The law of the sea

by George L. Canfield; J. Y. Brinton; George W. Dalzell

10. Harter Act.—

This law was enacted by Congress in 1893, and corresponds to a similar English statute of about the same date. It may be found in 7 Comp. St., 1916, §§ 8029-8035. The text of the act follows:

Chapter 105. An act relating to navigation of vessels, bills of lading, and to certain obligations, duties, and rights in connection with the carriage of property.

Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that it shall not be lawful for the manager, agent, master or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant or agreement whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words and clauses of such import inserted in bills of lading or shipping receipts shall be null and void and of no effect.

Sec. 2. That it shall not be lawful for any vessel transporting merchandise or property from or between ports of the United States of America and foreign ports, her owner, master, agent, or manager, to insert in any bill of lading or shipping document any covenant or agreement whereby the obligation of the owner or owners of said vessel to exercise due diligence, properly equip, man, provision, and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage, or whereby the obligations of the master, officers, agents, or servants, to carefully handle and stow her cargo and to care for and properly deliver the same, shall in any wise be lessened, weakened or avoided.

Sec. 3. That if the owner of a 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 manned, equipped and supplied, neither the vessel, her owners or managers, agents or charterers, shall become or be held responsible for damages or loss resulting from faults or errors in navigation or in the management of said vessel, nor shall the vessel, her owner or owners, charterers, agent, or master be held liable for losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality or vice of the thing carried, or from the insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service.

Sec. 4. That it shall be the duty of the owner or owners, masters, or agent of any vessel transporting merchandise or property from or between ports of the United States and foreign ports, to issue to shippers of any lawful merchandise a bill of lading or shipping document, stating, among other things, the marks necessary for identification, number of packages or quantity, stating whether it be carrier's or shipper's weight, an apparent order or condition of such merchandise or property delivered to and received by the owner, master, or agent of the vessel for transportation, and such document shall be prima facie evidence of the receipt of the merchandise therein described.

Sec. 5. That for a violation of any of the provisions of this act the agent, owner, or master of the vessel guilty of such violation, and who refuses to issue on demand the bill of lading herein provided for, shall be liable to a fine not exceeding two thousand dollars. The amount of the fine and costs of such violation shall be a lien upon the vessel whose agent, owner, or master is guilty of such violation, and such vessel may be libeled therefor, in any district court of the United States within whose jurisdiction the vessel may be found. One-half of such penalty shall go to the party injured by such violation and the remainder to the government of the United States.

Sec. 6. That this act shall not be held to modify or repeal sections forty-two hundred and eighty-one, forty-two hundred and eighty-two, and forty-two hundred and eighty-three of the Revised Statutes of the United States, or any other statutes defining the liability of vessels, their owners or representatives.

Sec. 7. Sections one and four of this act shall not apply to the transportation of live animals.

Sec. 8. This act shall take effect from and after the first day of July, eighteen hundred and ninety-three. Approved February 13, 1893.

The general purpose of the act is understood to have been to regulate the relations between ship and cargo, so as to provide a limitation of liability, beyond that granted by the earlier statutes as to damages in general, by providing that if the owner exercised due diligence to make his ship seaworthy neither he nor his vessel should be liable for losses resulting from fault or error in the navigation or management of the vessel. The courts, however, have construed the statute closely against the shipowner and it is doubtful whether it has not rather increased his original liabilities instead of limiting them. He is still held to his warranty of absolute seaworthiness at the beginning of the voyage; stipulations in the bill of lading are prohibited which tend to relieve him from liability for loss arising from negligence, fault or failure in proper loading, stowage, care or proper delivery and he is forbidden to insert any clauses lessening his common-law obligations as a carrier.

In the Carib Prince, 170 U. S. 655, the damage to cargo was caused by latent defects in a rivet, from which the head had come off, leaving a hole through which water entered and injured libellant's merchandise. The defect was due to too much hammering during the construction of the hull, causing the rivet to become brittle and weak. By reason of this defect the vessel was unseaworthy at the time the bill of lading was issued, although the owner did not know it. The bill of lading exempted the owner of the vessel from liability on account of "latent defects in the hull." The court held that the bill of lading was intended to confer exemption only to latent defects arising subsequent to sailing and consequently that there was no contractual limitation of liability, and with reference to the exemption from liability claimed under the Harter Act, said:

Because the owner may, when he has used due diligence to furnish a seaworthy ship, contract against the obligation of seaworthiness, it does not at all follow that when he has made no contract to so exempt himself he nevertheless is relieved from furnishing a seaworthy ship, and is subjected only to the duty of using due diligence. To make it unlawful to insert in a contract a provision exempting from seaworthiness where due diligence has not been used, cannot by any sound rule of construction be treated as implying that where due diligence has been used, and there is no contract exempting the owner, his obligation to furnish a seaworthy vessel has ceased to exist. The fallacy of the construction relied upon consists in assuming that because the statute has forbidden the shipowner from contracting against the duty to furnish a seaworthy ship unless he has been diligent, that thereby the statute has declared that without contract no obligation to furnish seaworthy ship obtains in the event due diligence has been used.

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The exemption of the owners or charterers from loss resulting from "faults or errors in navigation or in the management of the vessel," and for certain other designated causes, in no way implies that because the owner is thus exempted when he has been duly diligent that thereby the law has also relieved him from the duty of furnishing a seaworthy vessel. The immunity from risks of a described character, where due diligence has been used, cannot be so extended as to cause the statute to say that the owner when he has been duly diligent is not only exempted in accordance with the tenor of the statute from the limited and designated risks which are named therein, but is also relieved as respects every claim of every other description from the duty of furnishing a seaworthy ship.

In the Wildcroft, 201 U. S. 378, a cargo of sugar was injured by an opening of a valve in the ship's side in such a manner that water got into the cargo. The vessel was in all respects seaworthy at the beginning of the voyage, and the court held that having discharged the duty of providing a seaworthy ship the vessel was relieved from liability arising out of an unseaworthy condition, which devolved after the beginning of the voyage and without the fault of the owners. It was emphasized, however, following the case of the Southwark, 191 U. S. 1, that the burden is upon the owner of a vessel

to show by reasonable and proper tests that the vessel was seaworthy and in a fit condition to receive and transport the cargo undertaken to be carried and that if, by failure to adopt such tests and furnish the required proofs, the question of the ship's seaworthiness was left in doubt, that doubt must be resolved in favor of the shipper, because the vessel owner had not sustained the burden cast upon him by the law to establish that he had used due diligence to furnish a seaworthy vessel.

As it emerges from the interpretation of the courts, the effect of the Harter Act seems to amount to this:

The act says to the shipowner:

1. You may make a valid bargain by which you will be exempted from liability, if you use due diligence to make the ship seaworthy at the beginning of the voyage, and some defect develops which eluded your diligence. Unless you make such a bargain, your obligation to provide a ship which is seaworthy at the commencement of the voyage is absolute, and, in no event, can you bargain to relieve yourself from using due diligence.

2. You cannot bargain away your duty and obligation to use due diligence to see that your vessel is maintained in seaworthy condition during the voyage, but you may, if you like, bargain that if you use due diligence and your ship nevertheless become unseaworthy, you shall be relieved from responsibility for damage to cargo on that account.

3. If you use due diligence to employ a competent master and crew and their skill in navigation fails or the ship encounters perils of the sea and accident happens to the cargo you are not responsible for the damage. Your exemption from responsibility in this case is given by the statute and you do not need to bargain for it.

4. Your exemption from liability does not extend to damage due to improper loading and stowage.