(dissenting).
The majority opinion proceeds largely on the basis of imported “facts” and extraneous assumptions. It is said, for example, that at the hearing in this court “appellee supplemented its testimony with two frank admissions of fact.” One of these supplementary facts (and the only one I will notice) is that the cocoa beans were “desired by the Jupiter’s captain as ballast” in the afterhold to bring the vessel’s stern down.
This supposed purpose of removing the beans becomes a controlling circumstance in the reversal of the judgment below. The testimony of the officer in charge is disregarded, namely, that he was “directed by competent military authority to clear the customs warehouse space occupied by the cocoa beans and load them into the Jupiter in order that the space they occupied could be used to store provisions under cover.” There is nothing in the record, nor yet in the briefs, concerning a desire for ballast. As to the Jupiter’s stern, the evidence is that the No. 5 hold was the only one free of the dock and likewise the only one from which cargo had been removed.
The source, if any, from which this important supplemental fact was gleaned must necessarily have been the counsel who argued the case orally. However, this gentleman made no pretense of knowing any facts other than those contained in the *700record. He had not participated in the trial, and was sent out to argue the appeal in lieu of counsel who had.1 In short, he knew no more about the facts of the case than we know ourselves.
Consideration of the matter is approached as though this were an ordinary commercial transaction. It appears to be assumed that the chief preoccupation of the Government was, or rather should have been, to assure the safe transmittal of the cocoa beans to San Francisco. The somber background of an extraordinary case is given little or no attention.
The loss occurred in late January of 1942. It was a time of great stress. The Japanese were swarming over the Pacific like ants through a housewife’s pantry, digging themselves in at innumerable strategic places, to be rooted painfully out again at the cost of an infinite quantity of precious blood. A chief necessity of the moment was to keep open the life-line to Australia, across which lay the Samoan Islands. Pago Pago had been shelled on January 11. Resumption of the attack was hourly anticipated, and at the time of the arrival of the convoy it was feared that the Japanese would contest the landing. At the outbreak of the war Samoa had but a handful of military personnel and the place was inadequately defended. The first ships to arrive or depart after December 7 were those of the convoy which reached the Islands on January 20, bringing a huge increase of the military establishment and material for defense.
The picture presented by the record is of a harbor equipped to handle no more than a thousand tons of freight twice a month, now called upon to handle thirty-five thousand tons and do it in the shortest possible time. The work of discharging troops and material began immediately with the utmost haste, and because of the critical military situation the construction of defenses and gun emplacements proceeded simultaneously with the unloading. Marines and native stevedores were working round the clock to unload the convoy and store cargo. . About a hundred of these native stevedores had had some previous experience in handling cargo through sideports of the Matson Company ships, but they were little experienced in the use of winches or the handling of topside cargo. Prior to the convoy’s arrival the bush had been beaten for large additional numbers of natives to aid in the work, all of them wholly untrained. But three lighters were available, all of which were .in constant use, day and night, in the unloading of vessels anchored in the harbor.
On January 29 Lieutenant Commander Crumpacker was ordered to remove the cocoa beans from the customs warehouse to make room for essential supplies. No other storage space was available except in some of the private dwellings, which were used for storage wherever possible. The rainy season was in progress. In carrying out his orders Crumpacker had planned to transfer the cocoa beans from the warehouse to the Jupiter by daylight whenever the use of one of the lighters might be had. A lighter became available around midnight, at a time when Crumpacker was off duty, apparently getting some much needed sleep. His civilian assistant, who was largely inexperienced, had the stevedores proceed with the job. The capacity of the lighter was a hundred tons, but the stevedores, as the trial court found, overloaded her by at least ten tons so that her top seams shipped water.2 The bags were piled so high that the boat was unstable, and the uneven removal of the load caused the lighter to rock and water to pour in. According to the Jupiter’s log, the lighter came alongside at 1:00 a. m. At 3:15 a.m. (that is to say, two hours and fifteen minutes later) the log notes a decided list of the barge and the sliding of the cocoa beans into the water. In this interval only three hundred bags out of a total of more than sixteen hundred had been gotten on board, which, since the unloading of the barge would normally consume three hours’ time, would seem to indicate a decided lack of skill on the part of the stevedores.
The lighter used in the operation, like the two others available in the harbor, was an old wooden vessel built some fifteen to eighteen years before. Had the beans been taken aboard in the daytime rather than in the darkness of night the condition of her upper seams would doubt*701less have been noted and the overloading perhaps avoided. Under the circumstances of the case I think there was no implied warranty of the seaworthiness of the barge. Like the half-trained or wholly untrained native help available, the boat was the best that was to be had.
It was the view of the trial judge that had there been no ship available the Government would have been justified in removing the cocoa beans and leaving them in the rain or dumping them into the sea in order that the essential storage space be obtained; and the fact that an ineffectual effort was made to save the beans does not alter the situation. With this view I agree. Recovery under these circumstances simply amounts to a windfall.
On the trial, the ease for the Government was handled by Miss Phillips. Her illness, which ultimately proved mortal, prevented her appearance here. Substitute counsel told us that he had hoped to diseuss the case with Miss Phillips but that her condition would not permit.
Appellants insist that the lighter was overloaded to the extent of not less than thirty-five tons.