placing a thermometer therein, taking its temperature. Before the meat is taken on board this temperature should be brought down to from twenty-five to thirty degrees, and should be maintained at a low degree in order to preserve the meat.

In the present case, while the inspector did not take the temperature of this room, the depositions of the engineer and the assistant, or refrigerating engineer, were taken aboard, and it appears that the temperature of the room was taken frequently during the seventy-two hours in which these witnesses say the apparatus was being worked before the meat was received. There is no sufficient reason given why a record of these temperatures was not made. The refrigerating engineer says that it was not customary, that there were no orders to that effect, and there was no room in the log for such a record, although it appears a record was kept after the vessel sailed, and from that time throughout the voyage, of the averages of the temperature of the room. In a vague way these men say the room was cooling down all right. It would have been a very easy matter to have established this fact by keeping a record of such observations which would have shown conclusively the temperature of the commercial room. A careful perusal of the testimony tends strongly to the inference that the commercial room was not of a proper temperature, and that the machinery broke down almost before leaving port in an attempt to reduce it to a proper degree. There is some testimony tending to show that the water in the port at Philadelphia, used to cool the pipes, at the time was so warm as to render it difficult to bring down the temperature of the room, but the weight of the testimony is that these refrigerating machines are intended to work and to do work in warmer latitudes and in a higher degree of temperature than was shown to have existed at the time in question.

But whether fault can be affirmatively established in this respect it is not necessary to determine. The burden was upon the owner to show by making proper and reasonable tests that the vessel was seaworthy and in a fit condition to receive and

transport the cargo undertaken to be carried, and if by the failure to adopt such tests and to furnish such proofs th question of the ship's efficiency is left in doubt, that doub must be resolved against the ship owner and in favor of the shipper. In other words, the vessel owner has not sustained the burden cast upon him to establish the fact that he has used due diligence to furnish a seaworthy vessel, and, between him and the shipper, must bear the loss. The Edwin I. Morrison, 153 U. S. 199, 215; The Phænicia, 90 Fed. Rep. 116.

It is true the inspector said that he discovered no leak of ammonia gas such as was afterward discovered, but he seems to have relied upon external appearances and the lack of evidences of the leaking of the gas rather than upon proper tests of the apparatus and its actual workings. We perceive no reason why such tests should not have been made. We think it was the duty of the carrier to cause them to be applied and determine the working condition of the apparatus before receiving the cargo, which in hot weather and upon a long voyage would surely spoil unless a proper condition of refrigeration was established. The Harter Act, as we understand it, relieves carriers from some of the harsher rules of obligation in force before its passage, but this relief is conditioned upon the discharge of the carrier's duty to use due diligence to provide that which it holds out to the shipper it is competent to furnish, a seaworthy vessel, duly equipped and provided for the purposes of the voyage. This rule, in our judgment, should not be relaxed by judicial interpretation or construction, and in this case we think the burden imposed by the law upon the carrier of making due proof of the discharge of its duty in this respect was not sustained, and there was error in the courts below in holding otherwise.

It is argued that appellees are not claiming the benefit of the Harter Act, but rely upon the contract in the bill of lading to exempt them from liability in the absence of affirmative proof of negligence.

To permit the stipulations of this bill of lading to cut down

the statutory requirements of section two of the Harter Act would be to allow the parties to enforce a contract in violation of the positive terms of the statute. As was said by Mr. Justice White, of somewhat similar provisions in the contract before the court in The Kensington, 183 U. S. 263, 269: "It is apparent that they are void, since they unequivocally sought to relieve the carrier from the initial duty of furnishing a seaworthy vessel for all neglect in loading or stowing, and indeed for any and every fault of commission or omission on the part of the carrier or his servants."

We think, for the reasons stated, there was error in rendering a decree dismissing the libel, and

The decree of the District Court, as well as the judgment of affirmance of the Court of Appeals, will be reversed, and the cause remanded to the District Court with instructions to enter a decree in favor of the libellants.

THE ROBERT W. PARSONS.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 16. Argued March 11, 12.-Decided October 26, 1903.

1. Although the Erie Canal is wholly within the state of New York, it connects navigable waters and is a great highway of commerce between ports in different states and foreign countries, and is, therefore, a navigable water of the United States within the legitimate scope of the admiralty jurisdiction of the courts of the United States.

2. The enforcement of a lien in rem for repairs made in a port of the State to which it belongs to a canal boat engaged in traffic on the Erie Canal and the Hudson River is wholly within the jurisdiction of the admiralty courts and such lien cannot be enforced by any proceeding in rem in the courts of the State of New York.

3. The contract for making such repairs is a maritime contract and its nature as such is not affected by the fact that the repairs were made in a dry dock or by the fact

4. That the canal boat was engaged in traffic wholly within the State of New York. The Belfast, 7 Wall. 624.

VOL. CXCI-2

Argument for Plaintiff in Error.

191 U. S.

THIS was a writ of error to review a judgment of the Supreme Court of the State of New York sustaining the jurisdiction of that court to enforce a lien for repairs made by Haines to the canal boat Robert W. Parsons, which was engaged at the time in navigating the Erie Canal and Hudson River.

Defense, that the statute of the State of New York, giving a lien for such repairs and providing a remedy for enforcing the same in rem, is unconstitutional, so far as concerns the remedy, and an infringement upon the exclusive jurisdiction of the courts of the United States in admiralty and maritime

causes.

A motion to vacate the attachment, issued upon the petition of Haines, upon the ground that the court had no jurisdiction, was denied, an appeal taken to the Appellate Division of the Supreme Court, where the case was argued, and the order of the court below affirmed by a majority of the justices. Matter of Haines, 52 N. Y. App. Div. 550. From the final order of the court, subsequently entered, the owner, Clara Perry, again appealed to the Appellate Division, where the order was affirmed. In re Haines, 57 N. Y. App. Div. 636, and again by the Court of Appeals. In re Haines, 168 N. Y. 586. Whereupon a writ of error was sued out from this court.

Mr. Martin Clark for plaintiff in error:

I. The original statute of New York for liens on vessels, chap. 482, Laws of 1862, was, so far as it provided for enforcement of maritime claims in rem, held unconstitutional. In re Josephine, 39 N. Y. 19; Brookman v. Hamill, 43 N. Y. 554; The Hine v. Trevor, 4 Wall. 555; Voes v. Cockcroft, 44 N. Y. 415; Poole v. Kermit, 37 N. Y. Super. Ct. 114; The Belfast, 7 Wall. 624.

Chap. 418, Laws of 1897, chap. XLIX of the General Laws, Art. II, now provides for liens on vessels. The enforcement depends upon whether the contract is maritime or not; if maritime the proceedings are in the United States courts, in other cases in the state courts.

This was necessary, as the statute provides for a lien where

191 U. S.

Argument for Plaintiff in Error.

labor or materials are furnished under a contract for building a boat, which the courts uniformly hold is not a maritime contract, and in such a case it must be enforced in the courts of the State, as a court of admiralty would not have jurisdiction of it. Wilson v. Lawrence, 82 N. Y. 409, p. 411; The J. E. Rumbell, 148 U. S. 1, and cases cited; The Jefferson, 20 How. 393; The Capitol, 22 How. 129; Edwards v. Elliott, 21 Wall.

532.

So that in determining upon the remedy of the forum, it is necessary to determine first whether or not the contract upon which the lien is based is a maritime contract. If it is, then under the statute, as well as under the authorities, "it can be enforced only by proceedings in the courts of the United States."

II. That a contract for making repairs upon a boat is a maritime contract is settled beyond question. The General Smith, 4 Wheat. 438; The St. Lawrence, 1 Black, 522; Peyroux v. Howard, 7 Peters, 324; The Lottowanna, 21 Wall. 558; Admiralty Rule 12 of this court; The Glide, 167 U. S. 606; Ex parte Boyer, 109 U. S. 629.

III. The Appellate Division laid undue stress upon the character of the vessel and did not give due weight to the navigability of the water upon which the boat was employed. Vessels that are vehicles of commerce are within the jurisdiction of admiralty regardless of methods of propulsion. The Montello, 20 Wall. 430; The Daniel Ball, 10 Wall. 557; The General Cass, 1 Brown's Adm. 334; The E. A. Shores, Jr., 73 Fed. Rep.

342.

That a contract is to be performed wholly within a State does not exclude it from the admiralty jurisdiction of the courts of the United States. The admiralty jurisdiction, conferred by the Constitution upon these courts, extends to all contracts of a maritime character to be performed upon navigable waters. The Mary Washington, 1 Abb. U. S. 1, Fed. Cases No. 9229; The Belfast, 7 Wall. 624; The Leonard, 3 Ben. 263, Fed. Cases No. 8256; U. S. v. Burlington & Henderson Co. Ferry Co., 21 Fed. Rep. 331, 336.

This rule is followed although the boat was built to navigate