necessarily, and could be seen there; they must have known such quantities of ore in one place were dangerous." We are unable to concur in this conclusion. The method of loading at that wharf was well known to everybody. To the captain of each boat, himself familiar with its strength or weakness, with its capacity, and with the draught required for his future navigation, it was left to regulate the quantity of ore to be taken in from the chute, and the place where it was to be dumped. Libelant's own testimony on this point is most positive. He said: "When they drop the ore [from the chute], it is for the captain of the boat to say 'Stop,' you see." "When we began on the bow, I told him to let it come easy. He let it go until I told him to stop. Whether it fills the boat or not, I suppose they would wait for me to give orders." The way they "know when to let the ore run and when to stop it [is that] we let him know from down below. We tell him to stop; we tell him to go ahead. [They] take orders from me when to start and stop." The superintendent of the dock, having general charge of all that was going on there, had a right to rely upon the libelant attending to the matter which he had in particular charge; and the duty of the lever man was undoubtedly to wait for and obey the orders called up to him from the boat, especially as, from the relative positions of the boat, the mouth of the chute, and the platform where the lever man stood, the latter presumably could not see how high the ore was piled at particular localities on the boat. Indeed, the libelant himself admitted that it was a difficult matter to tell from the chute whether or not too much ore was being put on. It would be laying an unfair burden upon these two employés of the defendants to require them to anticipate that the captain would wholly neglect his duty, and to regulate the flow, irrespective of his orders, by their own ideas of what was a sufficient quantity for the boat to take. Unless, therefore, the testimony in the case is such as fairly to charge them with knowledge that the captain was not himself attending to the incoming ore, either personally or by deputy, and that the pile, in one place or another, was increasing to an extent greater than the boat would stand, there is no ground for holding the defendant liable. The statement of libelant that he "supposed" the superintendent saw him go forward is hardly sufficient, even although he might have been seen there if the superintendent's attention had been attracted to him; and we find nothing in the record to charge the lever man with knowledge that there was a dangerous accumulation of ore at the stern. The decree of the district court is reversed, with costs of this appeal, and the cause remanded to the district court, with instructions to dismiss the libel, with costs. (98 Fed. 635.) THE QUEVILLY. (Circuit Court of Appeals, Third Circuit. December 18, 1899.) No. 21. 1. TOWAGE-SUIT TO RECOVER-CONSTRUCTION OF LIBEL. In a suit to recover a balance claimed to be due for 'towage services, an allegation in the libel that the charge for towage was made in accordance with a printed schedule of rates based on the tonnage of the vessel, which was shown to the captain of the vessel, and agreed to by him; that settlement was made on the basis of the tonnage as stated by the captain, but a corrected rate was afterwards agreed to, based upon the tonnage of the vessel required by the customs officers of the United States, -cannot be construed to mean that the schedule of rates was based exclusively on the tonnage as fixed by the customs officers, but that it was based on the actual tonnage, which was, in the case in question, correctly ascertained by such officials. 2. SAME-CONSTRUCTION OF CONTRACT. Under an agreement for towage in accordance with a schedule of rates based upon the tonnage of the vessel, the amount of the charge is to be determined by the actual tonnage, as to which the statement of the Lloyd's register, while, no doubt, generally correct, is not conclusive. Appeal from the District Court of the United States for the Easteru District of Pennsylvania. For opinion below, see 95 Fed. 182. Horace L. Cheyney, for appellant. Curtis Tilton, for appellee. Before ACHESON, DALLAS, and GRAY, Circuit Judges. DALLAS, Circuit Judge. We do not think that the appellant's criticism of the libel is well founded, or that his view of the effect of the evidence adduced in its support is correct. It is not alleged in the libel "that the tonnage of the bark, ascertained by the customs officials of the United States for the port of Philadelphia, is the basis of the rates of the Towboat Association." What is alleged is "that the said tariff is a printed schedule of rates, which was shown to the captain of said bark, and charges are made according to the tonnage of the vessel; that the tonnage of said bark was at first misrepresented by the said captain of said bark, so that the towage rate was only $144, but that the corrected rate, as finally accepted by said captain, based upon the tonnage required for said bark by the customs of ficials of the United States for the port of Philadelphia, made the towage rate $220 for said service, which the master of the bark agreed to, but her agent refused, and still refuses, to pay." This cannot be construed to mean that the tariff of the association had for its basis the ascertainment of tonnage exclusively by the Philadelphia customs officials. Its plain meaning is that the towage charges were to be made according to actual tonnage, however ascertained, and that in this instance the actual tonnage had, in fact, been correctly determined by those officials. No part of the evidence was inconsistent with this allegation. No doubt, tonnage is, in general, assumed to be rightly stated in the Lloyd's books, but there was no testimony which would have justified a finding that those books must, in all cases, be regarded as conclusive. The court below was of opinion that the real question was as to the true net tonnage of the Quevilly, and this question it decided in accordance with the action of the customs authorities. This, we think, was clearly right; and, as the opinion which was filed by the learned judge sufficiently presents our own views upon the whole case, further discussion of it is unnecessary. The decree is affirmed. (98 Fed. 636.) FARR & BAILEY MFG. CO. v. INTERNATIONAL NAV. CO. To constitute a ship seaworthy when she enters on a voyage, she must be fit, in design, structure, condition, and equipment; and she cannot be said to be fit, as to condition, when both the iron and glass coverings of a port, which it is the usual custom to close and fasten before sailing, though structurally fit, are, through inadvertence, insecurely fastened, so that, although the vessel does not encounter bad weather or rough seas, such covers become open, and admit sea water, which damages the cargo. In such case the damage must be held to result from the unseaworthiness of the ship, and not from any fault or error in navigation, or in the management of the vessel, for which the owners are exempted from liability by section 3 of the Harter act, as the master was justified in supposing that the port had been securely closed before sailing, in accordance with the usual custom, and was not chargeable with fault in failing to cause it to be thereafter examined, although the cargo was so stored that it was accessible.1 Gray, Circuit Judge, dissenting. Appeal from the District Court of the United States for the Eastern District of Pennsylvania. For opinion below, see 94 Fed. 675. Horace L. Cheyney, for appellant. J. Rodman Paul, for appellee. Before ACHESON, DALLAS, and GRAY, Circuit Judges. DALLAS, Circuit Judge. By the libel filed in the court below damages were claimed for injury done by sea water to several bales of burlap which were received on board the steamship Indiana at the port of Liverpool, consigned to the libelant, in Philadelphia. These goods were stowed in a compartment on the lower steerage deck in such manner as to admit of free access being had to the port through which the water subsequently entered. This port, and others similarly situated, were inspected on the day before the vessel sailed, and they were believed to be closed and properly fastened; but, after the Indiana had proceeded for four or five days upon her 1 As to what constitutes seaworthiness, see note to The Carib Prince, 15 C. C. A. 389. voyage, water made its appearance in the compartment, and a day or two later investigation disclosed that both the glass cover and the iron dummy of the port in question were open, and that through this opening the water was admitted. There had been no severe weather, no accident was known to have happened, and the port, its covers, fastenings, and surroundings, did not appear to have been in any way broken or impaired. The bearing upon the case thus presented of the act of congress of February 13, 1893, known as the "Harter Act,' " is now for consideration. The third section of that act provides that: "If the owner of any vessel transporting merchandise 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 manned, equipped and supplied, neither the vessel, her owners, agents 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." This act has not modified the obligation of owners to furnish a seaworthy ship. The Delaware, 161 U. S. 459, 16 Sup. Ct. 516, 40 L. Ed. 771; The Carib Prince, 170 U. S. 655, 18 Sup. Ct. 753, 42 L. Ed. 1181; The Silvia, 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241. Did the damage in question result from unseaworthiness? Respecting its immediate cause there can be no doubt. It was the condition of the port. Was this condition chargeable to unseaworthiness, or should it be ascribed to lack of due care, skill, or judgment on the part of those engaged in navigating and managing the vessel? The definition of "seaworthiness" which the learned counsel for the appellee has supplied from Carver on Carriers by Sea (section 18, p. 20) is, so far as it is here material, that "the ship must be fit in design, structure, condition, and equipment"; and, although the Indiana seems to have been structurally fit, her "condition," as respects the port in question, was, we think, palpably unfit. The learned judge of the court below found as a fact that it "was either not fastened at all, or was insecurely fastened," and this finding is quite consistent with the contention of the appellee's counsel that it was not open at the time of sailing. The impression made upon us by the evidence is that it was probably closed, but, be this as it may, certain it is that it was not securely fastened; and we are of opinion that by reason of this fact the vessel was unseaworthy, for the conclusion is inevitable that a ship with a hole in her side, which those in charge of her navigation suppose, and have a right to assume, is tightly closed, but which in fact had been so inadequately fastened as to admit of its being opened by ordinary pressure of the sea, and so permit the water to flow in upon the cargo, does not "have that degree of fitness which an ordinary careful and prudent owner will require his vessel to have at the commencement of her voyage, having regard to all the probable circumstances of it"; and "to that extent the shipowner undertakes absolutely that she is fit, and ignorance is no excuse." Carv. Carr. by Sea, supra. It has, however, been contended that the master of the Indiana had no right to assume that the covers of this port had been properly secured, but should himself have made timely discovery that they had not been, and there * * fore that his omission to have them made fast during the voyage, and before the damage had been done, was a fault in navigation or in management, for which the vessel is not liable. We cannot sustain this contention. The record shows that the custom was to close and securely fasten all such ports before sailing, and that in this instance this practice, except as to this one port, was effectually pursued. The master was, of course, not responsible for the vessel's general fitness of condition, and, this being so, we are at a loss to conceive upon what ground neglect could be imputed to him by reason of his not having seen to the condition of this particular part of the ship at a time when its unfit condition had not become known to him. This case was twice argued in the court below. Upon the first occasion the learned judge directed a decree to be entered for the libelant, but upon reargument he dismissed the libel. In all that he said in support of the conclusion which he first announced, we fully concur; but we are unable to acquiesce in the result which he finally reached, because we cannot agree that it was rendered necessary by the decision in the case of The Silvia, 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241. The facts of that case and of this one, though similar, are not precisely the same; and the differences between them, though seemingly slight, are, when considered with reference to the reasoning upon which the judgment in the Silvia Case was founded, of controlling importance. It was there said that "the test of seaworthiness is whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport"; and, applying this test, it was held that the Silvia was not, under the circumstances there presented, to be regarded as being unseaworthy, merely because at the time of sailing, when the weather was fair, and with the glass covers tightly closed, the iron covers of some of her ports were left open to light the compartment. There was in that case, as in this one, no structural defect or omission of appliances, and the question there, as here, was only as to fitness of condition. The compartment involved contained no cargo, but only spare sails and ropes and a small quantity of stores. The ports were in a place where the iron shutters would usually be left open for the admission of light, and there was nothing to prevent or embarrass access to them in case a change of weather should make it necessary or proper to close them. In the afternoon of the day of sailing rough weather was encountered, the glass cover of one of the ports was broken, and the water came in through the port and damaged the cargo; and this damage, it was held, was occasioned, not by unseaworthiness, but by fault or error in the navigation or in the management of the ship, because the control during the voyage of everything with which the vessel is equipped for the purpose of protecting her and her cargo against the inroad of the seas is included in navigation and management, and consequently the neglect to close the iron covers of the ports was in that case ascribed to those in charge of the navigation and management, and not to those responsible for seaworthiness. But in the present case the port in question was not designedly left open, and its shutters ought not to have been left unfastened. They would not "usually be left open for the admission of light," or for |