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the will offers a different and more obvious one upon its face. And while it is pressed that substitutions are strictly construed in favor of the first taker, we do not understand that or any other rule of construction to require a perversion of language, or to govern a case where the second taker stands on an equal footing with the first in the testator's mind, with equal mutual chances, and when the plainly expressed purpose is to create an artificial class, with cross limitations in case of death without a child.

A suggestion is made by an afterthought, in a brief filed since the argument, that the testator could not exclude the mother of Felipa from her right, as necessary or forced heir, to two-thirds of Felipa's share. The suggestion comes too late. No such claim was set up in the bill, or, so far as appears, in the court below. Therefore we shall not consider at length whether, in case of a pure gratuity to one to whom the testator was under no legal obligation, the Spanish law entitled a forced heir to claim against the words of a gift like this. The texts cited are not sufficient to establish the proposition, and the contrary seems to be shown by Ley 10, Tit. 4, Part. 6, and note 13, Madrid ed. 1848. See also 4 Escriche, 1051, 1052, sub. v. Substitucion Fideicomisaria, ad fin. On the whole case the plaintiffs must abide by the construction and the law in which, it would seem from the bill, they have acquiesced for thirty years.

Decree affirmed.

Argument for Petitioner.

201 U.S.

THE WILDCROFT.1

CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 127. Argued December 12, 13, 1905.-Decided April 2, 1906.

The relief afforded by § 3 of the Harter act, 27 Stat. 445, to shipowners is purely statutory and in order for a shipowner to avail of the exemptions from liability for errors of management or navigation the burden is on him to prove affirmatively, in all cases, and not only in those where there is conflicting testimony, that the vessel was seaworthy at the beginning of the voyage or that due diligence had been used to make her so. The discharge of the duty of the shipowner in this respect is not left in the absence of proof to any presumption.

Findings of fact by both the District Court and the Circuit Court of Appeals as to seaworthiness of a vessel at, and due diligence used prior to, the commencement of the voyage will not ordinarily be disturbed by this court and so held in this case.

THE facts are stated in the opinion.

Mr. Horace L. Cheyney, with whom Mr. John F. Lewis was on the brief, for petitioner:

Prior to the passage of the Harter act the law was firmly established that the burden was upon the carrier to show affirmatively that the damage was occasioned by one of the perils from which he was validly exempted by the bill of lading. Clark v. Barnwell, 12 How. 272; Hutchinson on Carriers, 2d ed., § 765.

The Harter act has made no change in this rule. The claimant is exempted from liability for loss occurring by "perils of the sea," both by the provisions of the Harter act, and those of the bill of lading. Of course, the burden of proof is the same as to such perils, whether he defends on the ground of the exemption in the bill of lading or under the Harter act. The rule is likewise applicable to the other statutory exemp

1 Docket Title W. J. McCahan Sugar Refining Company v. Steamship Wildcroft.

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tions in the Harter act. The purpose of that act was not to change in any way the burden of proof, but to specifically define what contractual exceptions might be made lawfully and to provide certain additional statutory ones.

The burden of proof as to the exercise of due diligence by the shipowner to make the ship in all respects seaworthy rests on the owner claiming exemption and this rule is unchanged by the Harter act. The Silvia, 171, U. S. 462; The Southwark, 191 U. S. 1; The Manitou, 127 Fed. Rep. 554; The Edwin I. Morrison, 153 U. S. 199; Farr & Bailey Mfg. Co. v. International Navigation Co., 181 U. S. 218.

This court in Farr v. Int. Nav. Co., supra, and The Southwark, supra, did not find that the burden of proof on the shipowner to show due diligence on his part to make the ship seaworthy was met by this presumption of seaworthiness, but held the ships liable in each case because their owners did not meet the burden of proof by affirmative evidence showing that they had used due diligence to make the vessels seaworthy. The Chattahoochee, 173 U. S. 540, distinguished. That was a collision case, in which the injury resulted solely from faults or errors of navigation, and the question of the seaworthiness of the vessel was not in issue and was in no wise connected with the collision.

There was no evidence whatever proving that the valves were open or that the accident was caused by an error or fault of navigation. The claimants' witnesses were not asked directly as to their personal knowledge. Their evidence therefore is merely indirect and does not fall in the class of circumstantial evidence and is entitled to no weight and raises the presumption that the facts, if brought out, would have been prejudicial. 2 Evans' Pothier, 149, quoted in Clifton v. United States, 4 How. 240; Kirby v. Tallmadge, 160 U. S. 379. As to the value of testimony as to inspections by ship's officers, see The Manitou, 116 Fed. Rep. 160; The Aggi, 93 Fed. Rep. 484.

Section 3 of the Harter act should be liberally construed

Argument for Respondent.

201 U. S.

in favor of the cargo owner. The Delaware, 161 U. S. 471; The Southwark, 191 U. S. 1; The Manitou, 127 Fed. Rep.

554.

Mr. J. Parker Kirlin, with whom Mr. Charles R. Hickox was on the brief, for respondent:

The damage to the cargo was due to perils of the sea and river, and to an accident of navigation within the exception contained in the bills of lading. The damage by salt water to the bags of sugar at the top of No. 3 hold was concededly caused by perils of the sea. The damage to the cargo at the bottom of Nos. 3 and 4 holds was apparently caused by fresh water. This damage was due to a peril of the river within the meaning of the bills of lading.

The question of negligence in the operation of the valves would be important only in determining whether or not the benefit of the exception should be given to the shipowner. Negligence would not be important in determining whether the damage done by river water was in fact, due to a peril of the sea. Blackburn v. Liverpool, Brazil & River Plate Steam Navigation Co., 1902, 1 K. B. 290; The Xantho, 12 App. Cas. 503, 513; Hamilton v. Pandorf, 12 App. Cas. 518,

522.

In fact there is no distinction in the meaning of the term perils of the sea as used in a bill of lading and in a policy of insurance. The G. R. Booth, 171 U. S. 450, 459; Carruthers v. Sydebotham, 4 Maule & S. 77.

The adventitious presence of an extraneous substance under the non-return valve in the bilge distribution box, a condition which must have existed, was not an independent intervening cause to deprive the inroad of the water upon the cargo of its character of a peril of the river.

The fact that the non-return valve was wedged open was not due to negligence. It could have occurred only by the working of the pumps on the suction pipe to the hold. It was, therefore, properly an accident from machinery or steam

201 U.S.

Argument for Respondent.

navigation within the exception of the bill of lading. The Prussia, 88 Fed. Rep. 531, 536; The Curlew, 55 Fed. Rep. 1003; Adams v. Morris, 18 Sess. Cas. (4th series) 153; The Southgate (1893), Prob. 329.

If it has been demonstrated that the damage to the cargo was caused by a peril of the river or navigation as excepted in the bills of lading, it is a settled principle of law that the burden of showing that negligence of the carrier contributed to the damage, rests on the libellant. Clark v. Barnwell, 12 How. 272, 280; Cau v. Texas & Pacific Ry. Co., 194 U. S. 427, 432.

The vessel is relieved from liability for the damage under the provisions of the Harter act. The damage was due to a fault in the management of the vessel. Apparently, it could have been ascertained whether the cocks and valves on the branch connection to the tank filling pipe were open or closed before the sea-cock was opened.

Failure to exercise such care in order to protect the cargo against a known possible danger from water which was about to be taken into the pipe line from the sea, would clearly be negligence in management on the part of those charged with the duty. The Silvia, 171 U. S. 426; The Mexican Prince, 82 Fed. Rep. 484; S. C., 91 Fed. Rep. 1003; S. C., 174 U. S. 801. Equally clearly would such negligence seem to constitute a fault or error in navigation or in the management of the vessel within the language and meaning of the third section of the Harter act. The Silvia, 171 U. S. 462; The Southgate (1893), Prob. 329; Good v. London &c. Association, L. R. 6 C. P. 563; The Warkworth, 9 Prob. Div. 20, 145; Carmichael v. Liverpool &c. Association, 19 Q. B. Div. 242; Canada Shipping Co. v. British &c. Association, 23 Q. D. Div. 342.

It is not necessary to contend that this fault or error was in the navigation of the vessel, although it is believed that the term "navigation" might properly be construed as broad enough to cover this state of facts. The Warkworth, 9 Prob. Div. 20, 145. See also The Glenochil (1896), Prob. 10; The

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