GILBERT, Circuit Judge (after stating the facts as above). We accept the finding of the trial court upon the evidence in the case as conclusively establishing that the sinking of the vessel was caused by her being in so topheavy, unstable, tender, and unfit condition, due to the improper manner in which the cargo taken on at Tacoma was stowed, as to be unable to withstand the effect of certain well-known tidal currents, together with a current caused by the waters of the Puyallup river emptying into the bay. The question presented is whether or not the loss was caused by "perils of the seas," Iwithin the terms of the insurance contract.

the seas.

The policy provided that adjustment and settlement should be made in conformity with the laws and customs of England, and it is admitted that said provision is controlling here. Rule 7 of the first schedule of the English Marine Insurance Act of 1906 provides: "The term 'perils of the seas' refers only to fortuitous accidents or casualties of It does not include the ordinary action of winds and waves." Section 55 of the act provides that the insurer "is liable for any loss proximately caused by a peril insured against, even though the loss would not have happened but for the misconduct or negligence of the master or crew." The act also provides: "In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure." It is admitted in the pleadings that the vessel was seaworthy at the beginning of her voyage from Olympia.

The plaintiff in error contends that if a vessel is seaworthy when the policy attaches, and thereafter some unexpected and unforeseen event occurs during the course of the voyage, which changes her condition, which event, in connection with the action of the sea, even if the latter is calm, causes the vessel to founder, the loss occurs from sea perils, and that in the present case the negligent overloading of the vessel was the occurrence of such an unforeseen event. In The Xantho, 12 App. Cas. 507, a collision case, Lord Herschell said: "I am unable to concur in the view that a disaster which happens from the fault of somebody can never be an accident or peril of the sea, and I think it would give rise to distinctions resting on no sound basis if it were to be held that the exception of perils of the seas in a bill of lading was always excluded, when the inroad of the sea

some intervention of human agency." In Arnould on Marine Insurance, § 822, it is said that, in order to enable the plaintiff to recover, "the proximate cause of loss must appear to have been a peril of the sea," and in section 784 it is said: "The maxim as to causa proxima as applied in practice has a twofold operation-partly to limit and partly to enlarge the underwriter's responsibility. It acts in the latter mode in all those cases where it has been decided that the underwriter shall be liable for all losses that are proximately caused by the perils insured against, though they may be remotely occasioned by the acts of negligence of the assured or his agents."

In Redman v. Wilson, 14 M. & W. 477, where cargo on a ship insured against the perils of the sea was negligently loaded by natives on the coast of Africa, and the ship in consequence shortly afterwards became leaky and, being pronounced unseaworthy, was run ashore in order to prevent her from sinking and save the cargo, it was held that the insurers were liable for a constructive total loss; the immediate cause of the loss being perils of the sea, although the cause of the unseaworthiness was the negligence in the loading. Said Parke, B.: "But it appears to us that the rule 'causa proxima non remota spectatur' applies to this case, and that the immediate cause of the loss was a peril of the sea; for the stranding was a loss by a peril of the sea. In Walker v. Maitland, 5 B. & Ald. 171 (recognized and acted on in Bishop v. Pentland, 7 B. & Cr. 219, 1 Man. & Ry. 49), it was decided that the underwriters on a policy of insurance are liable for a loss arising immediately from a peril insured against, but remotely from the negligence of the master and mariners." In Bishop v. Pentland, so referred to, a ship was compelled to put into a tide harbor and was moored alongside a quay. It became necessary to fasten her by tackle to posts on the shore to prevent her falling over upon the tide leaving her. The rope by which she was so fastened, not being of sufficient strength, broke, and the vessel fell over upon her side. It was held that this was a stranding within the meaning of that word in the policy, and that the underwriters were liable, although the stranding might have been occasioned remotely by the negligence of the crew in not providing a rope of sufficient strength.

In West India Tel. Co. v. Home Insurance Co., 6 Q. B. Div. 51, a steamer insured

[Ed. Note. For other definitions, see Words and Phrases, Second Series, Absolute Duty.] 5. Master and servant 129(5)-Causal connection between violation of Boiler Inspec

tion Act and injury essential to liability.

It is essential to liability of carrier under Boiler Inspection Act Feb. 17, 1911, as amended by Act March 4, 1915 (Comp. St. §§ 8639a8639d), for injury or death of employee, that noncompliance with act was proximate cause of accident.

Hough, Circuit Judge, dissenting.

In Error to the District Court of the United States for the Southern District of New York.

Action by Annie Beltz, as administratrix of the goods, chattels, and credits of Milton D. Beltz, deceased, against the Lehigh Valley Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Alexander & Green, of New York City (Clifton P. Williamson, and H. S. Ogden, both of New York City, of counsel), for plaintiff in error.

Humphrey J. Lynch, of New York City (Sol Gelb, of White Plains, N. Y., of counsel), for defendant in error.

plaintiff's intestate received fatal bodily injuries, from which he died. Two others also met their death.

The complaint stated that the action was brought under the federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. p. 65, as amended by the Act of April 5, 1910, c. 143, 36 Stat. p. 291 (Comp. St. §§ 8657-8665), and also under the Safety Appliance Act of March 2, 1893, c. 196, 27 Stat. p. 531, and the amendatory Acts of March 2, 1903, c. 976, 32 Stat. p. 943, and April 14, 1910, c. 160, 36 Stat. p. 298 (Comp. St. §§ 8605 et seq.). The complaint made no reference to the federal Boiler Inspection Act of February 17, 1911, c. 103, § 2, 36 Stat. p. 913 (Comp. St. § 8631), amended by Act March 4, 1915, c. 169, 38 Stat. p. 1192 (Comp. St. §§ 8639a8639d).

The Boiler Inspection Act of 1911, in interstate or foreign traffic, made it unlawful to use any locomotive engine propelled by steam power "unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service.

*" Comp. St. § 8631. And the act of 1915 extended the application of the act of 1911. Section 2 of the act of 1911 provides:

ROGERS, Circuit Judge. This action was brought by plaintiff, as the administratrix of the estate of her deceased husband, to recover damages for his death. The defendant railroad company is a Pennsylvania corporation, which maintains its office and principal place of business in the Southern district of New York. The plaintiff's decedent was employed by the defendant as a conductor on one of its trains. At the time of his death, which occurred on November 15, 1920, he was in the employ of defendant and in charge of a freight train, which it is admitted was engaged in interstate commerce. While in the discharge of his duties he was riding in the cab of one of defendant's engines, when the main pin broke, causing the driving and parallel rods to fly about, disabling the engine and punching a hole in the boiler, causing a violent emission of steam, hot water, and coals of fire into the cab. Those on the engine jumped in an effort to save their lives. In so doing the

any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of such carrier in moving traffic without unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provisions of this act, and be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for."

The amendatory act of 1915 declared that the act of 1911 should "apply to and include the entire locomotive and tender and all their parts and ap

purtenances. Comp. St. § 8639b.

In the instant case the trial judge was of the opinion that the act made it the absolute duty to use only locomotives which are in all respects safe. If an unsafe locomotive should be used and injury resulted, the loss had to fall somewhere and Congress made it

fall on the carrier, whether the latter was at fault or not. The acts, in his opinion, made the carrier "an insurer against all defects of its rolling stock." He refused to charge that "the mere breaking of this pin (in the locomotive) does not establish a violation of defendant's duties, under the so-called Boiler Inspection Act, as amended, or establish a cause of action in favor of plaintiff." He therefore instructed the jury that the only question of fact for them to consider was the question as to the amount of the damages.

[1] The jury returned a verdict against the defendant in the sum of $25,000-$15,000 for the widow of Beltz and $10,000 for his son. The amount of the damages which the administratrix was entitled to recover was for the jury to determine. A court of error cannot modify a judgment upon a verdict at common law on the ground that the verdict is excessive. Foster's Federal Practice, vol. 4, § 711, d. p. 3886. But in this case no claim is made that the amount of the verdict is excessive.

[2] At the time of Beltz's death he was 43 years of age, his wife was 36, and this boy, the only child, was 2 years old. It was stipulated that, subsequent to November 15, 1920, the date of Beltz's death, the rate of pay for freight conductors of the class to which the decedent belonged was reduced from the regular rate of $6.96 a day to $6.32 a day; that that rate remained in force until April 1, 1924, when the rate was increased to $6.68 a day. But with the amount of this verdict we are not concerned.

The safety appliance legislation of 1893 and the acts amendatory thereof did not, in express terms, apply to locomotives, except that it was declared unlawful to use any locomotive engine, in moving interstate traffic, not equipped with a power driving wheel brake and appliances for operating the train brake system. With that exception, the remainder of the acts had to do with the equipment of the "cars." It was held that a loco motive engine is a "car," within the meaning of the second section of the act of 1893. Johnson v. Southern Pacific Company, 196 U. S. 1, 25 S. Ct. 158, 49 L. Ed. 363; Southern Railway Co. v. Crockett, 234 U. S. 725, 34 S. Ct. 897, 58 L. Ed. 1564; United States v. Philadelphia & Reading Ry. Co. (D. C.) 223 F. 213. But clearly a "locomotive" and a "car" are not the same for all the purposes of the Safety Appliance Acts. Davis, as Director General of Railroads, v. Manry, 266 U. S. 401, 45 S. Ct. 163, 69 L. Ed. 350. [3] There is no question here concerning

contributory negligence or assumption of risk. The question of contributory negligence and that of assumption of risk do not arise, if a violation of section 2 of the Boiler Inspection Act contributed to cause the death of an employee. Baltimore & Ohio R. R. Co. v. Groeger, 266 U. S. 521, 523, 45 S. Ct. 169, 69 L. Ed. 419; Great Northern Ry. Co. v. Donaldson, 246 U. S. 121, 124, 38 S. Ct. 230, 62 L. Ed. 616, Ann. Cas. 1918C, 581.

[4] There are numerous assignments of error, but they all depend upon the single question whether the Boiler Inspection Act imposed upon the defendant an absolute duty to keep its locomotive engines free from defects and absolutely safe to operate, so that the defendant became liable to its employees, injured by the failure to discharge that duty, although the defect or defects were not due to the defendant's negligence. In St. Louis Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281, 295, 28 S. Ct. 616, 621 (52 L. Ed. 1061), the Supreme Court, commenting on the Safety Appliance Acts, declared:

"In the case before us the liability of the defendant does not grow out of the commonlaw duty of master to servant. The Congress, not satisfied with the common-law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that 'no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard.' There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the Congress was to supplant the qualified duty of the common law with an absolute duty deemed by it more just. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts. They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the constitutional power of the law-making body. It is quite conceivable that Congress, contemplating the inevitable hard