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known to the owner and not discoverable upon examination, yet, the better opinion is that the owner must answer for the damage caused by the defect. It is an implied warranty in the contract, that the ship be sound for the voyage, and the owner, like a common carrier, is an insurer against everything but the excepted perils." 3 Kent, *205.

The high authority of Lord Tenderden, (Abbott on Shipping, 1st ed. 146,) Lord Ellenborough, (Lyon v. Mells, 5 East, 428,) Mr. Baron Parke, (Gibson v. Small, 4 H. L. C. 353, 404,) and Lord Blackburn (Steel v. State Line Steamship Co., 3 App. Cas. 72, 86) may be invoked in support of this view, and it is sustained by decisions of this court; The Northern Belle, 9 Wall. 526; Work v. Leathers, 97 U. S. 579; preceding that of The Edwin I. Morrison, supra, which in terms adopts it. The point was distinctly ruled in The Glenfruin, 10 P. D. 103. There a steamship laden with cargo became disabled at sea in consequence of the breaking of her crank shaft. Such breakage was caused by a latent defect in the shaft, arising from a flaw in the welding, which it was impossible to discover. It was held that under his implied warranty of seaworthiness a shipowner contracts, not merely that he will do his best to make the ship reasonably fit, but that she shall really be reasonably fit for the voyage, and that as, when the Glenfruin started, the shaft was not reasonably fit for the voyage, she was unseaworthy and the owner was liable; and Lyon v. Mells, 5 East, 428; Kopitoff v. Wilson, 1 Q. B. D. 177; Steel v. State Line Steamship Co., 3 App. Cas. 72, were referred to.

Again, in The cargo ex Laertes, 12 P. D. 187, a steamship became disabled at sea owing to the breaking of her flywheel shaft through a flaw in the welding existing at the commencement of the voyage, but not discoverable by the exercise of any reasonable care, and it was held that she was not seaworthy for the voyage, and that but for a limitation, on the implied warranty, in the bills of lading, there would have been a breach.

The point is thus put by Judge Brown, of the Southern District of New York, in The Rover, 33 Fed. Rep. 515, 516: "This warranty extends to latent defects not discoverable by

Opinion of the Court.

prior examination. Either the ship or the freighter must bear such risks; under the warranty of seaworthiness the law places this risk upon the ship and her owner." And see The Lizzie W. Virden, 19 Blatchford, 340, Blatchford, J.; The Carib Prince, 63 Fed. Rep. 266, Benedict, J.; Whitall v. Brig William Henry, 4 Louisiana, 223; Talcot v. Commercial Ins. Co., 2 Johns. 124, 128.

It is urged that doubt is thrown upon the doctrine by the reasoning in Readhead v. Midland Railway Co., L. R. 4 Q. B. 39 ; L. R. 2 Q. B. 412. There a passenger sought to charge a common carrier for an injury occasioned by the breaking of an axle by reason of a hidden flaw; and the Court of Exchequer Chamber held that a contract made by a general carrier of passengers for hire with a passenger is to take due care (including in that term the use of skill and foresight) to carry the pas senger safely, and is not a warranty that the carriage in which he travels shall be free from all defects likely to cause peril, although those defects were such that no skill, care, or foresight could have detected their existence. But the court was careful to point out the broad distinction between the liabilities of common carriers of goods and of passengers, and in the case at bar the shipowner was not only liable as such, but as a common carrier, and subject to the responsibilities of that relation.

The case was decided in 1869, and those of The Glenfruin and The Laertes in 1885 and 1887, yet the latter rulings seem to have been accepted without question, and were certainly unaffected by any attempt to apply a rule in respect of roadworthiness in the carriage of passengers by a railroad to the warranty of seaworthiness in the carriage of goods by a ship.

In our judgment the Circuit Court rightly held that the warranty was absolute; that the Caledonia was unseaworthy when she left port; and that that was the cause of the damage to libellant's cattle.

This brings us to the inquiry whether the claimants can escape from the liability which the law imposed upon them. by reason of the exceptions in the bill of lading.

These exceptions were: "The act of God, the Queen's

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enemies, pirates, restraint of princes and rulers, perils of the sea, rivers, navigation and land transit, of whatever nature or kind, restrictions at port of discharge, loss or damage from delays, collisions, straining, explosion, heat, fire, steam boilers and machinery or defects therein, transshipment, escape, accidents, suffocation, mortality, disease or deterioration in value, negligence, default or error in judgment of pilots,' master, mariners, engineers, stevedores, or any other person in the employ of the steamship or of the owners or their agents."

It is claimed that the Caledonia was exempted from the losses caused by her unseaworthiness from the defective shaft at the commencement of the voyage by the exception of "loss or damage from delays, steam boilers and machinery or defects therein."

As is well said by counsel for appellee, the exceptions in a contract of carriage limit the liability but not the duty of the owner, and do not, in the absence of an express provision, protect the shipowner against the consequences of furnishing an unseaworthy vessel. Steel v. State Line Steamship Company, 3 App. Cas. 72; Gilroy v. Price, App. Cas. (1893) 56; The Glenfruin, 10 P. D. 103; Kopitoff v. Wilson, 1 Q. B. D. 377; Tattersall v. National Steamship Company, 12 Q. B. D. 297; Thames & Mersey Ins. Company v. Hamilton, 12 App. Cas. 484, 490. If the exceptions are capable of, they ought to receive, to use the language of Lord Selborne in Steel v. Steamship Company, "a construction not nullifying and destroying the implied obligation of the shipowner to provide a ship proper for the performance of the duty which he has undertaken."

There was no exception in this bill of lading which in express words exempted the shipowner from furnishing a seaworthy vessel at the commencement of the voyage. As the exceptions were introduced by the shipowners themselves in their own favor, they are to be construed most strongly against them, and we perceive no reason why the obligation to furnish a seaworthy vessel should be held to have been contracted away by implication. Their meaning ought not to be extended to give the shipowner a protection, which, if intended, should have been expressed in clear terms.

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Moreover, the words "delays," "steam boilers and machinery or defects therein," formed part of a long enumeration of the causes of damage, all the rest of which related to matters subsequent to the beginning of the voyage, and, by another familiar rule of construction, they should be treated as equally limited in their scope.

In Tattersall v. Steamship Company, cattle had been shipped under a bill of lading, by which it was provided that the defendants were to be "in no way responsible either for their escape from the steamer or for accidents, disease, or mortality, and that under no circumstances shall they be held liable for more than £5 for each of the animals." The ship, after carrying a cargo of cattle on a previous voyage, was improperly cleaned, and those on this voyage took the foot and mouth disease. It was held that the liability of the defendants was not limited to £5 for each of the cattle, for the stipulations of the bill of lading related to the carriage of the goods on the voyage, and did not affect the obligation to have the ship fit for the reception of the cattle.

In The cargo ex Laertes, 12 P. D. 187, cargo was shipped under three different forms of bills of lading, the exceptions in which, so far as material, were respectively as follows: "Warranted seaworthy only so far as ordinary care can provide;" "warranted seaworthy only so far as due care in the appointment or selection of agents, superintendents, pilots, masters, officers, engineers, and crew can insure it;" "owners not to be liable for loss, detention, or damage if arising directly or indirectly from latent defects in boilers, machinery, or any part of the vessel in which steam is used, even existing at time of shipment, provided all reasonable. means have been taken to secure efficiency." These exceptions were held to limit the implied warranty of seaworthiness in accordance with the expressed intention of the parties to that precise effect, and for that reason only to take the case out of the general rule.

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We are not dealing with the question of how far exceptions may be given effect in particular cases, but whether by those under consideration claimants were exempted from liability

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for unseaworthiness, and we are clearly of opinion that they were not.

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Something was said as to protection from liability by reason of the words in the original memorandum of agreement that "the shipper assumes all risk of mortality or accident, however caused, throughout the voyage." We agree with the Circuit Court that the bill of lading can alone be considered as the contract between the parties, the memorandum being preliminary merely; but we are also of opinion that the same rule of construction would apply to the memorandum as to the bill of lading, and that the assumption of the risk of mortality or accident throughout the voyage did not constitute an exemption of the shipowner from his obligation to furnish a seaworthy vessel at its commencement.

By reason of the unseaworthiness of the Caledonia the cattle were not delivered at the time and place, when and where they should have been, and loss was incurred through shrinkage in weight from the protracted voyage and through fall in market value during the delay in arrival.

It is argued that a common carrier is not liable for mere delay and its consequences unless he has been at fault, and that claimants were in this case free from blame because the defect was a secret one. This contention, however, begs the question, for the conclusion upon this record is that claimants are responsible for breach of warranty notwithstanding the shaft was defective through hidden weakness. No question can be made that the shrinkage was a direct result of that breach, but it is further insisted that changes in market value were too speculative to furnish just basis for recovery. But as it is found as a fact that these parties, at the time of contracting together, knew and contemplated that the cattle were not to be sold before arrival, but were to be sold at the first possible market day after arrival, it follows that the damages by reason of the fall in price were not remote, but flowed naturally from the breach of warranty. Howard v. Stillwell Mfg. Co., 139 U. S. 199; Cincinnati Gas Co. v. Western Siemens Co., 152 U. S. 200; King v. Woodbridge, 34 Vermont, 565; Laurent v. Vaughn, 30 Vermont, 90; Ayres v. Chicago & Northwestern