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strain the rule of construction to extend the beneficial provisions of the Merchant Marine Act to stevedores on foreign ships. Strathearn v. Dillon, 252 U. S. 348, 40 S. Ct. 350, 64 L. Ed. 607; Cunard v. Mellon, 262 U. S. 100, 43 S. Ct. 504, 67 L. Ed. 894, 27 A. L. R. 1306; Patterson v. The Eudora, 190 U. S. 169, 23 S. Ct. 821, 47 L. Ed. 1002.

If the authorities cited are not a sufficient answer to the proposition, certainly the facts developed at the former trial may be resolved to determine the plaintiff's status. At the very time of his alleged injuries, plaintiff was working in the hold of the steamship Hanover, then moored at a pier in the port of New York, under employment of the Jarka Stevedoring Company, engaged in loading ships generally in the harbor of New York. There was no privity between the ship and plaintiff, who was merely a harbor worker, in the service at the time of the Jarka Company, and it would seem a far cry, in view of these facts, to classify the plaintiff as a foreign seaman. The provisions of the Jones (Merchant Marine) Act, extending the rights and remedies applicable to seamen to stevedores, did not invest the latter with the character of seamen, but the statutes by judicial interpretation have been held to include marine workers, and the mere incident of the locus in quo of the work performed, though the test of admiralty jurisdiction in tort, does not change the status of such employee from stevedore to

seaman.

It would hardly be contended that the provisions of the Employers' Liability Acts, extending the beneficial provisions originally designed for railroad employees to seamen, gave any different status to crews of ships plying the high seas. It is enough to say that the Haverty Case leaves no doubt as to the applicable law on a new trial of this case.

vanced age and expectancy of death in near future.

2. Internal revenue 8(11)-That aged grantor must realize that death is not distant is alone insufficient to show conveyance made in contemplation of death (Revenue Act 1918, §§ 400-410 [Comp. St. §§ 63363/4a-63363/4k]).

That aged grantor must realize that death is not far distant is not alone sufficient to show conveyance made in contemplation of death, within Revenue Act 1918, §§ 400-410 (Comp. St. §§ 6336% a-63364k).

3. Internal revenue38(3) -Persons holdIng 99 per cent. of estate of decedent held not volunteers in payment of additional tax assessed, as affecting right of recovery (Revenue Act 1918, §§ 400-410 [Comp. St. §§ 63363/4a-63363/4k]).

Persons holding 99 per cent. of estate of

decedent, and paying additional tax assessed under Revenue Act 1918, §§ 400-410 (Comp. St. §§ 63364a-63364k), after demand and implied threat of collection of property held by them, held not mere volunteers, not entitled to recover tax so paid.

At Law. Action by Thomas A. Smart and others against the United States. Judgment for plaintiffs.

Smart & Strother, of Kansas City, Mo., for plaintiffs.

Harry Thomas, Ass't U. S. Atty., of Kansas City, Mo.

OTIS, District Judge. Plaintiffs bring this action to recover from the United States the sum of $18,852.01, with interest thereon, alleged to have been erroneously and illegally assessed against the estate of Mrs. Amanda Caroline Graves. The petition alleges the death testate of Mrs. Graves July 28, 1919, the payment on July 17, 1920, by the exесиtor under her will of an estate tax in the amount of $3,477.90, and the subsequent assessment, after the discharge of the executor and the distribution of the estate, of an additional tax of $18,946.11. It alleges that of the additional assessment the amount sued for in this case was based on the inclusion by the Commissioner of $413,000, the value of three pieces of real property transferred to the plaintiffs by Mrs. Graves during her life. The Commissioner claimed, the petition alDistrict Court, W. D. Missouri, W. D. April leges, that these transfers were made in con

A new trial is therefore granted.

SMART et al. v. UNITED STATES.

15, 1927.

No. 6139.

1. Internal revenue 8(11)-Conveyances by aged grantor held not made "in contemplation of death," within meaning of statute (Revenue Act 1918, $$ 400-410 [Comp. St. §§ 63363/4a-63363/4k]).

Conveyances of land held not made by grantor "in contemplation of death," within meaning of Revenue Act 1918, §§ 400-410 (Comp. St. §§ 63364a-63364k), notwithstanding ad

templation of death. It is alleged that the plaintiffs paid the additional assessment under protest. It is claimed by the plaintiffs that the transfers in question were not made in contemplation of death, and that, in any event, title 4 of the Revenue Act of 1918 (Comp. St. §§ 633634a-63364k), if held applicable to transfers made prior to the passage of that act, is unconstitutional.

Defendant's answer is a general denial

21 F.(2d) 188

and a plea that plaintiffs do not have capacity to sue. The issues of law and fact were submitted to the court. Evidence was introduced by the plaintiffs upon the issue as to whether the transfers of property involved were made in contemplation of death. The defendant produced no evidence upon this issue, and made no attempt to overcome the plaintiffs' case except by cross-examination of plaintiffs' witnesses. The following facts, among others, were established by the testi

mony:

Mrs. Graves died July 28, 1919. She transferred by deed the first of the three tracts involved, being a tract of the value of $400,000, to her daughter, Martha E. Bacon, on January 26, 1914, 5 years and 6 months prior to her death. She transferred by deed the second of the three tracts involved, being a tract of the value of $10,000, to her granddaughter, Emma S. Donaldson, on October 26, 1914, 4 years and 9 months prior to her death. She transferred by deed the third of the three tracts involved, being a tract of the value of $3,000, to her grandson, Langston M. Bacon, on October 14, 1916, 2 years and 9 months prior to her death.

Each of the tracts in question was transferred more than two years before the passage of the act under which the tax was assessed. At the time of the first of the three transfers Mrs. Graves was 84 years of age, at the time of the second she was 85, and at the time of the third she was 87. At the time of the first of the three transfers Mrs. Graves was in her usual health. At the time of the second and third transfers, although ill, she was not suffering from any fatal malady, but from rheumatism, with which she had been afflicted for years. She said noth-. ing to any one at any time which indicated any expectation on her part of imminent death.

disposition at her death of each of these properties to the same persons as those to whom they were transferred by deeds.

There are three issues in the case, one of fact and two of law. The issue of fact is: Were these transfers made by Mrs. Graves in contemplation of death? The issues of law are: First, even if the transfers were made in contemplation of death, is the act constitutional as to that provision which includes transfers made prior to its passage; and, second, if the assessment of the tax was illegal, either because the transfers were not made in contemplation of death, or because the act is invalid in the respect mentioned, were these plaintiffs mere volunteers, and not, therefore, in law entitled to recover the tax paid by them?

1. What is meant by the phrase "in contemplation of death," as used in the act, is very well expressed in two cases, one cited by the plaintiff, and one cited by the defendant. In the first of these cases, Meyer et al. v. United States, 60 Ct. Cl. 474, it is said that by the words "in contemplation of death" is meant:

"That state of mind which, by reason of advanced age, serious illness, or other producing cause, induces the conviction that death in the near future is to be anticipated. If it be said that there need not be a conviction that death is imminent, there must at least be a belief that it is to be expected in the very near future, rather than in the usual course of events. And in this state of mind, in this belief in the near approach of death, must be found the motive for the conveyance, if it is properly to be characterized as made in contemplation of death."

In the second of the two cases, Shwab v. Doyle (C. C. A.) 269 F. 321, 328, it is said that:

"By the term 'in contemplation of death' is not meant, on the one hand, the general expectancy of death which is entertained by all persons, for every person knows that he must die. On the other hand, the meaning of the term is not necessarily limitThe termin

Mrs. Graves gave as her reason for making the first of the three transfers her fear that the income value of the property involved would be largely destroyed (by the loss of a valuable tenant) unless the property was immediately improved at a cost far 'ed to an expectancy of immediate death or a beyond her means. She did not feel able, dying condition.

because of her age, to undertake or to carry

through the financial arrangements necessary to save the property-to save, that is, its income-producing value. In this connection the testimony showed that the tenant had indicated an intention of leasing other property, or building elsewhere, unless the property were immediately improved.

Mrs. Graves' will, made before the first of the transfers in question, provided for the

contemplation of death' involves something between these two extremes. Nor is it necessary, in order to constitute a transfer in contemplation of death, that the conveyance or transfer be made while death is imminent, while it is immediately impending by reason of bodily condition, ill health, disease, or injury, or something of that kind. But a transfer may be said to be made in contemplation of death if the expectation or antici

pation of death in either the immediate or reasonably [near] future is the moving cause of the transfer."

These definitions are not essentially dissimilar. Guided by them, we are warranted in saying that if, when Mrs. Graves made these transfers, there was in her mind an expectancy of death in the near future (and not merely in the usual course of events), and 'if that expectancy was the moving cause of the conveyances, then they were made in contemplation of death.

[1,2] When the evidence in the case is considered in the light of this test, it does not seem to me that it can be said that the transfers were made by Mrs. Graves in contemplation of death. It is true that, when each of the transfers was made, she had attained a great age. That is the only fact supporting the contention of the defendant. It is not sufficient. While it is certain that a very aged person must realize that death is not far distant, it cannot be said, in the absence of any other proof as to apprehension of death, that such a person, from the fact of age alone, apprehends death as imminent and likely shortly to occur out of the natural course of events. If, at the time of the transfers, Mrs. Graves had had knowledge, not only of her great age (of which, of course, she did have knowledge), but had knowledge also that she was then suffering from an illness likely to be fatal, the knowledge of these two facts might justify a conclusion that she expected death imminently. But she did not have knowledge that she was suffering from a fatal illness. She was not suffering from a fatal illness. Her illness was one from which she had suffered for 40 years. Therefore I think that it cannot be said that she had in her mind the expectancy of death in the near future. Moreover, even if it might be said from the evidence that she did have such an expectancy in her mind, it seems to me it cannot be said that was the motive actuating the transfers of the property in question. The evidence points to other motives that much better explain and justify the transfers. The transfers were not made within two years prior to the death of Mrs. Graves, and there is no presumption under the act that they were made in contemplation of death.

2. If the transfers were not made in contemplation of death, then the additional tax, in so far as it involved these transfers, was illegally assessed, and it is unnecessary to pass upon the constitutionality of that provision in the act which includes transfers made before its passage. But I have consid

ered the arguments of counsel on that question, and have read the cases cited. The exact question does not seem to have been passed on by any court. Without passing on the question, it seems to me that there is much force in the argument made by plaintiffs. In the face of the "due process" provision of the Fifth Amendment to the Constitution and of the constitutional prohibition against direct taxation of property by Congress, it is difficult to justify a retroactive taxing law that in effect compels one person, who is the absolute owner of property lawfully acquired by him from a second person long before the second person's death, to pay out of that property tax which is assessed against the estate of the second person as a tax upon the second person's privilege of transmitting his property at death; and it is difficult to justify the inclusion within the gross estate of a decedent of property which long before his death had ceased to be any part of his estate. [3] 3. It is urged by the defendant that the plaintiffs were under no obligation to pay this tax, that they were mere volunteers, and that one who voluntarily pays another's tax may not sue to recover the amount paid. It is undoubtedly true that this tax was levied neither upon the plaintiffs nor their property, but upon the estate left by Mrs. Graves. United States v. Woodward, 256 U. S. 632, 635, 41 S. Ct. 615, 65 L. Ed. 1131. No direct attempt was made to collect from the plaintiffs, or out of the property they had received from Mrs. Graves. No attachment or distraint of their property was either begun or expressly threatened. But payment was demanded within 30 days, if interest at the rate of 10 per cent. was to be avoided. The executor had been discharged. The estate had been closed. The plaintiffs had 99 per cent. of the estate. The law subjected the property which they held to a lien for the amount of the unpaid tax. Under such circumstanees, the demand for payment impliedly carried with it a threat of collection out of the property plaintiffs had. In effect, therefore, payment of the tax was demanded of these plaintiffs under threat of distraint and penalties. They were not volunteers, and they did pay under duress. It follows that they were entitled to bring this suit, and to recover any tax paid by them which was illegally assessed.

4. In accordance with the foregoing views, of the findings of fact requested by the plaintiff I make the following, including them herein by reference: Plaintiffs' requested findings of fact No. 1, No. 2, No. 3, No. 4, No. 5, No. 6, No. 7, No. 8, No. 9, No. 10, No. 17, and No. 18. I further adopt the following of the plaintiffs' requested declarations and conclusions of law, and incorporate the same by reference herein, No. 1, No. 2, No. 3, No. 4, No. 5, No. 6 and No. 7.

21 F.(2d) 191

No. 11, No. 12, No. 13, No. 14, No. 15, No. 16, 5. Shipping121(1)-Inspection of new

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[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Unseaworthy.]

3. Shipping121(1)-Diligence in making ship seaworthy does not absolve owner from absolute obligation to furnish seaworthy vessel.

The exercise of due diligence to make a ship seaworthy does not absolve an owner from his absolute obligation to furnish a seaworthy vessel, unless he unequivocally so contracts.

4. Shipping 137-Vessel owner is not relieved from liability for unseaworthiness without showing diligence to make ship seaworthy at commencement of voyage (Harter Act [Comp.

St. §§ 8029-8035]).

Owner of vessel cannot relieve itself from liability arising from unseaworthiness of vessel, either under Harter Act (Comp. St. §§ 8029-8035), or Hague Rules of 1921, without showing that it exercised due diligence to make the ship seaworthy at commencement of voyage.

hose by vessel owner's purchasing agent held not to relieve owner from liability for cargo damages sustained on bursting of old hose.

In libel for damages to cargo injured by water on bursting of hose used to press up deep tank, examination and passing of hose by vessel owner's purchasing agent did not relieve owner from liability for damages because, even if such inspection was proper, it applied only to new hose and new hose was not used.

6. Shipping132(58) Evidence held to show unseaworthiness of vessel at commencement of voyage, caused by lack of proper inspection of hose, which burst and damaged cargo.

In libel for damages to cargo, injured by water on bursting of hose used to press up deep tank of vessel, evidence held to show that as respects such hose vessel was unseaworthy at commencement of voyage, and that such unseaworthiness was caused by want of due diligence in discovering latent defects in hose by proper inspection.

7. Shipping137-Cargo damage caused by failure to close ventilator held caused by negligent manner of caring for cargo, and not by negligent navigation (Harter Act, §1 [Comp. St. § 8029]).

The fact that damage to cargo was caused by failure to close lid of ventilator, through which water entered when hose used to press

up deep tank burst, held not to exonerate ship from liability under either Harter Act (Comp. St. §§ 8029-8035) or Hague Rules 1921, art. 4, § 2, since, even if failure to close ventilator lid was sole cause of the damage, such failure was not an error in the management of the ship, but was negligence in the care and custody of the cargo, for which the ship was responsible under Harter Act, § 1.

In Admiralty. Libel by the W. T. Lockett Company against the Cunard Steamship Company, Limited. Decree for libelant.

Bigham, Englar & Jones, of New York City, for libelant.

Lord, Day & Lord, of New York City, for respondent.

CAMPBELL, District Judge. This is an action in personam in a case of cargo damage, civil and maritime, against the Cunard Steamship Company, Limited, as owner and operator of the steamship Samaria. The receipt of a shipment of 22 bales of new wool rags, in apparent good order and condition, on board the steamship Samaria, at Liverpool, England, on or about August 22, 1924, and the subsequent discharge of said shipment from the Samaria in apparent bad order and condition, at Boston, Mass., is admitted.

The facts were stipulated by the proctors for the respective parties. It was agreed that the damage was due to sea water, which had access to the shipment during the course of

the voyage, under the following circum

stances:

"Seventh. On August 24, 1924, under supervision of the ship's officers, the deep tank was pressed up. For this purpose, the ship's carpenter took a hose from the hose locker and connected it to a hydrant located on the weather deck. From the hydrant, the carpenter led the hose over the top of a mushroom ventilator used to ventilate No. 3 hold, the top of the ventilator being about five feet above the deck; from the top of the ventilator the hose was led to the sounding pipe of the deep tank. The water was then turned on at half pressure. At the top of the ventilator there was a lid, which was open and which the carpenter failed to close. Thereafter the hose burst at the top of the ventilator and water escaped into the ventilator shaft through the open lid, thereby damaging the bales of wool rags above referred to.

"Eighth. The hose burst because of a latent defect which existed at the commencement of and prior to the voyage."

The bill of lading merely "incorporated by reference the provisions of the Hague Rules of 1921," and did not contain any specific exceptions or reference to possible unseaworthiness of the vessel. The pertinent provisions of the said Rules are as follows:

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"(p) Latent defects not discoverable by due diligence;

"(q) Any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents, servants or employees of the carrier."

It was agreed that the hose which the carpenter used to press up the deep tank, the bursting of which hose caused the damage complained of in this action, "burst because of a latent defect which existed at the commencement of and prior to the voyage," and

the following were the only facts appearing from the stipulation or admitted in the pleadings with reference to what inspection had been made of the hose in question before the commencement of the voyage:

"Ninth. All hoses used on board the S. S. Samaria are requisitioned from the Cunard General Stores at Liverpool. All these hoses are examined and passed by the purchasing agents of the Cunard Company as being fit for the purpose, among others, of pressing up deep tanks. At the end of each voyage, the carpenter requisitions the number of hoses he needs from the Cunard General Stores. These new hoses are placed on board the steamship Samaria in the carpenter's locker. and are passed by the carpenter as being fit for his purposes.

"The steamship Samaria sailed from Boston to Liverpool on August 3, 1924, arriving at Liverpool on August 11, 1924. Thereafter the Samaria sailed for Boston on August 22, 1924.

"On the last days of the voyage from Boston to Liverpool, the ship's carpenter looked over the supply of hoses in his locker and removed all of the ones which he considered were not in sufficiently good condition to be used for pressing up deep tanks. It is an unwritten rule of the Board of Trade in England that a hose must not be in use for a longer period than two years. No hose on the Samaria is used for a longer period than 2 years. In fact, it is very unusual that a hose is in use for pressing up tanks for a longer period than 6 months. The particular hose used for pressing up the tank on August 24, 1924, on the voyage from Liverpool to New York commencing August 22, 1924, had not been used more than four or five times prior to August 24, 1924. It is not known just when this particular hose was placed on board the Samaria, but the ship's officers believe that it was not on the vessel for longer than 6 months.

"The hose used to press up the tank on August 24, 1924, was among the hoses which the carpenter examined on the last days of the voyage from Boston to Liverpool ending August 11, 1924, and which he considered fit for the purpose of pressing up deep tanks. Upon the arrival at Liverpool on August 11, 1924, the carpenter requisitioned from the Cunard General Stores two new hoses. These hoses were placed on board in the carpenter's locker and were inspected by the carpenter at that time. The carpenter only receives hoses which, in his opinion, are in perfect condition. "The hoses on board the steamship Sa

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