(after stating the facts as above). The District Judge, confronted with the necessity of determining whether the president of libelant ,or the master of the Sjurso had given the correct version as to the circumstances in which the stevedoring was undertaken did not flatly decide the question of credibility, although he plainly intimated that he accepted the master’s testimony.

As this appeal is a new trial, it becomes our duty, at the threshold of the case to ascertain what the fact was in respect of 'the stevedoring engagement; for, if we find that libelant has failed to sustain the burdeii of proof as to the making of. the alleged agreement, discussion of the points of law argued at bar will become academic.

The testimony of the master was taken by deposition at Norfolk on September 14, 1920, before any other witness was heard. It shows that he was an experienced man, with 23 years’ sea service. He had with him on board his vessel in May and June, 1919, a copy of the charter, dated May 3, 1919, between Stray, as agent, and the Caravel Dines. In answer to a series of questions, he stated in positive language that he had never engaged libelant to- do the stevedoring, and had never been informed that libelánt’s services were rendered on the vessel’s account.

*555Thavenot, whose office was at 11 Broadway, testified that under the charter party the charterers were responsible for all expense in loading and discharging the vessel, and that the master had a copy of the charier. He informed the master o£ his opinion of the charterer and the master “adopted a very cautious attitude towards the charterers.” The Christianssands Shipping Company of Norway, owner of the Sjnrso, had a credit with Stray, which was “practically unlimited on ail their ships,” and Stray was in sound financial condition.

Thavenot knew libelant and its president about January, 1919, and some time after that received a letter from libelant asking for Stray’s business, but that was all. Thavenot told the master to be very careful, because all that Stray “had there was the payment of freight.” Stray had another and responsible charterer waiting, and that fact the master knew. The president of libelant testified, in open court, on October 29, 1920. He stated that he told the master that;

“We liad quoted the agents of the vessel the prices, and came up to confirm it with him, to see if it was O. K. to go ahead and do the work, as we knew the Caravel * * were ■ not financially responsible. * * * He [Johnson] seemed to think they were all right; that they would pay the bill and the ship would be responsible for it. * *• • He said to send the bill to the Caravel Company, and he would see the bills in the Caravel office, and see that they were paid.”

He further testified that the master said that the Caravel concern “were his agents.” The bills were delivered by libelant to the Caravel office. The first time there was any question with the master was after the vessel was loaded, when meeting him in Broad street, he told libel-ant’s president that he was not going to pay the bills, and had been advised he was not responsible for them.

Every probability and surrounding circumstance confirm the master’s testimony. There was not the slightest reason why he should pledge the credit of the ship and every reason to the contrary. It seems incredible that he should have told libelant’s president that Caravel Tines was his agent, when Stray was his agent, or rather his owner’s agent, and when Stray had an office in New York, and was in funds, and when he had been warned by Thavenot, Stray’s secretary and treasurer, against the charterer. He knew that the charter was net form, under which Caravel Tines had to hire the stevedores and see that their bills were paid. In such circumstances, it would have been strange, to say the least, if he had hired the stevedores and pledged the credit of the ship, without consulting the owner’s agent.

Further discussion of the facts seems unnecessary. It is enough to state that on the facts we have no doubt that libelant has failed to prove the agreement alleged to have been made by the master, and that conclusion disposes of the case. .Piedmont Coal Co. v. Seaboard Fisheries Co., 254 U. S. 1, 12, 41 Sup. Ct. 1, 65 L. Ed. 97.

Decree affirmed, with costs.