The opinion
O’CONNELL, Circuit Judge
(dissenting).
Rehearing of the instant appeal was had on the same day as the rehearing-of The Monte Iciar, 3 Cir., 167 F.2d 334 . As I indicated in the dissent filed in the Monte Iciar case, I believe that the carrier of goods by sea “has neither an inherent nor a statutory right, through the device of a statement like that on the bill of lading here in evidence, to assign to a shipper the responsibility for proving negligence.” 167 F.2d 339 . Even if the shipper does have that burden, I think the record in the instant case supports the judgment of the court below in favor of the shipper.
In admiralty cases, fact findings of the district court, when supported by competent evidence, are entitled to great weight and should not be set aside except under a showing that they are clearly wrong. The Mamei, 3 Cir., 1945, 152 F.2d 924, 926 . The lower court found negligence in the stowage of the cargo involved, in that there was inadequate dunnage under the circumstances. In my opinion, this finding not only is supported by substantial evidence but is a quite reasonable conclusion.
The master of appellant testified that the vessel “was deep loaded and it would not take much of a sea to go over and get water on deck.” While it is true, as pointed out in the majority opinion, that a flush deck ship may be loaded more deeply than more lightly constructed vessels; and while appellant was justified in stowing appellee’s cargo on deck; it by no means follows that appellant was also justified in loading the cargo in such a manner that the cargo was likely to be exposed to corrosion by sea water. In weather which appears to have been neither unusual nor unexpected, the depth of water on deck from the waves ranged from two to six or seven inches, according to the testimony of the chief mate of appellant. It seems to me obvious that, under the circumstances, it was incumbent upon appellant to raise the cargo in quéstion — whether by proper stowage on top of the hatches, by additional dunnage, or by any other acceptable means— so that the cargo would rest above the expected deck water level. The failure of appellant to exercise that degree of care, in my opinion, constitutes actionable negligence.
Moreover, while appellant did introduce testimony detailing the manner in which the shipper’s cargo was stowed and covered, appellant did not explain why it was found desirable to add twelve rolls of tar paper covering after -the two-day trip from Phil *865 adelphia to Norfolk, as to which two days the record is silent. It is conceivable that the damage to the tin containers had occurred prior to arrival at Norfolk.
I believe that where, as here, this court rejects the lower court’s findings of fact, it then becomes imperative upon this court, as one proceeding de novo, to consider the whole record.' Crist v. United States War Shipping Administration, 3 Cir., 1947, 163 F.2d 145, 146 , cited in the majority opinion. Assuming arguendo that the lower court’s findings of fact as to the cause of damage were not supported by the evidence, can we dismiss this cause without a finding that the stowage of the cargo during the voyage from Philadelphia to Norfolk was sufficient under the circumstances, in the light of the action taken by the carrier at the latter port?
I am not prepared to say as a matter of fact that the carrier was free from negligence in the stowage of this cargo prior to its arrival at Norfolk, nor as a matter of law that the dunnage deemed necessary by the court below would not, under the circumstances, have efficiently prevented the damage which the cargo sustained. 1
The reversal of the judgment of the court below by the majority of this court has rendered it unnecessary to consider the second question raised by appellant, whether it was proper to award interest to appellee. I do wish to state, however, that appellant’s allegations concerning this question would have warranted attention. A delay of more than three years in bringing the libel to trial, which delay was at one point the basis for a motion to dismiss, is alleged to have been attributable solely to appellee. While the granting or denial of interest in admiralty cases normally rests within the sound discretion of the trial court, the aforementioned circumstances give reason for doubt whether such discretion was exercised wisely in the case at bar.
For the reasons stated, I believe that the judgment of the court below, exclusive of the award of interest, should be affirmed..
The chief mate asserted that “the top layer of cases were in perfect shape, the same as we put them on.”