The opinion
COXE, Circuit Judge
(dissenting). We all agree that the libelants were damaged in the sum of $8,927, and that the ship would be liable *399 for this sum, but for the fact that notice of the claim was not given prior to the removal of the goods. In the opinion of the'majority of the court relief must be refused for this reason. There is no pretense that the ship’s officers did not know of the damage to the goods before the removal. It was occasioned by their flooding the vessel’s bilges with whale oil and all the facts and circumstances were within their knowledge. They knew of the claim while the ship was still discharging and before anything had occurred to prevent the fullest investigation. Indeed, the depositions of the officers of the vessel were taken before she left this port. A large part of the wool was stowed so high above the bilges that it received no damage at all. This wool was first taken out. The extent of the damage could not be ascertained until all the wool was unloaded. The unloading from the bunker where the damaged goods were stowed was not completed until eleven o’clock on the night of May 28th. The next day the lighter carried the wool to the Jersey City Stores. The day following was Decoration Day — a legal holiday. On May 31st the charterer was notified of the damaged condition of the wool, and oñ June 1st notice of the claim was given. The testimony shows that within a reasonable time after the extent of the damage was known to the consignees, notice of the claim was given and that had it been given on ’ May 29th instead of June 1st, it could not have changed the situation in the slightest degree. Every right, every advantage, every opportunity was open to the ship and the charterer then as fully as if the notice had been given on May 29th.
The language of the bill of lading is as follows:
“That the master, owners or agents of the vessel shall not be liable * * * for any claim, notice of which is not given before the removal of the goods.”
It is not pretended that this language is reasonable or effective if construed to mean that the claim must be made before the removal of the goods from the vessel. So interpreted, it would prevent relief in cases where the goods are inclosed in crates or boxes where their condition could not be ascertained until the coverings were removed. So, too, if the goods were discharged into the consignee’s lighters or at night, where it would be impossible to discover the damage. Obviously the language needs interpretation and construction. I do not understand that this proposition is disputed, and it follows that it must be reasonably construed unless it is to be as an absolute shield to cover the grossest negligence. The object of the notice evidently was to give the parties responsible for damages timely notice of any claim that may be made while the facts are all ascertainable. It can have no other purpose except to prevent a fictitious claim or a claim for larger damages than have actually been sustained. To hold in every case that no claim for damages can be made unless notice be given before the removal of the goods would be a highly technical construction and would lead to manifest injustice. It would be a complete*de-' fense even where the consignee of the goods did not and could not discover the damage prior to removal. It would be a defense when the shipowner knew of the damage and the consignee did not. Indeed, *400 if strictly construed, it would prevent a recovery even where the shipowner purposely caused the goods to be removed. Construction being necessary, it seems to me that the words “removal of the goods” mean such a removal from the vessel or the dock as would prevent the shipowner from obtaining the requisite proof as to. their condition. In other words, such a removal as might permit an unfair or fraudulent claim to be made.
As was said in the case of The Westminster, 127 Fed. 680 , 62 C. C. A. 406 , the purpose of the provision is “that the shipowners may know not merely when there is damage — for which no demand may ever be made — but whether any claim for damage is asserted by the consignee so that the necessary investigation can be made, to ascertain the facts while they are fresh.” See, also, The Niceto (D. C.) 134 Fed. 655 .
In The Queen of the Pacific, 180 U. S. 49 , 21 Sup. Ct. 278, 45 L. Ed. 419 , the libelants'permitted four years to elapse before commencing suit, and the court naturally held this delay to be unreasonable, but observed:
“The stipulation itself would be invalid only upon showing that under the circumstances of the particular ease enforcement would work a manifest injustice. In this view it is unnecessary to consider whether the limitation of thirty days for the commencement of the suit be reasonable or not.”
Enforcement in the case at bar does work a manifest injustice. There is here no definite,- clearly defined and easily understood period of limitation, the language is “before the removal of the goods.” This language, as I have endeavored to point out, must be interpreted and construed having reference to the character of the goods, the manner in which they are packed, the extent and nature of the damages and all the surrounding facts and circumstances.
I have been unable to find an American authority which defeats an otherwise meritorious claim because the notice of claim was delayed for a day or two in such circumstances as are here described. If notice be given as promptly as the circumstances permit and if the failure to give it “before removal” works no wrong- or injustice to the person liable for the injury, such a notice should be held reasonable. ■
We have, then, an honest claim for nearly $9,000 defeated by what seems to me a harsh and unnecessary construction of a clause intended to prevent dishonest and exorbitant claims. If such a construction be ever permissible it should be to defeat an unfair claim, not a fair and honest one.
I think the decrees should be affirmed.