(dissenting). From that part of the opinion which holds that, upon the ground that the cargo was insufficiently stowed the libelant is entitled to recover the full amount of the loss and *268damage sustained, I am compelled to dissent. In the first place, i find in the record no evidence sufficient to sustain a finding that improper stowage was the cause of or contributed to the damage to the cargo. The only witnesses who testified as experts upon that subject were the master mariners Quayle and Steele. Quayle said that in his opinion, taking the weather to be as described in the. log book, “if the ship had been stowed with less cargo in the lower hold, she would not have come-to so much damage as she did get.” And he added:
"I do not put that forth as an opinion but what a ship might be damaged off the Horn; but, so far as I can see in this log book, she had no unusual' weather off the Horn.”
In brief, this witness inferred from reading the log book that the ship-met no unusual weather off the Horn, and he was therefore of the opinion that improper stowage must have been the cause of á portion of the-damage to her cargo., Steele, master mariner, from reading the log, testified that the weather was not unusual; “it is the ordinary course of the weather; * * * what is to be expected in coming around the Hom”; and that if, under those conditions, a vessel labored very heavily and strained herself, the conclusion he would come to was that she-had too much cargo in her lower hold, and that he would attribute her injuries to her stowage, rather than to the weather.
But the evidence is convincing that the weather encountered off the Horn was unusual. For a period of about 50 days there were unusual' gales. A large portion of that time the ship lay to the wind. Milne, an experienced seaman, said that the gales were very hard—as hard, as he ever experienced. Lawson, the sail maker, testified that he had been 20 times around the Horn, and that on this occasion it was blowing the hardest he ever saw down there. Faraday, the second mate, testified that three or four different times he thought the ship would founder, the sea was so bad. Johnson, the master, -testified that he had' never seen such heavy weather off the Horn; that he thought on one or two occasions the ship would in all probability go down before morning. The evidence shows that the decks were almost continually flooded. Faraday said, “We were shipping tons of water all the time.”' It is not disputed that the ship lost a spanker boom; had her wheel smashed and steering gear boxes; lost two boats, three topsails, and two mizzen staysails; that her bulwarks were twisted, and her bulwark stanchions started, on both sides; that she lost a considerable amount of running gear, blocks, and that all the galley furnishings were washed completely out of the galley; that in order to protect the crew from accidents life lines were stretched fore and aft the decks and across-the poop, and ladders from the amidship house to the mainmast; that at different times four or five of the men at a time were incapacitated from injuries received; and that about 450 barrels of cement were jettisoned. This weather would seem to be sufficient in itself to account for the straining of the decks and the' injury to the cargo, and I submit that the evidence ought to be more convincing than it is before the court should say -that improper stowage contributed to the damage.
In the second place, it must be remembered that the evidence of the witnesses who testified that the cargo was improperly stowed was alL *269taken in open court, and therefore the rule is applicable that the finding of the district judge upon the conflicting evidence must be taken to be conclusive upon that question of fact, unless it clearly appears to be against the evidence. Whitney v. Olsen, 108 Fed. 292, 47 C. C. A. 331; Jacobsen v. Lewis Klondike Expedition Co., 112 Fed. 73, 50 C. C. A. 121; The Newport News, 105 Fed. 389, 44 C. C. A. 541; Alaska Packers’ Ass’n v. Domenico, 117 Fed. 99, 54 C. C. A. 485; Elphicke v. White Line Towing Co., 106 Fed. 945, 46 C. C. A. 56. The district judge may well have failed to give full credence to the testimony of Burke, the stevedore, who testified as to the stowage of a cargo which he had helped unload more than four years prior to the time of giving his testimony. His testimony as to the absence of boards interlining the barrels of cement above the sixth tier, and tending to contradict the explicit testimony of the captain, is as follows:
He said that the cargo was a solid bulk of cement. “From the betweendacks down there were a few boards scattered along the main hatch, and barrels were set on top of them, but from there aft and to both ends of the 3kip, there was nothing but cement, and it was set bilge and cuntline. Q. From what you saw of that cargo, could you tell whether or not it had been originally tiered up or raised from the sixth tier? A. No, sir; nothing raised that I saw. I think those few boards were on top of the sixth tier. Q. None of those boards were found anywhere, except around the main hatch? A. Around the main hatch; that is all I could find. Q. And in that cargo there was no indication of any raising of the cargo, except in this square around the main hatch? A. That is all that I know. Q. If it had been there, would you have seen it? A. I would, because I was looking down there all the time. I blowed a whistle for the engineer to go ahead. I have to look down to see that the load is slung right.”
But it does not appear that his attention was at the time particularly directed to-the subject of the boards. He said that he was down below several times to look after the men, but his place was on deck as hatch tender, and it was his duty to blow, the whistle for the engineer to go ahead. This testimony was not very direct, positive, or satisfactory, and is clearly insufficient, I think, to justify the court in reversing the finding of the district judge before whom the witness appeared and testified.
Similar criticism is applicable to the evidence furnished by the expert witnesses, who testified after the result and from an inspection of the log. That Quayle did not read the log very closely is amply shown by his cross-examination. The ship carried 2,350 tons in the lower hold, and 928 tons in the between-decks; or, in other words, 71 ¿4 percent, was in the lower hold. Quayle said that she should have had no more than 64 per cent, in the lower hold. Wilson, the stevedore, differed from this estimate, and said that she had only about 150 or 200 tons too much in the lower hold. I submit that such evidence is not sufficient to show that the master of the ship committed an error of judgment 'in causing the cargo to be loaded as it was. A ship should not be pronounced unseaworthy as to her cargo from a consideration of the result alone. If, upon all the evidence, no negligence is discoverable, the damage should be set .down to the perils of the sea, when, as in this case, perils are proven which are sufficient to account for it. In The Frey, 106 Fed. 319, 45 C. C. A. 309, the contention was made that the excessive roll*270ing of the vessfel was ascribable to the method of the distribution of the cargo in loading, and that certain drums of glycerine ought not to have been laden in the between-decks, or, if laden there, more weight of cargo or of ballast should have been laden above it, to make the vessel easy. The Circuit Court of Appeals for the Second Circuit, said:
“The judgment of the master and officers as to the proper trim of the ship and the proper distribution of the cargo and weights is much more valuable than that of the witnesses who expressed opinions in answer to hypothetical questions. The former were acquainted by experience with the characteristics of the ship, and, as is well known, two ships built on the same lines act differently under similar conditions of wind and sea. » * * The case for the libelants rests almost wholly on the theory that the weather was not extraordinary, and the consequent inference either that the drums were not properly stowed to resist the rolling of the vessel, or that the weights were not distributed as they should have been to prevent unnecessary rolling of the vessel. We think the seas were sufficiently violent to account for the disaster to a vessel in seaworthy trim with her cargo sufficiently secured. There is no rule by which it can be defined with accuracy what degree of violence of the wind or waves is necessary to constitute a peril of the sea. Different cases must be determined according to their special circumstances. The term, of course, refers only to such forces of the elements as cannot be resisted by the ordinary exertions of human skill and prudence.”