As Gulf Trading’Company, the -shipper, was the agent of American Trading Co., we do not here - have a case where someone other than the shipper. in good faith advanced funds in reliance upon bills of lading.'..The crucial question here, then, is whether the shipper or the carrier made the final check on which rested the' statement of the quantities in the bill. The trial judge in his opinion found: “It is quite probable that the individual who operated as checker on thé' steamship’s deck during the loading operation was connected with the stevedores and may be one of their number. It remains a fact nevertheless that .both the captain and the mate of the vessel referred to-the checker as an employee of the ship’s agent. In view of the rest of their depositions this may well be an ignorant statement but it was not contradicted. This checker made out-tally sheets that were delivered to the mate who added up the contents of all.the sheets without investigation and issued therefor to the ship’s agent a receipt for the ship’s cargo and it was on this mate’s receipts that the bills of lading to the consignees were prepared. *313 So, as a matter of fact, the ship in accepting the checker’s report accepted liability for his count whoever the checker was and certainly the vessel’s owner, when its agent issued the bills of lading accepted a heavy responsibility which only a convincing explanation could reduce. 49 U.S.C.A. § 88; 46 U.S.C.A. § 1303(3) and (4). We cannot say that the suspicion of short delivery to the vessel engendered by a process of exclusion of other possible causes of the shortage in delivery to the consignees is sufficiently convincing to overcome the execution and delivery of the bills of lading especially in default of clear evidence of the position and authority of the checker. The suggestion that only the shipper’s statement of the number of boxes put aboard was accepted is not borne out by the language of the bills themselves and more definite evidence of actual calculable shortage. Consequently delivery to the ship is found of the quantity stated in the bills of lading and the ship’s manifest. Since, that quantity was not out-turned or delivered to the libellants their claims are sustained.”
The judge also made this formal finding: “The quantity of dates stated in the bills of lading and in the ship’s manifest were delivered to the ship for carriage and the failure of outturn was not explained.”
As these findings have sufficient support in the evidence, we accept them as correct. On that basis, the ship, must be taken as having been “loaded by the carrier” within the meaning of 49 U.S.C.A. § 100, which is incorporated in the Carriage-of-Goods-by-Sea Act, 46 U.S.C.A. § 1303(4). Reading 49 U.S.C.A. § 100 together with 46 U.S.C.A. § 1303(3) (c), and 46 U.S.C.A. 1303(4), we think that the notation “Shipper State” in the bills should be disregarded, and that § 1303(5) is inapplicable. Accordingly, under 49 U.S.C.A. § 88, 1 the ship had the heavy burden of establishing the “existence of a lawful excuse” for its failure to deliver the goods in the quantities stated in the bills.
To discharge this burden, it was necessary for the ship to show that there could have been no loss of libellant’s goods after the ship docked at the end of the voyage. 2 The trial judge found that this was not shown. We think this finding not “clearly erroneous.”
The judge also found that neither the dock-owner, Alcoa, nor the stevedore, McGrath, were in any way liable, since they had each exercised due care. These findings we also accept as adequately supported by the evidence. It might be argued that, if the dock-owner and stevedore exercised due care, no loss could have occurred after the ship docked. But this does not follow. For there may have been dishonesty, in disposing of the goods, which escaped the vigilance of Alcoa and McGrath, despite their exercise of due care. 3
Affirmed.
. Also incorporated in the Carriage-of-Goods-by-Sea Act, 49 U.S.C.A. § 1303(4).
. The Titania, D.C., 124 F. 975, 976, affirmed 2 Cir., 131 F. 229, 230-231; Bolton Steam Shipping Co. v. Crossman, D.C., 206 F. 183, 184; Smith & Co. v. Bedouin Steam Navigation Co., [1896] A.C. 70; Cf. James v. Standard Oil Co., D.C., 189 F. 719, 720, affirmed 2 Cir., 191 F. 827.
. See The Ella Pierce Thurlow, D.C., 300 F. 103, 105-106, affirmed Drisko v. Barber S. S. Lines, Inc., 2 Cir., 300 F. 106.