PARDEE, Circuit Judge
(after stating the facts as above). From an examination of the evidence, in the light of the argument and briefs of counsel, we concur with the judge of the District Court in holding that the fall of the foremast aboard the Santona was caused through the negligence of the charterers’ agents in misusing the appliances of the ship in the manner indicated by the judge’s opinion; but we do not find that the negligence of the shipowners proximately, if at all, concurred in or contributed to the falling of the foremast so as to render them responsible for the damage resulting.
Under the charter party and the evidence, the winchman was an employe furnished by the owners of the ship to run the winch under the direction and'orders of'the charterers and their agents. The evidence does not show that the winchman in and about the falling of the mast was incompetent, disobeyed orders of charterers’ agents, or, in any wise except by obeying orders, contributed to the falling of the same. There is nothing, therefore, in the winchman’s conduct to adversely affect the shipowners.
The photographs and the evidence of witnesses in the case show that the Santona was a vessel with a foremast and a mainmast; that directly forward of the masts and directly aft were hatches, leading to the hold; and at each hatch double derricks were rigged with proper slings and pulleys for the purpose of hoisting goods into and out of the hold. The derricks were supported in each case by the mast. On the foremast running directly forward was a forestay, which served the purpose of supporting the mast from pressure from forward and was mainly useful to carry the foresail; but there was no backstay supporting the mast from any pressure applied from aft. The inference is strong that the forestay was not intended to support the foremast in using derricks. The forestay was directly over the forehatches, and in case of hoisting any cargo from the side of the ship was so low as to be in the way of the full swing of the derrick, making it necessary for full action that either the stay should be removed or that an extra man should be' employed to dip the derrick (or the goods being raised) under the stay if goods were to be lowered through the further side of the hatch into thé hold.
There is nothing in the evidence to show that the owners of the ship had any interest in removing the forestay during the loading. [805]*805The case does show that it ivas to the interest of the charterers, and that it would facilitate their business and tend to quicken dispatch to have the stay removed. The evidence is undisputed that on a prior voyage, loading at this same place and at the destination in unloading, the stay was removed at the request of the charterers’ agents, and we think that in this case the weight of evidence shows that at the time of the falling of the mast the stay had been removed at the request of the charterers’ agents. In the charter party was a provision that the owners were to provide ropes, falls, slings, and blocks necessary to handle ordinary cargo up to three tons, which seems to carry with it as a corollary that the charterers were not to use heavier weights on the derricks in loading the ship than three tons.
Considering that the forestay was not intended in the construction of the ship to support the mast when derricks were used in the loading of the ship through the fore hatches, that all the hatches were in use at the time, that it was to the interest of the charterers that the stay should be removed when the hatches forward of the mast were in use, that under the preponderance of the evidence the stay was removed at the request of the charterers’ agents, and that there was an implied guaranty that the mast should not be used in carrying on the derrick a greater weight than three tons, we are clear that the removal of the forestay, while derricks were used in connection with the foremast, was not negligence on the part of the shipowners.
The shipowners contracted that at the time of delivery under the charter party the Santona was seaworthy and to be so maintained; and the respondent alleges that the foremast “was cracked, its construction was weak, and it was not of sufficient strength and stability for the purpose for-which it was originally designed and to which it ivas necessary to put it in the loading of the cargo in,the manner contemplated in the charter.”
There is no sufficient evidence that the mast, which was of plate metal of about three-eighths inch thickness, was cracked. There was one witness produced by the respondent who testified that he heard a crack while the mast was in use shortly before breaking. To prove that the mast was not of sufficient strength, etc., reliance is placed on the actual break under the use .made by the charterers! agents, and that at the particular place of breaking there was a series or row of rivets in a line fifteen-sixteenths of an inch in diameter at various spaces in the circumference of the mast where the upper and lower section of the same were riveted together, and where rivets were also put in to fasten the goose necks attaching the derricks to the mast. Respondents’ evidence shows that in the half section forming the forward part of the mast, and at the place where the upper and lower sections were riveted together, there were 14 rivet holes, fifteen-sixteenths of an inch in diameter in a line and at various distances from each other; and the opinion is given that this was faulty construction, because it unnecessarily weakened the mast, and that the rivets should not have been placed in a line, but in at least two rows, or, as one witness called it, “staggered,” and that no rivet holes should have been spaced nearer at the very least than 3inches from center to [806]*806center. These witnesses appear to lose sight of the fact that the rivets fastening together the upper and lower sections of the mast must be placed where the lap is, and that the rivets fastening on the goose necks must be placed where the derricks are to be located on the mast. The section offered in the exhibit, sent up to this court by the respondents and alleged to be similar to the metal plate of the forward part of the mast where it was riveted, shows that out of a circumference of 33 inches, 13% inches are taken up with 14 rivet holes at various distances apart, from 1% inch to 4 inches from center to center, in one place two very close together about 3/is inch and in another three with distance of 7/ie inch from hole to hole.
The evidence of libelants’ expert as to the fact is as follows :
“The thickness of the plate at the point of fracture was % of an inch. The forward half of that circumference was weakened by 13 rivet holes of 15/i6 of an inch diameter. It left an area of fractured plate in the forward half of the mast of 7% square inches of area. That 714 inches of area, allowing 20 tons per square inch as the average tensile strength of steel, the 'mast would break with a strain of about 150 tons.”
The same witness also testified that the mast was of ordinary construction for vessels of that type, and further as follows:
“Q. Is it a defect in the mast of any kind to have the rivet holes around it in, that way? A. No.
“Q. Is it customary in all steamer masts? A. It is customary, yes. Where these holes were, there was a certain amount of re-enforcement equal to the diameter of the holes and loss of material through the rivet holes, by the application of steel pads that made the steps of the derrick.
“Q.
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PARDEE, Circuit Judge
(after stating the facts as above). From an examination of the evidence, in the light of the argument and briefs of counsel, we concur with the judge of the District Court in holding that the fall of the foremast aboard the Santona was caused through the negligence of the charterers’ agents in misusing the appliances of the ship in the manner indicated by the judge’s opinion; but we do not find that the negligence of the shipowners proximately, if at all, concurred in or contributed to the falling of the foremast so as to render them responsible for the damage resulting.
Under the charter party and the evidence, the winchman was an employe furnished by the owners of the ship to run the winch under the direction and'orders of'the charterers and their agents. The evidence does not show that the winchman in and about the falling of the mast was incompetent, disobeyed orders of charterers’ agents, or, in any wise except by obeying orders, contributed to the falling of the same. There is nothing, therefore, in the winchman’s conduct to adversely affect the shipowners.
The photographs and the evidence of witnesses in the case show that the Santona was a vessel with a foremast and a mainmast; that directly forward of the masts and directly aft were hatches, leading to the hold; and at each hatch double derricks were rigged with proper slings and pulleys for the purpose of hoisting goods into and out of the hold. The derricks were supported in each case by the mast. On the foremast running directly forward was a forestay, which served the purpose of supporting the mast from pressure from forward and was mainly useful to carry the foresail; but there was no backstay supporting the mast from any pressure applied from aft. The inference is strong that the forestay was not intended to support the foremast in using derricks. The forestay was directly over the forehatches, and in case of hoisting any cargo from the side of the ship was so low as to be in the way of the full swing of the derrick, making it necessary for full action that either the stay should be removed or that an extra man should be' employed to dip the derrick (or the goods being raised) under the stay if goods were to be lowered through the further side of the hatch into thé hold.
There is nothing in the evidence to show that the owners of the ship had any interest in removing the forestay during the loading. [805]*805The case does show that it ivas to the interest of the charterers, and that it would facilitate their business and tend to quicken dispatch to have the stay removed. The evidence is undisputed that on a prior voyage, loading at this same place and at the destination in unloading, the stay was removed at the request of the charterers’ agents, and we think that in this case the weight of evidence shows that at the time of the falling of the mast the stay had been removed at the request of the charterers’ agents. In the charter party was a provision that the owners were to provide ropes, falls, slings, and blocks necessary to handle ordinary cargo up to three tons, which seems to carry with it as a corollary that the charterers were not to use heavier weights on the derricks in loading the ship than three tons.
Considering that the forestay was not intended in the construction of the ship to support the mast when derricks were used in the loading of the ship through the fore hatches, that all the hatches were in use at the time, that it was to the interest of the charterers that the stay should be removed when the hatches forward of the mast were in use, that under the preponderance of the evidence the stay was removed at the request of the charterers’ agents, and that there was an implied guaranty that the mast should not be used in carrying on the derrick a greater weight than three tons, we are clear that the removal of the forestay, while derricks were used in connection with the foremast, was not negligence on the part of the shipowners.
The shipowners contracted that at the time of delivery under the charter party the Santona was seaworthy and to be so maintained; and the respondent alleges that the foremast “was cracked, its construction was weak, and it was not of sufficient strength and stability for the purpose for-which it was originally designed and to which it ivas necessary to put it in the loading of the cargo in,the manner contemplated in the charter.”
There is no sufficient evidence that the mast, which was of plate metal of about three-eighths inch thickness, was cracked. There was one witness produced by the respondent who testified that he heard a crack while the mast was in use shortly before breaking. To prove that the mast was not of sufficient strength, etc., reliance is placed on the actual break under the use .made by the charterers! agents, and that at the particular place of breaking there was a series or row of rivets in a line fifteen-sixteenths of an inch in diameter at various spaces in the circumference of the mast where the upper and lower section of the same were riveted together, and where rivets were also put in to fasten the goose necks attaching the derricks to the mast. Respondents’ evidence shows that in the half section forming the forward part of the mast, and at the place where the upper and lower sections were riveted together, there were 14 rivet holes, fifteen-sixteenths of an inch in diameter in a line and at various distances from each other; and the opinion is given that this was faulty construction, because it unnecessarily weakened the mast, and that the rivets should not have been placed in a line, but in at least two rows, or, as one witness called it, “staggered,” and that no rivet holes should have been spaced nearer at the very least than 3inches from center to [806]*806center. These witnesses appear to lose sight of the fact that the rivets fastening together the upper and lower sections of the mast must be placed where the lap is, and that the rivets fastening on the goose necks must be placed where the derricks are to be located on the mast. The section offered in the exhibit, sent up to this court by the respondents and alleged to be similar to the metal plate of the forward part of the mast where it was riveted, shows that out of a circumference of 33 inches, 13% inches are taken up with 14 rivet holes at various distances apart, from 1% inch to 4 inches from center to center, in one place two very close together about 3/is inch and in another three with distance of 7/ie inch from hole to hole.
The evidence of libelants’ expert as to the fact is as follows :
“The thickness of the plate at the point of fracture was % of an inch. The forward half of that circumference was weakened by 13 rivet holes of 15/i6 of an inch diameter. It left an area of fractured plate in the forward half of the mast of 7% square inches of area. That 714 inches of area, allowing 20 tons per square inch as the average tensile strength of steel, the 'mast would break with a strain of about 150 tons.”
The same witness also testified that the mast was of ordinary construction for vessels of that type, and further as follows:
“Q. Is it a defect in the mast of any kind to have the rivet holes around it in, that way? A. No.
“Q. Is it customary in all steamer masts? A. It is customary, yes. Where these holes were, there was a certain amount of re-enforcement equal to the diameter of the holes and loss of material through the rivet holes, by the application of steel pads that made the steps of the derrick.
“Q. You mean the derrick platform? A. The pads — goose necks. The goose necks were riveted on to the mast by means of these holes. That was the object of putting these holes in — to secure the' goose necks for the derricks to step into. And these heavy steel castings being riveted on to the mast, exerted a compensation to the .mast.
“Q. And it was just above these rivets where the break occurred, just in line with them, was it? A. Just in line with the holes at the top of these pads.”
There is some opinion evidence in the record as to the deterioration of a steel mast from using, shaking, seepage, and rust; but it is not very clear nor of convincing effect in this case, where it is shown that the Santona was comparatively a new ship, being at the time of the falling of th.e foremast not over two years old; and that the fore-mast fell only through the misuse of appliances.
On consideration of the entire evidence relating thereto, we find that the foremast, at the time in question, was seaworthy within the terms of the charter party.
There is a consensus of opinion, and it is even sworn to, that the foremast would not and could not have fallen through any pressure applied through the winch and derricks if it had been supported by the forestay; and learned proctors for respondent have been urgent in pressing this as showing negligence on the part of the shipowners. The fact may be conceded and, in addition, that the master removed the stay from the foremast on his own motion; and yet, when we consider that the mast unsupported was sufficient for all the rightful purposes of the charterers’ agents, as shown by the loading and unloading on the former voyage and the loading commenced and carried on [807]*807for 12 days for the second voyage, and that the charterers’ agents were fully cognizant of the use of the mast unsupported by the fore-stay, and that the mast only fell when the charterers’ agents without warrant and against the implied stipulations of the twenty-second article of the charter party misused and misapplied the winch and derricks, and thus furnished the real proximate and determinative cause (the causa causans) of the fall of the mast, we are clear the respondents can take nothing from the fact that the foremast would not have fallen if the forestay had been in place. The respondent can be heard to say that the shipowners could have built and supported with stays a mast that with all our misuse and negligence could not have been broken.
These conclusions lead to the reversal of the decree appealed from and the rendition of a decree in favor of the libelants Donald & Taylor and against the respondent Salmen Brick & Lumber Company for the full amount of the proved damages, which were, as shown by the commissioner’s report, not disputed as to details, as follows:
For repairs of mast... if],375 00
Surveyor’s fees, etc... 190 25
Hire of ship from August 20, 1907, to September G, 1907, at £1,000 per month. 2,832 07
Additional hire withheld and for small breakage. 1,207 49
Making a total of. S5,G04 81
Less deductions agreed upon. 418 14
Total damages . $5,186 67
■ — and interest at 5 per cent, should be allowed on such amount from judicial demand, and for all costs.
And it is so ordered and decreed.