CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES,

AT

OCTOBER TERM, 1903.

THE SOUTHWARK.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 12. Argued March 3, 1903.-Decided October 19, 1903.

Before the passage of the Harter Act, 27 Stat. 445, there was, in the absence of special contract, an absolute warranty, on the part of the shipowner, which did not depend upon his knowledge or diligence, that the vessel was seaworthy at the beginning of the voyage.

Seaworthiness of a vessel engaged in the dressed meat trade relates and extends to the refrigerating apparatus necessary for the preservation of the meat during transportation.

The Harter Act expressly prohibits the insertion in bills of lading of any covenant or agreement lessening, weakening or avoiding the obligation of the owner to use due diligence to make the vessel seaworthy and capable of performing her intended voyage. The "dressed beef clause" inserted in bills of lading of a vessel engaged in that trade releasing the vessel from damages even though caused by defects in the refrigerating apparatus, whether existing at or prior to the commencement of the voyage is in violation of this provision of the Harter Act and will not relieve the vessel from such liability in the absence of proof that the owner has used due diligence at the commencement of the voyage to make the vessel including the refrigerating apparatus reasonably fit for the purposes and uses for which it is intended and thus seaworthy.

The burden of proof as to the seaworthiness of the vessel at the time of sailing is on the owner. The sudden breakdown of the refrigerating

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apparatus within three hours of sailing raises a presumption of unseaworthiness at the time of sailing, independently of the Harter Act.

THIS case originated in a libel in rem filed in the District Court of the United States for the Eastern District of Pennsylvania, to recover for the loss of a quantity of dressed beef, shipped by the libellants on the steamer Southwark, a vessel belonging to the respondent, the International Navigation Company. The meat was required to be kept chilled during the passage, and the ship was engaged in the business of carrying such freight and was fitted with a refrigerating apparatus for the purpose. The meat was received under a bill of lading acknowledging the receipt thereof in apparent good order and condition, and undertaking to deliver the same at Liverpool in like good order and condition. Across the bill of lading there was this printed stipulation: “It is expressly provided that the goods shipped hereunder are absolutely at the risk of the owners in every respect, and that the carrier is responsible for no loss, delay or damage thereto, however arising, including stowage, and all risks of breakdown or injury, however caused, whether to its refrigerator or its machinery, even though arising from defect existing at or previous to the commencement of the voyage; also that in case of the meat becoming, from any cause, in the opinion of the master of the vessel, putrid, dangerous or offensive to the passengers or the crew, it may be thrown overboard or otherwise disposed of without liability to the carrier for the consequent loss."

Upon the arrival of the ship at Liverpool the meat was found to be in bad condition, mouldy and slimy, resulting in a considerable loss to the shipper. The libel seeks a recovery because the refrigerating apparatus was out of repair at the time of sailing and was not repaired during the voyage, so that the temperature of the compartment in which the meat was carried could not be reduced to the proper degree for its safe transportation.

The answer avers that the Southwark left Philadelphia with

191 U. S.

Argument for Petitioners.

the refrigerating apparatus in perfect order after due inspection, and all necessary repairs were duly and promptly made while on the voyage.

Upon hearing in the District Court, a decree was entered exonerating the vessel from fault, which decree was affirmed in the Circuit Court of Appeals. 104 Fed Rep. 103; 48 C. C. A. 123.

Mr. John F. Lewis, with whom Mr. H. L. Cheney was on the brief, for the petitioners:

I. Respondent was guilty of negligence in receiving a cargo of fresh meat and starting upon a transatlantic voyage in midsummer, with the refrigerating machinery in so manifestly unfit a condition, that working for a sufficient time and under such conditions that an efficient machine would have reduced the temperature of the brine to at least 20°, it was only able to reduce the brine temperature to 40°, a figure so high, that it was impossible to obtain even an approximation towards the proper degree in the compartment absolutely necessary for the safe carriage of the meat.

II. The "dressed meat clause" of the bill of lading did not wipe out all warranty of the initial fitness of the ship to receive the cargo, and of the refrigerating machinery to preserve it. The Maori King, 8 Asp. Mar. C. 65 L. R. 1895; 2 Q. B. D. 550, approved in The Prussia, 93 Fed. Rep. 837. See also The Silvia, 171 U. S. 462; The Caledonia, 157 U. S. 124; The Carib Prince, 170 U. S. 659; Steele v. State Line, L. R. 3 App. Cas. 72.

III. The Harter Act applies to bills of lading issued for fresh The law has been understood to be that there is a warranty of the initial fitness of the vessel in all respects to carry the cargo received. Queensland Nat. Bk. v. P. & O. Stm. Nav. Co., L. R. 1898, 1 Q. B. 567; Tattersall v. Nat. S. S. Co., L. R. 12 C. B. Div. 297.

The test of seaworthiness is whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport. This is the commonly accepted definition of seaworthiness. The G. R. Booth, 171 U. S. 450; The Kensington, 183 U. S.

Argument for Appellee.

191 U. S.

263; Knott v. Botany Mills, 179 U. S. 71; Rowson v. Atlantic Tr. Co., L. R. 1903, K. B. Div. 114.

IV. The burden of proof rests on the respondents. Inter. Nav. Co. v. Farr & Bailey, etc., 181 U. S. 218; The Prussia, 93 Fed. Rep. 837; The Manitou, 116 Fed. Rep. 61; The C. W. Elphicke, 117 Fed. Rep. 279.

V. The simple inspection was not due diligence. The Edwin I. Morrison, 153 U. S. 215; The Aggi, 93 Fed. Rep. 484; The Phoenicia, 90 Fed Rep. 116; Switzerland Ins. Co. v. Flamborough, 69 Fed. Rep. 470.

Where a vessel soon after leaving port becomes leaky without stress of weather or adequate cause of injury, the presumption is that she was unseaworthy before sailing. Ceballos v. Warren Adams, 74 Fed. Rep. 413; S. C., certiorari denied, 163 U. S. 679; Higgie v. American Lloyds, 14 Fed. Rep. 143, 147; The Gulnare, 42 Fed. Rep. 861; Work v. Leathers, 97 U. S. 379; The Planter, 2 Woods, 490, Fed. Cas. No. 11,207a; Cort v. Insurance Co., 2 Wash. C. C. 375, Fed. Cas. No. 3257; Walls v. Insurance Co., 32 N. Y. 427, 436; Pacific Coast S. S. Company v. Bancroft- Whitney Company, 4 Fed. Rep. 196.

Mr. N. Dubois Miller, with whom Mr. Howard H. Yocum, Mr. J. Rodman Paul and Messrs. Biddle & Ward were on the brief, for appellee:

The concurrent findings of the lower courts that the vessel was fitted with proper refrigerating machinery, duly inspected (i. e., there had been due diligence); that the rotting of the meat was due to the breakdowns of the refrigerating machinery after sailing and not to any condition of temperature or of the machinery at the time of sailing; and that there was no sufficient evidence of negligence on the part of the vessel, will not, under the settled rule of this court, be disturbed. Morewood v. Enequist, 23 How. 495; The Marcellus, 1 Black, 417; The Hypodame, 6 Wall. 223; The Richmond, 104 U. S. 543; Alexander v. Machan, 147 U. S. 72; Handy v. United States, 143 U. S. 513; Packer v. Lighterage Co., 140 U. S. 360; Rae v. The Eclipse, 135 U. S. 599; The Gazelle, 128 U. S. 474; The