Counsel for petitioner states that the question raised on this record is: 'Was the Indiana unseaworthy at the time of beginning her voyage from Liverpool to Philadelphia, or was the failure to securely fasten the port covers and keep them fastened a fault or error in the management of the vessel under the exemption of the 'Harter act?"

Act of February 13, 1893 (27 Stat. at L. 445, chap. 105), entitled 'An Act Relating to Navigation of Vessels, Bills of Lading, and to Certain Obligations, Duties, and Rights in Connection with the Carriage of Property.' The 1st, 2d, and 3d sections read:

'Be it enacted by the Senate and House of Representatives of the United The courts below concurred in the conclusion that the Indiana was unseaworthy when she sailed because of the condition of the porthole, but the district judge on the reargument felt constrained to yield his individual convictions to the rule he understood to have been laid down in The Silvia, 171 U. S. 462, 43 L. ed. 241, 19 Sup. Ct. Rep. 7.

The Silvia was decided, as all these cases must be, upon its particular facts and circumstances. The case is thus stated by Mr. Justice Gray, who delivered the opinion of the court:

'The Silvia, with the sugar in her lower hold, sailed from Matanzas for Philadelphia on the morning of February 16, 1894. The compartment between decks next the forecastle had been fitted up to carry steerage passengers, but on this voyage contained only spare sails and ropes and a small quantity of stores. This compartment had four round ports on each side, which were about 8 or 9 feet above the water line when the vessel was deep-laden. Each port was 8 inches in diameter, furnished with a cover of glass 5/8 of an inch thick, set in a brass frame, as well as with an inner cover or dummy of iron. When the ship sailed the weather was fair, and the glass covers were tightly closed, but the iron covers were left open in order to light the compartment should it become necessary to get anything from it, and the hatches were battened down, but could have been opened in two minutes by knocking out the wedges. In the afternoon of the day of sailing, the ship encountered rough weather, and the glass cover of one of the ports was broken,—whether by the force of the seas or by floating timber or wreckage was wholly a matter of conjecture,—and the water came in through the port, and damaged the sugar.'

'But the contention that the Silvia was unseaworthy when she sailed from Matanzas is unsupported by the facts. The test of seaworthiness is whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport. The portholes of the compartment in question were furnished both with the usual glass covers and with the usual iron shutters or dead lights; and there is nothing in the case to justify an inference that there was any defect in the construction of either. When she began her voyage, the weather being fair, the glass covers only were shut, and the iron ones were left open for the purpose of lighting the compartment. Although the hatches were battened down they could have been taken off in two minutes, and no cargo was stowed against the ports so as to prevent or embarrass access to them in case a change of weather should make it necessary or proper to close the iron shutters. Had the cargo been so stowed as to require much time and labor to shift or remove it in order to get at the ports, the fact that the iron shutters were left open at the beginning of the voyage might have rendered the ship unseaworthy. But as no cargo was so stowed, and the ports were in a place where these shutters would usually be left open for the admission of light, and could be speedily got at and closed if occasion should require, there is no ground for holding that the ship was unseaworthy at the time of sailing.'

In the present case the compartment in which the burlaps were stowed was used exclusively as a cargo hold; the glass and iron covers were intended to be securely closed before any cargo was received; the persons whose duty it was to close them or see that they were closed supposed that that had been properly done; and the hatches were battened down with no expectation that any more attention would be given to the port covers during the voyage; but in fact the port was not securely covered, and there was apparently nothing to prevent the influx of water, even under conditions not at all extraordinary, the port being only 2 or 3 feet above the water line.

We are of opinion that the difference in the facts between the two cases was such that the court of appeals was at liberty to reach a different result in this case from that arrived at in The Silvia. The latter decision simply demonstrated the justness of Lord Blackburn's observation in Steel v. State Line S. S. Co. L. R. 3 App. Cas. 72, that the question whether a ship is reasonably fit to carry her cargo must be 'determined upon the whole circumstances and the whole evidence.'

On the question of fact in this case, we have the concurrent decisions of the two courts that the Indiana was unseaworthy at the commencement of the voyage, and as we find no adequate ground to conclude that the finding was erroneous, the settled doctrine that it should be accepted is applicable. The Carib Prince, 170 U. S. 655, sub nom. Wuppermann v. The Carib Prince, 42 L. ed. 1181, 18 Sup. Ct. Rep. 753.

But it is contended that in spite of the fact that the condition of the porthole rendered the ship unseaworthy when she sailed, the omission to securely cover it was a fault or error in management and within the exemption of the 3d section of the Harter act. The proposition is that if the owner provides a vessel properly constructed and equipped, he is exempted from liability, no matter how unseaworthy the vessel may actually be, at the commencement of the voyage, through negligent omission or commission in the use of the equipment by the owner's servants. Or, to put it in another way, if the unseaworthiness is not the result of error or fault in management, the 3d section does not apply, and even if it were, the exemption still cannot obtain unless it appears that the owner used due diligence to make the vessel seaworthy. And it is said that the owner does exercise such diligence by providing a vessel properly constructed and equipped, and that while he is responsible for the misuse or nonuse of the structure or equipment by his 'shore' agents, he exercises due diligence by the selection of competent 'sea' agents, and that he is not responsible for the acts of the latter, although they produce unseaworthiness before the commencement of the voyage.

We cannot accede to a view which so completely destroys the general rule that seaworthiness at the commencement of the voyage is a condition precedent, and that fault in management is no defense when there is lack of due diligence before the vessel breaks ground.

We do not think that a shipowner exercises due diligence within the meaning of the act by merely furnishing proper structure and equipment, for the diligence required is diligence to make the ship in all respects seaworthy; and that, in our judgment, means due diligence on the part of all the owner's servants in the use of the equipment, before the commencement of the voyage and until it is actually commenced.

The ruling in Dobell v. Steamship Rossmore Co. [1895] 2 Q. B. 408, is in point. The Rossmore left Baltimore with a port improperly caulked, which rendered the vessel unseaworthy, through the negligence of the ship's carpenter, who was a competent person. Sea water entered through this port and damaged the cargo. The bill of lading incorporated the Harter act by reference, and it was held, as correctly stated in the syllabus, that 'to exempt the shipowner from liability it was not sufficient merely to show that he had personally exercised due diligence to make the vessel seaworthy, but that it must be shown that those persons whom he employed to act for him in this respect had exercised due diligence; and that therefore the negligence of the ship's carpenter prevented the exemption from applying, and the shipowner was liable.'

The obligation of the owner is, in the language of § 2 of the act, 'to exercise due diligence, to properly equip, man, provision, and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage;' and that obligation was not discharged when this vessel sailed with a hole in her side, under the circumstances disclosed, whether the duty of seeing that it was closed devolved on officers of the ship, or the foreman of the stevedores, or on all of them. The obligation was to use due diligence to make her seaworthy before she started on her voyage, and the law recognizes no distinction founded on the character of the servants employed to accomplish that result.

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. The word 'management' is not used without limitation, and is not, therefore, applicable in a general sense as well before as after sailing.

It is, of course, not to be understood as intimated that failure to close portholes necessarily creates unseaworthiness. That depends on circumstances, and we accept the finding of the district court and of the court of appeals, that it did so under the circumstances of this case.

Nor do we say that the liability rests alone on the ignorance of the officers that the port covers were not securely fastened. This is not a case where it appears that the port would ordinarily have been left open, to be closed as the exigency might require, and where failure to close it during the voyage might be an error or fault in management. The importance of this point is well illustrated by Dallas, J., in the court of appeals, thus: '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 any purpose. They were believed by all concerned to have been securely closed, and that they would remain so throughout the voyage. It was neither intended nor expected that they would require or receive any attention at sea. It was not supposed that any control of them in the course of navigation and management would be necessary, and no duty to exercise control existed, simply because no need nor occasion for it could have been foreseen or perceived.'

Decree affirmed.