(dissenting in part).
I agree with the disposition of these appeals, so far as it concerns the two parcels of 162 unbroken and unstained cases, and of 420 broken, but unstained eases. I do not *380agree as to the third parcel of 468 unbroken, but stained eases. The ease as to these depends upon the effect of the statement in the bills of lading that the cases were “in apparent good order and condition.” Were these suits between the shipper and the ship upon the contract of .carriage, the shipper would make out a ease by showing the condition of the goods on delivery, and that they had been damaged at the outturn. The ship must excuse this byi some exception. A “clean” bill of lading would make out a prima facie ease, so far as the outward appearance of the cases, bales, wrappings, casks, or the like, told of the condition of the contents. I can see no reason why it should go further, either in principle or justice, though some decisions have intimated the contrary. The ship can tell nothing of the contents except as the outside betrays it. If it does not, I cannot agree that the shipper would prove his ease. He would prove only that kind of contents which necessarily follows from fair cases or bales. That might or might not be enough, depending on what was the damage at issue.
When the libellant in such a suit is not the shipper, but a consignee who is a bona fide holder of the bill of lading, the situation' is precisely the same with one exception; the ship is estopped to deny the truth of the statement that the eases or bales were in apparently good condition. So much the decisions cited in the main opinion settle, and The Isla De Panay, 267 U. S. 260, 45 S. Ct. 269, 69 L. Ed. 603, seems to confirm. I agree that this is more than a mere rule of procedure whose office ends when proof goes in as to the condition of the goods in fact. That is exactly the difference between it and the same declaration in the same bill of lading before it has reached the hands of a bona fide holder. The declaration is incontrovertible between the parties, both in itself, and as a step in any chain of reasoning in which it is relevant.
In a suit upon the contract of carriage it can have no other function. True, it may be the basis for the recovery of the purchafee price in an action of deceit, but that is an- ’ other matter. I can see no reason why it should toll the ship’s exceptions in general. Certainly no such point was decided in Brandt v. Liverpool, etc., Co., [1924] 1 K. B. 575, or Olivier Straw Goods Corp. v. Osaka Shosen Kaisha (C. C. A. 2) 47 E.(2d) 878, in each of which there was a deviation. So far as there is language looking in that direction in Higgins v. Anglo-Algeriam S. S. Co. (C. C. A. 2) 248 E. 386, I would overrule it. It seems to me contrary t.o any principle to strip a ship of part of her contract, when the consignee invokes that very contract as the basis of his cause of suit, as he does by relying upon the estoppel. Deviations do indeed so strip the ship; she has not performed the contract at all, and the court decides the ease just as though none had been made.
The suits at bar are, therefore, to be decided like any other except that it must be taken as an ineontestible fact that the contents of the 468 eases were not leaking. So-far as this proved the condition of the cheese, the libellants have succeeded, but no further. However, unstained cases may contain infected cheese, and cheese which has begun to rot. The whole shipment was infected and-presumably more or less decayed. It makes not the least difference what the ship actually knew about' the 468 cases, or with notice of what she was charged. That would be relevant enough, if her owners were being sued in deceit, but the whole doctrine is thrown into confusion, if we confound the declaration with its truth in fact. The estoppel is to avoid going into the facts at all; for the purposes of the suit the facts are to be disregarded. They make no difference, nor does, the ship’s knowledge of them.
The libellants, having proved only that they had delivered cheese which had not leaked, are confined to the value of such cheese as the first term in their equation of loss; the other being the value at outturn, which is conceded. They may prima facie recover, therefore, for that amount, but they must be content to accept the value of cheese which was infected or ineipiently rotten, so long as the rot did not show on the outside. The ship must bring.the damage so estimated within an exception. She has no difficulty in so doing, provided that it happened on board. In many cases this is just where she will fail. For example, if the damage be due to leakage from broken cases, and she has given a “clean” bill of lading, she must concede that the cases were whole on delivery, and she cannot in fact prove that they were broken during the voyage. Thus she cannot, use her exceptions, because whole cases do not leak. Again, if the damage be from wetting, and she cannot prove that in fact the bales were wetted on board, she loses, because dry bales do not go bad unless wet from the outside. However, in the case at bar the ship may be able to prove that infected, or partially rotted cheese, though its *381cases showed no leak, would completely spoil on board. Many of those which we know to have shown no leaks, did in fact spoil, though possibly not as much as the 468 cases. So far as she can prove this, she will excuse the loss under the exception. It seems very unlikely that the final recovery will be appreciable.
The ship would further have a complete defense oven as to this in the notice clause, of which prima facie she ought not to be deprived any more than of her exception. However, the distinction taken in the main opinion seems to me reasonable; notice clauses are not in any event popular with courts. Moreover, this was tire ruling, as distinct from the opinion, in Higgins v. Anglo-Algerian S. S. Co. At the risk of possible inconsistency, I agree as to the disposition of this point.
Therefore, I would allow the libellants to prove damages calculated in the way I have suggested. If they fail, or will not try, I would dismiss the libels in toto.