She must be so tight that the water will not reach the cargo; so strong that these ordinary applications of external force will not spring a leak in her or sink her; so sound that she will safely carry the cargo in bulk through these ordinary shocks to which she must every day be subjected. If she is capable of this, she is seaworthy; if she is not, she is unfit for the navigation of the river. (The Keokuk, etc. v. Home Ins. Co., 9 Wall. 526.)
The opinion just quoted had reference to a barge in tow. The Court held that the barge was considered as belonging to the tug, which had her in tow, and that the warranty of seaworthiness extended to the barge equally with the tug.
While under the act of February 13, 1893, (27 St. at L. 445, supra) the owner is relieved of liability to the cargo by reason of faulty navigation, the employment of a competent master and crew is implied in a warranty of seaworthiness and the owner is liable under the warranty if he fail to employ a competent personnel. In other words the relief from liability occurs where the owner had employed competent men, but they negligently or faultily operated the ship. Thus Justice Clifford in Germania Ins. Co. v. Lady Pike, 21 Wall. 1, said:
(The vessel) must be provided with a crew adequate in number and competent for their duty with reference to all the exigencies of the intended route, and with a competent and skillful master, of sound judgment and discretion, and with sufficient knowledge of the route and experience in navigation to be able to perform in a proper manner all the ordinary duties required of him as master of the vessel.
4. Loading and Stowage.—
These are done in accordance with the provisions of the contract of carriage or custom of the port at which the cargo is taken on board. Proper loading and stowage is an important element of seaworthiness of the ship. The cargo must be so disposed as to keep her trim and seaworthy and also so that one portion may not injure another. This work is frequently done by stevedores, whose services, when employed by the ship, are now recognized as maritime and secured by a lien on the vessel. They are, however, subject to the master's control and he is not to take on more cargo than he thinks the vessel can safely carry nor permit its stowage to interfere with the general safety of the adventure. He may refuse to take on more cargo than in his honest opinion is prudent, and must not permit any overloading at all. A fair test is the depth which the vessel was constructed to draw or that which the master and others of experience on the spot believed to be proper. The shipper of goods by sea must disclose their real character and value. He is bound to know whether they have explosive or other dangerous qualities, and, if concealment has been practiced by him on the shipowner, he will be liable for all the damages sustained from their effects. In every shipment there is an implied warranty on the part of the shipper that his goods are not of a character to cause injury to other goods on board, unless otherwise specially stipulated, and he is held liable for all the consequences of its breach; if the carrier has thereby been obliged to compensate other shippers, he may recover over against the delinquent what he was so compelled to pay.
In the case of Barker v. The Swallow, 44 Fed. 771, a small steamer, in use in the lumber trade on the Great Lakes, took a cargo of pine boards, laden as usual on deck. She encountered a strong wind and heavy sea, causing her to roll badly so that a portion of the lumber slid off the starboard side and another portion off the port side as the vessel careened in either direction. It was conceded that it was not the usage to lash deck loads of lumber vessels with ropes or chains, but with ordinary safe loading the boards would be held in place by the frictional contact of their surfaces under the weather conditions ordinarily encountered on Lake Michigan. The libellant (owner of the lumber) contended that too much lumber had been loaded upon the deck and thereby made her top-heavy, and caused her to roll more than she would have done had she not been overloaded on deck, and that the rough weather encountered did not amount to a "tempest". The Court held
while a vessel is not liable for the loss of her deck-load when it is lost by stress of weather, or what can be properly called "a peril of the sea," yet, if she takes on so heavy a deck-load as to become top-heavy, and endangers loss of the deck-load, or puts it in peril in an ordinary wind, or anything less than a gale of wind, or such stress of weather as is clearly unusual, it should, I think, be accounted bad stowage and negligence. Overloading the vessel so as to render her unmanageable, or susceptible of becoming unmanageable, by such a wind as is shown to have prevailed on the night in question, is, I think, a manifest negligence on the part of the carrier, and such as should not acquit him of liability if the cargo is lost.
In this case there was testimony that the vessel had carried much heavier deck cargo in safety, but the Court considered that this proved no more than her good luck.
Where the particular method of stowage is determined by the shipper, and damage results, the vessel is not liable for damage to cargo so stowed. A distinction is also to be noted between underdeck cargo and cargo stowed on deck. These principles are illustrated by the case of Lawrence v. Minturn, 17 How. (U. S.) 100. In that case certain boilers and chimneys were shipped aboard the Hornet and stowed on deck with the consent of their owner. The vessel encountered bad weather and began to roll gunwale deep, shipping large quantities of water, opening seams and endangering the safety of the underdeck cargo, as well as the lives of those on board. After consultation with his officers and members of the crew the master lightened ship by throwing overboard the deck cargo. The owner of the boilers and chimneys libeled the ship. In directing the libel to be dismissed the Supreme Court said: