of the vessel's sailing, and care was taken not to block it by cargo, so that in case of necessity, when the vessel went to sea, it could have been easily closed. The porthole itself was without defect. At sea the crew forgot to close it, and some of the goods were injured. The court held that this was a fault of navigation, and did not render the vessel unseaworthy. On the other hand, in the Manitoba,23 a porthole was unintentionally left insecure at the time of sailing. Judge Brown held that this was a fault connected with the ordinary loading, and was not an act of navigation, and that the ship was liable. It is commended as an interesting discussion of the difference between the two cases. In the English case of Dobell v. Steamship Rossmore Co.,24 the porthole was not only left open, but cargo was packed against it, so that it could not have been closed at sea. The court held that under these circumstances it was a fault in loading, and not in navigation, and that the vessel was liable. 21 Wildcroft, 201 U. S. 378, 26 Sup. Ct. 467, 50 L. Ed. 794; R. P. Fitzgerald, 212 Fed. 678, 129 C. C. A. 214. 22 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241. See, also, Tenedos (D. C.) 137 Fed. 443; 151 Fed. 1022, 82 C. C. A. 671. 23 (D. C.) 104 Fed. 145. See, also, International Navigation Co. v. Farr & Bailey Mfg. Co., 181 U. S. 218, 21 Sup. Ct. 591, 45 L. Ed. 830. 24 [1895] 2 Q. B. 408. The vessel which is so stowed that she is down by the head, causing the cargo to run forward, is liable for the consequences.25 On the other hand, where water ballast in being pumped out injured the cargo, owing to the fact that the crew in pumping negligently left a valve open, the machinery itself being in perfect order, this was held a fault in navigation, and the vessel was not liable.26 And lack of attention to the vessel's pumps while on a voyage, by which cargo was injured, the pumps themselves being in good order, is a fault in navigation, for which the vessel is not liable under the act.27 Breaking adrift and causing damage to cargo, because the pilot anchored the vessel in a bad place, was a fault of navigation, for which the ship was not liable.28 So a vessel which was injured on a voyage, and taken to an intermediate port for repairs, was not liable for subsequent damage from the failure to make the repairs sufficiently extensive, owing to a lack of judgment of the master.29 25 Botany Worsted Mills v. Knott (D. C.) 76 Fed. 582; Id., 82 Fed. 471, 27 C. C. A. 326; Knott v. Botany Worsted Mills, 179 U. S. 69, 21 Sup. Ct. 30, 45 L. Ed. 90. But tipping the ship by the master, not in connection with the discharge of the cargo, but in order to examine the propeller is a fault in navigation. Indrani, 177 Fed. 914, 101 C. C. A. 194. 26 Mexican Prince (D. C.) 82 Fed. 484; Id., 91 Fed. 1003, 34 C. C. A. 168. See, also, Wildcroft, 201 U. S. 378, 26 Sup. Ct. 467, 50 L. Ed. 794; American Sugar Refining Co. v. Rickinson, 124 Fed. 188, 59 C. C. A. 604. 27 British King (D. C.) 89 Fed. 872; Id., 92 Fed. 1018, 35 C. C. A. 159. 28 Etona, 71 Fed. 895, 18 C. C. A. 380. 29 The Guadeloupe (D. C.) 92 Fed. 670; Corsar v. Spreckels, 141 Fed. 260, 72 C. C. A. 378; U. S. v. New York & O. S. S. Co., 216 Fed. 61, 132 C. C. A. 305. Validity of Stipulations Not Mentioned in the Act Stipulations not covered by the terms of the statute, which were valid under American law before the act, are unaffected by it. A stipulation against thieves is valid.30 So as to a stipulation against strikes.31 So a stipulation as to a substituted delivery at the quay or into hired lighters.32 So a stipulation limiting the value, provided the shipper is left free to declare the true value.38 NECESSITY OF STIPULATION TO REDUCE LIABILITY FOR UNSEAWORTHINESS 95. The act permits the shipowner to reduce his warranty of seaworthiness to the measure of reasonable diligence by proper stipulations, but does not have this effect proprio vigore. 34 Probably the most interesting case that has been decided so far upon the act is the CARIB PRINCE. There, a defective rivet which had existed from the very construction of the ship, and was not discoverable by the utmost care, caused by leakage a damage to the cargo. Under the decisions relating to seaworthiness independent of the act, this was a latent defect, and the owner was solely responsible under his implied warranty of seaworthiness. The vessel owner asserted exemption, first, on the ground that 30 Cunard S. S. Co. v. Kelley, 115 Fed. 678, 53 C. C. A. 310. 81 Toronto (D. C.) 168 Fed. 386. 32 Portuguese Prince (D. C.) 209 Fed. 995. 83 Hohl v. Norddeutscher Lloyd, 175 Fed. 544, 99 C. C. A. 166; Kuhnhold v. Compagnie Générale Transatlantique (D. C.) 251 Fed. 387. § 95. 34 170 U. S. 655, 18 Sup. Ct. 753, 42 L. Ed. 1181. See, also, Indrapura, 190 Fed. 711, 112 C. C. A. 351. HUGHES, ADM. (2D ED.)-13 his bill of lading contained a clause against such unseaworthiness, by which he was released from liability; and, second, he contended that the language of the Harter act itself, even if the bill of lading did not mean what he said, exempted him from every defect in the vessel not discoverable by due diligence. The Supreme Court, however, held, as to the first point, that his bill of lading, properly construed, was not intended to cover defects in the vessel existing at the time of sailing, but only those subsequently arising. In reference to his second defense, it held that the act did not, by force of its own language, reduce the liability for unseaworthiness to the measure of due diligence, when no contract was made, but merely gave the vessel owner the right, by contract properly worded, to so reduce his liability. Hence it held the vessel liable under his implied warranty of seaworthiness, independent of the statute, as he had not by contract protected himself against it. Recapitulation The act is a compromise between the interests of shipper and carrier, and was intended, in the interests of American. shipping, to put the American carrier on an equality with the foreign carrier. The first section forbade any stipulation against negligence in connection generally with the handling of the cargo. The second section allowed the carrier to reduce his former absolute warranty of seaworthiness to the measure of due diligence, provided he so stipulated, but did not do this proprio vigore for him. It allowed a similar stipulation as to the handling of the cargo. The third section of its own force exempted the carrier from liability for faults in navigation, sea perils, acts of God or public enemies, inherent vice in thing carried, insufficiency of package, legal process, and deviation, provided the carrier showed due diligence as to seaworthiness in case he wished to set up any of these defenses. CHAPTER IX OF ADMIRALTY JURISDICTION IN MATTERS OF TORT 96-97. The Waters Included, and Wharves, Piers, and Bridges. 98. Torts, to be Marine, must be Consummate on Water. Torts may be Marine though Primal Cause on Land. Detached Structures in Navigable Waters. 99. 100. 101. 102. Torts Arising from Relation of Crew to Vessel or Owner. 103. Obligations to Persons Rightfully on Vessel, but Bearing no Relation to It. 104. Liability as between Vessel and Independent Contractor. 105. Doctrine of Imputed Negligence. THE WATERS INCLUDED, AND WHARVES, PIERS, AND BRIDGES 96. The test of jurisdiction in matters of tort is the locality. 97. This includes navigable waters, natural and artificial, in their average state, but does not include wharves, piers, or bridges attached to the shore. We have already seen that the test of jurisdiction in matters of tort is the locality, and therefore we must first consider what is meant by this test, and what waters it includes; and we must then take up the various torts cognizable in admiralty. They may be subdivided into torts to the person and torts to property; and torts to the person may be further subdivided, for convenience of discussion, into torts not resulting in death and those resulting in death. The admiralty jurisdiction in matters of tort exists over all navigable waters, as explained in a previous connec |