transportation from said Pirate Cove to said San Francisco; that said respondent has paid libelant the aforesaid wages at the rate of $55 a month up to and including the 15th day of July, 1914, and furnished board and lodging to said libelant and his wife up to August 5, 1914, and for no further or other time; that on said 18th day of July, and at all times since then, said libelant was and has been and still is ready, willing, and able to perform his part of said contract of hiring; that because of the breach of said contract of hiring as aforesaid libelant has been damaged in a sum of not less than $1,430, which sum he asks this court to award to him."

[1] Certain of the points relied upon by the appellant are based upon its contention that a part of the contract is maritime in character and a part nonmaritime. We see no merit in the contention. It is conceded, as a matter of course, that the employment of the appellee by the appellant as master of the schooner was a maritime contract; but it is said that, because by the terms of the contract the libelant was also to help the company's agent at Pirate Cove in certain work on shore, there was no jurisdiction in admiralty.

In Alaska Packers' Ass'n v. Domenico, 117 Fed. 99, 54 C. C. A. 485, this court affirmed the jurisdiction in admiralty of a contract made by men who acted as seamen to and from salmon fishing grounds in Alaska, to work as fishermen during the season, and assist in canning fish on shore, and in loading them on board for transportation, and notwithstanding that the men while engaged in fishing slept on shore and mended their nets and cared for the fish on shore.

In North Alaska Salmon Co. v. Larsen, 220 Fed. 93, 135 C. C. A. 661, the contract which was the basis of the libel provided for the services of the libelant as a seaman, fisherman, beachman, trapman, "and such other services as might be required" by the appellant's superintendent; and the contention there made was that the above-quoted clause of that contract rendered it nonmaritime. In holding against that contention we cited with approval the case of Alaska Packers' Ass'n v. Domenico, supra, and also that of The Minna (D. C.) 11 Fed. 759, decided by Judge Brown, afterwards an Associate Justice of the Supreme Court, where he said:

"All hands employed upon a vessel, except the master, are entitled to a lien if their services are in furtherance of the main object of the enterprise in which he is engaged. * I do not regard the fact that libelant slept upon shore at night, and there reeled out and mended the nets, as qualifying in any way the nature of his contract. These services were merely incidental and subsidiary to his main contract."

In Keyser v. Blue Star S. S. Co., Ltd., 91 Fed. 267, 33 C. C. A. 496, it was held, among other things, that:

"Where a provision of a charter party for a foreign vessel, though not in itself maritime in character, is so connnected with the other stipulations therein as to render it an essential part of the contract, and it appears probable that without it the contract would not have been entered into by the owners, a court of admiralty has jurisdiction of an action for an alleged breach of such a provision."

In Church v. Shelton, 2 Curt. 271, 274, Fed. Cas. No. 2,714, Judge Curtis said that, the contract being maritime, the admiralty

"will proceed to inquire into all its breaches, and all the damages suffered thereby, however peculiar they may be, and whatever issues they may involve."

And in Ben. Adm. (4th Ed.) § 143, it is said:

"If a contract is maritime in itself, it carries all its incidentals with it, and the latter, though nonmaritime in themselves, will be heard and decided."

See, also, Id. § 16.

It is perfectly apparent from the present contract that the main employment of the appellee by the appellant was for services as master of the schooner, and that his additional services in aid of the appellant's manager at Pirate Cove were purely incidental thereto, for it is in express terms declared that after arriving at that station the appellee should serve as master of the schooner for a period not less than one year, and during such time should also assist the appellant's manager there when possible to do so without interfering with his duties

as such master.

It is also contended on the part of the appellant that the finding of the court below to the effect that the libelant was discharged without cause on July 18, 1914, was not sustained by the evidence, but an examination of it satisfies us that it is.

[2] The appellant's main point, however, is that the contract was absolutely void because of the then provision of the Civil Code of California which reads as follows:

"The following contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged, or by his agent: 1. An agreement that by its terms is not to be performed within a year from the making thereof. Section 1624.

Alaska Code, § 1044, contains the same provision. It is insisted that courts of admiralty are bound by that statutory provision, and therefore that there was no basis for the present libel.

In the case of Workman v. New York City, Mayor, etc., 179 U. S. 552, 560, 21 Sup. Ct. 212, 215 (45 L. Ed. 314), the court (four of the justices dissenting) distinctly adjudged that neither the local law nor any of the decisions of a state can deprive one of the right to relief—

"in a case where redress is afforded by the maritime law, and is sought to be availed of in a cause of action maritime in its nature and depending in a court of admiralty of the United States."

The judgment is affirmed.

(235 Fed. 388)

THE JULIA LUCKENBACH.

(Circuit Court of Appeals, Second Circuit. June 6, 1916.)

No. 277.

1. SHIPPING—121(2)—LIABILITY FOR LOSS OF CARGO-UNSEAWORTHINESS OF

VESSEL.

The sugar cargo of an iron steamer under charter to the carrier was damaged by sea water, which entered through a hole in the half-inch iron sheathing near the keel, where it had become rusted through from the inside by the action of sugar and salt water, which had reached the plates because the cement lining had either been broken or become loose. The vessel had been carrying sugar cargoes for several years, and the corrosion must have been going on for months or years. The hull at that place had not been thoroughly inspected for more than a year. Held, that the loss was due to the unseaworthiness of the vessel, that due diligence had not been exercised by the owner to make her seaworthy, and that neither the vessel, owner, nor charterer was protected from liability by Harter Act Feb. 13, 1893, c. 105, §§ 2, 3, 27 Stat. 445 (Comp. St. 1913, §§ 8030, 8031), although the charterer's bill of lading contained an exception of unseaworthiness.

[Ed. Note. For other cases, see Shipping, Cent. Dig. §§ 450, 451; Dec. Dig. 121(2).]

2. CARRIERS

125-LIABILITY FOR LOSS OF CARGO-EXCEPTIONS IN BILL OF LADING PROVISION FOR BENEFIT OF INSURANCE.

A bill of lading, providing that in case of loss or damage for which the carrier is liable it shall have the benefit of any insurance effected by the shipper, is not effective to protect the carrier from such liability to the extent of the insurance, where the contract of insurance limits the liability of the insurer for loss or damage to goods in possession of a carrier to so much as cannot be recovered from the carrier, although it requires the insurer to "advance" or "lend" to the insured the full amount of the loss until such recovery can be had, and in effect provides that action against the carrier shall be maintained for the benefit of the insurer and at its expense.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 552-556; Dec. Dig. 125.]

3. SHIPPING 141(4)—LIMITATION OF LIABILITY-EFFECT OF CHARTER.

The owner of a vessel who by a time charter has contracted to deliver her in a seaworthy condition and to maintain her in a thoroughly efficient state in hull and machinery during the charter term, cannot limit his liability for a loss occurring during such term due to her unseaworthiness.

[Ed. Note. For other cases, see Shipping, Cent. Dig. § 493; Dec. Dig. 141(4).]

Appeal from the District Court of the United States for the Southern District of New York.

Suit in admiralty by the W. J. McCahan Sugar Refining Company against the steamship Julia Luckenbach, with the Insular Line, Edgar F. Luckenbach and others, owners of the Julia Luckenbach impleaded. Decree for libelant in the sum of $100,774.87 against all respondents, with limitation of liability to claimants of the Luckenbach, and the Insular Line appeals. Modified.

See, also, 200 Fed. 976.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

The following are the opinions of Hough, District Judge, in the court below:

On Final Hearing in Admiralty-Libel for Loss of Cargo.

The owners of sugar laden on the Julia Luckenbach brought action in rem against the vessel, and in personam against charterers, for the loss in question. Charterers appeared, the Luckenbach was claimed, and stipulation given in $60,000, which for the purpose of this case is her agreed value. Subsequently libelant's damages were raised by amendment to $87,000, whereupon the charterers petitioned in the Luckenbach's owners, in order that they might respond for so much of the recoverable loss as exceeds the agreed value of the steamer. The issues presented are therefore (1) whether the libelant can recover at all; and (2) whether the ship and owners, or charterers, or both, are responsible for recoverable damages.

For some years prior to April, 1912, the Julia Luckenbach, an iron steamer then about 30 years old, had carried sugar (during the season) between Porto Rico and Atlantic ports. In the month named she was under charter to the Insular Line, and on and before April 25th had loaded a partial cargo of sugar in San Juan harbor. At 2 a. m. of April 26th she left her pier, and at 7 a. m. arrived at Arecibo, where she completed cargo by taking on additional sugar. At 8:30 p. m. of April 27th she left Arecibo (where she had lain offshore loading from lighters) and proceeded on her voyage to Philadelphia. She encountered strong winds and rough seas, so that the vessel rolled and pitched a good deal, and shipped water in and over decks. She encountered that degree of strain to be expected in frequent Atlantic weather, and no more. It is not asserted that any injury received is due to peril of the sea, in the legal sense of that phrase.

At 7:40 p. m. on April 28th-i. e., after about 24 hours of rough weathershe was found to have 7 feet of water in her after hold, and was thereafter with great difficulty kept afloat (the after hold being of unusual size), until refuge was found in San Juan harbor. A hole was then discovered in a plate on her starboard side (strake B), very nearly, if not accurately, 14 by % of an inch. At the edges of the hole the original 1⁄2 inch of iron had worn to a knife edge; the plate in the immediate neighborhood was much decayed.

Temporary repairs were made, which naturally removed all cement from the vicinity of the hole. It is clear from the testimony of the vessel's officers that when examined in San Juan the cement backing was gone; but there is naturally no direct evidence as to the condition of said cement at and just prior to the breaking away of the iron plate.

There is satisfactory testimony that the outside paint showed no signs of scratching or abrasion in the vicinity of the hole, and that the hole itself was from 15 to 18 inches above the keel. This disposes of one issue raised in the pleading; i. e., that the Luckenbach lay aground at San Juan and was punctured or weakened by so doing. I think it is quite plain that the Luckenbach was in the mud in San Juan harbor; how much mud it is impossible to say with certainty, but it was soft. Vessels go in it a foot or more without requiring tugs to get them out. The Luckenbach was certainly not in that much, and even more certainly was never in deep enough to put the spot where the hole was found upon the ground-if soft mud is ground.

The immediate cause of flooding the hold and of the consequent destruction of sugar was the sudden breaking of the impaired plate. Such impairment of plate had evidently existed long before the beginning of the voyage, whether said voyage is held to begin at San Juan or the last port of departure from the United States. No vessel with such a thin plate is seaworthy; consequently the Luckenbach was not seaworthy, and she and her owners are responsible for the loss due to such breach of warranty, unless they exercised due diligence. This is the measure of their obligation, both under the bill of lading and the Harter Act.

Messrs. Martin and Work (both witnesses for the Luckenbach) have put in the record a satisfactory diagram showing the position of this hole. It was in a peculiarly difficult place to observe. Admittedly the plate or its cement could not be studied thoroughly without taking up the permanent ceiling,

though the region could be seen by removing boards loose for that purpose, and inserting a light behind the permanent ceiling boards.

The Luckenbach is old, but well constructed, and no criticism is made of the quality of her materials. The reason for the decay of this good iron plate is admitted; i. e., corrosion through a mixture of salt water and sugar-a subject sufficiently dwelt upon in The Alvena, 79 Fed. Rep. 973, 25 C. C. A. 261. One witness deposes to knowledge of a substantial iron plate having been eaten away by this compound in less than 12 months. Mr. Martin would not like to say that it could be done in so short a time as 2 years, but he is quite certain that it could happen inside of 4 years. Thus neither to lawyers nor mariners is there anything novel in the danger to iron ships in the sugar trade, and the Luckenbach had long been engaged therein.

Due diligence must always be proportioned to the amount of danger reasonably anticipated, so it is evident that owners of this ship were bound to exercise special care to guard against the special danger that has produced this great loss.

The corrosive mixture of water and sugar must be in contact with metal in order to work damage; the cement backing is to prevent such contact. Evidently the Luckenbach's cement had either long been broken, or had not been tight against the plate in the latter case forming a sort of pocket, where fluid would rest with peculiarly destructive results.

If the cement was broken, probably a thorough search with lights would have revealed it; but if it was loose nothing but taking up the ceiling and tapping the cement would reveal the hollow space. That the whole ceiling had not been up for three years is, I think, fairly shown; that it had not been possible to examine otherwise than by lowered lights for over one year is, if not plainly proven, admitted. This in my opinion was not due diligence, and I say this recognizing that the Luckenbach's defect was even more difficult to discover than that so thoroughly discussed by Brown, D. J., in The Alvena (D. C.) 74 Fed. 254, 255.

The above findings would dispose of the case, were it not for the claimants' and respondent's contention that for much, if not all, of the damage they are entitled to the benefit of shipper's insurance.

The lost sugar was shipped under bills of lading containing the familiar clause: "In case of any loss, detriment, or damage done to or sustained by said goods, or any part thereof, for which the carrier shall be liable to the shipper, owner, or consignee, the carrier shall to the extent of such liability have the full benefit of any insurance that may have been effected upon or on account of said goods."

Insurance was effected on said goods, with five separate companies, whose countervailing weapons in the long fight between shipper and carrier (or, rather, their underwriters) were not identical.

Some policies contained the words: "Warranted by the assured free from any liability for merchandise in the possession of any carrier or other bailee who may be liable for any loss or damage thereto, and for merchandise shipped under a bill of lading containing a stipulation that the carrier may have the benefit of any insurance thereon." 1

Others provided: "In case any agreement be made or accepted by the assured with any carrier or bailee by which it is stipulated that such or any carrier or bailee shall have, in case of any loss for which any carrier or bailee (or their underwriters) may be liable, the benefit of any insurance effected by the assured, then and in that event this policy shall be void as regards any liability for such loss hereunder." 2

Down to this point the two forms are alike in effect. All the policies antedated the shipment, and were (pro tanto) voided by the issuance and acceptance of the bill of lading. The policies last referred to continue as follows: "But this company, in these and all cases of loss or damage by peril insured against, shall be liable and owe actual payment for (only) what cannot (and could not in the absence of this insurance) be collected from carriers

1 Federal Insurance Company, 1⁄2 risk; Thames & Mersey Company, % risk; Etna Insurance Company, 3/2 risk.

St. Paul Fire & Marine Company, 1 risk; Manheim Insurance Company, / risk.