Gray, but were solely due to the fault of the libelant in not furnishing to the barge a proper place to be loaded at and in not furnishing a tug in a seaworthy condition and properly equipped to tow her to her destination; and that by reason of the stranding of the barge at the libelant's dock and the twisting and straining of her as a result thereof she sank and was considerably damaged.

The libelant in its answer to the cross-libel of Gray takes issue on the material allegations therein contained touching the cause of and circumstances preceding and attending the alleged injury to the barge and her sinking and the loss of oil.

On most of the material and disputed points there is considerable conflict among the witnesses, and much care has been required to ascertain where the preponderance of the evidence, direct and circumstantial, determinative of this suit as a civil cause, is to be found. I shall not undertake in this opinion to discuss in extenso the evidence, but shall rather state controlling conclusions, only briefly referring to the evidence supporting them.

One of the principal points of dispute in the case is whether the transportation company on its own account by agreement with the libelant chartered the barge from Gray and undertook the carriage of the oil for the libelant, on the one hand, or on the other, procured the barge from Gray for the libelant merely as an accommodation or act of friendship to it and without entering into any agreement or incurring any responsibility for the carriage of the oil. On this subject there is much controversy. I find as a fact, established by what I believe to be a clear preponderance of the evidence, that what the transportation company did in the matter of procuring the barge was not done on its own account or for any pecuniary profit or advantage to be derived from it, but was solely an act of friendship for the accommodation of the libelant, and that there was no express or implied warranty of seaworthiness of the barge by the former company. It follows that the libel must be dismissed with costs as to the transportation company.

[1] Gray, the owner of the barge, did not deal directly with the libelant for her employment in the carriage of the oil from Marcus Hook to pier No. 53, and he contends that, therefore, there was no implied warranty to the libelant of her seaworthiness for the contemplated service. This position is untenable. He knew that the barge was to be employed by the libelant in the carriage of the oil and that he was to receive $8 per day as her hire to be paid by it. When he furnished the barge for that purpose there was an implied warranty that she was reasonably fit for that service, and that warranty in the absence of special circumstances would run and enure to the benefit of the shipper. Under the maxim "qui facit per alium facit per se," the arrangement had by Gray with the transportation company for the use by the libelant of the barge placed him in the same position with respect to an implied warranty as if he had dealt directly with the libelant.

[2] The existence of an implied warranty of seaworthiness does not, I think, necessarily exclude the application of the doctrine of assumption of risk from unseaworthiness by a shipper and owner of merchandise. The implied warranty is a creation or implication of the law for the protection of those who in good faith and without knowledge or notice of unseaworthiness entrust goods or merchandise to a vessel for carriage. As a general rule and unless under special circumstances responsibility for the safe condition of the vessel rests upon her owner and not upon the shipper. But in the case of a mere implied warranty, where the unseaworthiness of the vessel and the grave danger of loss of the cargo are palpable, unmistakable and present to the mind of the shipper who, having power to prevent it, allows the loading of the cargo to proceed and to depart on the vessel in her unfit condition, he assumes the risk of loss through such unseaworthiness. For the law implies the warranty, not to encourage recklessness or bad faith on the part of the shipper, but for his protection while acting in good faith and in reliance, though mistaken or even careless, upon the sufficiency of the vessel for the contemplated voyage. It is urged that it is unwise and oppressive to impose upon the shipper the duty of passing judgment upon the sufficiency or insufficiency of the vessel at the risk of litigation and damages should it be judicially decided that he had without sufficient cause prevented the carriage of the cargo. This consideration is not without weight, and serves to show that even in the case of a mere implied warranty of seaworthiness, the shipper, unless under special circumstances as above mentioned, cannot be held to assume the risk of loss from unseaworthiness. But if the vessel from any cause has gotten into such faulty condition as reasonably and unavoidably to impress the shipper possessing ordinary prudence, with a sense of her unseaworthiness, under the principles of law as well as of equity the vessel owner should be estopped from holding the shipper liable in damages for preventing the carriage of the intended cargo. In The Scandinavia (D. C.) 156 Fed. 403, it was held that the doctrine of assumption of risk is applied in admiralty as fully as in other branches of jurisprudence, notwithstanding the rule that damages will in some cases of concurrent negligence be divided. That case, it is true, involved the question of liability for personal injuries. But I perceive no distinction in principle, so far as the applicability of the doctrine of assumption of risk is concerned, between a question of liability for personal injuries and a question of liability for the loss or destruction of one's goods. In that case it was held that the negligence of the libelant in using a manifestly unsafe ladder provided by the vessel was the "immediate and proximate cause of the injury." So in this case it was not the unseaworthiness of the barge, but the action of the libelant in permitting her to proceed with the barrels of oil, in her palpably unseaworthy condition, on her voyage from Marcus Hook to Philadelphia, that constituted the immediate and proximate cause of the injury. It abundantly appears from the evidence that during the loading of the barge, which continued from about 8 o'clock in the morning until after 1 o'clock in the afternoon, and several hours before her departure for Philadelphia, her unseaworthiness was recognized by those representing the libelant and by others actually engaged in the loading or carriage of the oil, as fraught with extreme peril to the cargo-peril so manifest and grave as to involve assumption of risk by the libelant through persistence in the completion of the loading and in the carriage of the cargo on her.

[3] But, further, there was no breach by Gray of any implied warranty of unseaworthiness, for the evidence as a whole does not show that the barge was in an unseaworthy condition at the time she was tendered to and accepted by the libelant,

The loss of oil complained of was indisputably the result of the leaking and sinking of the barge, without any stress of weather to account for it. But there is much controversy as to the cause or causes to which her unseaworthy condition was attributable. Various theories of greater or less plausibility have been advanced to explain her defective condition during and after the loading of the cargo. It is urged by Gray and the transportation company that the libelant's dock was an unsafe place in which to load the barge, and much evidence has been directed to the presence within about a couple of feet from the bulkhead of a submerged end of a pile or other hidden obstruction upon the top of which it has been contended a corner of the barge settled with the falling tide and process of loading, thereby subjecting her to undue strain and causing her to spring a leak through the opening of her seams or otherwise. On the evidence it is not altogether clear that any corner of the barge was at any time, prior to or during the loading, close enough to the bulkhead to rest upon or over or touch the pile end or other hidden obstruction referred to. But it is quite clear that before the completion of the loading of the barge one of her corners did descend upon and become engaged with and remain suspended from some submerged obstruction of hard and unyielding nature whereby she was strained, twisted and caused to leak. It has been contended that before and at the time she was taken to Marcus Hook to receive the cargo of oil she was unseaworthy for the carriage of the cargo of oil, in that she was generally unsound and weak. But the evidence, as above stated, does not support this contention. It was the duty of the libelant as owner to keep the bottom of the dock free from hidden dangers whether consisting of submerged piles, rocks or other obstructions, calculated to cause damage to vessels occupying the dock in the course of business at its request. The master of the barge had a right, in the absence of knowledge on his part to the contrary, to assume that the berth assigned to her by the libelant for the loading of the cargo was suitable and safe for that purpose. Indeed, it appears from the evidence that on the arrival of the barge at the dock her master was informed by the representative or agent of the libelant that the dock contained plenty of water and was perfectly safe for her to lie in and be loaded with the intended cargo. This assurance, amounting to a guaranty, brings this case within the ruling of the court in Merritt v. Sprague (D. C.) 191 Fed. 627, where there was a recovery for injury to a vessel in the dock, the master of the vessel being unacquainted with the dangerous character of the bottom and the charterer having guaranteed a safe and suitable berth for loading and discharging. The libelant did not perform its duty to keep the bottom of the dock in safe and proper condition, and the injury to the barge being directly attributable to such omission, the libelant must be held liable to Gray as her owner to the extent of such damage; there having been no assumption of risk nor any contributory negligence on the part of the master of the barge with respect to such damage.

A decree in accordance with this opinion may be prepared and submitted.

Accounts attached to a petition in bankruptcy cannot be reached by a motion to dismiss in the nature of a demurrèr, unless they were made part of the petition by proper reference.

10. BANKRUPTCY 92-CLAIMS-DISMISSAL.

Where petition in bankruptcy alleged that petitioners rendered services to bankrupt, the fact that accounts attached to the petition as exhibits showed that the services were rendered to the bankrupt and others furnishes no ground for motion to strike such claims.

11. PERPETUITIES 6(11) - RULE AGAINST CONVEYANCE IN TRUST.

An agreement or declaration of trust, whereby trustees acknowledged that they held the property for the benefit of the grantor's mortgage creditors, his individual creditors, and for the holders of certificates of shares in an unincorporated association, provided for issuance of certificates to the grantor and others, and for the declaration of dividends, etc., and authorized the trustees to borrow money and dispose of any or ail of the trust property. The agreement provided that the trust should continue for 27 years. Held, that conveyances and assignments made to give effect to the trust did not violate the rule against perpetuities forbidding property to be withdrawn from sale for a period longer than a life or lives in being, and 21 years thereafter; the rule being directed against the withdrawal of land from sale, and the trust agreement not withdrawing such property from sale.

12. BANKRUPTCY76(3) - ASSIGNMENTS-AMENDMENTS OF ASSIGNMENTS.

Where creditors failed to attack, as a general assignment, the original conveyance and assignment within four months thereafter, the fact that the grantor subsequently executed a second instrument, which shortened the period of the trust, and in some respects enlarged the trustees' powers, will not warrant the creditor in urging that the second instrument constituted an act of bankruptcy; it being a mere amendment of the first.

In Bankruptcy. Involuntary petition by Clarence T. Doty and others against Henry Mason, otherwise known as Harry Mason. On motion to dismiss the petition. Dismissed.

George M. Powell and Charles E. Pelot, both of Jacksonville, Fla. (F. L. Dancy, of Jacksonville, Fla., on the brief), for petitioners. Kay, Adams & Ragland, of Jacksonville, Fla., for defendant.

CALL, District Judge. On October 6, 1916, an involuntary petition in bankruptcy was filed by Doty and others against Harry (Henry) Mason, in which, after alleging the jurisdictional facts, the claims of petitioners were stated as follows:

(a) Doty's claim, based on a "promissory note, a true copy of which is hereto attached as Exhibit A."

(b) Collins' claim is for balance due for work and services rendered to Mason, "as per statement hereto attached as Exhibit B."

(c) Powell & Pelot's claim is due for services performed for Mason and disbursements, "in accordance with the attached statement of account, Exhibit

C."

The act of bankruptcy is alleged as the making of a general assignment for the benefit of creditors by Mason on August 1, 1916. Copies of the instruments relied on as constituting the assignment for the benefit of creditors are attached to and by apt words made a part of the petition.

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