The libelant contends that the sinking resulted from the unseaworthiness of the scow and from defects in loading.
The contract provides in part:
'It is agreed and understood that the B. J. Rooks & Son will load all shells on the scows; scows to be furnished by the Elliott & Watrous Comapny for transporting of same.
'It is agreed that Elliott & Watrous, Inc., shall unload all shells at their destination.'
The testimony discloses that the scow was loaded by means of a conveyor operated by the libelant who had its men on the scow to regulate it and that the captain of the scow had charge of the loading.
The testimony is convincing that nothing unusual happened until the 'P.T. boats' went by.
Title 46 U.S.C.A. § 192 provides: 'Limitation of liability for errors of navigation, dangers of the sea and acts of God. If the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel nor shall the vessel, her owner or owners, charterers, agent, or master be held liable for losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality, or vice of the thing carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service.'
The testimony leads me to find that the owner of the scow exercised due diligence to make it seaworthy and that it was properly manned, equipped and supplied when it commenced its voyage.
In The Irrawaddy, 171 U.S. 187, 191, 18 S. Ct. 831, 832, 43 L. Ed. 130, the court said: " * * * Where due diligence has been exercised to make the ship seaworthy, and a common danger arises upon the voyage by 'fault or error in the navigation or management of the ship,' the third section of that act (Harter Act) declares that 'neither the vessel nor her owner, agent or charterer shall become or be held responsible for damage or loss resulting therefrom.' The previous liability of the ship owner to the cargo owner for faults of navigation is thus abolished in all cases coming within the act. In such cases faults in the navigation or management of the ship are no longer, by construction of law, faults of the owner, as heretofore; and the ship and her owner are now no more liable to the cargo owner for his damages therefrom than the latter is liable to the ship owner for the resulting damages to the ship. * * * "
Among the cases cited by the libelant in support of its claim is Atlas Portland Cement Co. v. P. Dougherty Co., 2 Cir., 205 F. 508. The facts in that case are so different from those in the instant case that it does not seem to me to be in point.
The scow had carried heavier cargoes on previous trips in the same area.
In The President Polk, D.C., 40 F.2d 665, 667, the court said: 'The failure to make the tanks tight when the necessity arose at Hongkong constituted an error in management, for which neither the vessel nor her owner or owners are liable under the Harter Act (46 U.S.C.A. §§ 190-195). The Steel Navigator, % 2, Cir., 23 F.2d 590); The Silvia, 171 U.S. 462, 19 S. Ct. 7, 43 L. Ed. 241; The Manitoba, D.C., 104 F. 145; The Newport News, D.C., 199 F. 968; The Carisbrook, D.C., 247 F. 583.'
The failure of the captain of the scow to close the hatches when he saw the 'P.T. boats' constituted, at most, an error in management.
It is my opinion that the application of Section 3 of the 'Harter Act' to the facts proved here relieves the respondent from liability.
Judgment may be entered in favor of the respondent against the libelant, dismissing the libel, with costs.
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