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clear that the amount of these policies should not have been considered in fixing the tax. At any rate, it appears to the court that all uncertainty on this question has been set at rest by the recent case of Lewellyn v. Frick, 45 S. Ct. 487, 69 L. Ed. —, decided by the Supreme Court on May 11, 1925, and upon the authority of that case the transfer of these policies was not subject to the tax.

[3] The action of the Commissioner in holding that the transfer of the $4,000 by the trust instrument of November 15, 1915, was taxable, can be explained only upon the theory that he did not have before him the facts. This instrument trånsferred no interest of Mr. Smith, personally, in the $4,000 fund. It was simply the designation by Mr. Smith, as trustee, of a new trustee in his stead, as he was authorized to do by the two trust agreements, dated respectively February 14, 1902, and January 3, 1910, which created the trust fund of $4,000. The only interest Mr. Smith personally ever had in any part of this fund was such interest as he may have had in the $3,000 estate of Mrs. Blanchard prior to the execution of the trust agreement of January 3, 1910, and it is not seriously contended that the transfer of his interest by that writing was made in contemplation of death, or to take effect in possession or enjoyment at or after his death. The court is therefore of the opinion that the $4,000 fund should not have been considered in arriving at the amount of tax due by the estate.

[4] As to the deed of trust of December 1, 1910, the court is fully satisfied that there is no basis whatever for holding that it was made in contemplation of death, within the meaning of the act. The defendant, in the argument of this case, did not make any such contention. He does contend, however, that this deed was a transfer of property to take effect in possession or enjoyment at the death of Mr. Smith, and therefore taxable under the act. An examination of the provisions of this deed, quoted in the early part of this opinion, will disclose the fallacy of this contention. Neither the possession nor the enjoyment of the property by the beneficiaries as a class was made dependent upon the death of Mr. Smith. The termination of the trust and the conveyance of the property to the beneficiaries was fixed without any reference whatever to the date of his death. His death neither hastened nor postponed the day when the beneficiaries as a class should come into possession or enjoyment of the estate. Upon the execution of the deed Mr. Smith completely divested

Any

himself of all interest in and title to the property conveyed. It is true that by paragraph I he provided that during his lifetime, or until he should otherwise in writing direct, the net income accruing during the trust period should be paid by the trustee to him, but it was not to be received by him for his own benefit; it was to be disposed of by him at his discretion, "in the interest of the beneficiaries hereinafter named." income received by Mr. Smith under this clause of the deed was received by him in trust for the beneficiaries therein named as a class-not for his own use. It was their money, belonging to them as a class, and not his, and at his death he had no interest or title in the property to pass. Furthermore, on September 4, 1915, by a letter to the trustee of that date, he divested himself of his right to distribute the income among the beneficiaries. From that date until his death he had no connection whatever with the trust property. Therefore the court holds that the transfer was not made in contemplation of death, nor was it one to take effect in possession or enjoyment at or after his death, and consequently was not taxable under the act.

[5] This leaves only the transfer of September 2, 1915, to be disposed of. This in strument cannot be construed as a transfer of property to take effect in possession or enjoyment at or after the death of Mr. Smith. No power of revocation or amend ment was retained. It provided that the entire income should be paid by the trustee directly to the beneficiaries therein named, in monthly or quarterly installments as the beneficiaries might elect. The trust was to end at the expiration of 15 years, at which time the property was to be conveyed to the three children of Mr. Smith, or, if dead, to their children, if of age; if not of age, then as to such minors the trust was to continue for an additional period of 6 years, at which time the interest of such minors should be conveyed to them. If each of the three children of Mr. Smith should die before the end of the trust period, leaving no children, then the property was to go in equal parts to the children of a nephew of Mrs. Smith and the children of a nephew of Mr. Smith, if any, and, if none, to their heirs.

It will be observed that Mr. Smith not only completely divested himself of all title to and interest in the property transferred, but he provided against the possible contingency of the trust failing because of the death of his children without heirs before the expiration of the trust period. His death did not in the slightest degree enlarge

7 F.(2d) 153

or change either the possession or the enjoyment by the beneficiaries of the property conveyed. Therefore, unless the facts show that this transfer was made in contemplation of death, it should not have been taxed.

[6] Inasmuch as this transfer did not take place within 2 years of the death of Mr. Smith, there is no legal presumption that it was made in contemplation of death. Whether it was so made is purely a question of fact, to be determined from all the circumstances leading up to and attending its execution. Viewed in the light of all the evidence, the only fact from which a conclusion could be drawn that it was executed in contemplation of death is the circumstance that it was actually dated September 2, 1915, the day following the day upon which Mr. Smith developed a hemorrhage of the throat. The evidence, however, is not only very clear that Mr. Smith did not regard this throat trouble as serious, but the proof is overwhelming that the execution of the trust instrument was not the result of a purpose formed after the hemorrhage developed. Its execution on that day was the culmination of a fixed plan he had formed more than a year previous, and concerning which he had been in almost continuous correspondence and consultation with Mr. Botts, of the Fidelity & Columbia Trust Company, since August 2, 1915. The instrument finally executed on September 2, 1915, was in all substantial respects a duplicate of the penciled draft made by Mr. Smith in his own handwriting on August 16, 1914, and found among Mr. Smith's papers after his death. The proof is conclusive that from the time be drafted the original memorandum until he approved the final draft of the transfer and executed it he never changed or wavered in his purpose expressed in that original draft. After a number of drafts had been submitted to him by Mr. Botts, the final draft of the trust instrument-the one which was signed on September 2, 1915was mailed to him by Mr. Botts on August 30, 1915, and he had it in his possession at the time he became ill on September 1, 1915. At the time he made the original draft on August 16, 1914, Mr. Smith was enjoying his usual health, and was vigorous and active for a man of his age. He was actively performing his duties as president of the Louisville & Nashville Railroad Company, and the same is true during all the month of August, 1915. Furthermore, it must be borne in mind that a desire to evade the tax could not have prompted the transfer, because at its date there was no estate tax.

To hold that under these circumstances the transfer was executed in contemplation of death, as that term is used in the statute, or that it was to any extent influenced by his illness of September 1, 1915, would be to disregard the uncontroverted facts. The court therefore holds that this transfer was not taxable.

In view of the conclusions herein expressed, it becomes unnecessary for the court to pass upon the constitutional question raised by the plaintiff.

For the reasons stated, the court is of opinion that the plaintiff is entitled to recover the full amount sued for, with interest from the date of its payment.

A judgment, with separate findings of fact and conclusions of law to conform to the views herein expressed, may be prepared and presented for entry.

odified 11 F (201) 41.

KING COAL CO. v. UNITED STATES et al.
AMERICAN-HAWAIIAN S. S. CO. V.
UNITED STATES. UNITED STATES v.
AMERICAN-HAWAIIAN S. S. CO.

(District Court, N. D. California, S. D. June
24, 1925.)

No. 18292.

1. Collision ~71(3) Violation of harbor commissioners' rule as to docking ground for liability, if proximately contributing to accident.

Violation of harbor commissioners' rule, requiring vessels not to project beyond ends of piers at which they are docked, is ground for liability, if proximately contributing to accident,

occurrence of which the rule manifestly was intended to prevent.

2. Collision 72(1) Violation of harbor commissioners' rule as to docking held to proximately contribute to accident.

Violation by the P. of harbor commissioners' rule, by projecting beyond end of pier at which it was docked, held to have proximately dering it also liable for damages therefrom, contributed to collision with it of the H., ren

where the H., till after its rudder had jammed, but for which it would easily have avoided the accident, was unaware of the projection of the

P., so that its negligence in the matter of the

condition of its steering gear was at most concurrent with that of the P.

In Admiralty. Libel by the King Coal Company against the United States and others, with the American-Hawaiian Steamship Company as third party respondent, with cross-libels by the United States and the Steamship Company each against the other. Decree for libelant.

Ira S. Lillick and Theodore M. Levy, both several others. It was claimed that the of San Francisco, Cal., for libelant.

Sterling Carr, U. S. Atty., of San Francisco, Cal., and Frank Maytham, Sp. Asst. Atty. Gen., for respondents.

Andros, Hengstler & Dorr and F. W. Dorr, all of San Francisco, Cal., for third party respondent.

KERRIGAN, District Judge. As before stated at the time of the oral argument, I am unable to agree with counsel for the government that this is a case of inevitable accident. On the contrary, I believe the accident to have been a direct result of negligence on the part of those in charge of the Hagan, which was being operated by the United States Shipping Board. The real question is whether or not the Pennsylvanian also is responsible for the damage, which it is not denied would not have occurred if that vessel had been docked according to the harbor rules.

[1] In some states, the violation of an ordinance or statute is prima facie evidence of negligence. In others, breach of a statute resulting in injury is held to be negligence per se. The harbor commissioners, in the interests of shipping, have enacted a rule which requires vessels not to project beyond the ends of the piers at which they are docked. On strictest principles of law, the plaintiff in an action for negligence obtains the benefit of such a rule or statute as this, if he be one of the class for whose protection it was enacted, and the breach of such rule or statute was the efficient cause of the injury of which he complains. Evers v. Davis, 86 N. J. Law, 196, 202, 90 A. 677. It would seem to follow that the Pennsylvanian, having been guilty of a violation. of a rule which manifestly was intended to avoid and prevent the occurrence of just such accidents as the one which took place, must respond in damages for an injury to the libelant proximately resulting therefrom. [2] But it is urged by the owners of that vessel that violation of the harbor rule did not proximately contribute to the accident's occurrence, and that therefore they cannot be held liable. As authority for this proposition we are referred to several cases which I shall briefly notice.

In The Daniel McAllister, 258 F. 549, 551, 169 C. C. A. 489, the steam tug of that name undertook to move a coal barge from a slip between two piers in the East River, and while doing so collided with a barge moored across the end of one of the piers. This barge was set adrift and caused damage to

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barge, which was moored across the end of the pier, in violation of a local harbor rule, was at fault. The court found, however, that the mooring of the barge across the end of the pier was not the proximate cause of the collision, because the McAllister had been negligent in attempting to leave the slip in a flood tide, having its tow made fast on a bridle hawser, instead of alongside, and such negligent operation was the proximate and producing cause of the injury inflicted.

In the case of The Canima, 32 F. 302, a canalboat lying moored alongside of a pier in the North River was struck by a steamship, which was attempting to enter a slip beyond the next pier. The bow of the canalboat projected 10 or 15 feet into the river beyond the end of the pier, and the lower court therefore held that it was partly to blame for the collision, and apportioned the damages. The Circuit Court reversed the decree, saying that the collision was due solely to the inexcusable negligence of the steamship in backing into her berth in the manner described in the opinion.

In The Yucatan, 226 F. 437, 439, 141 C. C. A. 267, a vessel was lying moored in the fairway, where she had no lawful right to be, and was there injured by another vessel, which, by proper navigation and the exercise of reasonable care, could have avoided the collision. It was held by the local Circuit Court of Appeals that a finding by the trial judge that the proximate cause was the careless and negligent handling of the colliding vessel was fully warranted by the evidence.

In The Mary Powell (C. C.), 36 F. 598, a barge lay along a North River pier, with her stern projecting about 16 feet into the river beyond the end of the pier. In that position, she was injured by a steamboat which was starting up the river from a pier 600 feet distant. Adopting the rule followed in The Canima, supra, it was held that the position of the barge was not the proximate cause of the injury.

Without stating the facts of other cases, it is sufficient to say that in one particular all of the authorities cited are distinguishable from the case at bar. Here the evidence shows that the Hagan, but for the jamming of her helm, would easily have avoided the accident. When those in charge of her for the first time became aware of the possibility of a collision with the Pennsylvanian, their steering engine had ceased to function, and their helm, as stated, was jammed amid

7 F.(2d) 155

ships. The officers of the Hagan had not, as had those in the cases relied upon, voluntarily placed their vessel in a situation where her proximity to the second vessel might be termed hazardous. It was not until the rudder jammed that an appreciable danger of collision may be said to have existed, and the negligence of the Hagan's of ficers in failure properly to inspect her steering apparatus at that point was coincident with and concurrent with the negligence of the Pennsylvanian in lying with her stern beyond the end of the pier at which she was docked. In other words, the cases cited are distinguishable because of the fact that, in each of them, the offending vessel, that, in each of them, the offending vessel,

aware of the situation of the vessel which was improperly moored, by proper navigation could have avoided collision with it, but negligently failed to do so.

In the present case, the Hagan, until after her rudder had jammed, was totally unaware of the projection of the stern of the Pennsylvanian beyond the end of its pier. It cannot, therefore, be said that any culpable act of omission or commission was done by the former vessel with knowledge of the latter's breach of the harbor rule. Her negligence in the matter of the condition of her steering gear was at most concurrent with that of the Pennsylvanian already referred to, and not such as to make her exclusively responsible for the collision and consequent damage.

Let a decree be entered against both respondents in accordance with these views. Referred to Commissioner Krull.

THE SAMLAND.

(District Court, S. D. New York. July 8, 1925.)

1. Shipping 132(3)-Ship must show damage to shipment was from cause excusing it.

Ship has burden of showing that damage by freezing to shipment, received in good order, and to be delivered in like good order and condition, was occasioned by cause for which it was not liable.

2. Shipping132(5)-Ship held to have failed to show freezing in refrigerator compart ments not due to negligence of those charged with control of temperatures.

That damage by freezing to shipment stow ed in some of ship's separate refrigerator com

partments was not caused by inattention and

neglect of those charged with responsibility of controlling temperatures therein held, under the evidence, not shown.

3. Shipping 137-Negligence In control of temperatures in refrigerator compartments not as to management of vessel excused by Harter Act.

Negligent failure to observe condition of thermometers for recording temperatures in refrigerator compartments, and so to control temperatures therein, resulting in freezing of shipment, was not a fault in the management of the vessel, for which ship is excused by Harter Act, § 3 (Comp. St. § 8031), but negligence in not properly caring for the cargo, for which it is liable.

Libel in admiralty by Van Dyk & Lindsay, Inc., against the Steamship Samland, Societe Anonyme de Navigation Belge Americaine, claimant, to recover damages for shipment of endives and grapes caused by defective refrigeration during voyage from Antwerp to New York. Decree for li

belant.

Wood, Cooke & Seitz, of New York City, for libelant.

Burlingham, Veeder, Masten & Fearey, of New York City (Ralph W. Brown, of New York City, of counsel), for claimant.

THACHER, District Judge. [1] The shipment in question, consisting of 160 packages of grapes and 348 baskets of endive, was received in good order on board the vessel, to be delivered in like good order and condition at the Port of New York. Upon delivery in New York the merchandise was found to have been damaged by freezing Under during the course of the voyage. these circumstances the burden was upon the claimant to show that the damage was occasioned by a cause for which it was not responsible. The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748; Andean Trading Co. v. Pacific Steam Navigation Co. (C. C. A.) 263 F. 559. This burden the claimant attempts to meet by proof that the owner exercised due diligence to make the ship and her equipment in all respects seaworthy, that the damage was not caused by any negligence in stowing or caring for the shipment, and that, if there was any negligence in the operation of the refrigerating plant, that was a fault or error in the management of the vessel for which the owner and the ship are not responsible under section 3 of the Harter Act (Comp. St. § 8031).

[2] When the merchandise was taken on board it was properly and carefully stowed in the refrigerating compartments on board the ship. Such merchandise is customarily carried under refrigeration, and higher rates are charged for such carriage than for

ordinary cargo. Temperatures reasonably safe for the carriage of such merchandise range between 36 and 40 degrees Fahrenheit. If the grapes or the endive are allowed to freeze, serious damage is inevitable. It appears from the evidence that there were on the Samland five separate refrigerating compartments, two of which were used exclusively for carrying the ship's provisions, and the remaining three for cargo. Portions of the shipment in question were stowed in all three of the refrigerating compartments used for cargo. The refrigerating compartments are artificially cooled by the circulation of brine through pipes running along the walls and ceilings of the compartments; this brine being pumped through separate pipes leading to each compartment, after having been subjected to a refrigerating process, which can be controlled by stopping the process of refrigeration or by increasing or retarding its intensity through the mechanical control of pressures. In each compartment there is a hole or pipe through which a thermometer attached to the end of a screw cap is inserted and securely held in place, so that, in order to read the temperature in any one of the compartments at any time, it is only necessary to unscrew the cap and withdraw the thermometer. Although the record is not as clear as it might be upon the point, I am satisfied, from the recorded average temperatures in the separate compartments, that it was quite possible to raise and lower the temperature in one or more compartments without substantially affecting the temperatures in the others, no doubt by allowing the warm air to enter one compartment.

It is the contention of the claimant that when the ship was about 11 days out from Antwerp the temperatures registered on these two thermometers were found to be too high, and, when the refrigerating machinery was so operated as to reduce the temperatures, these thermometers failed to record any reduction, and that on the morning of the following day, at about 9 o'clock, the chief engineer, regarding this condition as suspicious, had the compartments opened and discovered that, although the thermometers registered temperatures of about 40 degrees Fahrenheit, the actual temperature within the compartments was 25 degrees Fahrenheit. Heavy frost had formed on the pipes, and the merchandise was removed from the compartments so as to permit the removal of this frost, and then put back;

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It appears from the testimony of the chief engineer that readings from these thermometers were made during each watch by the assistant engineers and entered on the log; that during the day it was his duty to make entries on the abstract engineer's log of the average temperatures for the day, averaging those reported on the log for each watch. The log upon which the original entries were made was not produced, it appearing, however, from counsel's statement that it could not be found, although diligent search had been made; nor were any of the assistant engineers who made and entered the readings on the original log produced as witnesses, it also appearing that none of them were available. The chief engineer was called as a witness, and produced the abstract engineer's log kept and signed by himself during the course of the voyage. From this it appears that the average temperature recorded on the thermometer in compartment No. 5 was 39 degrees Fahrenheit on March 15th, 40 degrees Fahrenheit on March 16th, and 29 degrees Fahrenheit on March 17th, the day on which the discovery was made, and that the average temperatures reported in compartment No. 6 were 38 degrees Fahrenheit on March 15th, 38 degrees on March 16th, and 29 degrees on March 17th. There is no proof to indicate how these readings varied during the course of each of these three days. This would have been clearly disclosed by the log, which has not been produced. If, as contended by the claimant, the defect in the thermometers was discovered through their failure to react to increased pressures, which should have immediately lowered the temperatures within the compartments, it was of the utmost importance to show when the pressures were first increased and the failure of the thermometers to respond first discovered, for, upon such discovery, the defect ceased to be latent and became patently obvious, requiring prompt action in order to prevent freezing. The abstract of the engineer's log shows that for the whole day on the 16th the temperature in compartment No. 5 averaged 40 degrees, which was a fact necessitat

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