Luckenbach

PER CURIAM. [1] Judge Hough, in the two opinions delivered at final hearing and on the limitation of liability, has said practically [397] all that it is necessary to say upon the questions now debated. We may add, however, that we are satisfied that the Luckenbach was unseaworthy as the result of gradual corrosion of the plate at a point where there was no cement or where the cement was cracked. The contract of carriage was between the McCahan Company and the charterers. The charter not being a demise, the charterers cannot take advantage of the statute limiting the liability of vessel owners. The cause of the accident being neither an error of navigation nor of management, they are not protected by the third section of the Harter Act. If the bill of lading contains an exception of unseaworthiness, which we believe it does, the charterers are not protected by the second section of the act, because they have not exercised due diligence in respect to the condition of the steamer. [2] It follows that the libelant is entitled to recover in full against the charterers, unless the clause in the bill of lading as to its insureance protects them. Under prior decisions of this court (Pennsylvania R. R. Co. v. Burr, 130 Fed. 847, 65 C. C. A. 331; Bradley v. Railway Co., 153 Fed. 350, 82 C. C. A. 426), it does not, and we are not disposed to depart from these decisions. Though the purpose of the insurance company is quite apparent, we can understand a contract (of loan which is to be repaid only on a certain condition—e. g., the shipper’s recovering against the carrier. [3] As between the charterers and the owners, the latter are under an express obligation to maintain the steamer in a seaworthy condition. It is not fulfilled by her being seaworthy at the beginning of the charter, or of any voyage under the charter. Our decision in The Benner Line, 217 Fed. 497, 133 C. C. A. 349, holds that the owner cannot limit his liability against this express contract. The decree should be modified, so as to .award the libelant its full damages, payable primarily out of the steamer and the estate of Luckenbach, any deficiency to be paid by the charterer, with interest and costs.