64 F. 607 | S.D.N.Y. | 1894
On the delivery of the libelant’s consignment of sugar by the steamship Hilvia, in Philadelphia, in February, .1894, a. quantity of the sugar was found to have been damaged by sea water which had got info the ship through a glass port light, broken during the voyage. The port was supplied with a proper iron cover or dummy, which, however, was not closed or made fast at the time of sailing, although the hatches leading downward into that compartment were battened down. This, in my judgment, was negligence on the paid of the ship, for which (.Lie vessel and the owners would have been liable (Steele v. Steamship Co., 3 App. Cas. 72; The Carron Park, 15 Prob. Div. 205), but for the provisions of the act of congress known as the “Harter Act,” passed February 13,1893 (27 Fiat. p. 445, c. 105; 2 Supp. Rev. St. p. 81, c. 105,) which, by section 3, provides:
“That 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 maimed, 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.”
For the libelant it has been contended that the ship was not in a seaworthy condition on sailing, by reason of the fact that the covers for the glass ports were not properly closed, though the hatches
. The case is quite like that of Hedley v. Steamship Co. [1892] 1 Q. B. 58, [1894] App. Cas. 222, where a seaman in a heavy lurch of the ship was thrown overboard and drowned, because the stanchions and rails] properly supplied for the ship by the owners, had not been set in place on the starboard side as they ought to have been set on the departure of the, ship. The administratrix sought to recover damages of the owners. In the decision of the case, both in the court of appeal and in the house of lords, two points were adjudged,— First, that the master’s neglect to set the stanchions and rails was the negligence of a fellow servant in the navigation of the ship, for which the owners were not liable at common law; secondly, that under the provisions of the merchant’s shipping act, which are equally stringent with those of our own act, as respects the obligations of the owner to make and keep the ship seaworthy, the supply of all the usual and proper equipment was a full' compliance with the act by the owner in respect to the stanchions and rail, and that the “fault was in not making use of the equipment with which the ship had been furnished.” [1894] App. Cas. 228. See, also, The Southgate [1893] Prob. Div. 329; The Warkworth, 9 Prob. Div. 20. This seems to me precisely applicable to the act of congress of February 13, 1893, and upon that ground the libel must be dismissed, but, as the question is a new one, without costs.