(dissenting in part).
Appellee claimed exemption from liability under § 3 of the Harter Act,1 46 U.S. C.A. § 192, and, in the alternative, limitation of liability under § 4283 of the Revised Statutes,2 46 U.S.C.A. § 183. Section 3 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 * *
To establish the claimed exemption, it was incumbent on appellee to prove that it exercised due diligence to make the Denali in all respects seaworthy and properly manned, equipped and supplied. International Navigation Co. v. Farr & Bailey Mfg. Co., 181 U.S. 218, 226, 21 S.Ct. 591, 45 L.Ed. 830; The Southwark, 191 U.S. 1, 12, 24 S.Ct. 1, 48 L.Ed. 65; The Wilder oft, 201 U.S. 378, 386-389, 26 S.Ct. 467, 50 L.Ed. 794; May v. Hamburg-Amerikanische Packetfahrt Aktiengesell*421schaft, 290 U.S. 333, 346, 54 S.Ct. 162, 78 L.Ed. 348.
To be in all respects seaworthy and properly manned, a vessel must be manned in accordance with § 4463 of the Revised Statutes,3 46 U.S.C.A. § 222, and § 2 of the Act of May 11, 1918, c. 72, 40 Stat. 549, 46 U.S.C.A. § 223. Section 4463 of the Revised Statutes provides: “No vessel of the United States subject to the * * * inspection laws of the United States shall be navigated unless she shall have in her service and on board such complement of licensed officers and crew including certificated lifeboat men, separately stated, as may in the judgment of the local inspectors who inspect the vessel be necessary for her safe navigation. The local inspectors shall make in the certificate of inspection of the vessel an entry of such complement of officers and crew including certificated lifeboat men, separately stated, which may be changed from time to time by indorsement on such certificate by local inspectors by reason of change of conditions or employment. * * * ”
The Denali was subject to the inspection laws of the United States. At all times here pertinent, she had on board and in her service the full complement of licensed officers and crew, including lifeboat men, required by § 4463 and by her certificate of inspection.
Section 2 of the Act of May 11, 1918 provides:
“That the board of local 'inspectors shall make an entry in the certificate of inspection of every ocean and coastwise seagoing merchant vessel of the United States propelled by machinery, and every ocean-going vessel carrying passengers, the minimum number of licensed deck officers required for her safe navigation according to the following scale:
“That no such vessel shall be navigated unless she shall have on board and in her service one duly licensed master.
“That every such vessel of one thousand gross tons and over, propelled by machinery, shall have in her service and on board three licensed mates, who shall stand in three watches while such vessel is being navigated * * *
The Denali was an ocean and coastwise seagoing merchant vessel of the United States of one thousand gross tons and over and was propelled by machinery. At all times here pertinent, she had on board and in her service one duly licensed master and three licensed mates, but the mates did not stand in three watches while the vessel was being navigated, as required by § 2. Their failure to comply with § 2 was known to and tacitly, if not expressly, approved by appellee. Therefore, appellee cannot be said to have exercised the due diligence mentioned in § 3 of the Harter Act. Its failure to exercise such diligence defeats the claimed exemption, and this is true notwithstanding such failure may not have caused the loss of cargo. May v. Hamburg-Amerikanische Packetfahrt Aktiengesellschaft, supra, 290 U.S. pages 350-354, 54 S.Ct. 162, 78 L.Ed. 348.
With respect to limitation of liability, § 4283 of the Revised Statutes, 46 U.S. C.A. § 183, provides: “The liability of the owner of any vessel, whether American or foreign, for any embezzlement, loss, or destruction by any person of any property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, [with inapplicable exceptions], exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.”
Appellee, seeking the benefit of this section, had the burden of proving that the loss of the Denali’s cargo was incurred without .the privity or knowledge of appellee. The Silver Palm, 9 Cir., 94 F.2d 776, 777. This was the ordinary burden of proof, not the extraordinary burden imposed in The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148, and Lie v. San Francisco & Portland S. S. Co., 243 U.S. 291, 298, 37 S.Ct. 270, 61 L.Ed. 726. The doctrine of those cases — both collision cases— is inapplicable here.
Appellee’s burden was sustained. The trial court found “That the sole cause of the stranding of the steamer Denali and the resulting total loss of said steamer Denali and her cargo was due to faults or errors in her navigation of which [appellee] was without privity or knowledge.” This finding is amply supported by the evidence and should not be disturbed.
The failure of the Denali’s mates to stand in three watches, as required by § *4222 of the Act of May 11, 1918,' was not a cause of her stranding, but was, at most, a condition thereof. Compare The Perseverance, 2 Cir., 63 F.2d 788, 790.
The decree should be reversed, and the case should be remanded with directions to enter a decree limiting appellee’s liability, as provided in § 4283 of the Revised Statutes.
Act of February 13, 1893, c. 105, § 3, 27 Stat. 445.
As amended by the Act of June 5, 1936, c. 521, § 1, 49 Stat. 1479.
As amended by § 1 of the Act of May 11, 1918, c. 72, 40 Stat. 548, 549.