HAND, Circuit Judge
(after stating the facts as above). The damage done upon the ship must be distinguished from that done in the slings and on the piers. The first was of two kinds, breakage and decay, against both of which the bills of lading contained exceptions. Therefore, since the ship had showed that the loss was within the exceptions, the [51]*51libelant must prove some negligence on the ship’s part. Nelson v. Woodruff, 1 Black, 159, 17 L. Ed. 97. The Harter Act (Comp. St. §§ 8029-8035) has nothing to do with this situation. There was no attempt in the bills of lading to exempt the ship from liability for careless stowage, at least unless by contact with other goods; nor is the warranty of seaworthiness involved, because the damage did not arise from anything which could be attributed to unseaworthiness. Hence the libelant had the burden to show some fault in stowage or.care of the cargo. As to decay, none such was shown or even attempted. The sweat was no more than inevitable, proper ventilation being shown, and if the decay was accelerated because of the breakage, that was one of its consequences, and stands or falls with it.
Therefore we confine our discussion to the breakage, remembering on whom the burden rests. In this circuit it is the established rule that mere excess of damage over what is usual under the circumstances is not prima facie evidence of negligence in stowage. The St. Quentin, 162 F. 883, 89 C. C. A. 573; The Arpillao (C. C. A.) 270 F. 426. The teamed judge below appears to have ignored this rule, and assumed that the excessive breakage was itself proof that the stowage was negligent. On the contrary, the proof is that the cargo was properly stowed. In the ’tween-decks there could be no question; there only 6 tiers were piled, and that was a moderate burden for the lowest tier. Indeed, little damage occurred there anyway. In the holds the situation was different. The cases were piled in about 15 tiers from the eeiling, five feet above the tanks, to the beams, or nearly. But 15 tiers were not uncommon and had not in the past caused trouble; indeed, cargoes came through 22 tiers in height, and made good delivery. Nor did the ventilation shafts under the square of the hatches give way or cause any shift.
It is quite true that the lowest tiers were badly crushed and much loss occurred thereby. But that might have been due to the fact that the cases were uncommonly frail, as there was good reason to suppose from the evidence relating to the wood used for the covers.
It is argued that, as the eases lay on their sides, the support was in the heavier end pieces, whose wood was, so far as appears, strong enough. But the libelant fails to recognize the part which the covers must have played in holding fast 'the ends. As long as the ends remained vertical, the thrust of the upper tiers was straight along the grain; but as the ship worked in the sea there would be lateral strains, which must be taken up by the covers or “shocks” between the ends. If these were brittle, and not tough, they would more easily yield, and, once the ends were thrown out of vertical, they would cease to act as effective bearings, and the eases might easily be crushed, just as they were. So we understand Pilcher to have testified. The same cause might account for the small shift which was observed.
But we think it unnecessary to make any finding on this question. It is enough that the damage was shown to be due to an excepted cause, and that the libelant has shown no negligence, but that the ship has proved the stowage good. We have not forgotten the testimony of Sweeny that it was customary to set what he called “dunnage” at intervals across the tiers, apparently to distribute the weight more generally. Not only does this testimony stand alone and contradicted, but it is apparent that as this stiffening, or whatever it may be deemed, was not anchored at the ship’s side, it could not relieve the lower, tiers of the least part of the weight, but indeed a little increased it. All that it could do was possibly to prevent a shift in the cargo. Considering that the stow was solid from side to side, we can see no reason for adding such a supposed precaution. Therefore we exonerate the ship and the Cunard Steamship Company from any damage before discharge. As the ship had no part in the discharge, and is not liable after the cargo clears the rail, we affirm the decree as to her.
There remains the liability of the company for the discharge. This was done by slings which we think were improper. While it is quite true that platforms, the alternative means, were not generally used at the time, they have since become the accepted apparatus for such cargo, and were used in unloading the Ellerdale at the same time. Apparently the only reason for not using them on the Bencleueh was that none were then available. It was in war time and their absence is readily understood. Certainly, after the discharge began to show the character of the eases, slings ought at once to have been abandoned. But we go further and hold that they were not a proper means at all. The whole weight of the draught bore against those eases under which the ropes ran, and in some cases the lemons. were actually squeezed out. Furthermore, there was damage as the draughts were put on the wharf, [52]*52and in the transfer from one pier to another, which was apparently done with great indifference to the safety of the cases. All this was properly damage for which the Cunard Company is responsible. Therefore, on a new reference, the libelant may show, if he can, the damage done by these two causes; the burden resting on him to distinguish it from that done in the holds.
The bills of lading in the clause quoted above exempted the company from any claim, notice of which was not given before the removal of the goods. This clause has been so often the subject of discussion in this court that we content ourselves with a reference to the last case, very recently decided, of Anchor Line v. Jackson, 9 F.(2d) 543 November 9, 1925. It is valid and must be enforced. The bills were issued by the company and required notice to it or its agents. A libel filed in rem against the ship was not. a compliance with the requirement; it did not advise the company to prepare against the claim. Rather it indicated a purpose to hold only the ship, with which, at least primarily, the company had nothing to do. Hence we hold that no damages may be recovered for any goods removed before some notice was given to the company, and that the libel will not answer as such.
It is argued that the company has raised no such point and did not plead it. But the cause must in any ease go back for a new hearing, and we need not decide whether would have been ground for a reversal, had it stood alone. We can see no reason, especially in a case drawn out as this has been, why the respondent should not amend its answer, even at this late stage, and prove any defense it may have upon the new reference. This we say quite independently of our express ruling in the General George W. Goethals, 298 F. 935.
Next we will allow the amendment, asked by the respondent, setting up the clause in limitation of liability. This the respondent asked leave to plead, and was denied below, unwarrantably in our judgment. We do not say that, if the clause had gone to a defense, properly pleadable before trial, the District Judge might not have been right; but it sought to set up matters relevant only on the reference, which it was clearly erroneous to refuse, when application had been made before the reference had begun.
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HAND, Circuit Judge
(after stating the facts as above). The damage done upon the ship must be distinguished from that done in the slings and on the piers. The first was of two kinds, breakage and decay, against both of which the bills of lading contained exceptions. Therefore, since the ship had showed that the loss was within the exceptions, the [51]*51libelant must prove some negligence on the ship’s part. Nelson v. Woodruff, 1 Black, 159, 17 L. Ed. 97. The Harter Act (Comp. St. §§ 8029-8035) has nothing to do with this situation. There was no attempt in the bills of lading to exempt the ship from liability for careless stowage, at least unless by contact with other goods; nor is the warranty of seaworthiness involved, because the damage did not arise from anything which could be attributed to unseaworthiness. Hence the libelant had the burden to show some fault in stowage or.care of the cargo. As to decay, none such was shown or even attempted. The sweat was no more than inevitable, proper ventilation being shown, and if the decay was accelerated because of the breakage, that was one of its consequences, and stands or falls with it.
Therefore we confine our discussion to the breakage, remembering on whom the burden rests. In this circuit it is the established rule that mere excess of damage over what is usual under the circumstances is not prima facie evidence of negligence in stowage. The St. Quentin, 162 F. 883, 89 C. C. A. 573; The Arpillao (C. C. A.) 270 F. 426. The teamed judge below appears to have ignored this rule, and assumed that the excessive breakage was itself proof that the stowage was negligent. On the contrary, the proof is that the cargo was properly stowed. In the ’tween-decks there could be no question; there only 6 tiers were piled, and that was a moderate burden for the lowest tier. Indeed, little damage occurred there anyway. In the holds the situation was different. The cases were piled in about 15 tiers from the eeiling, five feet above the tanks, to the beams, or nearly. But 15 tiers were not uncommon and had not in the past caused trouble; indeed, cargoes came through 22 tiers in height, and made good delivery. Nor did the ventilation shafts under the square of the hatches give way or cause any shift.
It is quite true that the lowest tiers were badly crushed and much loss occurred thereby. But that might have been due to the fact that the cases were uncommonly frail, as there was good reason to suppose from the evidence relating to the wood used for the covers.
It is argued that, as the eases lay on their sides, the support was in the heavier end pieces, whose wood was, so far as appears, strong enough. But the libelant fails to recognize the part which the covers must have played in holding fast 'the ends. As long as the ends remained vertical, the thrust of the upper tiers was straight along the grain; but as the ship worked in the sea there would be lateral strains, which must be taken up by the covers or “shocks” between the ends. If these were brittle, and not tough, they would more easily yield, and, once the ends were thrown out of vertical, they would cease to act as effective bearings, and the eases might easily be crushed, just as they were. So we understand Pilcher to have testified. The same cause might account for the small shift which was observed.
But we think it unnecessary to make any finding on this question. It is enough that the damage was shown to be due to an excepted cause, and that the libelant has shown no negligence, but that the ship has proved the stowage good. We have not forgotten the testimony of Sweeny that it was customary to set what he called “dunnage” at intervals across the tiers, apparently to distribute the weight more generally. Not only does this testimony stand alone and contradicted, but it is apparent that as this stiffening, or whatever it may be deemed, was not anchored at the ship’s side, it could not relieve the lower, tiers of the least part of the weight, but indeed a little increased it. All that it could do was possibly to prevent a shift in the cargo. Considering that the stow was solid from side to side, we can see no reason for adding such a supposed precaution. Therefore we exonerate the ship and the Cunard Steamship Company from any damage before discharge. As the ship had no part in the discharge, and is not liable after the cargo clears the rail, we affirm the decree as to her.
There remains the liability of the company for the discharge. This was done by slings which we think were improper. While it is quite true that platforms, the alternative means, were not generally used at the time, they have since become the accepted apparatus for such cargo, and were used in unloading the Ellerdale at the same time. Apparently the only reason for not using them on the Bencleueh was that none were then available. It was in war time and their absence is readily understood. Certainly, after the discharge began to show the character of the eases, slings ought at once to have been abandoned. But we go further and hold that they were not a proper means at all. The whole weight of the draught bore against those eases under which the ropes ran, and in some cases the lemons. were actually squeezed out. Furthermore, there was damage as the draughts were put on the wharf, [52]*52and in the transfer from one pier to another, which was apparently done with great indifference to the safety of the cases. All this was properly damage for which the Cunard Company is responsible. Therefore, on a new reference, the libelant may show, if he can, the damage done by these two causes; the burden resting on him to distinguish it from that done in the holds.
The bills of lading in the clause quoted above exempted the company from any claim, notice of which was not given before the removal of the goods. This clause has been so often the subject of discussion in this court that we content ourselves with a reference to the last case, very recently decided, of Anchor Line v. Jackson, 9 F.(2d) 543 November 9, 1925. It is valid and must be enforced. The bills were issued by the company and required notice to it or its agents. A libel filed in rem against the ship was not. a compliance with the requirement; it did not advise the company to prepare against the claim. Rather it indicated a purpose to hold only the ship, with which, at least primarily, the company had nothing to do. Hence we hold that no damages may be recovered for any goods removed before some notice was given to the company, and that the libel will not answer as such.
It is argued that the company has raised no such point and did not plead it. But the cause must in any ease go back for a new hearing, and we need not decide whether would have been ground for a reversal, had it stood alone. We can see no reason, especially in a case drawn out as this has been, why the respondent should not amend its answer, even at this late stage, and prove any defense it may have upon the new reference. This we say quite independently of our express ruling in the General George W. Goethals, 298 F. 935.
Next we will allow the amendment, asked by the respondent, setting up the clause in limitation of liability. This the respondent asked leave to plead, and was denied below, unwarrantably in our judgment. We do not say that, if the clause had gone to a defense, properly pleadable before trial, the District Judge might not have been right; but it sought to set up matters relevant only on the reference, which it was clearly erroneous to refuse, when application had been made before the reference had begun. Delays ought not to prevent the very right from appearing, unless the other side will be prejudiced. Upon the new reference the company may limit its recovery according to that clause.
As to the lemons seized and condemned by the board of health, the clause did not apply which required notice before removal; the shippers did not themselves remove the goods, and had no power to prevent their removal. So far as the breakage in the slings or on the wharf and the delay due to the confusion of marks contributed to the decay which resulted in the seizure, the company is responsible. So far as it occurred in the Beneleueh’s holds, it is on the libelant’s account. It may be impossible to show how much was caused by the company’s fault so limited, but we leave the question open for proof. It must be observed, however, that the admission in the bills of lading, received “in apparent good order and condition,” goes no further than to create prima fació proof that to the eye the boxes were secure and sufficient, and that the lemons, so far as visible, were not damaged. It does not prove that the fruit was inherently sound. The Oriflamme, Fed. Cas. No. 10,571; The California, Fed. Cas. No. 2,314; The Peter der Grosse, L. R. 1 P. D. 414. There is no such proof in the record, but the libelant may be able to supply it.
We do not think that there should be full interest in such a case. The libel was filed on August 10, 1917; the answer of the claimant six months later. No doubt the libelant had little control over the petitions, and the delays in filing the answers of the company till September, 1918, and of the stevedores till February, 1919, are not chargeable to him. Delays are indeed involved in the fifty-sixth rule. But no notice of trial was given till April, 1920, a delay of over 13 months after the cause was at issue. Moreover, after the interlocutory decree was filed on the last day of the year 1920, the hearings were not brought on till September, 1921, and were drawn out till November 10, 1922, quite unnecessarily. There was here a delay of at least two years, for which the libelant is certainly responsible. The interest will therefore begin to run on August 10, 1919, two years after the libel was filed. The Arpillao, supra.
The decree is affirmed as to the claimant with costs in the District Court against the libelant, and with costs in this court against the Cunard Steamship Company. The decree is reversed as to the Cunard Steamship Company, and the cause referred to William Parkin, Esq., as commissioner of this court, to fix the damages in accordance with the foregoing opinion, unless the parties can come to some agreement as to their amount.