(dissenting). This .record is voluminous. My study of it caused me to resolve the questions of fact very materially different than the result reached by the majority opinion. The-damage to this cargo of hides is about one-third of the full load. The surveyors reached this conclusion. It is very unlikely that any such large quantity of damaged hides were shipped as marketable. The evidence demonstrates that they were not shipped in any such condition. They were purchased from a reputable and responsible seller, and their good condition is fully established by reputable witnesses whose duty it was to see and know their condition — the merchants from whom they were purchased, the inspectors, the receivers at the barracas at Rio Grande, the tally clerks, the contracting stevedores who loaded them, and many disinterested witnesses. As well, many of the laborers who loaded the ship proved the claim of the hides being in good condition when shipped. Some laborers who were but temporary longshoremen gave testimony as to reddish, bluish, and greenish colors in the hides. These colors became so common in the description by them, that the hides must have been in better condition upon their arrival in New York than when shipped, for the experts who examined them in New York found no such numbers so discolored. There is little dispute that the hides were properly pickled' and stowed. They eame out of the vessel in a wet and dripping condition, which is never found in the ease of sound hides. The experts saw pools of water standing on the hides in various compartments of the ship. They saw a considerable number of hides showing a darkening of the fleshy side (not merely pinkish, or reddish in color), also a slipping of the hair in various degrees. They were quite unanimous in saying such a condition was due to sea water. Even the experts who did not see the hides in the compartments of the ship, but who saw them on the dock, thought they were damaged by sea water. There was an intermixture of sound and damaged hides on the pier, and this seems to have led to the assumption that they were in the same relative position on the ship. They were not. The experts say that a reddish appearance does not necessarily indicate that the hides were damaged. The experts all say that there was an excess of water in the hides and refer to their flabby condition. The fact that there was a layer of salt found over the top of the hides at the deck does not answer the claim of the entrance of sea water, for the salt would only be disturbed at the points of entry of the water. No claim is made that water came over the entire upper surface of the hides. Water came through the weather deck, chain pipes, and forecastle sounding pipes, and undoubtedly in other places. A layer of salt was found in the upper compartment, the shelter deck space. This does not account for the between decks and lower hold.
After the voyage, repairs were made to the teakwood weather dock, the entire plumbing equipment was repaired, various sounding pipes and caps, and the bulkhead plates were taken out and new ones put in *556their place. The log entries show “seas of a boisterous state”; water in the bilges “through seas having boarded the ship forward and amidships.” • All of the water did not rtin aft in the bilges, but had drained down into the bilges from the upper cargo' compartments. At least part of the water leaked down from between decks. There un.doubtedly was a very considerable and constant leakage through the wooden deck owing to its general defective condition. The log shows seas sufficiently high to have supplied the sea water for these leaks. The ship required $130,000 for repairs for the voyage, and the parts repaired tell in part the story of where the leaks were. With the burden of proof on the appellee to establish that its vessel was seaworthy and explain the entrance of sea water (The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748; The Edwin I. Morrison, 153 U. S. 199, 14 S. Ct. 823, 38 L. Ed. 688; The Rosalia (C. C. A.) 264 F. 285), it has failed lamentably. It has failed to establish its fulfillment of the contract of carriage, and the appellant has fully sustained its claim of a breach thereof.
I therefore dissent.