The opinion
MANTON, Circuit Judge
(dissenting). The charter party under which the steamship Santa Clara was loaded with the ore in question provided:
“That it should receive a full cargo under deck of copper ore in bulk of about 3,500 tons, of 2,240 pounds,” from Santiago, Cuba, to Norfolk, Ya., and/or New York.
The loading began on October 27, 1916, in No. 3 hatch, and continued until the following day, when the master stopped the loading because he said the cargo was too wet, and he delivered a letter to the charterer’s representative reading as follows:
,!I beg to inform you that, owing to the extremely wet state of the copper ore you are shipping in the steamship Santa Clara, it is impossible to receive it, except you secure the cargo from shifting in the holds, by shifting boards, in a thoroughly efficient manner, so that the ship will be safe to proceed to the discharging ports. All lumber used for this purpose, and labor employed, to be at your expense.”
Thereupon a force of carpenters proceeded with the necessary lumber to install shifting boards under the direction of the master. This work was completed, and resulted in a fore and aft bulkhead running the entire length of the ship. The bulkhead consisted of á double line of planks, with the hold stanchions between. There was also an athwartship bulkhead put in No. 2 hold, to keep separate some 500 tons of crude ore, which was to have been discharged at Norfolk. This • crude ore was stored forward of the athwartship bulkhead, by which it was separated from the concentrated ore in the after part of the hold. Heavy rains fell on the first ore loaded, which was put in hatch No. 3, and this resulted in a greater percentage of moisture than is usually found in such ore. But the ore put in the other hatches was much drier than that put in No. 3 hatch. It was the ore loaded in No. 3 hatch! which is the subject of the master’s complaint. All the cargo, with the exception of 40 tons, was put in the lower holds. The master signed two bills of lading, one of .which covered 500 tons of crude ore and 43 *738 tons of concentrated copper destined for Norfolk. The other bill of lading covered the remaining cargo of 3,100 tons of concentrated ore and 51 empty iron barrels. Upon this bill of lading the master indorsed the following:
“Not responsible for wet condition of copper ore or expenses incurred thereby. Not responsible for rusty and damaged condition of iron barrels.”
Protest was made as against these indorsements, but this protest was disregarded by the master, and the bills of lading were accepted in the form tendered. The vessel left Santiago on November 8th. The master testified that at 6 p. m. that night the wind was freshening and the sea rising. At 8 p. m. there was a gale, with a rough sea, the velocity of the wind increased, and the rough, heavy sea resulted in the ship pitching. The ship listed about 15 degrees, and upon investigation it was found that the cause of the list was a shift in the cargo in Nos. 1 and 2 holds. The vessel put back to Guantanamo Bay, but before arrival she was brought nearly to an even keel by filling the starboard engine room ballast tank and shifting the 43 tons of cargo which was in the between-decks. It was admitted that when the vessel arrived at Guantanamo Bay there was a list of some 4 or 5 degrees. The vessel then returned to Santiago, where it was found that a number of stanchions on which the shifting boards had been secured were torn away, the top of the cargo was in a wet and plastic condition to a depth of some 2 feet, and there was stiff clay which extended to the bottom and was perfectly stable. It was necessary to remove a considerable part of the cargo to repair the stanchions, and there were some 500 to 600 tons shifted on the between-decks, most of which was put in barrels. Then an additional 120 tons of concentrated ore was loaded from the chutes of the Cuba Copper Company. After repairing the stanchions and shifting the cargo, the vessel sailed for New York and arrived at her destination without further mishap.
This suit is for detention of the steamship while putting back to Guantanamo Bay and Santiago and the expense of restoring the cargo and repairing the ship. It is apparent, from reading the libel and from the testimony offered on behalf of the libelant, that the complaint of the libelant was that the cargo was unduly wet or liquid and contained an undue percentage of oil, and liability was thus sought to be imposed upon the ship, upon the theory that concentrated ore was not copper ore in bulk.
As the term “copper ore in bulk” is commercially used, it was testified to by at least three witnesses to include concentrated ore or handpicked ore. In mining, the term “concentrate” means to separate ore or me,tal from the gangue or rock with which it is associated in the lode. Century Dictionary.
I am satisfied that the preponderance of the evidence is to the effect that concentrated ore is included within the phrase “copper ore in bulk,” as that is understood in the trade. This was the testimony of men who are familiar with the trade understanding of that phrase. The appellant sought to prove the previous course of dealing between the parties, which promised to show that the parties themselves understood the term “copper ore in bulk” to include concentrated ore; that *739 is, to show that the concentrates of ore were carried theretofore by the libelant’s vessels under the designation of “copper ore in bulk.” Although this testimony was excluded, there is evidence elicited on cross-examination of Capt. Lee, called by the libelant, as follows:
“Q. Now, you say that other ships of the said libelant’s line had carried cargoes of this similar ore from Cuba to the United States? A. Yes.
“Q. So that, when Mr. Cappe told you that, it was true wasn’t it? A. Yes.”
The charterer’s knowledge of the character of the ore produced by the Cuba Copper Company, at the time it entered into the charter party, is established. Evidence of this character explains the sense in which the parties to the contract of charter understood the terms “copper ore in bulk.” Reed v. Insurance Co., 95 U. S. 23 , 24 L. Ed. 348 ; Thorington v. Smith, 75 U. S. (8 Wall.) 1 , 19 L. Ed. 361 ; Raymond v. Tyson, 17 How. 53 , 15 L. Ed. 47 .
After changes were made by the appellee, and the bulkheads were built, the captain accepted the cargo and proceeded to sea. There is testimony in the record that improper distribution of the cargo and the bad condition of the hold stanchions did, in point of fact, cause the damage. There was evidence to show that the stowage was improper, and made the vessel unduly stiff, with the result that the cargo was likely to shift as soon as the vessel encountered a rough sea, and it was after the rough sea was encountered that the list was found. When the vessel went back to Santiago, the principal change consisted in shifting 500 tons of cargo on the between-decks. The log shows that she encountered bad weather on her second, as well as on her first, voyage from Santiago; but she came through the second time without difficulty, and on this occasion there were no shifting boards in the hold. It appears that the cargo, as originally laden on the vessel, was retained on board with the exception of some 1% or 2 tons of water, and the only additional cargo taken on board was about 120 tons of concentrated ore in the same condition as that which had been loaded originally. Capt. Lee testified that, when the vessel sailed from Santiago the second time, he considered her safe and seaworthy, and her safe arrival justified him in this belief.
The explanation for her being more seaworthy on her second departure is due to the fact of the shifting of the cargo on the between-decks, and perhaps stabilizing it by putting part of it in barrels. It is clear to me that the shifting of the cargo on the first voyage is sufficiently accounted for by the fact that it was not properly distributed. There was also testimony that the hold stanchions were carried away, because they were of old material and of an old type, not used in modern ships. There is nothing in the fact that the ore may have been wet, or had an undue amount of moisture, which would justify the conclusion that it was dangerous or even difficult to transport. Cargoes of like character had been shipped for some four years previous, and it was not found necessary to install even shifting boards. The fact that moisture had collected on the top and wet the surface of the cargo did not make it dangerous, and there is no pretense that any of the cargo wás unusually wet, except that which was first stowed in hold No. 3. There was no shifting of the cargo in this hold. When ballast was supplied, after she *740 took a list, it was found that she entered the harbor of Santiago with a very trifling list, and it was testified by most of the witnesses (except the captain) that they did not notice that the cargo had shifted. This would negative the idea that a large tonnage of the cargo shifted.
The notice of the captain, complaining of the wet state of the ore, asked that shifting boards be put in a thoroughly efficient manner, and this was done under his supervision. The subsequent indorsement on the bills of lading as to nonresponsibility for the wet condition of the copper ore, or expenses incurred thereby, should not be construed so as to refer to' the expenses arising from unseaworthiness' of the ship on sailing. Assuming that the ore in question, because it was concentrated ore, was something different than copper ore in bulk, I fail to see how that would alter the obligations as between the shipper and shipowner in respect to loading and stowage of the cargo and unseaworthiness of the ship. The master did not refuse to accept the ore as copper ore in bulk, and when he did receive it the ship owed all the obligations fixed by the maritime contract for transportation. It is a very different situation than one which is created where a dangerous or explosive cargo is unwittingly taken on board, or there is some concealment from the master.
Because I think the cargo was accepted for transportation as it was and as seen by the master, the appellant should be relieved of the decree, and the decree below should be reversed.