1925 A. M. C. the United States went into the insurance business, issued policies in familiar form and provided that in case of disagreement it might be sued, it must be assumed to have accepted the ordinary incidents of suits in such business. The policies promised that claims would be paid within thirty days after complete proofs of interest and loss had been filed with the Bureau of War Risk Insurance. The proofs seem to have been filed on January 11, 1917. Interest at six per cent. should be allowed from February 11, 1917. The decree of the District Court will be corrected so as to allow for total loss of the Llama.... With interest at six per cent. from February 11, 1917 Total loss of the freight, &c..... With interest at six per cent. from February 11, 1917 With interest at six per cent. from February 11, 1917 .$115,000.00 14,686.82 2,270.34 Decree of Circuit Court of Appeals reversed. Decree of District Court modified and affirmed. Mr. Justice MCREYNOLDS is of opinion that the decree of the Circuit Court of Appeals should be affirmed. Mr. Justice SUTHERLAND took no part in the decision. SAN JOAQUIN NO. 4. SACRAMENTO NAVIGATION COMPANY, Appellant, 08. MILTON H. SALZ, Appellee. United States Circuit Court of Appeals, Ninth Circuit, January 26, 1925. Before: GILBERT, HUNT and RUDKIN, Ct. JJ. BILLS OF LADING-19. Defences-TOWING-171. Cargo Owners-114. Exemption from Liability-COLLISION—271. Liability to Cargo. Exceptions in a bill of lading issued by a barge for cargo laden upon her are not available to the owner of a vessel negligently towing her, notwithstanding both vessels belong to the same owner. BILLS OF LADING—121. Harter Act-CARGO DAMAGE-111. Harter ActCOLLISION-153. Tug and Tow-271. Liability to CargoTOWING-171. Cargo Owners. The Harter Act applies only to cargo laden upon the vessel herself, and does 326. not protect the owner of a towing vessel as to cargo carried on her tow under a bill of lading of the tow alone, and lost in a collision with a third vessel due to the towing vessel's negligence, notwithstanding the towing vessel and her tow belong to the same owner. The Oceanica, 170 Fed. 893, disapproved. Affirming 1923 A. M. C. 1237. LOUIS T. HENGSTLER and FREDERICK W. DORR, for Appellant. E. B. MOLANAHAN, S. HASKETT DERBY and CARROLL SINGLE, for Appellee. The appellee brought an action in personam against the appellant, the owner of the steamer San Joachin No. 4, to recover for negligent towage of a cargo of barley shipped on board the appellant's barge Tennessee at landings on the Sacramento River for transportation to Port Costa. Shipping receipts were issued which recited that the barley was shipped "on board of the Sacramento Transportation Co. Barge Tennessee" to be delivered at Port Costa, "dangers of fire and navigation or any other peril, accident, or danger of the seas, rivers or steam navigation, or steam machinery of whatever kind or nature, excepted; with the privilege of reshipping in whole or in part, on steamboats or barges; also with the privilege of towing with one steamer, at the same time, between Sacramento and San Francisco, down or up, two or more barges, either loaded or empty." The San Joachin No. 4 picked up the Tennessee and three other barges and on the way to Port Costa came into collision with the British steamer Ravenrock, whereby the barge sank and the appellee's cargo was lost. The appellant, in its answer, alleged that the San Joachin No. 4 was at all times in all respects seaworthy, properly manned, equipped and supplied, and that the barge was, while carrying said barley on said voyage, operated by appellant together with said steamer as a single carrier of goods and merchandise for hire, and that there was no contract of towage between the steamer and the barge, or between the appellant and the appellee, and pleaded exemption of liability under the Harter Act. On the trial the negligence of the San Joachin No. 4 was established and it is not disputed on the appeal. The Court below made a finding that the cargo so lost was carried by the Tennessee under a bill of lading issued for it only and not for the towing . steamer, and that although the towing steamer and the barge belonged to the same owner, the Harter Act did not apply, and held that the appellant was answerable for the loss of the cargo. GILBERT, Ct. J.: 1925 A. M. C. The appellant contends that the cargo having been loaded on a barge which became an instrument in the transportation of the cargo only in connection with the tug, the situation was the same as if it had been carried on the tug, and that the relation between the appellee and the appellant was solely one of affreightment. But there was no contract here between the appellee and the barge and the tug. The bill of lading was made with the barge and did not include the tug, and there is nothing therein to indicate that the tug and the tow were engaged in a common venture. Since the barge had no power of her own there was an implied contract that a tug would be furnished by the appellant to carry her to her destination. The only express reference to a tug was that the carrier reserved the privilege of towing with one tug other barges in the course of the voyage, a reservation evidently made to obviate objection to possible delay in transportation caused by the additional load. We do not regard the situation as it would have been had the cargo been carried upon the tug itself. The Supreme Court in considering the provisions of the Harter Act in their relation to the evils which it was intended to obviate has tended toward a strict construction thereof. The Irrawaddy, 171 U. S. 195, 196; The Delaware, 161 U. S. 459. In The Irrawaddy it was said: "Upon the whole we think that in determining the effect of this statute in restricting the operation of general and well-settled principles, our proper course is to treat those principles as still existing and to limit the relief from their operation afforded by the statute to that called for by the language itself of the statute." In The Delaware the Court said: "It is entirely clear that the whole object of the act is to modify the relations previously existing between a vessel and her cargo." The appellant relies upon the decisions of this Court in The Columbia, 73 Fed. 226, and The Seven Bells, 241 Fed. 43. The first of those cases was decided before the enactment of the Harter Act and the Court had under consideration therein the limited liability statute, Rev. Stats. 42824290. It was held that where the owner of a barge undertook to transport cargo by means thereof and by its own tug, the two vessels became one for the purpose of the voyage, and that the owner was not entitled to limit his liability for damages caused by the negligence of the crew of either without surrendering both. We applied in that case the same rule of strict construction which has been indicated by 326. the Supeme Court in construing the Harter Act. The purport of the decision was that the carrier could not obtain the benefit of the limited liability statute without surrendering the whole means by which it undertook to transport the cargo, thus applying the principle that where two or more vessels belonging to the same person are engaged in a transportation service under a common direction all are equally answerable for the negligence of the common head, 24 R. C. L. 1398, and the language of the Court in The Main vs. Williams, 152 U. S. 122, 131, 132, where it was said: "The real object of the act in question was to limit the liability of vessel owners to their interest in the adventure ***The English courts have held very properly, we think, that these statutes should be strictly construed." In the Seven Bells the owner of a barge made a contract with the owner of a tug by which the latter was to make daily trips with the barge and to haul all freight and express which the owner might furnish. It was held on the evidence that the tug was insufficient in power to handle properly the barge in rough weather, that both vessels were liable for loss of the cargo on the barge when she was cast off by the launch during a high wind, and that the libellant's contract with the owner of the barge whereby he shipped goods thereon, was not merely one of towage, but for carriage, on which the two vessels became one instrumentality, the owner of the barge being the owner of the launch pro hac vice. It is true that in that case the Harter Act was set up as a defense, but it was not involved in the decision, as the owner of the cargo recovered judgment for his damages on the ground that the tug was insufficiently equipped to handle the barge. We are of the opinion that the Harter Act applies only to the relation of a vessel to the cargo with which she is herself laden and does not relieve the owner of a tug from liability for its negligence in towing the barge on which the cargo is carried. Cases directly in point are The Murrell, 200 Fed. 826, aff. in Baltimore & Boston Barge Co. vs. Eastern Coal Co., 195 Fed. 483; The Coastwise, 230 Fed. 505, aff. 233 Fed. 1. In affirming the decision in the case of The Murrell, the Circuit Court of Appeals said: "Clearly on its face the Harter Act had in mind not so much a broad principle as only the relations which exist between a vessel and the cargo with which she is herself laden." The appellant cites The Nettie Quill, 124 Fed. 667. In that case the owner of a steamboat carrying freight and passengers for hire as a common carrier, contracted to carry a certain 1925 A. M. C. steam locomotive, the owner thereof to furnish a barge. The bill of lading stated that the locomotive was shipped on board "The Steamboat Nettie Quill and Barges." The Court held that the agreement was a contract of affreightment and not one of towage, notwithstanding that the locomotive was carried on the barge alongside the steamer, and that under the Harter Act, the steamer was not liable for loss or injury occasioned by the collision of the barge with an obstruction in the river. In holding that the contract was one of affreightment the Court said: "A contract of affreightment is a contract with a shipowner to hire his ship or part of it for the carriage of goods or other property." We may point to that expression of the Court as the distinguishing feature of the decision. It serves also to distinguish that case from the case at bar, for here there was no contract with the tug, and there was no hiring of the tug for carriage of the cargo. We find no merit in the contention that irrespective of the Harter Act the appellant is exempted from liability by the terms of the bills of lading. The bills of lading were issued for goods on board the barge Tennessee. The exceptions therein expressed extend only to dangers of fire and navigation or any other peril, accident, or danger of the seas, rivers, or steam navigation, or steam machinery, and they apply only to the barge and not to the tug or to any other vessel, or to the appellant as the owner of the tug. No tug was referred to in connection with the contract of transportation. The exemption clause therefore does not excuse negligent towage. The Steamer Syracuse, 12 Wall. 167; Liverpool Steam Co. vs. Phoenix Ins. Co., 129 U. S. 397; Alaska Commercial Co. vs. Williams, 128 Fed. 362; Mylroie vs. British Columbia Mills Tug & Barge Co., 268 Fed. 449. The appellant cites The Oceanica, 170 Fed. 893; The Maine, 161 Fed. 401, reversed 170 Fed. 917; and the G. R. Crowe, 1923 A. M. C. 162, 287 Fed. 426, aff. 1924 A. M. C. 5, 294 Fed. 506. In the Oceanica it was held that a contract of towage by which the tow assumes all risks releases the tug from her own negligence, resulting in injury to the tow. In that case the owner of the tug contracted with the owner of the barge that the tug should tow the barge from Marquette to Buffalo," the tow to assume all risks." The Court, while accepting the rule that a contract will not be construed to cover the carrier's negligence unless the intention to do so is expressly stated, held, one judge dissenting, that a tug, being only liable for negligence, if the tow agrees to assume all risks, no risks can be meant except those for |