On Rehearing.
(October 23, 1903.)
PUTNAM, Circuit Judge.The steam tug Cygnet was engaged in towing a barge laden with cargo from Haverhill down the Merrimac river, in the course of which service the barge came in collision with the pier of a bridge, and, with her cargo, was lost. Thereupon the registered owners of the tug filed a petition, in the District Court for the District of Massachusetts, praying for limitation of liability, alike under sections 4283 — 4285, Rev. St. U. S. [U. S. Comp. St. 1901, pp. 2943, 2944], and under the so-called “Harter Act,” namely, the act entitled “An act relative to navigation of vessels,” etc., approved Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946], relying on the third section, as follows:
“See. 3. 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, 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, acts of God or public enemies, or the inherent defect, quality or vice of the thing carried, or from insufficiency of package or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service.”
In accordance with the settled practice under statutes limiting the liability of owners of vessels, the petition denied any fault on the part of the tug, but claimed limitation in the event the court found contrary to the contention of the petitioners in that particular; so *745that there was no inconsistency in first denying that there was any liability whatever in any view of the facts or law, and afterwards,, in case fault was found to exist, in claiming statutory relief.
The District Court found that the barge was in fault and that the tug was not, and thus relieved the owners of the latter. The owners-of the cargo appealed, and this court, in an opinion passed down on February 4, 1903 (126 Fed. 742), rested the blame on the tug, and held that she was hable, subject to the benefit of the limitation given by sections 4283-4285, Rev. St. U. S. [U. S. Comp. St. 1901, pp. 2943, 2944]. The record owner of the tug thereupon applied for a rehearing, which we granted, limiting it, however, to the question of the application of the Harter act. Except as stated herein, the facts sufficiently appear in our opinion of February 4, 1903, subject to the qualification that, in accordance with allowable practice, the parties have amended the record by stipulating the facts necessary to establish that the owner of the barge was also the charterer of the tug, equipped and manned her and appointed her officers, and in all particulars became her owner pro hac vice. Therefore the case now presents itself as though, for some purposes, the absolute ownership of both barge and tug was the same during the voyage in question; and the petitioners, that is, the record owners of the tug, maintain that she is within the protection of section 3 of the Harter act, to the same effect as she would have been if the cargo had been laden aboard her instead of aboard the barge.
Neither in the Supreme Court nor in this court has the question of law thus presented been adjudicated. It is true that many expressions of the statute limit it to the relations between a vessel and her cargo, and this court, as well as the Supreme Court, has held generally that such is its scope. Yet, whether or not this limitation goes so far as to apply the statute exclusively to cargo actually laden aboard the specific vessel in fault, or whether it reaches a case like that at bar, where there is a common enterprise, the tug and tow belonging to the same owner, who is the carrier, and the cargo-laden aboard the tow by the carrier, has not yet been authoritatively determined. We do not, however, find it necessary for the present case to determine this question, because the petitioners have not brought the tug in other particulars within the terms of the section of the Harter act on which they rely.
In order to obtain the benefit of that section, the owner of a vessel should have exercised “due diligence to make her” “in all respects-seaworthy and properly manned.” Of course, the words “properly manned” are used ex majore cautela, because, according to all the rules, if not properly manned when a vessel sails, she would not be seaworthy for ordinary purposes and under ordinary circumstances. But this case we may rest on the words “due diligence” and “properly manned.” On the ordinary construction of exemptions in the interest of common carriers, and especially of the owners of seagoing vessels, the statute properly imposes on them, if they desire to receive the benefit of it, the burden of proving that they have exercised due diligence in the particulars referred to. But we do not even find it necessary to determine where the statutory burden rests. The *746immediate question here has regard to the competency of the master of the tug, through whose personal fault, as we found in our previous opinion, the loss occurred. All that appears in the record in reference to him is that he was an engineer, had sailed on the Cygnet for two seasons as such, had been the captain of another small steamer, had acted as a pilot up and down the Merrimac river, had a license as a pilot on that river which permitted him to act as master of a tug of the tonnage, of the Cygnet, and had been her master a short time before the barge was lost. There is no evidence in the record that the owners of the tug, either the record owners or the owner pro hac vice, had made any particular inquiries as to his competency. The petitioners seem to think it is sufficient to maintain their case that the owner or owners had no knowledge or reason to believe that the master was not competent; but this form of statement is not sufficient, because it' does not comply with the statute, which requires “due diligence.”
In our prior opinion, in determining that the loss occurred through the fault of the master of the tug, we said as follows:
“It appears that the captain of the tug neither looked to see whether the tow was straightened out on its course, nor received any information from the lookout in that respect after passing the red buoy.”
This red buoy, we will note, was at the critical point in the navigation of the river. An omission so gross as this raises so strong a presumption of fact that the master was not competent as practically to throw the burden on the petitioners to establish the proposition that they used due diligence with reference to his selection, whether the statute does or not impose such a burden. Yet the other facts which appear in the record, so far from meeting this presumption, strengthen it. We are therefore not satisfied that whoever controlled the tug used the due diligence which the statute required in the selection of this master, necessary to justify us in relieving her from the liability for this loss which the common law imposed as the result of gross negligence at the critical time.
Inasmuch as granting the petition for a rehearing vacated the original judgment, we enter a new one in the .same terms as follows:
The decree of the District Court is reversed, the case is remanded to that court, with directions to enter a decree in accordance with our opinions, the iEtna Insurance Company will recover its costs of appeal, and the mandate will issue forthwith.