[2] To meet this difficulty, the libelant relies upon the doctrine of estoppel, and insists that the words of the bill of lading, "in apparent good condition," are not qualified by the clause giving effect to the mate's receipts. I shall accept their position for the purposes of the case and consider it as though the bill of lading created a complete estoppel. What is the ship estopped to assert? Certainly no more than that the goods were in apparent good condition. I cannot see that this should be extended so as to forbid their showing that they were actually damaged by rain or spray and that such damage was excepted from the bill of lading. To give such a bill of lading is in my judgment a tort, for which the libelant has a remedy; but I am now considering simply the ship's liability in contract, to be worked out through an estoppel. It is no doubt unfortunate that, owing to our complicated jurisdiction, I cannot give a remedy upon that tort; but I cannot, and the distinction is therefore vital. If the libelant proceeds by estoppel, the limit of the estoppel is that the ship shall be held to the words used. Obviously, if the cases had not been stained or discolored; if the goods had in fact been in apparent good condition, the ship could have proved that they were wetted by the rain or by spray while in lighters and that the ship was excused under the exceptions of the bill of lading. How can the estoppel put the ship in a worse position than if the statements had been in fact true?

In England the law must be conceded to be in doubt, though I believe that it is in accordance with what I have said. In Campania Naviera Vasconzada v. Churchill (1906) 1 K. B. 237, Channel, J., decided that the ship was estopped by a bill of lading which had the words "in good order and condition.' The case involved lumber stained by oil while at the shipper's risk, and the damage was apparent to the master who signed the bill of lading. The decision proceeded upon the theory that, as the ship was estopped to show that the lumber was not in good condition, it could not show that it had been damaged before the ship received it, and could not therefore sustain its burden as carrier of showing that it was not liable. I cannot find that the ship attempted the line of defense that, even if the lumber was damaged while in its custody, the damage was within the exceptions of the bill of lading, and this no doubt was impossible, as the estoppel went beyond the apparent condition of the goods and affected their condition in fact, from which followed the conclusion that they had been damaged while in the ship's custody, a damage the ship could not

excuse.

However, in Martineaus, Ltd., v. The Royal Mail, etc., Co., Ltd., 17 Com. Cases, 176, Scrutton, J., who was of counsel for the ship in the case just cited, had before him a bill of lading containing the words "in apparent good condition." The cargo was sugar which the owner of the bill of lading acknowledged had got wet before it came to the ship. Scrutton, J., reasoned that, since the ship was estopped to say that the goods were not in apparent good condition, it was inconsistent with that estoppel to allow them to show that the damage had come from external causes, and that the ship could not prove that an excepted peril had caused the damage. I cannot in the least distinguish this case from the case at bar, except for the clause

about mate's receipts, which I disregard (Crooks v. Allen, 5 Q. B. D. 38, 40), and I can only say with great respect that it seems to me to confuse the wrong done by uttering a false bill of lading with the liability of the ship upon its contract. If the ship could not have proved the wetting of the cargo had the apparent condition been in fact good, then the decision would be without question; but no one could assert that. If it be urged that the cargo could not have been wet without showing it, I should say that that was irrelevant; but, irrelevant or not, it has no application to the case at bar, because no one has connected the discoloration of the dates with their being wet, and, indeed, the mate sent away all lighters which he supposed to have got

wet.

The House of Lords, in Crawford v. Allan Line, [1912] App. Cases, 130, expressed an opposite opinion, I think, at least in the judgments of Lord Atkinson and Lord Gorell. In this case flour had been shipped from Minneapolis to Glasgow under a through bill of lading which contained the words, "in apparent good condition." The flour was wet in New York before it reached the ship, and the first question was when the estoppel spoke, which the court fixed at the date of its receipt by them. Having imposed an estoppel upon the ship because it gave the unconditional receipt under such a bill of lading, it was necessary to determine the effect of the estoppel, and in the judgment of Lord Atkinson and Lord Gorell it abundantly appears that they supposed the ship might show that the damage arose from a wetting previous to its receipt by the ship, and that the ship was excused. The Lord Ordinary of first instance had found against the ship in both these particulars, and the House of Lords accepted that finding. I think that this case at least leaves it open to doubt whether the decision in Martineaus, Ltd., v. The Royal Mail, Ltd., supra, expresses the law in England.

[3] In any case there could be no recovery for so many of the cases as were removed before notice. The Persiana, 185 Fed. 396, 107 C. C. A. 416.

[4] While therefore the libelant fails upon this proceeding, I have no doubt that to utter such a bill of lading is a tort, since it is an utterly unjustifiable fraud. The excuse that a bill of lading is not negotiable has no merit whatever, nor have any of the authorities cited any bearing on a case where a false statement is deliberately inserted to be acted upon by innocent third persons. To allow the ship to escape liability under such circumstances would be intolerable. Nothing could more clearly show the corrupt purpose of the parties than the indemnity agreement itself. There are two reasons, however, which prevent any recovery in this case upon that theory. The first is that the libel must be amended to set up a new cause of action, which it is perhaps too late now to do. The Burma, 187 Fed. 94, 110 C. C. A. 330. The second is that this is an admiralty court only and would have no jurisdiction over such a case if the libels were amended, because the bill of lading was issued at Bussorah, if that be the wrongful act, and negotiated in New York, if the wrongful act be its negotiation. One of these acts was a tort, but a tort on land, over which admiralty has no jurisdiction. Williams v. Providence Washington

Ins. Co. (D. C.) 56 Fed. 159. It is not necessary to consider whether in any event admiralty would have jurisdiction over a deceit committed on the high sea.

The libel is dismissed, without costs.

THE MERRIMAC.

(District Court, S. D. Florida. January 27, 1917.)

1. ADMIRALTY 28-PROCEEDINGS IN REM-EFFECT OF STATE LAWS. Whether a proceeding in rem can be maintained against a vessel for tort causing death depends upon the construction of the state laws. [Ed. Note.-For other cases, see Admiralty, Cent. Dig. §§ 278-288.]

2. ADMIRALTY 48-DECREE IN REM-PROCESS TO SUPPORT.

A decree in rem cannot be rendered against a vessel by an admiralty court, where no attachment was ever served.

[Ed. Note.-For other cases, see Admiralty, Cent. Dig. §§ 404-413.] 3. ADMIRALTY 46-DECREE IN PERSONAM-PROCESS TO SUPPORT.

The ordinary monition issued in suits in rem in admiralty does not comply with the requirements of the monition in personam, and under service thereof jurisdiction to render a decree in personam cannot be maintained.

[Ed. Note.-For other cases, see Admiralty, Cent. Dig. §§ 393-395.]

4. ADMIRALTY 44-PROCESS EFFECT OF APPEARANCE,

Where, in a suit in admiralty, defendant filed exceptions challenging the sufficiency of the libel and an answer putting in issue its allegations of fact, it made itself a party to the proceeding in such manner that the court had jurisdiction to proceed to an adjudication of the rights of the parties in personam, though there was not a sufficient service of process to support a decree in personam.

[Ed. Note. For other cases, see Admiralty, Cent. Dig. §§ 376–384.] 5. CONSTITUTIONAL LAW 245-MASTER AND SERVANT 11-VALIDITY OF STATUTES.

Laws Fla. 1913, c. 6521, regulating the liability of employers for injuries to employés, does not violate Const. U. S. Amend. 14, because it includes, in the persons, firms, and corporations subject thereto as engaged in hazardous occupations, persons and corporations engaged in boating, when the boat is propelled by steam, gas, or electricity, thereby excluding sailing vessels.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 702.] 6. SHIPPING 84(5)—INJURIES TO STEVEDORES-ASSUMPTION OF RISK-STATUTORY PROVISIONS.

A stevedore, engaged in loading or unloading a steam vessel, is within the protection of Laws Fla. 1913, c. 6521, section 4 of which abolishes the doctrine of assumed risk in all cases arising thereunder.

[Ed. Note. For other cases, see Shipping, Cent. Dig. § 342.]

7. SHIPPING 84(5)—INJURIES TO STEVEDORES CONTRIBUTORY NEGLIGENCE. An experienced stevedore, engaged in such business for many years, was guilty of negligence contributing to his injury, caused by the negligent handling of a hatch cover, where it appeared that it was dangerous to be under the hatch when the ship was being loaded and when covers were being placed upon the hatch, and that stevedores were cautioned about this and warned not to stand under the hatches at such time. [Ed. Note.-For other cases, see Shipping, Cent. Dig. § 342.]

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

8. SHIPPING 84(5)-INJURIES TO STEVEDORES-CONTRIBUTORY NEGLIGENCE. Under Laws Fla. 1913, c. 6521, § 3, abolishing the defense of contributory negligence as a bar to an employé's suit for injuries, except where the injured party and the person whose negligent act caused the injury are fellow servants engaged in the performance of the act causing the injury, and the employer is guilty of no negligence contributing to the injury, contributory negligence of a stevedore, engaged in loading a vessel, but having nothing to do with the work of putting a cover on a hatch, did not bar recovery for injuries caused by the negligence of the stevedores engaged in placing such cover.

[Ed. Note.--For other cases, see Shipping, Cent. Dig. § 342.]

9. DEATH ~95(1)—DAMAGES FOR DEATH-AMOUNT.

Four thousand dollars would be a proper award for the death of a stevedore having a life expectancy of 27 years, and having a wife 6 years younger than himself and three children, where it was not shown how much he expended on his family in their care and maintenance.

[Ed. Note. For other cases, see Death, Cent. Dig. §§ 108, 113-115, 120.J

In Admiralty. Libel by Gabriella Moody against the Merchants' & Miners' Transportation Company and the steamship Merrimac. Decree in personam against the Transportation Company.

A. H. King, Roswell King, and George C. 'Bedell, all of Jacksonville, Fla., for libelant.

Fleming & Fleming and Joseph S. Diver, all of Jacksonville, Fla., for respondent.

CALL, District Judge. On April 14, 1917, libel was filed against the Merchants' & Miners' Transportation Company, owners, and against the steamship Merrimac, in rem. Upon this was issued an attachment against the vessel, and also a monition in the usual form used in this district, admonishing the parties interested in the vessel to appear on a certain day, and requiring the marshal to serve a copy on the master, agent, or owner of said vessel, and by publishing a notice in the newspaper. The attachment of the vessel was never served at the request of proctors for libelant. The monition was on April 15th served upon Horace Avery, "agent for the Merchants' & Miners' Transportation Company, owners of the within named steamship Merrimac, in the absence of the president, vice president, secretary, and treasurer, and other high officials."

On April 24th exceptions were filed by the Merchants' & Miners' Transportation Company to the libel, challenging the right of the libelant to proceed in rem. On the same day an answer was filed by the owners, admitting the ownership, etc., and denying liability. On June 9th an amended libel was filed in rem by leave of court against said vessel and in personam against the owners. Upon this amended libel no process was issued.

On June 20th the owners, by leave of court, filed exceptions to the amended libel, challenging the right of libelant to proceed in rem on the case made, and in the sixth and seventh grounds attacking the libel as not showing a cause of action against the owners. On the same day the owners filed, by leave of court, answer to the amended libel, setting up virtually the same defenses contained in the answer

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

filed April 24th, to the original libel. Testimony was taken, and the case brought on for final hearing. Thereupon the respondent insisted upon its exception filed on June 20th.

[1, 2] The consideration of said exceptions was opposed on the ground that answer having been filed at the same time as the exceptions was a waiver of same. This position of libelant I do not think well taken. These exceptions raise the question whether a proceeding in rem can be maintained in this state for a tort causing death. The decision of this question depends upon the construction of chapters 6521 and 6913 of the Laws of Florida. The Corsair, 145 U. S. 335, 12 Sup. Ct. 949, 36 L. Ed. 727. It is beyond question, I imagine, as said by Judge Locke, in The Nora (D. C.) 181 Fed. 845, that "the jurisdiction in actions in rem is only given by attachment and bringing the vessel into the custody of the court, and no valid decree can be entered without such attachment." In the instant case, as above noticed, no attachment was ever served. The vessel was never taken into custody, and hence no decree in rem could be entered in this suit. The question, therefore, whether a lien exists under the state law, becomes a moot question in this case. This disposes of the bulk of the exceptions.

The respondents also contend that libelant can have no relief in this case because she has brought a libel in rem and in personam joined, and such practice is not permitted under the admiralty rules promulgated by the Supreme Court. Rules 12 to 19 inclusive (29 Sup. Ct. xl, xli), provide against whom suits may be brought by materialmen, seamen, pilots, and in suits for damages by collision, for assault and battery, for hypothecation, on bottomry bonds, and for salvage. Unquestionably claims against the vessel and owners cannot be joined in claims coming within the terms of said rules. In The Corsair, supra, the court declined to decide whether there could be a joinder in other claims than those covered by these rules. For the reasons above noted, it is not requisite for this court to decide that question in this case.

[3, 4] The vital question that arises in this case is: Can this court, in the state of pleadings render a judgment in personam against the respondent? The answer to this question depends on whether the respondent, by filing the exceptions and the answer, has made itself a party to this proceeding in such manner that a decree in personam can be rendered against it, if the evidence warrants it. The monition served upon Avery was the ordinary one issued in suits in rem, and does not comply with the requirements of the monition in personam, and jurisdiction under such service cannot be maintained. If the pleadings filed by the respondent are tantamount to a general appearance, there is no more reason why a party may not submit himself to the jurisdiction of an admiralty court than to a court of equity or common law. The rule in those courts last named is that any pleading filed which requires the court to decide upon the merits of the case will be construed to be a general appearance and cure any defect of service; the court having jurisdiction of the subject-matter. In the instant case the sixth and seventh grounds of exception challenge the