JUDGMENT S. Velu Pillai, J. 1. The 2nd defendant which is a company incorporated in West Germany and whose agent is the 3rd defendant, a company having its registered office at Cochin, contracted by Ex. P-5 dated 4 1 1957 to sell and deliver ammonium sulphate to the plaintiff, the Union of India, represented by the Deputy Director of Food, Government of India at Cochin and for that purpose chartered the steamship, "Maria Dolores' owned by the 1st defendant, which is a company incorporated in Rome and whose agent is the 4th defendant, a company having its registered office at Cochin, under Ex. P1 charterparty dated 11 4 1957. The cargo of ammonium sulphate, having a gross weight of 100,766 kilos and packed in 101,240 single jute bags, and of 1953 empty spare bags supplied free of charge, was loaded into the vessel at the port of Bremerhaven and shipped "in apparent good order and condition" by the 2nd defendant, under the bill of lading, Ex. P-2, dated the 13th May 1957, for delivery to it, "or order, or assigns", at the port of Cochin in "like good order and condition". Ex. P-2 was endorsed to the Regional Director (Food and Agriculture), Cochin. The ship arrived at the Port of Cochin on the 13th June, 1957. At the port, about 7000 bags of ammonium sulphate were discharged overside in stream into lighters and after being thus lightened, the ship was brought to the wharf and the balance, including the available spare bags, was discharged under the ship's tackle on the wharf. In the course of discharge, large spillings were noticed in the holds of the ship by P. W. 1, the Assistant Director of Food. While unloading under ship's tackle, several bags were noted as torn, or slack, or defective, by tally clerks stationed at the wharf. From the wharf, the bags were removed and stacked at the transit shed, by the port labourers, the "bad order bags", numbering about 2956, being segregated from the remainder. At the instance of P. W. 1, and after prolonged correspondence, a survey of the "bad order bags" was arranged for by the 3rd defendant, and a shortage of over 82 tons of ammonium sulphate was then discovered. At the instance of P. W. 1, and after prolonged correspondence, a survey of the "bad order bags" was arranged for by the 3rd defendant, and a shortage of over 82 tons of ammonium sulphate was then discovered. Besides the spillings in the holds of the ship, there were spillings in the transit shed too, and all the spillings were swept and collected in bags and were found to weigh over 43 tons. Allowings this, the net shortage was of 38 tons 16 cwts. 3 quarters 24 Ibs. in respect of 2956 bags surveyed. Further, 369 out of the spare bags were not delivered to the plaintiff or accounted for. Accordingly, a claim was lodged against defendants 3 and 4, and P. W. 1 took delivery of the goods at the transit shed. On the above counts, the plaintiff sued to recover damages in the sum of Rs. 13489.33 p. from the defendants. 2. The 3rd defendant contended chiefly, that the goods were to be delivered under the ship's tackle and were in fact so delivered to the plaintiff, that there was no shortage until such delivery, and that it is not liable for loss or damage after such delivery, or for loss or damage, if any, resulting from insurable risks from sea-transit even before delivery, and pleaded that 369 spare bag were used for replacing defective bags and have thus been accounted for. 3. The 4th defendant maintained inter alia, that Ex. P-2 the bill of lading, was subject to the clause in it, "weight and quality unknown", that under Ex. P-l, the charterparty, the terms and conditions of which were incorporated in Ex. P-2, the shipowner was responsible only for the "correct outturn by number of bags" specified in Ex. P-2, that the 2nd defendant as charterer had the duty of unloading at the port of discharge employing its agents and stevedores for the purpose, that the loss or damage, if at all, had occurred during unloading or storage in the transit shed, and not while the goods were in its custody, and that even otherwise, the shipowner is not liable and is protected by the exceptions and limitations in Ex. P-l; the alleged short delivery of 369 spare bags was denied. P-l; the alleged short delivery of 369 spare bags was denied. In the event of the claim being accepted and found to be good against defendants 1 and/ or 2, defendants 3 and 4 did not contend, that as the respective agents, they were not liable. 4. The Subordinate Judge held, that short delivery of 38 odd tons of ammonium sulphate and of 369 spare bags was established, that some loss or damage had resulted during transit and before unloading at the wharf, that for loss during transit defendants 1 and 4 as common carriers were liable even if there was no negligence on their part, that defendants 2 and 3 were responsible for discharging the goods from the ship and for delivery to the plaintiff and that even for insurable risks, "the liability of the carrier and the charterer are (were) not in any way abdicated''. In the result, he decreed the suit with costs against all the defendants, jointly and severally. A. S.309 of 1963 is by the 3rd defendant and A. S.310 of 1963 is by the 4th defendant. 5. The shortage of 38 odd tons of ammonium sulphate detected on a survey of the 2956 "bad order bags" as alleged, was not disputed before us. The liability of the 4th defendant as representing the shipowner and that of the 3rd defendant as representing the charterer or shipper, rest upon different considerations and have to be treated separately. The broad facts may be stated. Ex. P-1, by Clause.5 provided, "cargo to be brought alongside by the charterers and loaded into the vessel and stowed and / or normally trimmed free of expense to the vessel". For bagged cargo, the shipowner was to "guarantee vessel fully fitted with cargo battens before loading". It was not disputed that, as stated in Ex. P-2, 101240 bags of ammonium sulphate and 1953 empty spare bags were shipped by the 2nd defendant, the cargo being, as denoted by the clause, "in apparent good order and condition", in Ex. P-2 free from defects to all external appearances, that is to say, the bags being neither torn nor slack nor defective. The clause "weight and quality unknown" suggests no doubt, that the description of the goods by weight in Ex. P-2 free from defects to all external appearances, that is to say, the bags being neither torn nor slack nor defective. The clause "weight and quality unknown" suggests no doubt, that the description of the goods by weight in Ex. P-2 was not to be treated as conclusive against the shipowner; nevertheless the description by weight is strong prima facie evidence as to the quantity shipped. This point is not of much significance, because shortage by weight was not contested before us and has also no relevance on the number of bags shipped, that number being not in issue. Ext. D2, the survey report on loading at Bremerhaven dated the 13th May 1957 has proved, that the ship was seaworthy for transporting the cargo and that the bags were free from defect, and were properly handled while loading, and stowed. It is in evidence, that after leaving the port of loading, the ship did not touch at any intermediate port on her way to Cochin. 6. As observed, the learned Judge has found, that the 3rd defendant, as representing the charterer, was responsible for unloading and for delivery to the plaintiff. As will be seen, this view is sound. On 18th June 1957, when the ship was still in midstream, dw. 1, the Deputy Conservator and Surveyor conducted what is referred to as a 'hatch survey' and as reported in Ex. D-l, found all hatches to be properly battened and covered and the cargo properly stowed and well dunnaged. This of course furnished no index as to the condition of the individual bags. It is in evidence, that the 3rd defendant employed stevedores for discharging the cargo from the holds and for unloading. There is also evidence, that before the ship was brought to the wharf, about 700 tons of cargo, or roughly 7000 bags, were discharged overside in midstream into lighters, on an allotment of that quantity to the 3rd defendant. Ex. P-2 contained the warning, "use no hooks". As explained by pw. 1, hooks are "bent iron nails used for lifting the bags used by the labourers. If such hooks are used bags are likely to get torn". Despite the warning, as stated by pw. 1, the stevedores used hooks for discharging the cargo. After the ship was lightened, and brought to the wharf, unloading by the 3rd defendant through the stevedores employed by it continued. If such hooks are used bags are likely to get torn". Despite the warning, as stated by pw. 1, the stevedores used hooks for discharging the cargo. After the ship was lightened, and brought to the wharf, unloading by the 3rd defendant through the stevedores employed by it continued. This took a few days and discharge was completed on the 6th July 1957. In the course of discharge at the wharf, pw. 1 entered the ship and found, "large loose spillings" and some bags torn and some slack in the holds. Some bags were seen torn and slack, also in the slings from the tackle. pw. 1 said in chief, "if hooks are used for lifting the bags at the time (of) discharge from the steamer, the bags are likely to be torn and damaged. It is not allowed (?) to use hooks for goods of this kind", and in cross, "when I saw the hooks being used inside the holds, in the course of discharge, I asked the supervisor on board (supervisor of the 3rd defendant) not to use hooks. It was only oral. Till the completion of discharge hooks were being used even after I protested". We believe pw. 1. By Ex. P-16 a letter dated the 2nd July 1957 sent to the 3rd defendant with copy to pw. 1, when the discharge was in progress, the 4th defendant company pointed out inter alia, that it has "previously complained verbally about the use of hooks by your (the 3rd defendant's) stevedore labour; much damage is still being caused by hooks and here again our principals accept no responsibility" and asked "may we suggest your (the 3rd defendant's) representative as also representative from the A & F. (Pw. 1) reading this letter in copy, satisfy themselves as to the correctness of what we write by visiting the wharf and examining the cargo?". 7. The evidence adduced is conclusive, that at the wakf, the goods passed into the custody of the port and remained so until they were taken delivery of by the plaintiff at the transit shed. It was not suggested nor could it be imagined, that after the goods came into the custody of the port, the 3rd defendant as representing the charterer of shipper, bad any further responsibility with respect to them. The 3rd defendant had already authorised the port to deliver the goods to the plaintiff. It was not suggested nor could it be imagined, that after the goods came into the custody of the port, the 3rd defendant as representing the charterer of shipper, bad any further responsibility with respect to them. The 3rd defendant had already authorised the port to deliver the goods to the plaintiff. There is no indication as to the loss of any of the contents of the bags, during their removal from the wharf to the transit shed. Learned counsel for defendants 3 and 4 submitted on an analysis of Ex. X-l, the tally sheets, that 3023 bags were found torn, 402 bags slack, 322 bags otherwise defective and 906 bags wet, while being discharged under the ship's tackle. The survey of the 'bad order bags' at the transit shed concerned only 2956 bags, including 4 bags delivered in excess. There is no indication that though the goods remained long at the transit shed owing to the delay in surveying, there was further loss, the spillings at the shed being also swept and collected and accounted for. The course of correspondence relating to the survey of 'bad order bags' has disclosed, that the 3rd defendant had been trying to transfer responsibility for all that happened to the 4th defendant which the latter repudiated and that the 3rd defendant contributed a good deal to the delay in the commencement of the survey. Though the pleadings are silent about the point, free use of hooks by the stevedores employed by the 3rd defendant loomed large in the evidence, and might well account for the torn and slack condition of several bags and for the spillings even in the holds of the ship. The spillings afford evidence of the extent of damage done to the bags and consequent loss, but by themselves do not constitute the loss, representing as they do what was recovered or salvaged. On the above premises, it seems reasonable to think, that the free use of hooks and consequent damage to the bags, had played a good part in causing shortage, the extent of which was ascertained after the "bad order bags" were surveyed at the transit shed. 8. The approach of the learned Advocate general who appeared for the plaintiff was different. 8. The approach of the learned Advocate general who appeared for the plaintiff was different. He contended, that the goods were and must be deemed to have been in the custody of the shipowner after loading until they were hauled out of the holds and brought to the ship's rails for being discharged on the wharf, that loss or damage was occasioned while the goods were in such custody, that on the doctrine of res ipsa loquitur the shipowner has to answer for the loss or damage and is liable for it and that, the intervention of the 3rd defendant and the stevedores employed by it does not affect that liability. He relied in particular, on the following statement of the law in 35 Halsbury's Laws of England, 3rd edition, pages 450, 451 Para.640. "The shipowner's duty is to get the cargo out of the holds and to deliver it to the consignee whilst it is the duty of the consignee to take delivery of it." But in Para.642 at pages 452 and 453 occurs the following statement, of the law: "The position of the parties may be materially modified by the terms of their contract, or by the custom of the port of discharge. Thus by contract or custom goods may be delivered to the consignee on the dock of the ship or in the holds; he may be required to do the whole of the unloading, including the discharge of the holds;" The provisions of Ex. P1 are clear, that, as for loading, for unloading too, even from the holds of the ship, the responsibility was that of the charterer. By clause (2) of Ex. P-l, the discharge was to be by the charterer's agents and stevedores, by clause (8) cargo was to be discharged free of expense to the vessel at specified rates, and by clause (13), in addition to giving to the charterer and consignees free use of the ship's derricks, winches etc., together with the necessary power to operate them, the shipowner was bound to supply, "full light for nightwork also in the holds if required", and it was the charterer's privilege to work all ratches and winches at all times, engaging, if necessary, qualified winchmen from shore. There is nothing in the provision in Clause.16 of Ex. There is nothing in the provision in Clause.16 of Ex. P-5, which says that "purchaser shall take delivery...under ship's tackle" which is inconsistent with or which militates against the responsibility of the charterer, to discharge the cargo from the holds of the ship over her rails in her tackles and slings on the wharf, where the tackles are unfastened. The expression 'under ship's tackle' is also subject to an explanation. D. W. 3, a clerk of the 3rd defendant said, that stevedores had to be arranged by the charterers. The 4th defendant specifically pleaded, that at the port of discharge "the charterers have to employ their agents and stevedores and even if any tearing or shortage was caused, it would have been caused only in the process of unloading or later at the shed and for such defects the owners and their agents are not liable". On this part of the case, we affirm the finding of the Judge as to the charterer's responsibility for unloading. 9. The rule as to the onus of proof is stated thus in 35 Halsbury's Laws of England, 3rd Edition, page 289, Para.429: "In an action for loss or damage to cargo the plaintiff must give evidence showing that prima facie the loss or damage occurred while the goods were in the shipowner's custody as carrier. The onus is then on the shipowner, if he is relying on an exception in the contract of affreightment, to show that the loss or damage was caused by one of the perils so excepted. If he does this he well escape liability unless the plaintiff establishes that the loss or damage would not have occurred but for some breach of one of the shipowner's implied undertakings which is not covered by any express stipulation in the contract of affreightment." The rule is stated thus in F. C. Bradley & Sons Ltd. v. Federal Steam Navigation Co., Ltd.. (1927) 27 L I.L. Rep. 395, 396: "Accordingly, in strict law, on proof being given of the actual good condition of the apples on shipment and of their damaged condition on arrival the burden of proof passed from the consignee to the shipowners to prove some excepted peril which relieved them from liability..." We are of the opinion, that the plaintiff has not proved that there was loss or damage on arrival and before the stevedore commenced unloading. The earliest point of time at which damage was noticed was, when pw. 1 entered' the ship in the course of discharge and found large spillings. By that time, the discharge overside in midstream on lighters had been accomplished, and discharge on the wharf was in progress. The averment in Para.8 of the plaint was itself, that the damage was discovered during discharge. If the damage was proved to have been caused before the 3rd defendant and the stevedores entered and started handling the bags in the exercise of their right to unload them or perhaps if the use of hooks could never have accounted for a damage of this kind, the shipowner may be laid under a duty to account for the damage. As it is, we cannot find our way to accept the argument, that despite the intervention of the 3rd defendant pursuant to the clause in the charterparty for unloading, the shipowner's custody of the goods continued until they passed the ship's rails. In this view, it is unnecessary to deal with Clause.18 of Ex. P1 by which the liability of the shipowner for loss or damage is limited. That clause so far as it is material read thus: "Owners are to be responsible for loss of or damage to the goods or for delay in delivery of the goods only in case the loss, damage or delay has been caused by the improper or negligent stowage of the goods or by personal want of due diligence on the part of the owners or their Manager to make the vessel in all respects seaworthy and to secure that she is properly manned, equipped, and supplied or by the personal act or default of the Owners of their Manager. And the Owners are responsible tor no loss or damage or delay arising from any other cause whatsoever, even from the neglect or default of the Captain, or crew or some other person employed by the Owners on board or ashore for whose acts they would, but for this clause, be responsible." What we have said above is sufficient to exonerate the shipowner and his agent, defendants 1 and 4, from liability. 10. We might add, that we do not accept the contention of learned counsel for the 4th defendant, that under Clause.16 of Ex. 10. We might add, that we do not accept the contention of learned counsel for the 4th defendant, that under Clause.16 of Ex. P-l, the owners were responsible only for "the correct outturn by number of bags" specified in Ex. P-2. Though by the clause in Ex. P-2 "weight and quality unknown", the shipowner did not bind itself conclusively as to the weight of the cargo entered in Ex. P-2, there can be no doubt, that it was bound to deliver the goods as it actually received them whatever the weight or quantity may be. It cannot be, for example, that if it actually received for carriage 1000 bags filled with ammonium sulphate, it need deliver at the other end only 1000 empty or partly filled bags. 11. As for the 369 empty spare bags alleged to be short-landed, there is no evidence of their loss when the ship arrived or of the ship's returning with them dw. 3, swore, that the entire cargo brought was discharged and the "vessel left empty". It was a special plea of the 3rd defendant, that these bags were used for replacing a like number of old bags, a plea which could not be supported on the evidence and was therefore rightly rejected by the learned Judge. If the shipowner had undertaken the duty to unload and to deliver and had failed in that duty with respect to these bags, the liability could then be fastened on it, but here that duty was of the charterer, and its liability in this behalf has to be adjudged on other considerations. 12. The liability of defendants 2 and 3 remains to be considered. The 3rd defendant, whose principal, the 2nd defendant, had shipped the goods in apparent good order and condition, had no case that on arrival, and before the stevedores commenced discharging the goods overside in stream into lighters, they were found damaged. As we have remarked, there is no proof of loss or damage on arrival. The 3rd defendant alleged inter alia, that exposure to rain or moisture might cause ammonium sulphate to get sticky. Unloading was during the months of June-July; there was rain, but the evidence is, that whenever it rained, actual unloading was suspended and what remained exposed was provided with tarpaulin cover. This was only to be expected, but some wetting was inevitable. Unloading was during the months of June-July; there was rain, but the evidence is, that whenever it rained, actual unloading was suspended and what remained exposed was provided with tarpaulin cover. This was only to be expected, but some wetting was inevitable. This explains how some bags were found to be wet as they came down the sling. There was also mention of exposure to rain and moisture at the transit shed in Ex. P-16 dated the 2nd July, 1957, but pw. 1 said, that the bags were not stacked by the side of open doors and windows. However that be, rain or exposure could not have caused the contents of the several bags amounting to several tons, to dissolve and to disappear; there is no case that they did. If they did, the 3rd defendant would not have failed to elucidate the fact at the survey of the 'bad order bags" which was spread over several days and which the 3rd defendant or its clerks supervised. The sticky contents, if any, might not lose in weight, there is no evidence that they would. The spillings at the transit shed were all collected and accounted for. In these circumstances, we hold, that the loss of 38 odd tons was caused, by the use of hooks while discharging the cargo from the ship's hold by the stevedore. For loss caused in this manner, defendants 2 and 3, charged with the duty of discharge from the ship's holds to the ship's tackle, are answerable to the plaintiff. The rule is stated thus in 35 Halsbury's Laws of England, third edition, Para.568, page 395: "Where the actual work of the loading is delegated to a stevedore, the stevedore is, as a general rule, to be regarded as the servant of the shipowner, who, as being the person primarily responsible for the loading, is liable to the shipper......" and where the stevedore is of the charterer, the rule is stated thus at page 397: "The stevedore is then to be regarded as the servant of the charterer, who is, therefore, not entitled to hold the shipowner responsible for improper stowage. On the contrary, he is himself responsible to the shipowner, for any loss or damage which the shipowner may suffer in consequence of improper stowage, unless the charterparty contains a stipulation exempting him from responsibility in such a case; and he is also responsible to the owners of any goods shipped which may be injured by reason of the improper stowage." What applies to loading applies to unloading as between the charterer charged with the duty of unloading and the consignee. 13. But Clause.16A of Ex. P-5, which was introduced into it by the amendment Ex. P-8, was relied on for the 3rd defendant. That clause reads: "Whereas this contract stipulates material to be shipped at a C & F. price, the Sellers shall not be held responsible for any losses, total or otherwise resulting from insurable risks during sea transit." The 3rd defendant has apparently relied on this clause in Para.5 of the written statement, and has pleaded in Para.6 as follows: "According to the terms of the contract and international trade usage, suppliers' liability cease when they have regularly delivered the goods on board of the vessel as well as paid the ocean freight and in this case also the discharging expenses from ships hold until under ship's tackle, as regards the risks they have to be borne by the buyers as from the time the goods are regularly shipped at the port of loading. As from that time all risks of the ocean transport passed to the buyers. It was left to the buyers' discretion to cover the risks of the ocean transport to be borne by them until the goods are received in the port of destination. If the goods had not been insured covering the risk the buyers alone were responsible for the same and for any damage, loss or shortage the charterers could not be called to account for." It is true, that the 3rd defendant has not specifically pleaded the use of hooks, as a risk which ought to have been insured against. But, as we have seen, the harm done by the use of hooks was there from the beginning and came even to the notice of pw. 1 who protested in vain against it. Ex. P-16 has been mentioned in this connection. But, as we have seen, the harm done by the use of hooks was there from the beginning and came even to the notice of pw. 1 who protested in vain against it. Ex. P-16 has been mentioned in this connection. We have no doubt that the misconduct or negligence of the stevedore, or the use of hooks which is but one phase of such misconduct or negligence, is an insurable risk. It is not such a far-fetched or unnatural or illusory risk as a meteor striking, to cite the example which the learned Advocate General gave. The possibility of using hooks was within the contemplation of the parties, as is implicit in the warning, "use no hooks", in Ex. P-2. The use of hooks was insured against in Ex. D-18, a policy of insurance issued in the year 1957, with respect to which dw. 4 was examined; but to support our view, Ex D-18 is not necessary. It is strange, that the plaintiff's officers concerned in this deal with the 2nd defendant, did not take the obvious precaution of insuring against risks arising from misconduct or negligence of labourers employed, especially when the contract was on C & F terms, and in the face of Clause.16A; we feel that this needs looking into and request the Advocate General to bring the matter to the notice of the authority concerned. 14. The learned Advocate General next contended, that the plea under Clause.16A is not open to the 2nd defendant and therefore to the 3rd defendant, because negligence or default relied on was that of the stevedore employed by it, in otherwords, that a man cannot plead his own wrong in extenuation or exoneration. An assured may not set up his own wilful misconduct as the basis of a claim against his insurer; in fact such misconduct may even defeat his claim. Here the 2nd defendant or for that matter the 3rd defendant, is not of itself to do the unloading: it has, of necessity, to employ stevedores and so may very well insure itself against loss arising from their misconduct or negligence. A bank, we suppose, may insure itself against the dishonesty of its cashier. If so, in a C & F contract, the seller may call upon the buyer to injure himself against misconduct or negligence of labourers employed by the seller in the process of completing the sale. A bank, we suppose, may insure itself against the dishonesty of its cashier. If so, in a C & F contract, the seller may call upon the buyer to injure himself against misconduct or negligence of labourers employed by the seller in the process of completing the sale. 15. The learned Advocate General drew a distinction between the term 'transit' as it is generally understood and interpreted and the term 'sea transit' as it is employed in Clause.16A. According to Ballentine's Law dictionary, the term transit 'includes not only the carriage of goods to their destination, but also their delivery there in accordance with the terms of the contract with the carrier". In the context of the right of "stoppage in transit", the term transit has been interpreted to continue "until the goods have reached the hands of the vendee''. See Scrutton on Charterparties and Bills of Lading, 17th edition, page 189. So far there is no difficulty. The argument was, that the term 'sea transit' gives a different complexion and limits the scope and meaning of the term to transit on the high seas, or to voyage. Attractive as the argument is. we do not feel persuaded that we can accept it. As we understand it, the addition of the words 'sea' was not to limit or to restrict the scope of the term 'transit', but was to qualify the nature of the transit, which in the present case was wholly by sea, from Bremerbaven to Cochin. In this view, the term 'sea transit', despite the addition of the word 'sea', means no more nor less than transit, and such transit in the present case extends at least to the moment that the goods passed to the custody of the port. There seems to be a sense of incompleteness or unnaturalness or artificiality, if we were to hold that under Clause.16A, only risks on the high seas were contemplated, but not risks, however real, incidental to unloading, by which alone transit to the consignee becomes effectual and without which it is incomplete and the goods remain on board. 16. We therefore come to the conclusion that loss was occasioned by use of hooks, which in itself, or as a phase of the stevedore's negligence or misconduct, was an insurable risk within the intendment of Clause.16A, and so defendants 2 and 3 have to escape liability. 16. We therefore come to the conclusion that loss was occasioned by use of hooks, which in itself, or as a phase of the stevedore's negligence or misconduct, was an insurable risk within the intendment of Clause.16A, and so defendants 2 and 3 have to escape liability. As for the short delivery of 369 empty bags, the claim against defendants 2 and 3 has to fail on the short ground that they formed no subject matter of the contract of sale and were intended to be supplied free of charge; the claim is not enforceable. In the result, A. S.310 of 1963 is allowed with costs in both the courts to the 4th defendant, by setting aside the decree against defendants 1 and 4 and A. S.309 of 1963 also is allowed, but without costs as the 3rd defendant had denied shortage while the goods were in its custody, suppressed the use of hooks, and suggested rain and exposure as a possible cause for loss or damage; the decree against defendants 2 and 3 also is hereby set aside and they and the plaintiff shall bear their costs throughout.