(concurring in result). I will concur in the conclusion that the petitioner is not entitled to the benefit of the acts limiting the liability of vessel owners, but for a different reason, viz., because it has not shown its want of privity in or knowledge of the unseaworthiness of the lighter. All it has shown is that it has employed a ship’s carpenter to repair its lighters from time to time. There is no proof of any regular system of inspection by any one, or that its managing officers relied upon a competent person, to whom the duty of regular inspection was committed. If the carpenter be conceded to have been such a person, it still lay upon the petitioner to prove that its managing officers had not, in point of fact, any knowledge of or privity in the lighter’s unseaworthiness. The only testimony on the point is that of the president, who says that he “had no reason to think she-was not able to do and perform the service [viz., the carrying of the cargo in question] properly.’.’ In view of the age of the boat, the price paid for her, and the small amount which has since been expended upon her, such testimony is quite insufficient.
But I cannot concur in the conclusion that the petitioner is deprived of the benefit of the acts on the ground that it has personally contracted to do the lighterage business of the Apollinaris Company', the owners of the cargo, for a fixed term. The contract contained no engagement on the subject of seaworthiness at all. The law itself imposed the duty. The breach of the implied warranty of seaworthiness is a tort, a breach of duty rather than a breach of a personal contract.
Tf the implied warranty of seaworthiness is to be regarded as a personal Contract, shipowners cannot limit their liability in case of the death of or injury to passengers at all because the law implies in the contract of carriage a duty to carry with care. Nor can they ever limit in the case of loss of or damage caused by unseaworthiness to cargo carried under bills of lading, at least when signed by them as owners, as is the case with all regular steam lines. Such results would, 1 think, be a great surprise to all interested. As Judge Putnam, speaking for the Circuit Court of Appeals for the First Circuit in Quinlan v. Pew, 56 Fed. 111, at 119, 5 C. C. A. 438, at 446, said;
“Xeithcr can tire proposition of tlie appellant be maintained, that the statute does not apply because there was in this'case a personal contract on the part of the owners, either express or in the form of an implied warranty, that the vessel was seaworthy. In nearly all the instances which the statute expressly enumerates as those to which the limitation of liability applies, there is necessarily an implied warranty, and frequently an express agreement in the form of a bill of lading; so that, if the contention of the complainant is correct, the wings of the statute would be effectually clipped. That there may be certain contracts, relating not so much to the navigation of the shit) as to fitting her for sea, by which the owners charge personally their own credit, and which do not come within the statute, may be well contended, without at all touching the principles here involved.”LACOMBE, Circuit Judge.
The Courts of Appeal in the First and Sixth circuits seem not to be in accord as to the interpretation of the *934section under consideration. The question is a close one, but I am inclined to concur with Judge NOYES in holding that this case presents a personal tontract of the owner, not affected by the statute. It would seem desirable that some effort should be made to secure a construction of the act by the Supreme Court, which will insure future uniformity of decision.
I concur in affirmance.