WALLACE, Circuit Judge.
Since tbe argument of this appeal, tbe case of The Carib Prince has been determined by tbe supreme court (170 U. S. 655, 18 Sup. Ct. 753), and that adjudication narrows tbe consideration of the cause to tbe question whether tbe steamship was seaworthy at tbe inception of tbe voyage. If she was, as it is not open to dispute that the injuries which caused tbe libelant’s loss were caused by tbe perils of tbe sea, and could not be repaired during tbe voyage, the exception in tbe bill of lading against liability for losses caused by such perils protects tbe vessel from responsibility. According to tbe doctrine of The Carib Prince, a stipulation in tbe contract of affreightment exempting tbe vessel from liability for loss and damage occasioned by any “latent defects in tbe bull of tbe vessel'’ does not extend to such as were in existence at tbe time of tbe commencement of tbe voyage; and tbe provisions of tbe statute known as tbe “Harter Act” (section 3), by which, if tbe owner “has exercised due diligence to make tbe said vessel in all respects seaworthy —neither the vessel, her owners, agent or charterer — shall be held liable for losses arising from dangers of the sea” (27 Stat. 445), does not relieve tbe vessel, notwithstanding it is satisfactorily proved that due diligence was thus exercised by tbe owner. The case illustrates the inadequacy of language, whether used in a contract or statute, to modify tbe rigorous common-law obligation of tbe carrier by water, importing an absolute warranty that tbe vessel is seaworthy at tbe outset of her voyage. That decision is, of course, controlling upon this court.
Tbe libelant’s sugar, shipped upon tbe Sandfield at Alexandria, Egypt, for transportation to New York, was damaged by sea water which entered tbe bold of tbe vessel by leakage around a rivet in one of tbe steel plates below the water line in the port bilge aft, and which became loosened on tbe voyage by tbe. vibration of the vessel while straining and pounding in weather of extraordinary severity.
[665]*665The Sandfield was a first-class steel steamship, built in England, 1890. She was entered in Lloyds’ Register as of the highest class in 1890, had been surveyed periodically according to the rules of Lloyds, and retained her classification at the time of the voyage in question. She had been surveyed by Lloyds’ surveyor in the preceding February, and was then thoroughly examined and overhauled. Between that time and the voyage in question she went on a voyage from Blyth to Alexandria with a cargo of coals; from Alexandria she went to Taganrog in ballast; from Taganrog she went to Rotterdam with a cargo of grain; from Rotterdam she went to Cardiff in ballast; from Cardiff she went to Port Said with a cargo of coals; from Port Said she went to Nicolaieff in ballast; from Nicolaieff she went to Hamburg with a cargo of grain; from Hamburg she went to Newport in ballast; from Newport she went to Las Palmas with a cargo of coals; from Las Palmas she went to Muramichi in ballast; from Muramichi glie went to Glasgow -with a cargo of deals; from Glasgow she went to Cardiff in ballast; from Cardiff she went to Barcelona with a cargo of coals: from Barcelona she went to Carthagena in ballast; from (here she went to Baltimore with a cargo of iron ore: from there she went to Londonderry with a cargo of grain; from there she went to Newport in ballast; from there she went to Genoa with a cargo of coals: from there she went to Alexandria in ballast, where she loaded sugar on the voyage in question.
In constructing such a vessel, the plates are riveted to the frames by driving a hoi rivet from the inside, and battering down the head so as to fill op the countersink in the outer surface of the plate. Apparently, in the case of this particular rivet, the hole in the plate was not perfectly fair with the hole in the frame when the rivet was driven, there being a deviation in the inside surfaces of one-eighth of an inch in- diameters of seven-eighths of an inch; and, in consequence of the rivet following the irregular passage-way, it was not long enough when battered down to completely fill the countersink. When the ship was docked in New York after the voyage, the countersunk part of the rivet was found broken off and gone, but the rivet, (bough loosened, had to be driven out with a hammer and punch.
The witnesses say that on the voyage in question the weather was the worst ever encountered in their experience. The steamship received much sea damage. Two lifeboats were damaged, — one washed away; the winches were damaged; pipes and ventilators on deck were carried away; bridge rails and stanchions were bent and broken; the after deck was started.in two places on the port and starboard sides; the wheel chains were parted several times, and after shackles were put on the shackles parted; and the propeller shaft was fractured from racing. At times she fell into the trough of the sea, and quantities of water came through the skylight into the engine-room.
The theory upon which it is insisted that the steamship was un-’seaworthy is that the rivet in question was defective. Undoubtedly the rivet was not as perfect as the workman might have made it, and was less capable of resisting the effects of strain and vibration [666]*666than if it bad been as absolutely strong and perfect as the best or average of the many thousand rivets in the vessel, but we agree with the district judge who decided the case in the court below that “any such mere inequality in the strength of the rivets does not amount to unseaworthiness.” Whether the vessel was unseaworthy or not is to be determined by the test whether she was reasonably fit for the contemplated voyage. Dupont v. Vance, 19 How. 162; Carv. Carr, by Sea, § 18; The Silvia (Oct., 1898) 19 Sup. Ct. 7. If she was, it matters not that she was not impregnable to the assaults of the element's. If a vessel is reasonably sufficient for the voyage, and is lost by a peril of the sea, her owner is not responsible, as a carrier, for the cargo lost, upon proof that a stouter vessel would have outlived .the storm. Ang. Carr. 173. It does not follow, because the rivet loosened in consequence of the extraordinary strain which the vessel encountered, that it was one which would have been pronounced insufficient by men of competent judgment, upon an examination and full appreciation of its condition at the beginning^ of the voyage. No expert testified that such a rivet would have been considered unsafe. On the contrary, the only witness to whom such a question was addressed — a shipbuilder and mechanical engineer of great experience and intelligence — testified that the irregularity was not an unusual one, and was not enough to affect the strength of the rivet substantially. Persuasive evidence that the rivet was originally reasonably strong and sufficient is found in the fact that it had proved to be so throughout the previous voyages of the vessel. There was no leakage during the first two weeks of the voyage. The sluices were opened February 14th, and no water was found. Owing to the continually heavy weather that followed, they were not opened again until March 6th, and it was during the intervening time that the rivet became loosened. The excessive strain to which it was subjected during the exceptionally severe weather of this period of 20 days in which it broke adequately explains the cause of the mishap. Whether a more perfect rivet, if it had been located precisely where this rivet was, would have endured without breaking, is wholly a matter of conjecture.
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WALLACE, Circuit Judge.
Since tbe argument of this appeal, tbe case of The Carib Prince has been determined by tbe supreme court (170 U. S. 655, 18 Sup. Ct. 753), and that adjudication narrows tbe consideration of the cause to tbe question whether tbe steamship was seaworthy at tbe inception of tbe voyage. If she was, as it is not open to dispute that the injuries which caused tbe libelant’s loss were caused by tbe perils of tbe sea, and could not be repaired during tbe voyage, the exception in tbe bill of lading against liability for losses caused by such perils protects tbe vessel from responsibility. According to tbe doctrine of The Carib Prince, a stipulation in tbe contract of affreightment exempting tbe vessel from liability for loss and damage occasioned by any “latent defects in tbe bull of tbe vessel'’ does not extend to such as were in existence at tbe time of tbe commencement of tbe voyage; and tbe provisions of tbe statute known as tbe “Harter Act” (section 3), by which, if tbe owner “has exercised due diligence to make tbe said vessel in all respects seaworthy —neither the vessel, her owners, agent or charterer — shall be held liable for losses arising from dangers of the sea” (27 Stat. 445), does not relieve tbe vessel, notwithstanding it is satisfactorily proved that due diligence was thus exercised by tbe owner. The case illustrates the inadequacy of language, whether used in a contract or statute, to modify tbe rigorous common-law obligation of tbe carrier by water, importing an absolute warranty that tbe vessel is seaworthy at tbe outset of her voyage. That decision is, of course, controlling upon this court.
Tbe libelant’s sugar, shipped upon tbe Sandfield at Alexandria, Egypt, for transportation to New York, was damaged by sea water which entered tbe bold of tbe vessel by leakage around a rivet in one of tbe steel plates below the water line in the port bilge aft, and which became loosened on tbe voyage by tbe. vibration of the vessel while straining and pounding in weather of extraordinary severity.
[665]*665The Sandfield was a first-class steel steamship, built in England, 1890. She was entered in Lloyds’ Register as of the highest class in 1890, had been surveyed periodically according to the rules of Lloyds, and retained her classification at the time of the voyage in question. She had been surveyed by Lloyds’ surveyor in the preceding February, and was then thoroughly examined and overhauled. Between that time and the voyage in question she went on a voyage from Blyth to Alexandria with a cargo of coals; from Alexandria she went to Taganrog in ballast; from Taganrog she went to Rotterdam with a cargo of grain; from Rotterdam she went to Cardiff in ballast; from Cardiff she went to Port Said with a cargo of coals; from Port Said she went to Nicolaieff in ballast; from Nicolaieff she went to Hamburg with a cargo of grain; from Hamburg she went to Newport in ballast; from Newport she went to Las Palmas with a cargo of coals; from Las Palmas she went to Muramichi in ballast; from Muramichi glie went to Glasgow -with a cargo of deals; from Glasgow she went to Cardiff in ballast; from Cardiff she went to Barcelona with a cargo of coals: from Barcelona she went to Carthagena in ballast; from (here she went to Baltimore with a cargo of iron ore: from there she went to Londonderry with a cargo of grain; from there she went to Newport in ballast; from there she went to Genoa with a cargo of coals: from there she went to Alexandria in ballast, where she loaded sugar on the voyage in question.
In constructing such a vessel, the plates are riveted to the frames by driving a hoi rivet from the inside, and battering down the head so as to fill op the countersink in the outer surface of the plate. Apparently, in the case of this particular rivet, the hole in the plate was not perfectly fair with the hole in the frame when the rivet was driven, there being a deviation in the inside surfaces of one-eighth of an inch in- diameters of seven-eighths of an inch; and, in consequence of the rivet following the irregular passage-way, it was not long enough when battered down to completely fill the countersink. When the ship was docked in New York after the voyage, the countersunk part of the rivet was found broken off and gone, but the rivet, (bough loosened, had to be driven out with a hammer and punch.
The witnesses say that on the voyage in question the weather was the worst ever encountered in their experience. The steamship received much sea damage. Two lifeboats were damaged, — one washed away; the winches were damaged; pipes and ventilators on deck were carried away; bridge rails and stanchions were bent and broken; the after deck was started.in two places on the port and starboard sides; the wheel chains were parted several times, and after shackles were put on the shackles parted; and the propeller shaft was fractured from racing. At times she fell into the trough of the sea, and quantities of water came through the skylight into the engine-room.
The theory upon which it is insisted that the steamship was un-’seaworthy is that the rivet in question was defective. Undoubtedly the rivet was not as perfect as the workman might have made it, and was less capable of resisting the effects of strain and vibration [666]*666than if it bad been as absolutely strong and perfect as the best or average of the many thousand rivets in the vessel, but we agree with the district judge who decided the case in the court below that “any such mere inequality in the strength of the rivets does not amount to unseaworthiness.” Whether the vessel was unseaworthy or not is to be determined by the test whether she was reasonably fit for the contemplated voyage. Dupont v. Vance, 19 How. 162; Carv. Carr, by Sea, § 18; The Silvia (Oct., 1898) 19 Sup. Ct. 7. If she was, it matters not that she was not impregnable to the assaults of the element's. If a vessel is reasonably sufficient for the voyage, and is lost by a peril of the sea, her owner is not responsible, as a carrier, for the cargo lost, upon proof that a stouter vessel would have outlived .the storm. Ang. Carr. 173. It does not follow, because the rivet loosened in consequence of the extraordinary strain which the vessel encountered, that it was one which would have been pronounced insufficient by men of competent judgment, upon an examination and full appreciation of its condition at the beginning^ of the voyage. No expert testified that such a rivet would have been considered unsafe. On the contrary, the only witness to whom such a question was addressed — a shipbuilder and mechanical engineer of great experience and intelligence — testified that the irregularity was not an unusual one, and was not enough to affect the strength of the rivet substantially. Persuasive evidence that the rivet was originally reasonably strong and sufficient is found in the fact that it had proved to be so throughout the previous voyages of the vessel. There was no leakage during the first two weeks of the voyage. The sluices were opened February 14th, and no water was found. Owing to the continually heavy weather that followed, they were not opened again until March 6th, and it was during the intervening time that the rivet became loosened. The excessive strain to which it was subjected during the exceptionally severe weather of this period of 20 days in which it broke adequately explains the cause of the mishap. Whether a more perfect rivet, if it had been located precisely where this rivet was, would have endured without breaking, is wholly a matter of conjecture. What are termed the “factors of safety” in estimating the capacity of different materials to endure tensile or torsional strains are within the knowledge of competent shipbuilders; but whether a particular rivet, though inherently perfect, will hold or break, is a problem, to use the words of Budyard Kipling, “depending upon that unknown force men call the ‘pertinacity of materials,’ which now and then balances that other heart-rending power, the perversity of inanimate things.”
In the case of The Warren Adams, 38 U. S. App. 356, 20 C. C. A. 486, and 74 Fed. 413, this court had occasion to consider the presumptions to be indulged upon the question of the seaworthiness of a vessel at the outset of the voyage. The court said:
“Where a vessel soon after leaving a port becomes leaky, without stress of weather, or other adequate cause of injury, the presumption is that she was unsound before setting sail. The law will intend the want of seaworthiness, because no visible or rational cause other than a latent or inherent defect in the vessel can be assigned for the result. But, where it satisfactorily appears that the vessel incurred marine perils which might well disable a [667]*667■staunch and well-manned ship, no such presumption can he invoked. And where for a considerable time she has incurred such perils, and shown herself staunch and strong, any such presumption is not only overthrown, hut the fact of her previous seaworthiness is persuasively indicated.”
We conclude in the present case that the vessel was seaworthy, and that the rivet was fractured and loosened b,y the extraordinary strain inflicted upon it by stress of weather.
We have not overlooked the contention for the appellant that the steamship should be held liable for negligence because of the omission to open the sluices during the 20 days of the storm. If this was a negligent omission, it occurred as a part of the “management of the vessel”; and the owners having exercised due diligence to make her in all respects seaworthy, and properly manned, equipped, and supplied, she is not liable for faults in her management, and the terms of the Harter act (section 3) apply. In the recent case of The Silvia (decided at the present term) supra, the supreme court defined the meaning of the words “management of said vessel,” as used in the “Harter Act,” as follows:
“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 tho seas.”
The decree is affirmed, with costs.