WALLACE, Circuit Judge.
The cargo for the injury to which this suit was brought was shipped at Matanzas for Philadelphia under a bill of lading which provided for the delivery in good order and well conditioned, “the dangers of the seas only excepted.” It was injured [231]*231by sea water-, Avhich came through a port in one of the compartments of the between decks, which had been recently fitted up to carry steerage passengers, but which at the time was only used for the storage of ropes and extra gearing. The port was one of several in the. compartment, was of the diameter of eight inches, was furnished with a heavy glass cover, set in a brass frame, and also with an extra cover of iron, and ivas eight or nine feet above the water when the vessel was deep-laden. When the steamship left Matanzas the weather avus fine. None of the ports in The compartment were closed otheiwise than by the glass cover, and the hatch, which was the only entrance to (he compartment, was battened down. After getting out to sea, rough weather was encountered, and soon after, and AA'hen the steamship had been six or eight hours on her voyage, it avus found that Avater avhs entering the engine room. An investigation ensued, which resulted in ascertaining that the glass cover of oik* of the ports was broken, and the water had entered in consequence. Whether the co\-er AA’as broken by the force of the seas, or by boating timber, or a piece of Avreekage, was wholly a matter of conjecture. The officers of the vessel regarded the glass,covers as strong enough to resist ordinarily heavy seas, and seem to have left the iron covers unclosed intentionally upon the present voyage, in order that the compartment might be light in case it became necessary to visit it. In every other respect, save that when she sailed the iron shutters were not fastened ovrer the jiorls. (he vessel was tight, slannch, and lit for the voyage.
The learned district judge who heard the cause in the court below was of the opinion that the steamship was not in a seaworthy condition at the beginning of her voyage, but that her owners had used due diligence to main* her so. and consequently that she was exonerated from liability for the injury to the cargo by (he provisions of the act of congress of February 33, 1893, relating to navigation of A-essels, commonly known as the “Harter Act.”
We are of the opinion that the steamship was not unseaworthv AA'hen she began her voyage. Granting that the glass covers were not a. sufficient protection for,the ports in rough weather, they were adequate for fair A\-eatiier, and it would haAre been but the work of a foAV moments to unbatten the hatch of the compartment, and close them with the iron covers. In the state of the weather during the first few hours of the voyage there Avas no necessity for closing the ports with the iron covers; none even for closing them with the glass covers; and it can hardly be imagined that a storm would be encountered -without premonitions affording ample time for access to the compartment', and for fastening the iron oewers. The case of Steel v. Steamship Co., 3 App. Cas. 72, is quite in point. In that case a cargo of Avheat was damaged by sea Avater entering a port about a foot above the water line, owing to the insufficiency of the fastenings. The special finding of the jury did not state whether the insufficient fastening of the port happened before starting on the voyage or aftenvards. The bill of lading contained the usual negligence exemptions, which were sustained in the court below, Avlicre judgment was given for the defendants. On appeal it [232]*232was held that the judgment must be reversed, and the cause remanded for a specific finding as to whether the port was insufficiently fastened when the steamer sailed, and, if so, whether the cargo was so stowed with reference to the port that it could not be readily closed on short notice, on the approach of storm. Lord Blackburn expressed the opinion that if the port was in a place where it would be in practice left open from time to time, but was capable of being speedily shut if occasion required, the vessel could not be said to be unfit to encounter the perils of the voyage; that if, when bad weather threatened, it was not shut, that would be negligence of the crew, and not unseaworthiness of the ship.
If the steamship was seaworthy, she was nevertheless liable for the loss, notwithstanding the exception against dangers of the seas in the bill of lading, if fióse in charge of her navigation were negligent in not causing the port to be sufficiently secured after the steamship got out to sea, unless the act of congress relieves her. Whether they were justified in supposing that there could be any reasonable apprehension of risk from a port so small and so high above the water line as this, protected as it was by a glass cover of such thickness, is a question of fact in respect to which different minds might differ. Assuming, however, that they were not, and that they were negligent in not putting on the iron cover, we think the case is controlled by the act of congress, and that its provisions relieve the steamship from liability. Section 3 of that act provides:
“If the owner of any vessel transporting merchandise or property to or from any ixort 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, 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.”
It is perfectly obvious from the language of this act that congress intended to relax the severity of the obligation imposed on the shipowner as a carrier of goods by the pre-existing law as it had been declared by the courts. It had long been determined that in every contract for the carriage of goods by sea there is an implied warranty that the vessel- is seaworthy at the time of beginning her voyage, unless this is superseded by some express condition in the contract. The very term “warranty” imports an absolute undertalcing that the fact is as represented; and it was the settled meaning of the term as implied in contracts of affreightment or of insurance that it is an undertaking by the shipowner not only that he will exercise due diligence to have the vessel seaworthy, but that she shall really be so. “If there should be a latent defect in the vessel, unknown to the owner, and not discoverable upon examination, yet the better opinion is that the owner must answer for the damage caused by the defect.” 3 Kent, Comm. 205. Modern adjudications affirm this proposition in the strongest terms, and declare the implied warranty to be an absolute undertaking, not dependent on the owner’s care or negligence, that the ship is in fact fit to undergo the perils of the seas, and other incidental risks, covering latent defects, not ordi-[233]*233rarily susceptible of detection, as veil as those which are known, or are discoverable by inspection. The Edwin I. Morrison, 153 U. S. 199, 14 Sup. Ct. 823; The Caledonia, 157 U. S. 124, 15 Sup. Ct. 537.
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WALLACE, Circuit Judge.
The cargo for the injury to which this suit was brought was shipped at Matanzas for Philadelphia under a bill of lading which provided for the delivery in good order and well conditioned, “the dangers of the seas only excepted.” It was injured [231]*231by sea water-, Avhich came through a port in one of the compartments of the between decks, which had been recently fitted up to carry steerage passengers, but which at the time was only used for the storage of ropes and extra gearing. The port was one of several in the. compartment, was of the diameter of eight inches, was furnished with a heavy glass cover, set in a brass frame, and also with an extra cover of iron, and ivas eight or nine feet above the water when the vessel was deep-laden. When the steamship left Matanzas the weather avus fine. None of the ports in The compartment were closed otheiwise than by the glass cover, and the hatch, which was the only entrance to (he compartment, was battened down. After getting out to sea, rough weather was encountered, and soon after, and AA'hen the steamship had been six or eight hours on her voyage, it avus found that Avater avhs entering the engine room. An investigation ensued, which resulted in ascertaining that the glass cover of oik* of the ports was broken, and the water had entered in consequence. Whether the co\-er AA’as broken by the force of the seas, or by boating timber, or a piece of Avreekage, was wholly a matter of conjecture. The officers of the vessel regarded the glass,covers as strong enough to resist ordinarily heavy seas, and seem to have left the iron covers unclosed intentionally upon the present voyage, in order that the compartment might be light in case it became necessary to visit it. In every other respect, save that when she sailed the iron shutters were not fastened ovrer the jiorls. (he vessel was tight, slannch, and lit for the voyage.
The learned district judge who heard the cause in the court below was of the opinion that the steamship was not in a seaworthy condition at the beginning of her voyage, but that her owners had used due diligence to main* her so. and consequently that she was exonerated from liability for the injury to the cargo by (he provisions of the act of congress of February 33, 1893, relating to navigation of A-essels, commonly known as the “Harter Act.”
We are of the opinion that the steamship was not unseaworthv AA'hen she began her voyage. Granting that the glass covers were not a. sufficient protection for,the ports in rough weather, they were adequate for fair A\-eatiier, and it would haAre been but the work of a foAV moments to unbatten the hatch of the compartment, and close them with the iron covers. In the state of the weather during the first few hours of the voyage there Avas no necessity for closing the ports with the iron covers; none even for closing them with the glass covers; and it can hardly be imagined that a storm would be encountered -without premonitions affording ample time for access to the compartment', and for fastening the iron oewers. The case of Steel v. Steamship Co., 3 App. Cas. 72, is quite in point. In that case a cargo of Avheat was damaged by sea Avater entering a port about a foot above the water line, owing to the insufficiency of the fastenings. The special finding of the jury did not state whether the insufficient fastening of the port happened before starting on the voyage or aftenvards. The bill of lading contained the usual negligence exemptions, which were sustained in the court below, Avlicre judgment was given for the defendants. On appeal it [232]*232was held that the judgment must be reversed, and the cause remanded for a specific finding as to whether the port was insufficiently fastened when the steamer sailed, and, if so, whether the cargo was so stowed with reference to the port that it could not be readily closed on short notice, on the approach of storm. Lord Blackburn expressed the opinion that if the port was in a place where it would be in practice left open from time to time, but was capable of being speedily shut if occasion required, the vessel could not be said to be unfit to encounter the perils of the voyage; that if, when bad weather threatened, it was not shut, that would be negligence of the crew, and not unseaworthiness of the ship.
If the steamship was seaworthy, she was nevertheless liable for the loss, notwithstanding the exception against dangers of the seas in the bill of lading, if fióse in charge of her navigation were negligent in not causing the port to be sufficiently secured after the steamship got out to sea, unless the act of congress relieves her. Whether they were justified in supposing that there could be any reasonable apprehension of risk from a port so small and so high above the water line as this, protected as it was by a glass cover of such thickness, is a question of fact in respect to which different minds might differ. Assuming, however, that they were not, and that they were negligent in not putting on the iron cover, we think the case is controlled by the act of congress, and that its provisions relieve the steamship from liability. Section 3 of that act provides:
“If the owner of any vessel transporting merchandise or property to or from any ixort 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, 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.”
It is perfectly obvious from the language of this act that congress intended to relax the severity of the obligation imposed on the shipowner as a carrier of goods by the pre-existing law as it had been declared by the courts. It had long been determined that in every contract for the carriage of goods by sea there is an implied warranty that the vessel- is seaworthy at the time of beginning her voyage, unless this is superseded by some express condition in the contract. The very term “warranty” imports an absolute undertalcing that the fact is as represented; and it was the settled meaning of the term as implied in contracts of affreightment or of insurance that it is an undertaking by the shipowner not only that he will exercise due diligence to have the vessel seaworthy, but that she shall really be so. “If there should be a latent defect in the vessel, unknown to the owner, and not discoverable upon examination, yet the better opinion is that the owner must answer for the damage caused by the defect.” 3 Kent, Comm. 205. Modern adjudications affirm this proposition in the strongest terms, and declare the implied warranty to be an absolute undertaking, not dependent on the owner’s care or negligence, that the ship is in fact fit to undergo the perils of the seas, and other incidental risks, covering latent defects, not ordi-[233]*233rarily susceptible of detection, as veil as those which are known, or are discoverable by inspection. The Edwin I. Morrison, 153 U. S. 199, 14 Sup. Ct. 823; The Caledonia, 157 U. S. 124, 15 Sup. Ct. 537. It lias also always been the law that the exemption of tlie dangers of the seas in the hill of lading or other contract of affreightment does not exonerate the shipowner from responsibility for injury to the goods which results from a breach of bis Implied obligation to provide; a seaworthy vessel. Thus the carrier was responsible for a loss produced by the dangers of the sea if it was one which would not. have happened except lor the concurrence of some unknown and undis-coverable defect in the equipment of the vessel, which defect, because it -was not discoverable, could not be remedied. In the place of this responsibility the act of congress substitutes a less stringent one by declaring that if the owner shall exercise "due diligence” to make ihe vessel in all respects seaworthy, neither he nor "the vessel is to be responsible for damages or loss in transporting merchandise, resulting from “faults or errors in her navigation or management,” nor for losses arising from dangers of the sea. Other sections of the act emphasize the meaning of the particular section. Bee turns 1 and 2 prohibit carriers from relieving themselves by contract from The obligation of exercising “due diligence to make their vessels seaworthy,” or from liability for loss or damage to cargo arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery; that it does not prohibit them from displacing by contract the warranty of seaworthiness, or their responsibility as insurers of cargo. Read as a whole, the purpose of the act manifestly is, on the one hand, in the interests of the public, to prevent carriers from evading responsibility to exercise due diligence in providing seaworthy vessels, and in the handling and care of the cargo; and, on the other hand, whenever they have exercised due diligence in -these respects, to absolve them from liability for losses arising during the transit from the perils of the sea and from faults or errors in the navigation or management of vessels.
Doubtless the act does not prevent the carrier from waiving by contract with the cargo owner those provisions which relax his ordinary obligations. He may do so- by a charter party or bill of lading containing an express warranty of seaworthiness, or by a foreign contract with the provision that if shall be governed by the law of the place of the contract. But bis responsibility to a cargo owner who sues in the courts of this country cannot be curtailed in any of the particulars prohibited by the act. and he is entitled to the benefits of ihe less rigorous liability which is substituíed in place of his liability as an insurer.
It has been urged that section 3 is not intended to apply to foreign vessel,^, but the argument finds no support in the language of (he section; and the intention to subject foreign vessels to a measure of responsibility, which is. as to domestic vessels, regarded by the act as too severe, ought not to be unnecessarily imputed to congress.
In the present ease the vessel owners certainly did exercise due diligence to make the vessel sea worthy, and, if the failure to fasten the port with its iron cover was in any sense a fault or negligent [234]*234omission, it was one in the management of the vessel, committed by those in charge of her navigation after she had started on her voyage.
For these reasons we conclude that the district court properly dismissed the libel, and that the decree should be affirmed, with costs.