*W. J. McCAHAN SUGAR REFINING [378 COMPANY, Petifioner,

v.

THE STEAMSHIP WILDCROFT, James C as sap, Master and Claimant .f

(See S. C. Reporter’s ed. 378-390.)

1. Appeal — concurrent findings of fact.

— Tiie concurrent findings of the two lower courts that a vessel was inspected at the be¬ ginning of the voyage, and found to he seaworthy and fit to carry the cargo which she had undertaken to transport, will ordi¬ narily not be disturbed by the Federal Su¬ preme Court on appeal.

thiness. — The burden of proving that a vessel was seaworthy at the time of begin¬ ning the voyage, or that due diligence had been used to make her so, rests upon the shipowner claiming the benefit of the ex¬ emption provided in the Harter act of Feb¬ ruary 13, 1893 (27 Stat. at L. 445, chap.

105, U. S. Comp. Stat. 1901, p. 2946), §

3, against errors of management or naviga¬ tion, whether or not there is any evidence to the contrary.

[No. 127.]

Argued December 12, 13, 1905. Decided April 2, 1906.

ON WRIT of Certiorari to the United States Circuit Court of Appeals for the Third Circuit to review a decree affirming a decree of the District Court for the East¬ ern District of Pennsylvania dismissing a

tThis case is reported by the Official Re¬ porter under tne title of “The Wildcroft."

Note. — As to presumption and burden of proof respecting cause of loss or injury to goods shipped by vessel, and diligence or negli¬ gence of carrier — see note to The Patria, 68 C. C. A. 398.

201 U. S.

W. J. McCahan Sugar Ref. Co. v. The Wildcroft.

384, 385

libel to recover damages to a cargo of sugar. Affirmed.

See same case below, 65 C. C. A. 145, 130 Fed. 521.

The facts are stated in the opinion.

Mr. Horace L. Ch.eyn.ey argued the cause, and, with Mr. John F. Lewis, filed a brief for petitioner:

Prior to the passage of the Harter act, the burden was upon the carrier to show affirmatively that the damage was occa¬ sioned by one of the perils from which he was validly exempted by the bill of lad¬ ing.

Clark v. Barnwell, 12 How. 272, 13 L. ed. 985; Hutchinson, Carr. 2d ed, § 765.

The 'Harter act has made no change in this rule.

The Southwark ( Martin v. The South¬ wark) 191 U. S. 1, 48 L. ed. 65, 24 Sup. Ct. Rep. 1; International Nav. Co. v. Farr & B. Mfg. Co. 181 U. S. 218, 45 L. ed. 830, 21 Sup. Ct. Rep. 591; The Manitou, 116 Fed. 60, 63 C. C. A. 109, 127 Fed.

The indirect testimony of the ship’s wit¬ nesses is not circumstantial evidence.

Clifton v. United States, 4 How. 242, 11 L. ed. 957; Kirby v. Tallmadge, 160 U. S. 379, 40 L. ed. 463, 16 Sup. Ct. Rep. 349; Graves v. United States, 150 U. S. 118, 37 L. ed. 1021, 14 Sup. Ct. Rep. 40.

Mr. J. Parker Kirlin argued the cause, and, with Mr. Charles B. Eickox, filed a brief for respondent:

The damage was due to a fault in the management of the vessel.

The Silvia, 171 U. S. 462, 43 L. ed. 241, 19 Sup. Ct. Rep. 7; The Mexican Prince, 82 Fed. 4S4, 34 C. C. A. 168, 63 U. S. App. 782, 91 Fed. 1003, 174 U. S. 801, 43 L. ed. 1187, 19 Sup. Ct. Rep. 887; The South- gate [1893] P. 329; Good v. London S. S. Owners’ Mut. Protecting Asso. L. R. 6 C. P. 563 ; The Warkworth, L. R. 9 Prob. Div. 20; Carmichael v. Liverpool Sailing Ship Oicners’ Mut. Indemnity Asso. L. R. 19 Q. B. Div. 242; Canada Shipping Co. v. Brit¬ ish Ship Owners’ Mut. Protecting Asso. L. R. 23 Q. B. Div. 342; The Glenochil [1896] P. 10; Adams v. Morris, 18 Sess. Cas. 4 th Series, 153; The Carr on Park [1890] P. 203; The Rodney [1900] P. 112; Roivson v. Atlantic Transport Co. [1903] 2 K. B. 666; The British King, 89 Fed. 872, 35 C. C. A. 159, 92 Fed. 1018; The Sandfield, 79 Fed. 371, 34 C. C. A. 612, 61 U. S. App. 385, 92 Fed. 663; The On¬ tario, 106 Fed. 324, 53 C. C. A. 199, 115 Fed. 769; The Cressington [1891] P. 152.

In the absence of proof to the contrary, a vessel will be presumed to be seaworthy.

The Chattahoochee, 173 U. S. 540, 550, 43 L. ed. 801, 806, 19 Sup. Ct. Rep. 491; 201 U. S.

Pyman v. Von Singen, 5 Hughes, 196, 3 Fed. 802; Bullard v. Roger Williams Ins.

Co. 1 Curt. C. C. 148, Fed. Cas. No. 2,122;

Lunt v. Boston M. Ins. Co. 19 Blatchf. 151,

6 Fed. 562; Pickup v. Thames & M. M.

Ins. Co. L. R. 3 Q. B. Div. 594; Guy v. Citizens’ Mut. Ins. Co. 30 Fed. 695; Balti¬ more d P. R. Co. v. Landrigan, 191 U. S.

'461, 471, 472, 48 L. ed. 262, 266, 24 Sup.

Ct. Rep. 137.

The existence of the presumption of sea¬ worthiness does not shift the burden of proof on that issue from the shipowner to the libellant, but it does shift the duty, of going forward with evidence from the ship¬ owner, who advances the proposition, to the libellant, who opposes it.

Thayer, Preliminary Treatise, Evidence, pp. 336, 365 ; Kidder v. Stevens, 60 Cal.

414; Keely v. Moore, 196 U. S. 38, 46,

47, 49 L. ed. 376, 380, 25 Sup. Ct. Rep. 169; Hickory v. United States, 160 U. S. 408,

421, 40 L. ed. 474, 478, 16 Sup. Ct. Rep.

The loss was not caused by unseaworthi¬ ness.

The Mexican Prince, 82 Fed. 484, 34 C.

C. A. 168, 63 U. S. App. 782, 91 Fed. 1003;

The Silvia, 64 Fed. 607, 68 Fed. 230, 171 U.

S. 462, 43 L. ed. 241, 19 Sup. Ct. Rep. 7.

Mr. Justice Day delivered the opinion of the court:

The original action was begun by the filing of a libel in the district court of the United States for the eastern district of Pennsylvania, to recover damages alleged to have been sustained by the petitioner, with respect to a cargo of sugar of which it was the consignee, shipped upon the steam¬ ship Wildcroft from ports in Cuba to Philadelphia. The evidence showed that in the month of April, 1901, the Wildcroft, having discharged a cargo of coal at the port of Havana, proceeded to Cardenas and Matanzas, where she took on the load of sugar, to be delivered to the petitioner in Philadelphia. This sugar was stored in bags in holds Nos. 1, 2, 3, and 4 of the ship. On the voyage a severe storm was encountered and some damage was done by salt water finding its way into hold No.

3 because of the tearing away of the tar¬ paulins over the hatches and the wash¬ ing off of the starboard ventilator cover.

At the ‘hearing in the district court the

claim for damage, because of injury alleged to have been caused to the sugar in holds Nos. 1 and 2, was held to be waived by the libellant, who disclaimed damage on that account. And the district judge added, we think correctly, as to the surface damage in hold No. 3, “This damage was concededly caused by a peril of the seas.”

795

385-387

Supreme Court of the United States.

Oct. Teem,

There is nothing in the testimony to show that the injury to the cargo of sugar in holds Nos. 3 and 4 of the vessel by means of fresh water was occasioned until the ship arrived at Philadelphia.

A more distinct understanding of the construction of the vessel and the manner in which fresh water could be communicated to hold No. 3, and from thence into hold No. 4, may be had by a perusal of the full finding of the facts made in the case in the district court (124 Fed. 031, 126 Fed. 229), approved by the circuit court of ap¬ peals (65 C. C. A. 145, 130 Fed. 521), which findings fully explain the situation and the method by which the injury was inflicted. It is enough for us to say that both courts unite in the conclusion that the cargo was injured on Monday, April 29, after the ship arrived at the dock in Philadelphia, when, because of the letting in of fresh water for the purpose of filling the engine-room tank, which was accom¬ plished by opening a valve on the ship’s side which admits water from the river, and because of an open cock to a valve in the connection from the tank- filling pipe to the service or feed donkey, connecting with the distribution box, water was permitted to flow from the tank-filling pipe through this open cock to the dis¬ tribution chest and down a pipe and through a valve, which must have also been held open in some way so that water flowed into this suction pipe leading into No. 3 hold, and flowing thence into No. 4 hold, damaged the cargo of sugar therein con¬ tained. It is evident from the testimony that if these cocks, and more particularly the one marked “D,” had been properly closed, the water could not have found its way into the holds and inflicted the damage.

0f ' these findings the circuit court of *ap- peals, adopting the conclusions of the court below, said: “All of the testimony in this respect is uncontradicted, and no facts are shown from which any other conclu¬ sion can be drawn, than that the water which came into the bottom of these holds, to the depth of several feet, doing the dam¬ age in question, came in after the early morning of the 29th of April, and before the close of that day, while the cargo was being discharged at the wharf in Philadel¬ phia. It is not disputed that the water was fresh water, such as was the water in the Delaware river, in which she was lying. In connection with these facts, it was shown by the testimony that the sea cock for filling the engine-room tank was open at 10 o’clock that morning, and, kept open for a period of three hours, and that if two certain cocks, fully described in the evidence and pointed out by the learned 796

judge of the court below, were left open by accident or design, there would be a free flow of water from the open sea cock into the bilges of hold No. 3. Directly after the filling of the tank and the closing of the sea cock, water to a considerable depth was reported in holds No. 3 and No. 4.

This sea cock had not been open from the time the cargo was put on board in Cuba until, as just stated, on the morning of the 29th of April, at Philadelphia. We think the court below was fully justified in its finding, that the damage here in question was due to ‘the water that flowed into the hold through the pipe line on April 29th, in the manner just described,’ and that ‘it is impossible that the damage could have occurred in any other way.’ ”

In order to have the benefit of the ex¬ emptions provided in the Harter act (27 Stat. at L. 445, chap. 105, U. S. Comp.

Stat. 1901, p. 2946) against errors of man¬ agement or navigation, by reason of the 3d section, which was relied upon in the case, it was incumbent upon the shipowner to prove that the vessel was seaworthy at the time of beginning the voyage, or that due diligence had been used to make her so. International Nav. Co. v. Farr & B.

Mfg. Co. 181 U. S. 218, 45 L. ed. 830, 21 Sup. Ct. Rep. 591; The Southwark (Martin v. The Southwark) 191 U. S. 1, 48 L. ed.

65, 24 Sup. Ct. Rep. 1. *It, therefore, be- [3871 came incumbent upon the shipowner to show that a due and proper inspection had been had and the vessel ascertained to be in all respects seaworthy and fit to carry the cargo which she had undertaken to trans¬ port, or that due diligence to that end had been used. As we understand the findings of both the district court and the court of appeals, the testimony in this regard in¬ troduced by the shipowner was sufficient in the judgment of those courts, to estab¬ lish that the vessel was seaworthy in the respects involved, and that an inspection had been had, and the valves and connec¬ tions, the negligent use of which was pro¬ ductive of this injury, found in due order at the beginning of the voyage. This find¬ ing of two courts will ordinarily not be disturbed, and is usually accepted by this court as conclusive. The Carib Prince (Wupperman v. The Carib Prince ) 170 U.

S. 655, 658, 42 L. ed. 1181, 1185, 18 Sup.

Ct. Rep. 753. The only testimony directly upon the subject at the hearing was that of the master and the engineer, taken upon deposition in England, upon interroga¬ tories filed. The charge in the libel was very broad and general, and the interroga¬ tories were not as specific as they might have been, and no cross interroga¬ tories were filed. While the testimony is

201 TJ. S.

W. J. MoCahan Sugar Ref. Co. v. The Wild croft.

387-390

not a3 specific as it might, be, we still think it was sufficient to show that an in¬ spection was had, and everything found in order at the beginning as well as during the voyage, and from the record we reach the conclusion, sustained by the findings of the courts below, that the ship was' sea¬ worthy in all respects at the beginning of the voyage, and it was a careless and re¬ cent opening of the valve or valves, shortly before the fresh water was let in, which re¬ sulted in the damage complained of. We are very clear that this is not a case where the findings of the court below can be dis¬ turbed, as was our conclusion in the case of The Southwark, supra, relied upon by the petitioner, where it was shown that the damage inflicted was the result of unsea¬ worthiness in respect to a condition which a proper inspection of the vessel at the be¬ ginning of the voyage would have discovered and remedied. We, therefore, reach the con-

elusion that the decree of the ’circuit court of appeals should be affirmed, and but for its construction of the rule of evidence in cases of this kind this opinion might well end here. But we are unable to agree with the views expressed in the opinion of the learned circuit court of appeals to tne effect that where a shipowner seeks the protection of the immunity afforded by the Harter act under § 3, reliance may be had upon the presumption of law that the ves¬ sel was seaworthy at the beginning of the voyage, and that it is only in cases of conflicting proof that the burden is imposed upon(the shipowner of establishing by tes¬ timony the seaworthiness of the vessel, or due diligence in that behalf, in order to have the benefit of the act. We think this construction of 'the law is opposed to the terms and policy of the act, and con¬ trary to the decisions of this court here¬ tofore announced, from which we see no occasion to depart. The relief afforded by the 3d section of the Harter act to the owner of a vessel transporting property is purely statutory. In the case at bar there could be no question as to the liability of the vessel owner from the established facts of the case, but for the immunity afforded by that act. To permit a cargo of sugar to be injured by the introduction of fresh water in the manner shown, but for the provisions of this act, would have made a case of clear liability against the owner; and where the statute has given immunity against such loss by reason of error in navigation or management, it does so upon the distinct condition that the owner shall show that the vessel was in all respects seaworthy and properly manned, equipped, and supplied for the voyage; or, if this cannot be established, that he has used 201 U. S.

due diligence to obtain this end. The dis¬ charge of this duty is not left to any presumption in the absence of proof. It is the condition precedent, compliance with which is required of the vessel owner in order to give him the benefit of the immu¬ nity afforded by the act. The reason for requiring this proof by the owner is ap¬ parent. He is bound to furnish a seaworthy and properly equipped ship for the pur¬ pose of the voyage. Whether he has done so is a matter ’peculiarly within his own

knowledge. The inspection which he can give, but which the shipper cannot give, for lack of opportunity, will establish whether this duty has been complied with.

The whole matter is in the control of the owner. The law says, in substance, that when the owner can show that he has dis¬ charged this duty he shall be relieved from errors of navigation and management on the voyage, over which he has not such direct control. It is not a case where there is either the necessity or propriety of resorting to presumptions. It is only when he has discharged the burden which the law imposes upon him, and shown that he has furnished a vessel, fit and seaworthy, or has used due diligence to that end, that the law relieves him of the liability which he would otherwise incur. This construc¬ tion of the statute has been more than once announced in the decisions of this court; recently in International Nav. Go. v. Farr & B. Mfg. Co. 181 U. S. 218, 226, 45 L. ed. 830, 833, 21 Sup. Ct. Rep. 591, in which this court, speaking through Mr.

Chief Justice Fuller, said: “We repeat, that even if the loss occur through fault or error in management, the exemption cannot be availed of unless the vessel was seaworthy when she sailed, or due diligence to make her so had been exercised, and it is for the owner to establish the existence of one or the other of these conditions.”

This case was quoted and followed in the still later case of The Southwark, supra, in which it was reiterated that the burden was upon the vessel owner to show by reasonable and proper tests that the vessel was seaworthy and in a fit condition to re¬ ceive and transport the cargo undertaken to be carried, and that if, by failure to adopt such tests and furnish the required proof, the question of the ship’s seaworthi¬ ness was left in doubt, that doubt must be resolved in favor of the shippfer, because the vessel owner had not sustained the burden cast upon him by the law to estab¬ lish that he had used due diligence to furnish a seaworthy vessel.

While we, therefore, accept the decision of the learned circuit court of appeals as to the facts in this case, we do not ’wish

797

390, 392-394

Supreme Court of the United States.

Oct. Term,

annum, from November 1, 1897, to July 1,

1902, and averred that he was a clerk in the office of the United States *surveyor[393] general in Boise, Idaho, in the classified civil service, from which employment, on said first-mentioned date, he was suspended without fault of his own or just cause.

He stated his readiness to discharge the duties of the office, and set forth in detail what he claimed amounted to a wrongful suspension therefrom by the United States surveyor general of the state of Idaho.

The finding of facts is quite voluminous, and it is unnecessary to set it all out in detail. The facts pertinent to the decision of this case may be summarized as follows: Several years prior to May 6, 1896, claim¬ ant was employed as a clerk, stenographer, and typewriter in the office of the surveyor general of the United States for the state of Idaho, at a salary of $1,100 per annum.

On that date the President of the United States made and promulgated an order re¬ lating to the civil service, which provided, among other things:

“Rule III.

“1. All that part of the executive civil service of the United States which has been, or may hereafter be, classified under the civil service act, shall be arranged as follows: The Departmental Service. . . .

“2. The Departmental Service shall in¬ clude officers and employees as follows:

to be regarded as sanctioning any relax¬ ation of the rule above stated, already laid down in the prior decisions of this court.

Decree affirmed.

Mr. Justice Brown concurs in the result.