ler, which is the basis of this proceeding, sets forth not only the payment of $27,500 In cash by Thompson and Wilson, but avers upon information and belief that there was also transferred to the plaintiff, by said defendants, a large block of stock belonging to them in the California National Bank, which is the property of ts stockholders; and the prayer is for an order turning over to the petitioner the moneys above mentioned, and "all stock and other securities, of every sort, nature, and description, received by him from defendants Thompson and Wilson in this action."

While the opinion of the court deals only with the moneys paid by Thompson and Wilson, the order appealed from directs the trial court to enter the order prayed for, "after making reasonable allowances to the plaintiff Chetwood for his costs, disbursements, and attorney's fees in said action as contemplated by law." This order lacks finality in two particulars. It would still be competent to prove that Chetwood had received the block of stock set up in Stateler's affidavit, and it would certainly be necessary for Chetwood to prove up his costs, disbursements, and attorney's fees before the amount for which he is ultimately made liable could be ascertained.

The settled rule is that if a superior court makes a decree fixing the liability and rights of the parties, and refers the case to a master or subordinate court for a judicial purpose, such, for instance, as a statement of account upon which a further decree is to be entered, the decree is not final. Craighead v. Wilson, 10 How. 199; Beebe v. Russell, 19 How. 283; Iron Co. v. Martin. 132 U. S. 91, 10 Sup. Ct. 32; Lodge v. Twell, 135 U. S. 232, 10 Sup. Ct. 745; McGourky v. Railway Co., 146 U. S. 536, 13 Sup. Ct. 170; Insurance Co. v. Kirchoff, 160 U. S. 374, 16 Sup. Ct. 318; Hollander V. Fechheimer, 162 U. S. 326, 16 Sup. Ct. 795. The writ of error is therefore dismissed.

(171 U. S. 462)

THE SILVIA.

(October 17, 1898.) No. 5.

SHIPPING-SEAWORTHINESS

INJURY TO CARGOFAULTS OF NAVIGATION.

1. A vessel was not unseaworthy at the beginning of her voyage because ports between decks, eight inches in diameter, and a few feet above the water line, were closed only with the glass covers, and the hatches were battened down, where the hatches could be taken off in two minutes, the cargo was so stowed as to afford free access to the ports, and they were provided with additional covers of iron, which could be closed if deemed necessary.

2. The injury of a cargo by water by reason of the failure to close a port for which an iron shutter was provided, after the glass cover had been broken out by the seas, where the cargo was so placed that the port was readily accessible, was due to a fault or error in navigation or in the management of the vessel, within the Harter act (27 Stat. 445, c. 105, § 3); and neither the vessel nor her owners are liable therefor.

3. The provisions of section 3 of the Harter act (27 Stat. 445, c. 105), which relieves vessels and their owners from liability for loss or damages to the cargo resulting from faults or errors in navigation or in the management of the vessel, where the owners have exercised due diligence to make her seaworthy, and have her properly equipped, manned, and supplied, applies to foreign vessels carrying goods to or from ports of the United States.

Certiorari to the United States Circuit Court of Appeals for the Second Circuit.

Harrington Putnam and C. C. Burlingham, for appellant. J. Parker Kirlin, for appellee.

Mr. Justice GRAY delivered the opinion of the court.

This was a libel in admiralty, filed June 14, 1894, in the district court of the United States for the Southern district of New York, by the Franklin Sugar-Refining Company, a corporation organized under the laws of the state of Pennsylvania, against the steamship Silvia, of Liverpool, owned by the Red Cross Line of steamers, to recover damages for injuries to a cargo of sugar, owned by the libelant, which had been shipped on or about February 15, 1894, upon the Silvia, at Matanzas, Cuba, for Philadelphia, under a bill of lading, by which the sugar was "to be delivered in the like good order and condition at the port of Philadelphia (the dangers of the seas only excepted)," upon payment of agreed freight, "and all other conditions as par charter party dated New York, 31st January, 1894."

The charter party, which had been made and concluded at New York, January 31, 1894, provided that the Silvia, then at Tucacas, Venezuela, should proceed as soon as possible in ballast to Matanzas for a voyage thence to Philadelphia, New York, or Boston, and contained these provisions: "The vessel shall be tight, staunch, strong, and in every way fitted for such a voyage, and receive on board, during the aforesaid voyage, the merchandise hereinafter mentioned (the act of God, adverse winds, restraint of princes and rulers, the queen's enemies, fire, pirates, accidents to machinery or boilers, collisions, errors of navigation, and all other dangers and accldents of the seas, rivers, and navigation, of whatever nature and kind soever, during the said voyage always excepted). The said party of the second part doth engage to provide and furnish to the said vessel a full cargo, under deck, of sugars in bags. The bills of lading to be signed without prejudice to this charter."

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 eight

463

*465

or nine feet above the water line when the vessel was deep laden. Each port was eight Inches in diameter, furnished with a cover of glass five-eighths 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.

The decree of the district court dismissed the libel, and was affirmed by the circuit court of appeals. 64 Fed. 607; 35 U. S. App. 395, 15 C. C. A. 362, and 68 Fed. 230. The libelant applied for, and obtained, a writ of certiorari from this court.

It was adjudged by this court at the last term that the act of congress of February 13, 1893 (chapter 105, known as the "Harter Act"), has not released the owner of a ship from the duty of making her seaworthy at the beginning of her voyage. The Carib Prince, 170 U. S. 655, 18 Sup. Ct. 753.

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 port holes of the compartment in question were furnished both with the usual glass covers and with the usual iron shutters or deadlights; 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 rendred 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. Steel v. Steamship Co., 3 App. Cas. 72, 82, 90, 91; Hedley v. Steamship Co. [1892] 1 Q. B. 58, 65, and [1894] App. Cas. 222, 227, 228; Gilroy v. Price [1893] App. Cas. 56, 64.

The third section of the Harter act provides that, "if the owner of any 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 owner or owners, agent 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." 27 Stat. 445.

This provision, in its terms and intent, includes foreign vessels carrying goods to or from a port of the United States. The Scotland, 105 U. S. 24, 30; The Carib Prince, above cited.

Not only had the owners of the Silvia exercised due diligence to make her seaworthy, but, as has been seen, she was actually seaworthy when she began her voyage.

*This case does not require a comprehensive definition of the words "navigation" and "management" of a vessel, within the meaning of the act of congress. They might not include stowage of cargo, not affecting the fitness of the ship to carry her cargo; but they do include, at the least, 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; and, if there was any neglect in not closing the iron covers of the ports, it was a fault or error in the navigation or in the management of the ship. This view accords with the result of the English decisions upon the meaning of these words. Good v. Association, L. R. 6 C. P. 563; The Warkworth, 9 Prob. Div. 20, 145; Carmichael v. Association, 19 Q. B. Div. 242; Canada Shipping Co. v. British Shipowners' Association, 23 Q. B. Div. 342; The Ferro [1893] Prob. 38; The Glenochil [1896] Prob. 10.

In the case, cited by the appellant, of Dobell v. The Rossmore Co. [1895] 2 Q. B. 408, 414, the ship was unseaworthy at the time of sailing, by reason of the cargo having been so stowed against an open port that the port could not be closed without removing a considerable part of the cargo; and Lord Esher, M. R., upon that ground, distinguished that case from the decision of the circuit court of appeals in the present case. Judgment affirmed.

466

(171 U. S. 450)

THE G. R. BOOTH. (October 17, 1898.) No. 10.

SHIPPING LIABILITY FOR INJURY TO CARGO PROXIMATE CAUSE-BILL OF LADING-PERILS OF THE SEA-ACCIDENTS OF NAVIGATION. 1. The first of two causes which contributed to produce an injury to the cargo of a vessel was the proximate cause, where it was the efficient cause which set the other in operation, and that following was but its incident or necessary consequence. It is only where the causes are independent of each other that the nearest is, of course, to be charged with the disaster.

2. Generally speaking, the words "perils of the sea" have the same meaning in a bill of lading as in a policy of insurance, although the effect of negligence of the master or crew contributing to the loss by a peril of the sea may be different on the two contracts.

3. A box of detonators stowed in the hold of a vessel, as a part of the cargo, exploded, tearing a hole in the side of the vessel, through which the sea water immediately entered, and, penetrating into the next compartment, damaged a consignment of sugar. Held, that the explosion, and not the inflow of water, was the proximate and responsible cause of the damage, which was not, therefore, occasioned by a peril of the sea, within the exception from liability contained in the bill of lading.

4. The vessel having reached her port of destination, and being engaged in unlading, at the time of the explosion, the damage would not come within a provision of the bill of lading exempting the carrier from liability for loss or damage occasioned by an "accident of navigation."

Certificate from the United States Circuit Court of Appeals for the Second Circuit.

Upon an appeal from a decree of the district court of the United States for the Southern district of New York dismissing a libel in admiralty by the American Sugar-Refining Company against the steamship G. R. Booth for damage to cargo (64 Fed. 878), the circuit court of appeals certified to this court the following statement of facts and question of law:

"On July 14, 1891, the steamship G. R. Booth, a large, seaworthy, steel vessel, was lying at the dock in the waters of the harbor of New York, discharging a general cargo, which had been laden on board at Hamburg for transportation to and delivery at New York City. Part of the cargo laden on board at Hamburg consisted of twenty cases of detonators.

"Detonators are blasting caps used to explode dynamite or gun cotton, and consist of a copper cap packed with fulminate of mercury. In use, the cap is placed in contact with dynamite, a fuse is pushed into the cap until it meets the packing, the fuse is lighted, and when the fire reaches the fulminate it explodes it, thus exploding the dynamite. The detonators were made in Germany, and were packed according to the regulations prescribed by German law, adopted and enforced for the purpose of eliminating risk of danger in handling and transporting them. When thus packed, the immunity from danger of an ac19 S.C.-12

cidental explosion is supposed to be complete, and they are transported and handled like ordinary merchandise by carriers and truckmen, without the use of any special precautions to avoid risk. They do not explode when subjected to violent shock, as when thrown from such a height above the ground as to shatter in fragments the cases in which they are packed. They were customarily stowed and transported in vessels like ordinary merchandise, indiscriminately with the other cargo; and until the present occurrence, although millions of cases had been shipped and carried to all parts of the world, no accident had happened, so far as is known.

"The detonators were stowed with other cargo in afterhold No. 4. While the steamship was being unladen, one of the cases exploded, making a large hole in the side of the ship, in the No. 4 hold, besides doing other damage. In consequence of the opening thus made in the ship's side, sea water rapidly entered in the No. 4 hold, beyond the control of the capacity of the pumps, and passed from the No. 4 hold through the partition into No. 3 hold. In No. 3 hold there was cargo belonging to the libelant, consisting of sugar, which had not as yet been discharged. The sea water thus entering the hold damaged the sugar extensively. The boxes of detonators were stowed and handled in the usual way, and the explosion occurred purely by accident, and without any fault or negligence on the part of any person engaged in transporting them or in discharging the cargo.

"The bill of lading under which the sugar of the libelant was carried contained the following clause: "The ship or carrier shall not be liable for loss or damage occasioned by the perils of the sea or other waters; by fire, from any cause or wheresoever occurring; by barratry of the master or crew; by enemies, plrates, robbers, or thieves; by arrest and restraint of princes, rulers, or people; by explosion, bursting of boilers, breakage of shafts, or any latent defect in hull, machinery, or appurtenances; by collision, stranding, or other accidents of navigation, of whatsoever kind.'

"Upon these facts the court desires instructions upon the following question of law, viz.: Whether the damage to libelant's sugar caused by the sea water which entered the ship through the hole made in her side by the explosion, without her fault, is a 'loss or damage occasioned by the perils of the sea or other waters,' or by an 'accident of navigation, of whatsoever kind,' within the above-mentioned exceptions in the bill of lading."

Harrington Putnam, for appellant. J. Parker Kirlin, for appellee.

Mr. Justice GRAY, after stating the facts in the foregoing language, delivered the opinion of the court.

This was a libel against the steamship G. R. Booth for damage done to sugar, part of

her cargo, under the following circumstances: Another part of the cargo consisted of 20 cases of detonators, being copper caps packed with fulminate of mercury for exploding dynamite or gun cotton. While she was being unladen at the dock in her port of destination, one of the cases of detonators exploded, purely by accident, and without any fault or negligence on the part of any one engaged in carrying or discharging the cargo. The explosion made a large hole in the side of the ship, through which the sea water rapidly entered the hold, and greatly damaged the sugar.

The bill of lading of the sugar provides that "the ship or carrier shall not be liable for loss or damage occasioned by the perils of the sea or other waters," or "by collision, stranding, or other accidents of navigation, of whatsoever kind."

The question certified by the circuit court of appeals to this court is whether the damage to the sugar is within these exceptions in the bill of lading.

The case turns upon the question whether the damage to the sugar by the sea water which entered the ship through the hole made in her side by the explosion, without her fault, was "occasioned by the perils of the sea," or, in other words," whether it is the explosion, or a peril of the sea, that is to be considered as the proximate cause of the damage, according to the familiar maxim, "Causa proxima, non remota, spectatur."

The many authorities bearing upon this point, fully cited and discussed in the learned arguments at the bar, have been carefully examined. But only a few of them need be referred to, because judgments heretofore delivered by this court afford sufficient guides for the decision of this case.

In an early case, in which the action was upon a bond given under the embargo act of December 29, 1807, c. 5, § 2 (2 Stat. 453), to reland goods in some port of the United States, "the dangers of the seas only excepted," the vessel was irresistibly driven by stress of weather into Porto Rico; and the cargo was there landed and sold by order of the governor, with which the master was obliged to comply. It was argued for the United States that the goods arrived in Porto Rico in safety, and the party had the full benefit of them, and probably at a higher price than if he had landed them in the United States, and that the sea was not the proximate cause of the loss. But this court held that the case was within the exception in the bond, because the vessel, as said by Chief Justice Marshall in delivering judgment, "was driven into Porto Rico, and the sale of her cargo while there was inevitable. The dangers of the sea placed her in a situation which put it out of the power of the owners to reland her cargo within the United States. The obligors, then, were prevented, by the dangers of the seas, from complying with the condition of the bond; for an effect which

proceeds inevitably, and of absolute necessity, from a specified cause, must be ascribed to that cause." U. S. v. Hall, 6 Cranch, 171, 176.

In Waters v. Insurance Co., 11 Pet. 213, the circuit court certified to this court the question whether a policy of insurance upon a steamboat on the Western waters against the perils of the rivers and of fire covered a loss of the boat by a fire caused by the barratry of the master and crew. This question was answered in the negative, for reasons stated, by Mr. Justice Story as follows: "As we understand the first question, it assumes that the fire was directly and immediately caused by the barratry of the master and crew, as the efficient agents, or, in other words, that the fire was communicated and occasioned by the direct act and agency of the master and crew, intentionally done from a barratrous purpose. In this view of it, we have no hesitation to say that a loss by fire caused by the barratry of the master or crew is not a loss within the policy. Such a loss is properly a loss attributable to the barratry, as its proximate cause, as it concurs as the efficient agent, with the element, eo instanti, when the injury is produced. If the master or crew should barratrously bore holes in the bottom of the vessel, and the latter should thereby be filled with water and sink, the loss would properly be deemed a loss by barratry, and not by a peril of the seas or of rivers, though the flow of the water should co-operate in producing the sinking." Id. 219, 220.

The maxim has been largely expounded and defined by this court in cases of insurance against fire.

In Insurance Co. v. Tweed, 7 Wall. 44, cotton in a warehouse was insured against fire by a policy which provided that the insurers should not be liable for losses which might "happen or take place by means of any invasion, insurrection, riot, or civil commotion, or any military or usurped power, explosion, earthquake, or hurricane." An explosion took place in one warehouse, resulting in a conflagration which spread to a second warehouse, and thence, in the course of the wind blowing at the time, to a third warehouse, containing the insured cotton. This court held that the loss of the cotton was caused by the explosion, and therefore the insurer was not liable, and, speaking by Mr. Justice Miller, said: "The only question to be decided in the case is whether the fire which destroyed plaintiff's cotton happened or took place by means of the explosion; for, if it did, the defendant is not liable, by the express terms of the contract. That the explosion was in some sense the cause of the fire is not denied, but it is claimed that its relation was too remote to bring the case within the exception of the policy. And we have had cited to us a general review of the doctrine of proximate and remote causes,*as it has arisen and been decided in the courts