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§ 6950. Rights of the Cargo under the Harter Act.-The Harter Act, which exempts the vessel-owner from liability for cargo losses resulting from faulty navigation where he has furnished a seaworthy vessel properly manned, was enacted solely to fix the liability as between the vessel-owner and his cargo, and does not attempt to deprive the cargo-owner of rights he may have where the loss is occasioned by the fault of another vessel. This act does not abrogate the equitable rule which gives priority to the claim of the innocent cargo-owner over that of the vessel-owner, against the fund available for the payment of damages sustained through a collision, for which both vessels. have been adjudged in fault.28

§ 6951. Inevitable Accidents.-A collision will be ascribed to inevitable accident, and each vessel must bear its own loss, where it results notwithstanding both parties have endeavored by every means in their power, with due care and caution and a proper display of nautical skill, to prevent its occurence.29 If either vessel is in fault,30 or the casualty could have been prevented by the use of proper and known precautions, it is not considered an inevitable accident. In the category of inevitable accidents are included collisions resulting from causes described as the act of God,32 excessive darkness,33 and latent defects in machinery and equipment. The rule does not demand the highest degree of caution that can be used to avert a collision it is enough that it is reasonable under the circumstances--such

libel is filed, and libelant recovers half his damages, each side will be allowed one-half its taxable costs: The Edward Luckenbach, 94 Fed. Rep. 544.

28 The George Roby, 11 Fed. Rep. 601. One-half the amount of damage to the cargo of a sunken vessel may be recouped against one-half the award for the loss of the vessel itself by collision, where both vessels were in fault, notwithstanding the Harter Act, relieving a vessel from responsibility to its own cargo for loss or damage caused by fault of navigation, since that does not lessen its liability to the other vessel in case of collision by mutual fault, until the amount of liability has been fixed upon the principle of an equal division of damages: The Chattahoochee, 173 U. S. 540; s. c. 43 L. ed. 801; 19 Sup. Ct. Rep. 491; aff'g s. c. 33 U. S. App. 510; 21 C. C. A. 162; 74 Fed. Rep. 899.

20 The John Frazier, 21 How. (U. S.) 184; The Lucas, 6 McLean (U. S.) 282; The Morning Light, 2 Wall.

(U. S.) 550; The Pennsylvania, 24 How. (U. S.) 313; Stainback v. Rae, 14 How. (U. S.) 532; The Teutonia, 23 Wall. (U. S.) 77; Union S. S. Co. v. New York &c. S. S. Co., 24 How. (U. S.) 307; The Locklibo, 3 W. Rob. 318.

30 The Severn, 113 Fed. Rep. 578; The Colorado, 91 U. S. 692; The Schwan v. The Albano, Can. L. R. [1892] Prob. 419.

31 Ladd v. Foster, 31 Fed. Rep. 827; The Nacoochee, 24 Blatchf. (U. S.) 99; s. c. 28 Fed. Rep. 462.

The Zouave, Brown Adm. (U. S.) 110 (sudden storm of wind or a stroke of lightning).

33 The Morning Light, 2 Wall. (U. S.) 550.

34 The Homer, 99 Fed. Rep. 795; The Olympia, 52 Fed. Rep. 985 (defect in wire tiller-rope bought of reputable dealer); The Transfer No. 3, 91 Fed. Rep. 803. But not where collision is occasioned by insufficiency of fastening to wharf: The Andrew Welch, 122 Fed. Rep. 557.

as is usual in similar cases and has been found by long experience to. be sufficient to answer the end in view.35 It is essential, however, that the precautions to prevent the collision must have been seasonably taken. As examples of inevitable accidents may be mentioned the cases where the collision of a steamship with another was caused by the improper navigation of a third steamship in starboarding across her bow; and where a vessel, made fast to a wharf by a competent band of stevedores, by fasts which, through long experience, are deemed by them sufficient, through the action of the winds and waves breaks her fastenings and drifts toward a schooner, placing the schooner in such imminent peril that, in moving to a place of safety, she is capsized and founders.38 The vessel setting up inevitable accident as a defense has the burden of establishing that defense;" and where it is claimed that the inevitable accident was caused by a latent defect in machinery, the vessel setting up this defense must. show that the defect could not have been discovered by a person of competent skill in the exercise of ordinary care, and, further, that the defect necessarily caused the accident.*0

*The Grace Girdler, 7 Wall. (U. S.) 196; The Morning Light, 2 Wall. (U. S.) 550.

*The Teutonia, 23 Wall. (U. S.) 77; Union S. S. v. New York &c. S. S. Co., 24 How. (U. S.) 307.

sue is whether the weather was such that the lights of one vessel could be seen in time to enable the other to keep out of the way, it has been held that the burden is upon libelants to show not only that

The Schwan v. The Albano, Can. their lights were burning, but also L. R. [1892] Prob. 419.

"The Austria, 14 Fed. Rep. 298. "The Ohio, 91 Fed. Rep. 547. Where, in case of a collision at sea at night, the defense of inevitable accident is raised, and the main is

that the weather was such that they could be seen a sufficient distance to avoid the collision: The Florence P. Hall, 14 Fed. Rep. 408.

10 The Homer, 99 Fed. Rep. 795.

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6954. The admiralty rule and the 6961. Limitation applies to all ma

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§ 6954. The Admiralty Rule and the Statutes.-Courts of admiralty of all countries save Great Britain have from the earliest times administered a rule limiting the liability of the owner of a vessel responsible for a marine injury, to the extent only of his interest in the vessel, which liability is held to be terminated by the abandonment and surrender of this interest to the parties sustaining loss.1 This rule, unknown to either the civil or the common law, has now been enacted into a Federal statute which provides that the liability of the owner for losses, including those by collision, occurring without the privity or knowledge of the owner, shall in no case exceed the amount or value of the interest of such owner in the vessel and in freight then pending. This statute is upheld as a legitimate exercise of the constitutional power of Congress to regulate commerce and enact necessary maritime regulations. The statute, being in deroga

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'Providence &c. S. S. Co. v. Hill Ranger, Lush. 553, 564; Cope v. DoMan. Co., 109 U. S. 578.

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herty, 4 K. & J. 367, 378; Emerigon, Contrats à la Grosse, ch. 4, § 11 (civil law).

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tion of the common law, has received a strict construction by the courts in conformity with the well-known rule of statutory construction.*

$6955. The Rule Applies to All Vessels.-The benefits of the limited-liability statute are now open to the owners of vessels of all descriptions, including canal-boats, barges and lighters; and may be claimed by foreign vessels. In one case it is held that the owner of a steamship will not lose his right to make the claim by reason of his violation of a statute fixing the number of lifeboats to be carried by ressels, it appearing that he carried lifeboats such as the inspectors determined would best secure the safety of persons on board."

$6956. Loss by Fire.-It is likewise provided that the shipowner shall be liable for injury to the cargo by fire only when the fire is caused by his design or neglect ; and the cargo-owner has the burden of showing this fact. It has been held by at least one court that the question whether the fire that destroyed the cargo was caused by the design or neglect of the shipowner, so as to deprive him of the exemption, will be determined by the court, and not be left to the determination of a jury.10 In a case where a cargo took fire from heat generated by a flue of an engine, and it was shown that the vessel was constructed by competent builders and that her plans were in accordance with the best-known designs for safety against fire, the fire was deemed not to have been caused by design or neglect of the shipowner, and he was consequently not liable for the loss of the cargo." This provision of the statute can be invoked by the vessel-owner only where the fire was the proximate cause of the injury to the cargo.12

Hill Man. Co., 109 U. S. 578. Pa. Const., art. 3, § 21, prohibiting limitation of amount of recovery for injuries resulting in death, cannot be set up against the act limiting liability of owner of a ship, including one used in inland navigation, to the value of his interest therein, for any injury by collision or any act done without his privity or knowledge: Loughlin v. McCaulley, 186 Pa. St. 517; s. c. 42 W. N. C. (Pa.) 519; 40 Atl. Rep. 1020.

'Main v. Williams, 152 U. S. 122; The Germanic, 124 Fed. Rep. 1; modifying s. c. 107 Fed. Rep. 294.

U. S. Rev. Stat. 1901, § 4289.
The Frey, 92 Fed. Rep. 667; The
Scotland, 105 U. S. 24.

In re La Bourgogne, 117 Fed.
Rep. 261.

U. S. Rev. Stat. 1901, § 4282. Horses and trucks, taken aboard the boat by their drivers, who are passengers, and remaining in their charge during the trip, are not "merchandise" within this provision: The Garden City, 26 Fed. Rep. 766.

"The Strathdon, 89 Fed. Rep. 374; In re Old Dominion S. S. Co., 115 Fed. Rep. 845.

10 In re Old Dominion S. S. Co., 115 Fed. Rep. 845.

"The Strathdon, 89 Fed. Rep. 374. 12 During the flooding of the hold to extinguish accidental fire, a ship grounded in the Suez Canal, and listed, so as to allow water to flow through a pipe without a stopvalve, leading from the bathroom of the captain's cabin, and to find its

§ 6957. What is Meant by "Privity or Knowledge."-The word "privity" used in the statute means the personal participation of the owner in the fault or neglect; and the word "knowledge" means his personal cognizance, or means of knowledge of which he is bound to avail himself.13 Where the vessel is owned by a corporation, the priv-. ity or knowledge of the managing officers of the corporation is the privity or knowledge of the corporation itself.1 The knowledge of one joint owner, however, is not sufficient to bind the others or prevent them from availing themselves of the limitation.15 The vessel-owner will generally be regarded as without privity or knowledge where the injury is caused by employés, and he has exercised due care in their selection, and a like measure of care as to the seaworthiness of the vessel;16 and such vessel-owner has been allowed to make a claim of limitation where the collision was caused by a failure of competent employés to make a proper inspection, and his ignorance of their neg-lect was due to the magnitude of his general business, which prevented a close inspection of the vessel.17

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§ 6958. Securing Limitation by Surrendering Vessel.-The stat-ute allowing a vessel-owner to turn over the vessel intends only the vessel at fault. Thus, where a tug was alone in fault for the breaking of the lines by which she was towing a barge belonging to theowner of the tug, which caused a collision between the barge and another vessel, and in the proceeding in rem the tug alone would have been liable, the owner was required to surender the tug only in order to claim the benefit of the statute.18 Where it is his duty to surrender numerous vessels to secure the limitation, and he fails to surrender all, the court, having full equitable power to adjust the rights of all

way into one of the holds. It was held that the fire was the proximate cause of the injury to the cargo in such hold, and that, under U. S. Rev. Stat. 1901, § 4282, the shipowners. were not liable therefor: The Strathdon, 89 Fed. Rep. 374.

13 Lord v. Goodall &c. S. S. Co., 4 Sawy. (U. S.) 292; s. c. aff'd, 102 U. S. 541.

14 In re Old Dominion S. S. Co., 115 Fed. Rep. 845; Lord v. Goodall &c. S. S. Co., 4 Sawy. (U. S.) 292; s. c. aff'd, 102 U. S. 541.

15 In re Meyer, 74 Fed. Rep. 881.

16 Memphis &c. Packet Co. v. Overman Carriage Co., 93 Fed. Rep. 246. A steamship company which in good faith makes rules and regulations requiring the officers of all vessels to maintain only a moderate speed

during foggy weather, and take all the precautions required by the International Rules to prevent collisions, and exercises due diligence and care in the selection of competent officers, is not debarred from the right to a limitation of its liability for damages caused by a collision for which its vessel was in fault by reason of maintaining excessive speed in a fog, even though it had knowledge that such rules were habitually violated in that respect, where it appears to have done all that could practically be done to secure their enforcement: In re La Bourgogne, 117 Fed. Rep. 261.

17 Van Eyken v. Erie R. Co., 117 Fed. Rep. 712.

18 Van Eyken v. Erie R. Co., 117 Fed. Rep. 712.

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