Winthrop & Stimson, of New York City (Allen T. Klots and Arthur E. Pettit, both of New York City, of counsel), for plaintiff in error.

Wilber, Norman & Kahn, of New York City (Mark W. Norman, of New York City, of counsel), for defendant in error.

Before HOUGH, HAND, and MACK, Circuit Judges.

MACK, Circuit Judge. This writ of error is brought to reverse a judgment for the face amount, with interest, of five policies, of $25,000 each, of insurance issued by plaintiff in error (hereinafter called defendant) on the life of Arthur Miller, and payable to defendant in error (hereinafter called plaintiff), his wife.

The policies are dated the 29th day of October, 1923; premiums are payable quarterannually in advance. Each policy contains the following clause:

"II. Grace in Payment of Premiums. A grace of thirty-one days, during which this policy shall remain in force, will be granted for the payment of premiums or regular installments thereof, after the first. If the death of the insured occur during the days of grace, the sum necessary to complete payment of premiums for the then current policy year will be deducted from the amount payable hereunder."

Five quarter-annual premiums have been paid; the due date of the sixth, if we disregard the quoted clause of the policy, was January 29, 1925, before 3 p. m. The insured committed suicide on March 2, 1925. The verdict of the jury has determined that death occurred before 3 p. m. of that date. The only question presented for our consideration on this writ of error is whether, under the true construction of the contract of insurance, the time for payment of the sixth quarterly premium expired at 3 p. m. of March 2, 1925, or of March 1, 1925. The question arises, because March 1, 1925, was a Sunday.

These policies were unilateral obligations. Their continuance in full force, subject to certain provisions, applicable only after three years' premiums had been paid, was expressly conditioned upon prompt payment of the premium pursuant to the terms of the contract. Each premium is payable in advance. It is the consideration for the three months' insurance; there is, however, no obligation upon the insured to continue his payments, and if, until three years' premiums have been paid, he fails promptly to make his payment, the obligation of the in

surer immediately ceases. He has obtained all that he has ever paid for during that time, namely, the insurance protection for the successive periods of three months, with the right by paying again to continue the policy in force.

But the so-called grace clause changes the condition as to the time of the quarterly payments. It in fact grants to the insured a credit. He is not thereby obligated to make the payment at the end of that period; he could not be sued therefor; the contract is still unilateral, not bilateral. Notwithstanding, however, the fact that the insurance period for which payment has been made has expired, and the uncertainty as to whether payment will thereafter be made for the new period, by virtue of the contract the insurance is nevertheless continued in force. If by reason of death before the payment of the premium, the policy should mature, the company is no worse off than if the premium had been paid in advance, inasmuch as, under the terms of the clause hereinabove quoted, it may deduct the entire year's premium from the face of the policy. If, however, the policy does not mature, and the premium is not paid within the credit period, the company will have carried the risk during that credit period of 31 days without any payment

therefor.

This analysis of the situation does not, however, seem to throw any light on the exact situation before us. It is urged, on the one hand, that the 31 days are true days of grace; that they have grown out of a more or less general custom of the insurance companies not to be absolutely strict in requiring the prompt performance of the conditions; and that, just like the days of grace in commercial paper, they have gradually become a legal right, in many states fixed by statute, and sometimes fixed or extended beyond the statute period which is often 30 days, by the contract. It is urged that, because of this analogy, the rule applicable to days of grace in commercial paper should be applied; that is, that if the last day of grace falls on a Sunday, payment must be made on the preceding business day.

It is contended, on the other hand, that days of grace in commercial paper originated and developed as a uniform custom; that under that custom payment was due on the preceding day, if the last day of grace fell on Sunday; that, when the custom was incorporated into the law, it was the custom as so established that was so incorporated. But the analogy is denied, because there was no uniform custom of insurance companies as

to extending the time of payment of premiums; the right to the extension was strictly statutory or contractual, and, when contractual, as in this case, it made the condition of the continuance of the insurance payment, not on the date of the policy and quarterly thereafter, but 31 days after each quarterly payment would otherwise have to be made.

It is, however, contended that as, concededly, if there had been no contractual extension the time for payment would be Monday if the fixed date fell on a Sunday, so, too, if the new contractual date, namely, 31 days after the specified date, falls on a Sunday, payment need not be made until Monday. In our judgment the latter contention is sound. Although denominated days of grace, the 31-day period is in no sense a matter of grace. It is just as much an essential part of the contractual terms as the nonforfeiture provision applicable after three years' premiums have been paid. It amounts to an agreement to carry the risk during the extended time in consideration of the premiums theretofore paid, and in the hope and with the incentive that, if the policy does not mature in the meantime, the premiums will be kept up. We see no reason for so construing this clause as to shorten this contractual period to 30 days, if the thirty-first day is on a Sunday; the language is chosen by the insurer; if it desired to shorten the period in such an event it could have provided therefor by express words.

Hixenbaugh v. Union Central Life Ins. Co., 219 Ill. App. 534, is contrary to our conclusions; the case therein relied upon, Etna Life Insurance Co. v. Wimberly, 102 Tex. 46, 102 S. W. 1038, 23 L. R. A. (N. S.) 759, 132 Am. St. Rep. 852, would seem rather to support the conclusion reached by us. In that case the anniversary of the date of issue of the policy fell on a Sunday. The question for determination was whether the 30 days of grace provided for in the contract would begin on Monday or would begin on Sunday. The court held that they would begin on Sunday, notwithstanding the concession that, if there had been no days of grace contracted for, the day of payment would not have expired until Monday.

The sound basis of this decision is that the 30 days are merely an extended part of the entire period, that the Sunday in question is in truth an intermediate Sunday, and not the Sunday of maturity, and that therefore, in accordance with general principles, it is not an excluded day. If the 30 days there, or the 31 days here, were in truth days of grace, it would seem that they ought to begin to

Aliens 53-Alien seaman's return from foreign voyage on American vessel held "entry," subjecting him to deportation on conviction of crime within 5 years (Immigration Act 8 19 [Comp. St. § 42894jj]).

Where alien seaman entered United States in 1912, and thereafter sailed on American vessels, held, that his return in 1918 from foreign voyage was an "entry," within Immigration Act, 19 (Comp. St. § 42894jj), subjecting him to deportation on conviction of crime involving moral turpitude within 5 years thereafter, notwithstanding he had taken out naturalization papers in 1919, and that his entry in 1918 was lawful.

and Phrases, First and Second Series, Entry.] Hand, Circuit Judge, dissenting.

[Ed. Note.-For other definitions, see Words

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

the relation of Niels Peter Claussen, against Habeas corpus by the United States, on Henry H. Curran, as Commissioner of Immi

gration. From an order discharging the writ tion authorities for deportation, relator apand remanding relator to custody of immigrapeals. Affirmed.

Silas B. Axtell, of New York City (Charles A. Ellis, of New York City, of counsel), for appellant.

Emory R. Buckner, U. S. Atty., of New York City (Charles L. Sylvester, of New York City, of counsel), for appellee.

Before HOUGH, HAND, and MACK, Circuit Judges.

MACK, Circuit Judge. The question before us is the meaning of the word "entry" in section 19 of the Immigration Act of February 5, 1917, which provides that "any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involv

the

ing moral turpitude, committed within five years after the entry of the alien to the United States, shall, upon the warrant of the Secretary of Labor, be taken into custody and deported." Comp. St. § 42894jj. If relator's entry was, as asserted by the government, in 1918, he was deportable; if in 1912, he was not deportable. The facts are undisputed. Claussen, a Danish subject, first entered this country in 1912 as a member of a crew of a British ship. He landed at Norfolk, Va. The next day he shipped on an American schooner, and, except for short periods on shore, he sailed on American vessels up to the time of his conviction in June, 1921, for manslaughter committed in May, 1921. He took out his first papers for naturalization in June, 1919. His last foreign cruise was as a member of the crew of an American schooner; he signed on for this in New York in October, 1917, and arrived back and signed off in Boston in March, 1918. During the voyage the schooner had landed at several foreign ports. Thereafter he made a few cruises in coastwise trade, and resided for a time on land in the United States.

The exact question is whether his return on the American schooner from the foreign cruise for which he had shipped from the United States is to be deemed an entry into the United States, within the above-quoted section 19 of the act. The common statement which was the basis for the decisions in the Chinese Laborer (C. C.) 13 F. 291, and Chinese Cabin Waiter (C. C.) 13 F. 286, that an American vessel is to be deemed American soil, is but a fiction, and is not of universal application. Scharrenberg v. Dollar S. S. Co., 245 U. S. 122, 38 S. Ct. 28, 62 L. Ed. 189; Cunard S. S. Co. v. Mellon, 262 U. S. 100, 43 S. Ct. 504, 67 L. Ed. 894, 27 A. L. R. 1306.

Clearly he was not in the United States during the voyage; equally clearly he entered the United States in March, 1918. The question before us is neither, as in Weedin v. Banzo Okada (C. C. A.) 2 F. (2d) 321, whether within other sections of the act that entry was legal or illegal, nor, as in petition of Hersvik (D. C.) 1 F.(2d) 449, whether by making such a voyage he lost any rights given under other sections of the act to return to the United States. See, too, Ex parte T. Nagata (D. C.) 11 F. (2d) 178.

We are concerned only with the meaning of the word in connection with the deportation provision for the commission of crime, and under that section, in our judgment, the word should be given the broadest interpretation. The Weedin Case contrasting R. S. § 5363 (Comp. St. § 10468), and section 8 of

Immigration Act (Comp. St. § 42894dd), presented a real difficulty to the court, that had to determine the legality or illegality of entry; under the former provision the master of a vessel is criminally liable for refusing to bring his seaman, whom he has carried out, home again, whereas, under the latter provision, the master who brings an alien not lawfully entitled to enter or to reside within the country is likewise criminally liable.

In the present case we are not, however, concerned with the reconcilement of these two provisions, for, even if relator was lawfully entitled, as held in the Weedin Case, to enter the United States in 1918, his action in coming into the country was none the less an entry because it was a lawful entry, and it would be none the less an entry if he had established a definite residence within the country. Logically it follows that one who crosses the international bridge at Niagara Falls to Canada, and, after viewing the falls from the Canadian side, returns to this country, does enter the country, and if he be an alien, and thereafter within five years is convicted of a crime involving moral turpitude, he would be deportable under the section here involved.

The fact that the relator took out naturalization papers in 1919 and therefore, under the naturalization laws, would "for all purposes of protection as an American citizen be deemed such," does not aid him here. No question of protection as an American citizen is involved. The view that, because an alien seaman on an American vessel is regarded as an American seaman, in the sense that he is under the protection and subject to the laws of the United States (In re Ross, 140 U. S. 453, 11 S. Ct. 897, 35 L. Ed. 581), was held in U. S. v. New York S. S. Co., 269 U. S. 304, 46 S. Ct. 114, 70 L. Ed. 281, to have no application to the question whether such seamen come within the terms of a special statute dealing specifically with "alien seamen as such." It was there held that, for the purpose of the act then under consideration, alien seamen meant seamen who are aliens, and not seamen on foreign vessels.

The order must be affirmed.

HAND, Circuit Judge (dissenting). It seems to me that there is strong reason to distinguish the return of a seaman at the end of a voyage for which he has signed the articles, and on the same ship on which he left, from a re-entry one has not bound oneself to make when one went away. A seaman is bound for the voyage, once he signs on; desertion is at

least a civil wrong. To say that every coasting vessel or fishing smack which passes the league limit subjects all aliens on board to all conditions of admission into the United States, including, I should suppose, the quota law, seems to me an impracticable interpretation of the law; yet I can see no escape from it, if my brothers are right. It means that American crews must be made up of citizens and citizens only. That I should have thought was the opposite of the plain intention of Congress as respects our mercantile

marine.

Nor can I see that we can escape considering the conflicts which our ruling raises with other statutes because they are not before us here. I can see no answer to the dilemma put by Rudkin, J., in Weedin v. Banzo Okada (C. C. A. 9) 2 F. (2d) 321, and that case is flat for the relator at bar. I agree that Chinese Cabin Waiter, 13 F. 286, and Chinese Laborers on Shipboard, 13 F. 291, arose under other statutes; but, for all that, if there is any principle in the matter at all, they, too, are in point. While I set no store upon the doctrine of an American ship as American soil, I do think that we should not apply this statute literally, but rather with an eye to the purpose for which it was intended. I vote to reverse.

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

Action by Swift & Co. against the New York Central Railroad Company and another. Judgment for defendants (3 F.[2d] 826), and plaintiff brings error. Reversed, and new trial awarded.

Defendants are common carriers, subject to the provisions of the Interstate Commerce Act (Comp. St. § 8563 et seq.). Plaintiff deals, among other things, in fresh meat, and the complaint sets forth that at a time stated certain quantities of fresh meat were tendered "to defendants at ship's side or landing place of vessel in Brooklyn, N. Y., within the consigned to (plaintiff) at the Thirty-Third free lighterage limits of New York harbor, Street station of defendants in New York.” This allegation is admittedly true, and the meat belonged to plaintiff, and plaintiff made

the tender to defendants.

It had not been customary for perishable goods, like fresh meat, to be delivered at the Thirty-Third Street station. Whether for this reason or another, or for no reason at all, there was no published tariff or schedule showing any rate, fare, or charge for transportation of fresh meat between "ship's side" in New York harbor and the Thirty-Third Street station. There was a tariff, however, duly published, from ship's side to Weehawken, N. J., and another from Weehawken to

et al.

(Circuit Court of Appeals, Second Circuit. December 6, 1926.)

No. 41.

1. Carriers 200-Shipper, requesting transportation between points as to which there was no published tariff, held entitled to recover payments in excess of reasonable rate (section 1, subd. 4, and section 6, subd. I, Interstate Commerce Act, as amended [Comp. St. §§ 8563, 8569]).

Under section 1, subd. 4, and section 6,

subd. 1, Interstate Commerce Act, as amended (Comp. St. §§ 8563, 8569), it was carrier's duty, immediately on shipper's request for transportation between points on carrier's line, respecting which there was no published tariff, to publish a rate, and shipper was entitled to recover excess freight paid because of shipment over longer route.

2. Carriers 202-Application for attorney's fees in action on reparation award must be

made to trial court.

Where judgment dismissing complaint in action on reparation award of Interstate Com

merce Commission is reversed for new trial,

application for attorney's fees must be made to

trial court on new trial.

16 F. (2d)-2

to Weehawken and thence to Thirty-Third Street, and a charge made of the aggregate of the two tariffs last mentioned.

It is admitted that the published charge from ship's side to Weehawken was reasonable, and so was the charge from Weehawken to Thirty-Third Street; but plaintiff brought a claim for reparation against defendants before the Commission, alleging in substance that it was entitled to a reasonable charge for the transportation it asked for, viz. from ship's side to Thirty-Third Street; that there was no physical reason why the transportation could not be made direct, and the nonexistence of a published rate was no justifica

tion.

It appeared that, some time after the transaction complained of, defendants did make and publish a rate from ship's side to Thirty-Third Street, which rate was admittedly reasonable. The Commission awarded reparation, measuring its award by the difference between the aggregate of the rates originally charged and the amount of the subsequently published direct rate.