(dissenting). The owners of this steamer chartered her for one voyage to the Interocean Transportation Company, to be put on the berth as a general ship. The charter party was not a demise. Article 13 of the charter party provided that “the captain shall sign bills of lading or master’s receipts as and when presented, without prejudice or reference to this charter party,” a provision which did not preclude the owners from authorizing some other agent to sign, either expressly or impliedly.
The prunes were loaded aboard August 8, and the bill of lading signed by the Transportation Company August 11, making no reference whatever to the charter party, concluded with an attestation clause of a very usual form as follows:
“In witness whereof, the master or agent of the steamship hath affirmed to three bills of lading, all of this tenor and date, one of which being accomplished the others to stand void.”
The freight was paid in advance. The proof is that the owner’s agent, resident in this port, after the master had signed some bills of lading, ordered him to sign no more; that he knew the charterers were signing them, and that he gave these orders to the master, because he thought it might put the owners in a better position.
“Q. Well, as matter of fact, to get right down to the facts of this case, your midersíandin!;: was, and the basis on which you acted wan, that if the master signed these bills of lading, you felt that you would be exposing the ship to liability, but that if the charterer signed them you would not? A. Well, I felt that the consideration might be a little different; I don’t know just what.”
As the master had signed some of these bills of lading, knowledge of their contents is imputable to the owners. How can it be sa.id that the owners, knowing that cargo belonging to various shippers was going aboard their steamer under bills of lading signed by the charterers, as agents for the steamship, did not make the charterers their agents for that purpose? The bill of lading, if signed by the master, would have hound the ship, and if the charterers signed it as the agent of the owners of the ship, with their consent, express or implied, it has exactly the same effect. Whether the master or the charterers signed the *274bill of lading was a mere technicality as Lord Chancellor Foreburn said in Owners of Steamer Knutsford v. E. Tillmans & Co., [1908] A. C. 406:
“The other point — namely, that one of the bills of lading was signed by Messrs. Watts, instead of by the captain — to my mind is destitute of validity in law, and even more destitute in merits. If the captain had been directed to sign it, he was obliged to sign it. The paint is a merely technical point, that the proper signature was not there. As a matter of fact, I should be very sorry to lay down any rule that under such a contract the charterer or shipowner could always sign; but I am not satisfied that the captain did not know perfectly well of this signature and sanction it. I think that there is absolutely nothing in that point also.”
Consent of the owners must in my opinion be implied from their conduct. Otherwise they might say, without giving any notice to the shippers, who were paying freight in advance to the charterers:
“We will carry the goods laden aboard our steamer to destination liable as insurers, but with the right to collect a reasonable rate of treight, to be there ascertained and collected.”
This would certainly be a surprise to the shippers, and in my judgment a fraud. They did in this case demand of the shippers an additional freight of SO per cent. The language of Judge Addison Brown in Re Sprott (D. C.) 70 Fed. 327, 331, is appropriate in this connection:
“I do not fhink it is any defense to the ship that the bill of lading signed by the master recited the shipment of all the cargo as having been made by the charterers. The ship is not entitled to claim from that circumstance that it was dealing with the charterers alone and had no privity with the actual shippers; for the master knew to the contrary. His own bill of lading recited the actual shippers, and he knew thatn the usual bills of lading had been given to those shippers on the ship’s account. To suffer the ship, therefore, to deny any privity with the actual known shippers, under cover of a single bill of lading given to the charterers as sole shipper, would be to uphold a mere subterfuge and a virtual fraud upon the shippers; since the ship’s bills of lading were given to shippers with the master’s knowledge and concurrence, and on his account. The master, knowing that clean bills of lading had been given for the 163 hales, knew that the charterers had no authority to ship them on deck at shipper’s risk. His own bill of lading to the charterers, with that exception inserted, is therefore, no protection to him or to the ship; and if he repudiates the bill of lading signed in his behalf by the charterers, as respects goods other than the charterers’ goods, he is in the situation of a master who has received goods for transportation without giving any bill of lading for them at all, and upon that theory he would be bound to carry the goods in the customary manner; that is, under deck. The Delaware, 14 Wall. 579.”
In tliis view of the case the charter party is a perfectly irrelevant document as between the ship and the shippers. Judge Garvin found that the prunes shipped August 8, 1915, were damaged by decay caused by heat while the steamer was lying at the pier ([D. C.] 261 Fed. 626), and he entered a final decree in favor of the libelants, from which this appeal, is taken.
In a former suit arising out of the same voyage (The Esrom [C. C. A.] 262 Fed. 953), in which the master did sign the bill of lading, we held that it constituted the whole contract between the shipper and the ship and owners, but that no proof of damage had been made. The *275shipment was of tobacco, which was not itself injured by the delay. We held that the libelant had not showrn that the delay in sailing was unreasonable.
The ship owes the duty of transporting every shipment in view of its character. If she accept perishable shipments, she must exercise the care and protection for them which their character requires. She cannot load and stow them, and delay sailing as if they were shipments of pig iron. Having accepted a shipment of prunes, she was bound to sail within a reasonable time for prunes. The Gordon Campbell (D. C.) 141 Fed. 435.
It is true that in respect to delivery at destination the interests of all the shipments must be considered as a whole. The Bohemia (D. C.) 38 Fed. 756; N. Y. & P. R. S. S. Co. v. Guanica Centrale, 231 Fed. 820, 145 C. C. A. 640. But acceptance of cargo is different. The ship should have notified the shipper of perishable cargo that she would not sail until fully loaded, and of the delay, which was becoming perfectly obvious, and have given the shipper the privilege of talc-ing its shipment back, as it eventually did when it learned the facts.
The District Judge having found as a fact that the prunes in this case were damaged as a result of the delay in sailing, I think the decree should be affirmed.