(concurring). Though substantially agreeing with the opinion written for the court by Judge 'MANTON, the novelty of this litigation may excuse a personal statement.
1. The differences between this case and The Esrom (C. C. A.) 262 Fed. 953, are that the earlier libelant had a bill of lading signed by the master; this libelant has not, and the tobacco of that case seems to have been somewhat less perishable than the prunes of the present litigation.
[7] 2. I should be content to rest decision upon the narrow ground that the apostles contain no evidence whatever as ’to what would have been a reasonable time for the sailing of the ship. It seems to be thought that the ship was bound to sail before the prunes spoiled; that.is to say, the more perishable a single item of cargo, the more quickly should the ship depart. This is not law; the shipper takes the'risk of the reasonable time, whatever it may be.
But, considering the broader questions properly raised and argued — ■
[8] 3. It is to be emphasized that this shipper well knew that he was dealing with a charterer, and putting his» goods on a hired vessel. Knowing this much, that he neither knew nor inquired concerning the exact terms and conditions of the charter party is immaterial.
[9] 4. This shipper had no personal contract whatever with the ship owners. A bill of lading is both a receipt and a contract, and if the owner’s master signs the bill, he has receipted and contracted for his own principals. This was the ground of decision in the case just cited.
[10] 5. That the charter party required the master to sign bills of lading, and that he under owner’s instructions refused so to do] does not benefit the shipper in any way. It furnished the charterer with a cause of action, though such cause would probably have been injuria sine damno under the circumstances here shown; but by no principle of law can refusal become the equivalent of compliance, and so make the charterer’s bill of lading identical in effect with the master’s bill, which is substantially the libelant’s position. No trick was played on the shipper, as in The Sprott (D. C.) 70 Fed. 327.
[11] 6. There did exist between shipper and the personified ship mutual obligations dependent wholly upon that union of ship and goods arising from the lading of the former on the latter, lately discussed at some length in The Saturnus, 250 Fed. 407, 162 C. C. A. 477, 3 A. L. R. 1187.
*2737. But that union did not per se give rise to any “privilege” under Continental marine law, even for damages through delay occasioned by the fault of the owner. The Ripon City, 102 Fed. 182, 42 C. C. A. 247.
8. There is no authority for asserting that by our own peculiar maritime jurisprudence a lien for mere delay arises from the union of the ship and goods, in favor of a shipper who knew that he was dealing with a charterer, and took the charterer’s bill of lading.
[12] 9. In the absence of that contract with the owners usually evidenced by a master’s bill, this libelant was entitled to look to the personified ship for proper stowage, seamanlike management, and right delivery; but he can look to charterers only for the date of sailing. As he knew of the chartered relation, he is presumed to know that charterers direct the movements of the ships they hire; all ships are chartered for that purpose.