gence has been used, and there is no contract exempting the owner, his obligation to furnish a seaworthy vessel has ceased to exist.41 His use of due diligence has only the effect, so far as the second section is concerned, of reviving his right to limit by special contract his liability against unseaworthiness; and, without such special contract, the absolute warranty of seaworthiness remains even though due diligence has been used.42

The same kind of result has been reached with reference to section three. The exemption of the owners or charterers from loss resulting from "faults or errors in navigation or in the management of the vessel," and for certain other designated causes, in no way implies that because the owner is thus exempted when he has been duly diligent that thereby the law has relieved him from the duty of furnishing a seaworthy vessel. The immunity from risks of a described character, when due diligence has been used, cannot be so extended as to cause the statute to say that the owner when he has been duly diligent is not only exempted in accordance with the tenor of the statute from the limited and designated risks which are named therein, but is also relieved, as respects every claim of every other description, from the duty of furnishing a seaworthy ship.43 In

41. The Carib Prince, 170 U. S. 655, 18 Sup. Ct. 753, 42 L. Ed. 1181, reversing Id. 68 Fed. 254, 15 C. C. A. 385 and Wupperman v. The Carib Prince, 63 Fed. 266.

42. The Carib Prince, supra; The Silvia, 171 U. S. 462, 19 Sup. Ct. R. 7, 43 L. Ed. 241, affirming 64 Fed. 607, 35 U. S. App. 395, 15 C. C. A. 262; The Aggi, 107 Fed. 300, 46 C. C. A. 276, affirming 93 Fed. 484.

In McFadden v. Blue Star Line, (1905) 1 K. B. 697, the court said: "The effect of the incorporation of s. 2, which provides that it shall not be lawful to insert a clause in a bill of lading whereby the obliga. tion of the owner to exercise due diligence shall be lessened, is as

though the parties said, 'If we have in the exceptions inadvertently in serted a clause cutting down the obligation in respect of seaworthiness below an obligation to exercise care, that clause shall be null and void'; but it does not amount to a stipulation that the exercise of due diligence shall be sufficient. For that purpose an express stipu lation is necessary, and there is none to be found in the section itself, and of course therefore none imported by its incorporation."

In The Tjomo, 115 Fed. 919, a special contract existed exempting the vessel from liability.

43. The Carib Prince, supra.
In McFadden v. Blue Star Line.

other words, if the unseaworthiness is not a result of error or fault in management or of one of the other causes designated in the third section, the third section does not apply; and even if it is the result of one of the designated causes, the exemption still cannot obtain, unless the owner used due diligence to make the vessel seaworthy.44

Sec. 364. Same subject-Latent defects. In all cases, therefore, in which unseaworthiness is not a result of one of the causes designated in the third section, the warranty of seaworthiness remains absolute. This warranty does not depend on the shipowner's knowledge or ignorance, his care or negligence.45 The shipowner's undertaking is not merely that he will do and has done his best to make the ship fit, but that the ship is really fit to undergo the perils of the sea and other incidental risks to which she might be exposed in the course of the voyage; and this being so, that undertaking is not discharged because the want of fitness is the result of latent defects.46

supra, the court said: "And the 15 C. C. A. 385 and Wupperman v. incorporation of s. 3 does nothing more than give immunity in respect of loss resulting from certain specified causes in the course of the voyage, provided the shipowner has exercised due diligence to make the ship seaworthy. The reference to due diligence is a mere qualification upon that immunity; it is not a limitation of the obligation under the warranty."

44. International Navigation Co. v Farr & Bailey Mfg. Co., 181 U. S. 218, 45 L. Ed. 830, 21 Sup. Ct. R. 591, affirming Farr & Bailey Mfg. Co. v. International Navigation Co. 98 Fed. 636, 39 C. C. A. 197.

The Carib Prince, 63 Fed. 266, the vessel was a new British steamship, built by builders of the highest class. The damage was due to a latent defect in a rivet, arising from the fact that the quality of the iron had been injured by too much hammering at the time it was annealed. After the construction the tank had been tested by hammer and by water pressure, and it was found to be tight, and strong enough to sustain the weight of water when not in motion, but when in motion the rivet proved insufficient and gave way. The Supreme Court of the United States held that the exemptions

45. The Edwin I. Morrison, 153 contained in the Harter Act were U. S. 199, 14 Sup. Ct. R. 823.

46. In The Carib Prince, 170 U. S. 655, 18 Sup. Ct. R. 753, 42 L. Ed. 1181, reversing Id. 68 Fed. 254,

inapplicable, and the vessel was liable for damage to the cargo resulting from that latent defect.

See also The Caledonia, 157 U. S.

In all cases in which unseaworthiness is a result of one of the causes designated in the third section, the shipowner is relieved from the warranty of absolute seaworthiness to which he was bound prior to the Harter Act. The difference is important because in those cases it relieves the shipowner from responsibility for latent and undiscoverable defects, but the warranty of diligence remains.+7

Sec. 365. Exemption clauses in bills of lading strictly construed. Even though due diligence has been used, clauses of a bill of lading exempting the owner from the general obligation of furnishing a seaworthy vessel must be confined within strict limits, and are not to be extended by latitudinarian construction or forced implication so as to comprehend a state of unseaworthiness, whether patent or latent, existing at the commencement of the voyage. In other words, the court will not readily infer an exception of that warranty.48

124, 39 L. Ed. 644, 15 Sup. Ct. R. 537, affirming 43 Fed. 681 and 50 Fed. 567.

47. In The Irrawaddy, 171 U. S. 192, 43 L. Ed. 130, 18 Sup. Ct. R. 831; The Southwark, 191 U. S. 1, 48 L. Ed. 65; Nord-Deutscher Lloyd v. President, etc., of Insur ance Co., 110 Fed. 420, 49 C. C. A. 1, and The Colima, 82 Fed. 665, there are general dicta to the effect that "the main purposes of the act were to relieve the shipowner from liability for latent defects, not dis coverable by the utmost care and diligence." As thus stated, those dicta are undoubtedly too broad, and all that the courts had in mind probably were those cases in which unseaworthiness is a result of one of the causes designated in the third section of the act.

48. The Carib Prince, 170 U. S. 655, 18 Sup. Ct. R. 753, 42 L. Ed. 1181, reversing, Id. 68 Fed. 254, 15

C. C. A. 385, and Wupperman v. The Carib Prince, 63 Fed. 266; Borthwick v. Steamship Co. (1904) 1 K. B. 319, 73 L. J. K. B. 240; Rathbone Bros. & Co. v. McIver (1903) 2 K. B. 378, 72 L. J. K. B. 703, 19 Times L. R. 590, reversing, (1902) 8 Com. Cas. 1.

The provision in a bill of lading that the ship is not to be answerable for loss through any "latent defect in the machinery or hull not resulting from want of due diligence by the owners "does not cover a condition of unseaworthiness existing at the commencement of the voyage, but applies only to a state of unseaworthiness arising during the voyage. The Aggi, 107 Fed. 300, 46 C. C. A. 276, affirming, 93 Fed. 484. Ia The Maori King r. Hughes, (1895) 2 Q. B. 550, 65 L. J. Q. B. 168, affirming 64 L. J. Q. B. 744, a similar exception was under con

Sec. 366. The test of seaworthiness.-The test of seaworthiness is whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport. Seaworthiness depends not only upon the vessel being staunch and fit to meet the perils of the sea, but also upon its character in reference to the particular cargo to be transported. A vessel must be able to transport the cargo which it is held out as fit to carry or it is not seaworthy in that respect. A vessel, for instance, without special appliances, would be unseaworthy as to a perishable cargo of dressed beef, to be shipped on a long voyage in hot weather.49

Sec. 367. Burden of proof on carrier to prove vessel was seaworthy or due diligence was used to make her seaworthy.Even if a loss occurs through the fault or error in management of a vessel, the exemption given by the Harter Act cannot be availed of unless the vessel is seaworthy when she sails or due

sideration and the court came to the same conclusion. See also The Sandfield, 92 Fed. 663, 34 C. C. A. 612, affirming 79 Fed. 371.

49. The Southwark, 191 U. S. 1, 48 L. Ed. 65, 24 Sup. Ct. R. 1, reversing 108 Fed. 880, 48 C. C. A. 123; American Sugar Refining Co. v. Rickinson Sons & Co., 124 Fed. 188, 59 C. C. A. 604, reversing 120 Fed. 591; Neilson v. Coal, etc., Co., 122 Fed. 617, 60 C. C. A. 175, affirming The Nellie Floyd, 116 Fed. 80; The Thames, 61 Fed. 1014, 10 C. C. A. 232, 8 U. S. App. 580; Rowson r. Atlantic Transport Co., (1903) 2 K. B. 666, 72 L. J. K. B. 811, affirming (1903) 1 K. B. 114; The Maori King v. Hughes (1895) 2 Q. B. 550, 65 L. J. Q. B. 168, affi'g, 64 L. J. Q. B. 744; Dene Shipping Co. v. Tucedie Trading Co., C. C. A. 143 Fed.

854, affirming 133 Fed. 589.

Seaworthiness has been defined as "that quality of a ship which

fits it for carrying safely the particular merchandise which it takes on board." The Artic Bird, 109 Fed. 167.

A vessel, under the Harter Act, must be reasonably fit to carry her cargo, having in view the time of the year and the weather to be fairly expected during the voyage. The C. W. Elphicke, 122 Fed. 439, 58 C. C. A. 421, affirming 117 Fed. 279,

The warranty of seaworthiness does not imply a warranty of insurability at the usual rates, and the refusal of insurance, while it may be considered as evidence of unseaworthiness, more or less convincing according to the circumstances of the case, is never conclusive evidence thereof, but is a fact to be considered in connection with the actual condition of the vessel. Moore & Co. v. Cornwall, C. C. A. - 144 Fed. 22, affirming 132 Fed. 868.

diligence to make her so has been exercised, and it is for the owner to establish the existence of one or the other of these conditions. But the casting of the burden of proof on a shipowner does not destroy the presumptions in his favor which exist under the general law of evidence. Thus, although the burden of proving seaworthiness rests upon one who wishes to avail himself of the exemption of the third section of the act there is a presumption that the owner of a vessel performed his duty in making her seaworthy, and properly manning, equipping and supplying her for the voyage she was about to make, and this presumption of fact, where not controverted, sustains that burden, or, in case of controversy, may help to sustain it.2 The question, therefore, whether a ship is reasonably fit to carry her cargo, or due diligence has been exercised to make her so, must depend on the particular facts of each case and must be determined upon the whole circumstances and the whole evidence.3

Sec. 368. How far warranty of seaworthiness extendsVessel must be seaworthy at each stage of voyage. The implied warranty of seaworthiness extends to the time when the vessel actually breaks ground for the voyage, and not merely to the time when she begins to take in cargo. Hence there is a

1. The Southwark, 191 U. S. 1, 48 L. Ed. 65, 24 Sup. Ct. R. 1, reversing 108 Fed. 880, 48 C. C. A. 123 and 104 Fed. 103; Interna tional Navigation Co. r. Farr & Bailey Mfg. Co., 181 U. S. 218, 45 L. Ed. 830, affirming Farr & Bailey Mfg. Co. v. International Naviga tion Co., 98 Fed. 636, 39 C. C. A. 197.

The burden is on a shipowner to show seaworthiness. The South wark, supra; The Oneida, 128 Fed. 687, 63 C. C. A. 239, reversing 108 Fed. 886; The Manitoba, 104 Fed. 145; The Gordon Campbell, 141 Fed. 435.

The burden of proof is on a ship. owner to show due diligence in

making the ship seaworthy. The Friesland, 104 Fed. 99; The Colima, 82 Fed. 665, 679; The Presque Isle, 140 Fed. 202.

2. The Wildcroft, 130 Fed. 521. 65 C. C. A. 145, affi'g, 126 Fed. 229 and 124 Fed. 631. See also The Giles Loring, 48 Fed. 463.

The finding that a vessel is unseaworthy ought not to be based on doubtful inferences. Memphis & C. Packet Co. v. Overman Carriage Co., 93 Fed. 246.

3. International Navigation Co. r. Farr & Bailey Mfg. Co. 181 U. S. 218, 45 L. Ed. 830, 21 Sup. Ct. 591, affirming Farr & Bailey Mfg. Co. r. International Navigation Co., 98 Fed. 636, 39 C. C. A. 197.