on others. The other holdings of the court will appear in the opinion of this court on the appeal.

Hunt, Hill & Betts, of New York City (Geo. Whitefield Betts, Jr., John W. Crandall, and Arthur H. Haaren, all of New York City, and Leo C. Fennelly, of Brooklyn, N. Y., of counsel), for appellants.

Burlingham, Veeder, Masten & Fearey, of New York City (Roscoe H. Hupper and William J. Dean, both of New York City, of counsel), for the Capitaine Faure and

owner.

Before ROGERS, MANTON, and HAND, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above). These libels were filed in causes of admiralty and maritime jurisdiction. The libelants sued the steamship and the owner thereof, the charterer, and the agent of the charterer. The libelants allege that in the months of April and May, 1923, they shipped and placed on board the steamship, then lying in the port of New York, bound for various ports of Japan and China, certain merchandise in good order and condition, consigned to the order of the respective shippers, under and in pursuance of bills of lading issued for such shipments in a manner hereinafter more fully stated, and that the respondents thereby became bound jointly and severally to transport the said goods from the port of New York to the ports of Japan or China named in the bills of lading, and there to land and deliver them in like good order and condition as shipped. They also allege that the steamship never sailed from the port of New York on the intended voyage, but remained at the wharf where the shipment was loaded, and where the ship was at the time the libels were filed.

The suits are brought to recover for the breach of the contracts of carriage and for the failure to deliver the shipments. They are also brought to recover damages on the ground that the goods are not now in like good order and condition as when received for shipment, but are shot, pilfered, ullaged, damaged, and otherwise injured by the unseaworthiness of the ship and the fault of the vessel and the other respondents in connection with the loading, handling, and stowage, custody and care of the goods.

Under the first libel the amount asked is $138,650, together with interest, costs, and disbursements; and under the second libel the amount demanded is $16,000, together

with interest, costs, and disbursements. The total amount involved is $154,650, together with the interest, costs, and disbursements in the suits.

The steamship Capitaine Faure was chartered to Reuben I. Cameron on March 21, 1923, for a period of six months, and it was expressly provided that the charterer should have the option of subletting the vessel. This option Cameron exercised by entering into a berth agreement with the Fulton Steamship Corporation, which placed the steamer at the disposal of the latter for a voyage to Far East ports. The original charter to Cameron provided that payment of hire was to be made in cash in New York, every 30 days in advance, and in default of payment the owners "have the right of withdrawing steamer from the service of charterers, without noting any protest, and without the interference of any court or any other formality." And in the berth agreement, made by Cameron with the Fulton Steamship Corporation, the latter agreed to advance "one month's charter hire, which amounts to $10,990.80 on date same is payable." That amount was paid when it became due, not by Cameron, but by the Fulton Steamship Corporation, in accordance with its agreement with Cameron. That was the only payment to the owners of the ship that the Fulton Steamship Corporation had agreed to assume. The second payment was to be paid by Cameron on May 9, 1923, but he was unable to make the payment at the time it was due, with the result that, although the ship was loaded and ready to sail on May 7, 1923, the owner of the vessel instructed the master that he must not allow the ship to start on her voyage and she never did. Instructions were given to unload her cargo at New York and it was accordingly unloaded.

This cargo had been procured by the Fulton Steamship Corporation and had been loaded on board the vessel pursuant to its orders, and by virtue of the berth agreement it had made with Cameron. The failure of the ship to start on her voyage and carry the goods on board to their destination in Japan and China is the cause of these suits. They are not brought by the owner of the ship, but by the owners of the cargo.

The Fulton Steamship Corporation, after the berth agreement was signed, went into the market and engaged cargo to be forwarded on the Capitaine Faure from New York to Yokohama, Kobe, and Shanghai. It also engaged cargo from New Orleans, and between the ports of New York and New Or

leans was booked full, and the Fulton Steamship Corporation had to stop booking.

At New York the Fulton Corporation issued permits to the shippers to put the cargo on the dock, and when the goods were delivered at the dock those in charge issued dock receipts on Fulton Steamship Corporation stationery, which were signed in its name by its receiving clerk. These dock receipts read as follows:

"Fulton Steamship Corporation regular bill of lading in use by it for similar shipments (upon the basis of which freight rates are fixed) shall be issued for said goods to the above-named shipper. Fulton Steamship Corporation shall not become responsible for the goods as carrier until the goods are actually loaded on the steamer; until such loading it shall be liable only for loss or damage occasioned by its fault, such as an ordinary bailee is liable for, but subject also to the conditions, exceptions, and limitations of liability and value contained in said regular bill of lading, with which shippers are understood to have acquainted themselves, and to which they assent.”

[1,2] The language used in these receipts is relied upon to fix responsibility on the Fulton Steamship Corporation rather than on the ship for its failure to carry. A dock receipt is not a contract of affreightment. It is not necessarily a delivery to the ship. It is true that the shipowner may become liable for the goods before they have been actually placed on board. But to make him responsible it is necessary that the goods should be delivered to him or to his authorized agent. Carver on Carriage by Sea (7th Ed.) § 68. A dock receipt, not issued by one as agent, undoubtedly makes the one issuing it liable for its performance, even though the principal for whose benefit it was in fact made may also be liable. But the shipper is entitled to have a bill of lading, and in the shipments herein involved bills of lading were issued. As between the shipowner and the shipper, the bill of lading is the statement of the contract between them.

[3, 4] Bills of lading are commercial documents upon which the shippers and their indorsees are entitled to rely. The charterers were in certain respects in the position of owners pro hac vice, and could bind the ship in certain matters. But the charter itself did not expressly authorize the charterers to sign bills of lading or to appoint the master. The charter provided that the charterers should take over the ship with its master, officers, and crew. The charter contained the follow

ing provision:

"Charterers to indemnify owners against all consequences or liabilities arising from captain, officers or agents signing bills of lading or other documents, or otherwise complying with such orders, as well as from any irregularity in steamer's paper or for over-carrying goods."

This indicates to us that, while the master was to have the right to sign bills of lading, the charterers were bound as between themselves and the owners to indemnify the latter against the consequences thereof. To indemnify is to make good a loss. It is to reimburse one for a loss incurred. If the ship was not to be bound by a bill of lading signed by the master, why any necessity for the statement that the charterers were to indemnify the owners against the consequences of his doing so? And these libels are not brought on the dock receipts as mentioned in the pleadings, but on the bills of lading. And it is on the bills of lading that this case must be decided.

The Steamship Corporation issued the permits to put the cargo on the dock, and on its stationery dock receipts were issued by men in charge of the pier, and who were engaged and paid by the charterer of the ship. The bills of lading were issued by the traffic manager of the Steamship Corporation, and the freight was paid to that corporation by checks payable to it, with the exception of two made payable to the master of the vessel, and were by him indorsed to it. Most of the bills of lading were signed by the Steamship Corporation as agents for the master of the ship. It signed no on-board bill of lading, but they were signed "at the dock or at the port of loading, for shipment." After the ship arrived at New York the bills of lading were signed by the master, although a few were even then signed by the Steamship Corporation.

As to the bills of lading the following testimony was given:

The president of the Fulton Steamship Corporation testified as follows as to the bills of lading which were brought to the attention of the master on the arrival of the ship in New York:

"Q. Do you remember the bills of lading being in two piles when the captain came in? A. The first time the master was requested to sign the bills of lading, they were arranged on a small table in the outer office, near the door to the Fulton Steamship Corporation's private office, in two piles.

"Q. What did those piles each contain A. One pile contained a number of ladings

ready for signature. The other pile consisted of the ladings that had been signed and issued by the Fulton Steamship Corporation. "Q. What did you say to the captain about these piles of bills of lading? A. I asked the captain to sign the ladings that were waiting for signature. I showed him where to sign, and which ladings to sign, and which to initial. I showed him the ladings that had been signed, and told him that this cargo had already been signed for by the Fulton Steamship Corporation. He asked if the cargo was on the dock, and I told him, 'Yes; that we issued no bills of lading until we had the cargo in our possession, and that the cargo was either on the dock or going into the ship at that time.' He signed the bills of lading that I asked him to sign. He looked over the others in a perfunctory sort of way, and I asked him if everything was all right, and he said it was.

"Q. Did these bills of lading that you showed him, that had been signed by the Fulton Steamship Corporation, have on them the signature of the Fulton Steamship Corporation as agent for the master? A. Yes.

"Q. Did you show him that signature? A. Yes.

testified as follows (concerning his interview with the master):

"Q. You didn't have any letter from the captain, telling you to sign bills of lading, did you? A. No; I did not have a letter from the captain, telling me to sign bills of lading.

"Q. He had not written you with respect to bills of lading? A. He had not; but, when I first asked him to sign bills of lading, I had with me at the time another pile on the same table, a copy of the bills of lading that had been signed and issued, and I called his attention to that, and showed him how the Fulton Company had signed them, and told him why they had signed.

"Q. Give us the conversation? A. I can give you the gist of the conversation. As near as I can recollect, I said, 'Captain, here are some ladings for you to sign.' I had to show him quite plainly that it was not necessary to write his full name on all the copies of each set of lading, but to sign one or two negotiable copies, and initial the piles on copies of each set. He went ahead and signed, and made no objection whatever.

"Q. Was that all that passed between you with regard to the piles? A. That was all.

"Q. And he said what? A. Yes.

"Q. Did he make any objection to the bills of lading that were signed by the Fulton Steamship Corporation, as agent for the master? A. No, sir.

"Q. Did you explain to him why you had to sign those bills of lading before the ship got here? A. I mentioned the fact that the reason their bills of lading were signed was because some of the shippers desired to have their documents for banking purposes.

A.

"Q. Do you remember saying to him that it was also because he was detained? Yes, sir; I told him the fact that the ship was late in arriving, and was advertised to sail from New York on the 26th or 28th of March, before her arrival.

"Q. Did he subsequently ever make any objection to your signing those bills of lading as agents for the master? A. No, sir; as far as I could judge from his attitude, he was very agreeable and very affable. He made no objection whatsoever.

"Q. Was all this cargo for which you issued bills of lading put on board the vessel? A. Yes.

"Q. And later discharged by her? A. I understand it was all discharged."

said, 'All that cargo is on the dock, or is now going into the ship.' I didn't know what had been loaded at that time, but I knew that the loading had started. I then showed him the balance of the ladings which had been issued by the Fulton Steamship Corporation, I said, "These have already been issued, and you will not be required to sign these. We have had to sign them, because the shippers wanted their ladings, and the ship is late. She should have been here on the 26th or 28th; we had advertised her for those dates.' He looked at them. He asked me again, 'Is that cargo all right? Have you the cargo?' I said, 'Yes; the cargo is in our possession, and is going on board the ship;' and he said, "That is all right.' I pointed to him where the signature was to be made, and how it was made, and he asked me who these people were. I think some had been signed by Everson and a couple by Brockstedt, and I said they were employees of the Fulton Steamship Corporation. They were signed, these bills of lading were signed, as agents for the master.

"Q. They had some statement, 'Agents for the master?' A. Agents for the master.

"Q. Did the master then say, 'Who gave you authority?' A. No; he said it was all

"Q. You say the captain of that ship did not write you any letter, stating that you should sign bills of lading for him. Is that correct? A. He did not write me a letter to that effect.

"Q. And he did not verbally request you to sign any bills of lading for him? A. He said it would be all right for me.

"Q. Well, did he ask you to sign them? A. No; he said it would be all right if I signed them.

"Q. You showed him some that had already been signed? A. Yes; and I told him that I might sign more.

"Q. When was that? A. That was on the first or second time he came in, and he said, 'It is all right.' He waved his hand. He said, 'It is all right;' to go ahead and do what we were doing, and what we had planned to do. In other words, he submitted a verbal approval on the whole thing, without any indication of disapproval.

"Q. Did he ask you to attend to the signatures of the bills of lading in his absence? A. No; the question of his absence was not brought up definitely.

"Q. You don't recollect how many you signed after that? A. No; but very few. will say that.

I

"Q. Why didn't you sign them all? A. I preferred to have the captain sign them. "Q. You said he said it would be all right for you to do it? A. Yes; and for that reason we signed a few; three or four more." And afterwards, on redirect examination, he testified as follows:

"Q. Do you remember when your company obtained a letter from the master of the ship authorizing the signing by your company of certain bills of lading (handing witness paper)? A. Yes; this letter was ob

tained from the master.

"Q. Was that at the request of a particular shipper? A. Yes, sir."

The letter was received in evidence and is found in the margin.1 This letter was the only one the witness could remember the master had given to the Fulton Steamship

1 "This is to certify that I, Cretin Perny,

master of the vessel Capitaine Faure, authorized the Fulton Steamship Corporation, by J. H. Everson, to sign for and in my behalf, as agent of the owners and charterers of the steamship Capitaine Faure, bill of lading No. 22, covering shipment of 1,120 bags of AmmoPhos shipped by American Cyanamid Company from New York to Kobe, Japan, to be delivered unto order of Omi Bank, notify Ando Gomei

Kaisha, dated April 27, 1923.

"P. Cretin Perny, "Master, as Agent for Owners and Charterers."

Corporation concerning the signature of bills of lading.

The assistant traffic manager of the Fulton Steamship Corporation testified as follows:

"Q. What took place on that day (May 5th) with reference to the bills of lading for the cargo? A. I gave Capt. Jaeger all the bills of lading, and Capt. Jaeger turned them over to the captain (master of the ship) for signature.

"Q. Were you there when Capt. Jaeger gave the bills of lading to the captain that he was to sign? A. I saw him turning them over to him; yes.

"Q. Did the captain sign them? A. Yes; the captain signed them.

"Q. Did you say anything to the captain about signing some bills of lading before he arrived? A. I told him that we had had to in some cases before he got in, being he was late getting in to New York.

"Q. What did he say to that? A. He said that was perfectly all right that we did

that.

"Q. Before the ship was completely loaded, did you show the captain the bills of lading signed? A. He sat down with me, and I went over the bills of lading that we had, and showed him all the bills of lading that we had signed and that he had signed.

"Q. Did he ask you anything at that time as to whether the goods were on the ship or not? A. He asked me if they were on the ship, and I said they were either on the ship or on the dock, loading into the steamer.

"Q. Was there any discussion at all about any bills of lading that had been signed by you? A. No; there was none. I showed him everything that I had signed, and he said everything was all right. any objection to any of it.

He didn't make

"Q. Did he or not make any objection to taking any of the cargo on the vessel for which you showed him bills of lading? At no time.

A.

"Q. Did he make any objection at any time to your signing any of the bills of lading that you signed? A. No; everything was perfectly all right that I signed.

"Q. Did you issue any dock receipts, unless the goods had been received? A. No, sir; not unless we had the goods on the pier.

"Q. The bills of lading that were signed bore dates with reference to the receipt of the goods? A. Those are the dates that I had the bills of lading, or that they were dated, after we had received the freight on the pier.

"Q. You did sign several bills of lading after the Capitaine Faure was in port? A. On several occasions we had to, on account of the fact that the shippers wanted to get their bills of lading in to the bank before the bank closed.

"Q. Do you remember whether you said anything about that to the master? A. Yes; I showed the master what we had done, and that was perfectly all right. I told him we couldn't wait till he came in.

"Q. You did sign all the bills of lading in the same way? A. Yes.

"Q. You signed them all as agents for the master? A. As agents for the master.

"Q. Before the captain signed the bills of lading as he came into your office from day to day, what about the dock sheets? Did you ever show them to him? A. I always showed him the dock sheet before I gave him the bills of lading, showing that the marks and the numbers on the bills of lading agreed."

It appears that the Steamship Corporation had issued certain bills of lading stamped, "On Board, Fulton Steamship Corporation, Agents for Master," and which were afterwards signed by the master. The assistant traffic manager testified that he had himself affixed the "On Board, Fulton Steamship Corporation, Agents for the Master," and that on most of those so stamped he had himself stamped them, and that some of them were so stamped in April. The ship did not arrive in New York until May 4th. He was asked why he had so stamped them and replied, "Because the shippers required it." He testified as follows:

"Q. Did they tell you they wanted 'on board' bills of lading by a certain date in any case? A. In some instances they required it; yes, sir.

bank credits generally run for a certain period? A. Yes.

"Q. And that bills of lading are supposed to be presented against them within that certain period? A. Yes.

"Q. That is to say, the buyer of the goods in Japan will establish a credit with a bank here? A. Yes.

"Q. By means of which the seller of the goods here will be paid for the goods if he turns in to the bank here before the expiration of the credit the proper documents, the invoice and the insurance policy and the bills of lading? A. Yes.

"Q. That is a correct statement of the situation? A. Yes.

"Q. And when you secured for these various shippers 'on board' bills of lading, you did it in order to enable them to comply with their credit arrangements? A. That is

right."

On redirect he testified:

"Q. With reference to these 'on board' bills of lading, were all of those signed by the master? A. All 'on board' bills of lading were signed by the master.

"Q. Do you recall whether any of these bills of lading had been issued before, and that the shippers brought them back to be stamped 'on board?' After they were on the ship? A. There may have been several that were taken back by the shippers, when the bank would not accept them unless they were 'on board' bills of lading, to meet the requirements of the credit.

"Q. That is chiefly done when a shipper gets a bill of lading 'received for shipment'; to come back and ask him to stamp it 'on board,' when it is actually on the ship? A. Yes.

"Q. So far as you know, is there any way of your telling whether the shipper's credits required 'received for shipment' bills

"Q. Did they tell you why they required it? A. To meet the credit in the bank.

"Q. Do you mean that, unless they got a bill of lading showing that the goods were on board as of a certain date, they could not comply with the requirements of the bank credits? A. Well, I don't know whether the bank credits required 'on board' bills of lading, but they requested them.

"Q. They told you that that was the purpose for which they wanted them? A. To present them to the bank; yes.

"Q. You know, as a matter of fact, don't you, from your business experience, that

it required an 'on board' bill of lading as of a certain month? A. The banks had the credits, and I never saw them.

"Q. Even though a 'received for shipment' bill of lading is issued for a certain month, have you had experience of a shipper coming back afterwards and requiring an indorsement that the cargo was on board? A. Yes; I have had that on several occasions. When the banks would not accept the papers as they were, they had to get them fixed up to meet the requirements of the credit.

"Q. Was there any bill of lading marked 'on board' without the cargo being actual