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.

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.

196 U. S.

Argument for Respondents.

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 Mexican 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

Even before the Harter Act this clause was condemned as invalid, because it was unreasonable in the eye of the law, in that it practically compelled a shipper to take insurance. The Hadji, 16 Fed. Rep. 861; S. C., 20 Fed. Rep. 875; The Egypt, 25 Fed. Rep. 320.

The clause giving to the carrier the benefit of the shipper's insurance rests upon different principles but it did not form a part of the contract of carriage between Liverpool and New York. Phoenix Ins. Co. v. Erie Trans. Co., 117 U. S. 312; Liverpool & G. W. S. S. Co. v. Phænix Ins. Co., 129 U. S. 397, 463.

MR. JUSTICE HOLMES delivered the opinion of the court.

This writ of certiorari brings up the record of two cases which were tried together upon libels filed by cargo owners and underwriters to recover for water damage done to goods on board the steamship Germanic. 107 Fed. Rep. 294; 124 Fed. Rep. 1. The steamer reached her pier in New York at about noon, Saturday, February 11, 1899. She was heavily coated with ice, estimated by the courts below at not less than 213 tons, and this weight was increased by a heavy fall of snow after her arrival. She was thirty-six hours late, and in order to sail at her regular time on the following Wednesday, began to discharge cargo from all of her five hatches at once. At the same time she was taking in coal from coal barges on both sides, to that end being breasted off from the dock twenty-five or thirty feet on her port side. At about 4 P. M. on Monday, February 13, she had discharged about 1,370 out of her 1,650 tons of cargo, including all but about 155 tons in the lower hold, the other 125 tons being on the orlop and steerage decks. She then had a starboard list of about 8°. At that moment she suddenly rolled over from starboard to port and kept a port list of 9° or more. As she rolled over the open cover of an aft coal port, about 33 inches by 22, was knocked off, leaving the bottom of the coal port about a foot above the water line.

Thereupon the master, who previously had given no attention to the discharge of cargo and loading of coal, ordered that coaling should be stopped on the port side but continued on the starboard, that no more cargo should be taken from the lower hold, and that some sugar in bags should be shifted to the starboard side.

When ten tons of sugar had been shifted, at 4.45 P. M., the steamer rolled back to starboard with a list of eight degrees as before. Coaling was resumed on the port side but at 6 was stopped on the starboard side. Between 6 and 9 P. M. all her side pockets were filled with coal up to the main deck, except one on the starboard, which lacked about thirty tons of being full. Some twenty or twenty-five tons were run into her cross bunkers in the lower part of the ship, which previously were about half full. About fifty tons of goods were discharged from the orlop and steerage docks, and about sixty tons of bacon were put on board and distributed evenly in the bottom of the hold. From 4.45 to 9 the starboard list was increasing constantly. At a little after 9 the steamer suddenly rolled over again to port, carrying the lower part of the open coal port below the water line. The pumps could not control the inflowing water and the ship sank before relief could be got. The damage to the goods was caused in this way.

The petitioner argues that the danger could not have been foreseen and that there was no negligence, attributing the loss to an unusual gale and special circumstances. But the District Court and the Circuit Court of Appeals agree that the loss was due to hurried and imprudent unloading, which brought the center of gravity of the ship five or six inches above the metacenter. As usual we accept their finding. The Iroquois, 194 U. S. 240, 247; The Carib Prince, 170 U. S. 655, 658. We see no sufficient reason to doubt that it was correct. With reference to a part of the argument we think it proper to say a word. It is quite true that negligence must be determined upon the facts as they appeared at the time and not by a judgment from actual consequences which then were not