the hearing contemplated by § 75 (s) (3) has been had. A party is not entitled to a trial de novo as of right on the review in the District Court, Equitable Life Assurance Society v. Carmody, 131 F. 2d 318, and none was requested by petitioner. Nor is there any requirement that the judge must reverse and remand the case to the commissioner for further hearings or for his considered judgment based solely on the competent evidence. To so hold would render nugatory the discretionary power given the judge by Order 47 to receive further evidence himself or to modify or reject, in whole or in part, the commissioner's findings on appeal. In addition, it would make mandatory what is at most a discretionary power of the judge under $75 (s) (3) to authorize a hearing before the commissioner.

The judgment below is accordingly

Affirmed.

CONSUMERS IMPORT CO. ET AL. v. KABUSHIKI KAISHA KAWASAKI ZOSENJO ET AL.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 32. Argued October 21, 1943.-Decided November 8, 1943.

1. For damage to cargo by fire not caused by the "design or neglect" of the shipowner, the Fire Statute extinguishes claims against the vessel as well as claims against the owner. P. 253.

2. That the contracts of affreightment were signed "for master" does not require a different result. P. 252.

3. There was in this case no waiver of immunity under the Fire Statute. P. 254.

4. The Etna Maru, 33 F. 2d 232, to the extent that it conflicts herewith, is disapproved. P. 256.

133 F.2d 781, affirmed.

CERTIORARI, 319 U. S. 734, to review the affirmance of a decree (39 F. Supp. 349) which, in a suit by cargo claim

Opinion of the Court.

320 U.S.

ants, exonerated the owner and bareboat charterer of the vessel from liability for damage by fire.

Mr. T. Catesby Jones, with whom Messrs. D. Roger Englar, Ezra G. Benedict Fox, and Thomas H. Middleton were on the brief, for petitioners.

Mr. George C. Sprague for respondents.

MR. JUSTICE JACKSON delivered the opinion of the Court.

Petitioners, Consumers Import Company and others, hold bills of lading covering several hundred shipments of merchandise. The shipments were damaged or destroyed by fire or by the means used to extinguish fire on board the Japanese ship Venice Maru on August 6, 1934, on voyage from Japan to Atlantic ports of the United States. Respondent Kabushiki Kaisha Kawasaki Zosenjo owned the Venice Maru and let her to the other respondent, Kawasaki Kisen Kabushiki Kaisha, under a bareboat form of charter. The latter was operating her as a common carrier.

Damage to the cargo is conceded from causes which are settled by the findings below, which we decline to review.1 Upwards of 660 tons of sardine meal in bags was stowed in a substantially solid mass in the hold. In view of its susceptibility to heating and combustion it had inadequate ventilation. As the ship neared the Panama Canal, fire broke out, resulting in damage to cargo and ship. The cause of the fire is found to be negligent stowage of the fish meal, which made the vessel unseaworthy. The negligence was that of a person employed to supervise loading to whom responsibility was properly delegated and who was qualified by experience to perform the work. No negligence or design of the owner or charterer is found.

1 The facts are considered at length in the opinion of the Court of Appeals, 133 F.2d 781.

The cargo claimants filed libels in rem against the ship and in personam against the charterer for breach of contracts of carriage. The owner joined the charterer in a proceeding in admiralty to decree exemption from or limitation of liability. Stipulation and security were substituted for the ship in the custody of the court. The District Court applied the so-called "Fire Statute" to exonerate the owner entirely and the charterer and the ship in all except matters not material to the issue here. The Circuit Court of Appeals affirmed, taking a view of the statute in conflict with that of the Fifth Circuit in The Etna Maru, 33 F. 2d 232. To resolve the conflict we granted certiorari expressly limited to the question, "Does the Fire Statute extinguish maritime liens for cargo damage, or is its operation confined to in personam liability only?" s

3

The Fire Statute reads: "No owner of any vessel shall be liable to answer for or make good to any person any loss or damage, which may happen to any merchandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner." The statute also provides that a charterer such as we have here stands in the position of the owner for purposes of limitation or exemption of liability."

2 Admiralty Rule 51.

The Alien Property Custodian on July 30, 1942, vested in himself all property in the United States of respondent Kawasaki Kisen Kabushiki Kaisha. Vesting Orders 77 and 80, 7 Federal Register 7048, 7049. On March 15, 1943, he vested in himself all property of Tokyo Marine & Fire Insurance Co. Ltd., a Japanese corporation which advanced cash collateral to the surety who became such in the ad interim stipulation. Vesting Order 1084, 8 Federal Register 3647. 319 U. S. 734.

Act of March 3, 1851, § 1, now 46 U. S. C. § 182, formerly R. S. § 4282.

5 Act of March 3, 1851, § 5, now 46 U. S. C. § 186.

Opinion of the Court.

320 U.S.

Since "neglect of the owner" means his personal negligence, or in case of a corporate owner, negligence of its managing officers and agents as distinguished from that of the master or subordinates, the findings below take the case out of the only exception provided by statute.

Apart from this inapplicable exception the immunity granted appears on its face complete. But claimants contend that because their contracts of affreightment were signed "for master" they became under maritime law ship's contracts, independently of any owners' contracts, and that the ship itself stands bound to the cargo though the owner may be freed. It seems unnecessary to examine the validity of the claim that apart from the statute claimants under the circumstances would have a lien on the vessel, or to review the historical development of the fiction that the ship for some purposes is treated as a jural personality apart from that of its owner. If we assume that the circumstances are appropriate otherwise for such a lien as claimants assert, it only brings us to the question whether the Fire Statute cuts across it as well as other doctrines of liability and extinguishes claims against the vessel as well as against the owner.

The provision here in controversy is § 1 of the Act of March 3, 1851. Despite its all but a century of existence, the contention here made has never been before this Court. Sections 3 and 4 of the same Act in other circumstances provided limitations of liability, and as to them a question was considered by this Court in The City of Norwich, 118 U. S. 468, 502 (1886), stated thus: "It is next contended that the act of Congress does not extend to the exoneration of the ship, but only exonerates the owners by a surrender of the ship and freight, and, therefore, that the plea of limited liability cannot be received in a pro

• Walker v. Transportation Co., 3 Wall. 150; Craig v. Continental Ins. Co., 141 U. S. 638, 647; Earle & Stoddart v. Ellerman's Wilson Line, 287 U. S. 420, 424.

ceeding in rem." The Court rejected the contention and held that when the owner satisfied the limited obligation fixed on him by statute, owner and vessel were both discharged. The Court said that "To say that an owner is not liable, but that his vessel is liable, seems to us like talking in riddles." The riddle after more than half a century repeated to us in different context does not appear to us to have improved with age.

In the meantime, with the exception of The Etna Maru, the lower federal courts have uniformly construed the statutes as exonerating the ship as well as the owner." We would be reluctant to overturn an interpretation supported by such consensus of opinion among courts of admiralty, even if its justification were more doubtful than this appears.

Petitioners say, however, that such of these decisions as are not distinguishable were "ill-considered." We think that the better reason as well as the weight of authority refutes petitioners. To sustain their contention would deny effect to the Fire Statute as an immunity and convert it into a limitation of liability to the value of the ship. This is what Congress did in other sections of the same Act and elsewhere,1o which suggests that it used different language here because it had a different purpose to accomplish. Congress has said that the owner shall not "answer for" this loss in question. Claimant says this means in effect that he shall answer only with his ship. But the owner would never answer for a loss except with

Dill v. The Bertram, Fed. Cas. 3910; Keene v. The Whistler, Fed. Cas. 7645; The Rapid Transit, 52 F. 320; The Salvore, 60 F. 2d 683; The Older, 65 F. 2d 359; The President Wilson, 5 F. Supp. 684; see Earle & Stoddart v. Ellerman's Wilson Line, 287 U. S. 420, 427, n. 3; The Buckeye State, 39 F. Supp. 344, 346-47.

8 See United States v. Ryan, 284 U. S. 167, 174; Missouri v. Ross, 299 U. S. 72, 75.

10 Harter Act of February 13, 1893, 46 U. S. C. §§ 190-96.