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plainants will suffer irremediable loss if not permitted to sue, and as they had a cause of action they rightly brought it in the Circuit Court of the United States.

Decree reversed.

THE GERMANIC.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND

CIRCUIT.

No. 128. Argued January 13, 16, 1905—Decided February 20, 1905.

A foreign vessel from Liverpool arrived at its destination, New York, and

made fast to the wharf. Owing to unusual gales and weather she was heavily weighted with snow and ice and made top heavy. While the cargo was being unloaded she suddenly rolled over and sank, damaging the cargo remaining in her, some of which had been shipped from points east of Liverpool on bills of lading to Liverpool, thence to be forwarded to New York, and containing certain exemptions of the carrier from liability. The owners and insurers of cargo libelled the vessel; it was found by the District Court and the Circuit Court of Appeals that the damage was due to negligence in unloading cargo and ruled that the negligence fell within section one of the Harter Act and not within section three of the same as negligence in the navigation or management

of the vessel. Held, that: This court will not go behind the findings of the two courts as to negli

gence and that the rule was correct. When a case may fall under section one and section three of the Harter

Act the question which section is to govern must be determined by the

primary nature and object of the acts which cause the loss. Semble. The standard of conduct is external and not merely co-extensive

with the judgment of the individual. The Harter Act will be applied to foreign vessels in suits brought in the

United States, and where claimants set up and rely upon the act they must take the burden with the benefits and cannot claim a greater limitation of liability under provisions of bills of lading.

The facts are stated in the opinion.

Argument for Petitioner.

196 U.S.

Mr. Everett P. Wheeler for petitioner:

The Harter Act exempts the ship from liability. She was seaworthy when she left Liverpool and the cargo was in good order when she arrived in New York. Even if the captain was negligent his treatment of the ship and cargo was part of her management under the act. For history of the act see 24 Cong. Rec. 147, 171, 1180.

The exemption under the act continues until the cargo is delivered from the ship. The Glenochil, Prob. (1896) 10; The Silvia, 171 U. S. 462; Knott v. Botany Mills, 179 U. S. 69; The Wildcroft, 130 Fed. Rep. 521, affirming 124 Fed. Rep. 631; The Rotherfield, 8 Revue Int. du Droit Mar. 103. The object of the Harter Act is to regulate the relation between carriers and shippers. The Delaware, 161 U. S. 459; The Viola, 59 Fed. Rep. 632; The Berkshire, 59 Fed. Rep. 1007.

Both of the courts below held that the steamer was liable because a condition of instability brought about by improper unloading, care and custody of the cargo is not a fault in the management of the vessel. This was error.

Cases cited supra; Knott v. Botany Mills, 76 Fed. Rep. 582; The Mississippi, 113 Fed. Rep. 985; S. C., 120 Fed. Rep. 1020; The Canon Park, 15 Prob. Div. 203; The Southgate, Prob. (1893) 329, 337, all really support petitioner's contention.

Management of the vessel includes management of any part of the vessel. Rowson v. Atlantic Transport Co., (1903) 1 K. B. Div. 114; S. C., 9 Maritime Law Cas. U. S. 347; K. B., (1903) Div. 666; 19 Times L. R. 668; The Rodney, Prob. Div. (1900) 112, 117.

The doctrine of the opinions of the courts below are opposed to The Sandfield, 79 Fed. Rep. 371; S. C., 92 Fed. Rep. 663; Am. Sug. Rfg. Co. v. Rickinson, 124 Fed. Rep. 188; The Mexican Prince, 82 Fed. Rep. 484; S. C., 91 Fed. Fep. 1003. The loading and discharge of cargo and the coaling were under the captain's direction. He always has the control. The distinction is unimportant. Int. Nav. Co. v. Farr & Bailey

196 U. S.

Argument for Petitioner.

Co., 181 U. S. 218, 226; as to history of Harter Act see The Delaware, 161 U. S. 459.

To limit $3 to management in reference to delivery of the cargo and not to handling of coal would be to interpolate language not contained in the act. The act was drawn with reference to business usage and general words must be given their general construction. Demarest v. Wynkoof, 3 Johns. Ch. 142; United States v. Coombs, 12 Pet. 72; Chamberlain v. Transportation Co., 44 N. Y. 305; So. Life Ins. Co. v. Packer, 17 N. Y. 51. The Harter Act applies alike to foreign and domestic vessels. The Chattahoochee, 173 U. S. 540; The Silvia, 171 U. S. 642; The Manitoba, 104 Fed. Rep. 145, can be distinguished.

The bills of lading exempted the carrier for loss which would cover the damages in this case. The Etona, 64 Fed. Rep. 880; S.C., 71 Fed. Rep. 895. The finding that the unloading was negligent is not tenable. The only mistake of the captain was in failing to see an extraordinary result of an unusual storm.

Negligence is an omission to judge or the neglect of some means reasonably adapted to guard against a danger which is reasonably to be expected. The Adriatic, 17 Blatch. 176; S. C., 107 U. S. 512; Int. Nav. Co. v. Farr & Bailey Co., 98 Fed. Rep. 636; S. C., 181 U. S. 218, 227; Brown v. French, 104 Pa. St. 604, 608; The Tom Lysle, 48 Fed. Rep. 690; Mason v. Ervine, 27 Fed. Rep. 459; Wilson v. Pilots, 57 Fed. Rep. 227; Williams v. Le Bar, 141 Pa. St. 149; The Luckenbach, 109 Fed. Rep. 487; Lawrence v. Minturn, 17 How. 100; Boyd v. Moser, 7 Wall. 316; Steam Trans. Co. v. Bank, 6 How. 344.

It is only because an exemption from liability for negligence is against the policy of the law that libellants have any case at all. R. R. Company v. Lockwood, 17 Wall. 357, 362; Crossman v. Burrill, 179 U. S. 100. The captain's conduct should not be viewed in the light of subsequent events. The Newfoundland, 176 U, S. 97; The Styria, 186 U. S. 1, 9; McClain

Argument for Respondents.

196 U. S.

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v. Brooklyn City R. R. Co., 116 N. Y. 459, 470; The Maria Luigi, 28 Fed. Rep. 244; The Columbia R. R. Co. v. Hawthorne, 144 U. S. 202, 208; Hart v. Railroad Co., 21 Law Times (N. S.), 261.

No one is guilty of negligence by reason of failing to take precautions which no other man would be likely to take under the same circumstances. 1 Shearman & Redfield on Negligence, 4th ed., § 11; Wharton on Neg. $ 46; Nitro-Glycerine Cases, 15 Wall. 524, 537; The Timor, 67 Fed. Rep. 356; Carver on Carriage by Sea, 3d ed., $181.

The sinking of the Germanic was not only unexpected but it was unlike anything that ever occurred before in the history of the port. Hibernia Ins Co. v. Trans. Co., 120 U. S. 166; Stover v. Erie R. R., 95 Fed. Rep. 495. The captain was trying to have the steamer ready to sail. It is the duty of carriers to keep their contracts. The Helios, 115 Fed. Rep. 705; S. C., 108 Fed. Rep. 279.

As to the effect of the insurance claims in the bill of lading providing that the shipowner is not liable for any loss capable of being covered by insurance and to his right of subrogation to insurance see Rintoul v. N. Y. Cent. R. R. Co., 17 Fed. Rep. 905; S. C., 20 Fed. Rep. 313; Phænix Ins. Co. v. Erie R. R. Co., 117 U. S. 312, 325; Inman v. So. Car. Ry. Co., 129 U. S. 128; The Egypt, 25 Fed. Rep. 320.

Mr. Walter F. Taylor, with whom Mr. Edmund Baylies was on the brief, for respondent Aiken, and Mr. Wilhelmus Mynderse for certain insurance companies, respondents:

The disaster was the result of gross negligence, and as that fact was established in the lower courts it is not an open question in this court. Compania De Navigacion La Flecha v. Brauer, 168 U. S. 104; Morewood v. Enequist, 23 How. 491; The Richmond, 103 U. S. 540; The Conqueror, 166 U. S. 110, 135; The Carib Prince, 170 U. S. 655; The Iroquois, 194 U. S. 240, 247; Int. Nav. Co. v. Farr & Bailey Co., 181 U. S. 218.

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196 U.S.

Argument for Respondents.

a

The Harter Act is not a defense, as the damage arose from causes specified in the first section of the act, Knott v. Botany Mills, 179 U. S. 69; S. C., 76 Fed. Rep. 583, and not from faults or errors of navigation of the vessel within the third section of the act.

In most of the cases where the Harter Act has been held to exempt the owner from liability the negligence has not resulted in any injury to the vessel or affected her safety. In many of them, the negligence has involved peril to the cargo only, and has consisted solely in the use of the appliances of the ship, without due regard to the possible effect upon the safety of the cargo. The Sylvia, 171 U. S. 642; The Wildcroft, 130 Fed. Rep. 521; The Rodney (1900), Prob. Div. 112; The Merican Prince, 82 Fed. Rep. 484; The Sandfield, 82 Fed. Rep. 663; Rowson v. Atlantic Transport Company (1903), K. B. Div. 666. These cases establish that the character of a fault, as a fault in the management of the ship, or as one for which the owner is responsible, is not to be determined by the fact that it affects the ship, or the nature or degree of the effect produced, but by reference to the nature of the operation which is negligently performed. The Glenochil, 1896, Prob. Div. 10, can be distinguished.

As to where the damage is attributed to unseaworthiness and not to a fault in her management see The Oneida, 128 Fed. Rep. 687; The Elphicke, 117 Fed. Rep. 272; S. C., 122 Fed. Rep. 439. The tendency is to limit rather than extend the exemptions under the act. The Delaware, 161 U. S. 459; The Irrawaddy, 171 U. S. 187; The Chattahoochee, 173 U. S. 540; The Carib Prince, 170 U. S. 655. The disaster was not due to perils of the sea or the act of God. The insurance clauses of the bills of lading do not relieve the owners.

The provision that the shipowner shall not be liable for any loss capable of being covered by insurance is invalid. It is a direct violation of those provisions of the Harter Act which forbid any clauses relieving the shipowner from the general responsibility imposed upon him by law.

VOL. CXCVI-38

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