Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

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LACOMBE, Circuit Judge. On December 2, 1897, the libelants, citizens of the United States, and residents of New Jersey, being at the time in Paris, France, purchased of an agent of the claimant, a New Jersey corporation, a ticket for their passage from Antwerp to New York by the British steamer Kensington, of the Red Star Line. They proceeded to Antwerp, where on December 10th they paid the balance of the purchase money, delivered their trunks to the vessel, and received a baggage check stating that said trunks were shipped "subject to the conditions contained in the company's ticket and bill of lading." The ticket, which is dated December 2, 1897, begins with a recital of the names of the passengers, and numbers of staterooms and berths, and states that it "is good for second-cabin passage of the persons named in the margin by the British steamship Kensington from Antwerp on the 11th of December, unless prevented from unforeseen circumstances, with 20 cubic feet of personal baggage for each adult passenger free of charge, excess being charged for at the rate of 125 francs per cubic foot." Immediately succeeding is the caption, "Notice to Passengers," and these words, "It is a condition upon which this ticket is granted, and is mutually agreed for the consideration aforesaid, that" Here, as the district judge finds, follow 10 paragraphs in type somewhat smaller than the preceding type, but perfectly clear and legible. stating numerous conditions. The whole concludes with the clause: "All questions arising hereunder are to be settled according to Belgian law, with reference to which this contract is made." Then follows the signature, "John Macklin, for General European Agents." The relevant conditions included in the above-mentioned 10 paragraphs are these:

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"(c) The shipowner or agent are not under any circumstances liable for loss, death, injury, or delay to the passenger or his baggage arising from the act of God, the public enemies, fire, robbers, thieves of whatever kind, whether on board the steamer or not, perils of the seas, rivers, or navigation, accidents to or of machinery, boilers, or steam, collisions, strikes, arrest or restraint of princes, courts of law, rulers, or people, or from any act, neglect, or default of the shipowner's servants, whether on board the steamer or not, or on board any other vessel belonging to the shipowner. The shipowner will use all reasonable means to send the steamer to sea in a seaworthy state and well found, but does not warrant her seaworthiness. (d) The shipowner or agent shall not under any circumstances be liable for any loss or delay of or injury to passengers' baggage carried under this ticket beyond the sum of 250 francs, at which such baggage is hereby valued, unless a bill of lading or receipt be given therefor, and freight paid in advance on the excess value at the rate of one per cent., or its equivalent, in which case the shipowner shall only be responsible according to the terms of the shipowner's form of cargo bill of lading in use from the port of departure."

When their baggage was delivered to the company at Antwerp on December 10th, no statement was made of its value, and no freight was paid on its excess over 250 francs. The trunks were stowed in the after part of what is known as "No. 2 Upper Steerage Deck.” Upon the arrival of the steamer in New York, it was discovered that the libelants' trunks, and baggage of other passengers, which, with some crates of china, had been stowed there, had been broken to

pieces, and the contents of the trunks destroyed by water, dye, and dirt.

1. The first contention of the claimant upon this appeal is that the district judge erred in holding that the claimant was bound to give proof of good stowage. There was evidence that the voyage was one of exceptional roughness; that on December 20th the steamer labored so heavily that she had to heave to for 14 or 15 hours, which had not previously occurred in the master's experience of 23 years; that she is a steamer of over 8,000 tons gross register, from 14 to 15 knots speed, and accustomed to make the trip in 10 days, but on the voyage in question she took 12 days; that the clinometer indicated that she rolled from 38 to 45 deg. either side. Upon these facts it is insisted that enough appears to show that the loss occurred by a peril of the sea, and that in this stage and posture of the case the burden was upon the plaintiffs to establish negligence of some kind on the part of the ship. In support of this contention, counsel cites Clark v. Barnwell, 12 How. 272; The Victory, 168 U. S. 423, 18 Sup. Ct. 149; The Neptune, 6 Blatchf. 193, Fed. Cas. No. 10,118. There was evidence, however, given by one of libelants' witnesses, who was present when the hatch was removed, that he descended immediately, and that, although he examined carefully, he could find no indications that the contents of No. 2 upper steerage had been lashed or otherwise secured against movement in rough weather. It is true that at the time of his examination the contents of the compartment were in such a chaotic state that the inferences to be drawn from his failure to discover any evidence of lashing down are not particularly strong; but, in the absence of any testimony whatever on the part of the ship as to how such contents were stowed and secured against the movements incidental to rough weather (the compartment was not filled), the evidence is sufficient to support the libelants' contention.

2. The claimant further contends that it should have the benefit of the provision in the contract of carriage exempting it from liability for the act, neglect, or default of its servants; such stipulation being authorized by the Belgian law. In reply it is sufficient to refer to - Worsted Mills v. Knott, 27 C. C. A. 326, 82 Fed. 471, in which a majority of this court held that such a stipulation, being against the public policy of this country, was not enforceable by its courts. We are unanimous in the opinion that it cannot be enforced where both parties to the contract are citizens of the United States, and the place of completion of the contract is within this country. We concur also in the conclusion of the district judge that the provisions of the second section of the Harter act as to bills of lading and shipping documents do not apply to passenger tickets.

3. The main contention of the libelants is that the stipulation in the ticket against liability for injury to baggage in excess of the stated value of 250 francs is void, either because it did not amount to a contract, or because it is contrary to public policy, or because the sum named (250 francs) is unreasonably small. The same question was discussed by this court in The Majestic, 9 C. C. A. 161, 60 Fed. 624. That decision was reversed by the supreme court (The

Majestic, 166 U. S. 375, 17 Sup. Ct. 597) on the ground that the con ditions or limitations relied upon in that case "were not included in the contract proper, in terms or by reference"; being printed on the back without any reference in the contract to such indorsement. In the case at bar, however, the clause relied upon is plainly included in the contract itself, above the signature of the ship's agent; and the reasoning of the opinion of this court in The Majestic, supra. applies. However unreasonable would be a "condition" attempting to relieve the carrier entirely from liability in excess of some named amount, there seems to be no impropriety in the carrier's requiring the passenger to declare the value of his baggage in excess of such named amount, to take regular bill of lading therefor, and to pay for its transportation in proportion to its value, with the proviso that, if he fails so to do, the carrier shall not be liable. As to the question whether the sum named (250 francs) is too small, the supreme court, in The Majestic, supra, intimated some doubt as to the reasonableness of £10 in the case of a first-cabin passenger's baggage, but rendered no decision thereon. In view of the circumstance that the condition complained of contained an offer to carry the excess value under a regular bill of lading, we are not prepared, in the absence of authority, to hold that 250 francs is an unreasonable valuation for personal baggage of a second-cabin passenger not thus carried.

The proposition contended for, that the clause in question provides only for the relief of the "shipowner or agent," and does not inure to the benefit of the ship itself, which in this suit is called upon to respond only because, as is alleged, the owner did not fully carry out its contract, seems to be without merit. The decree of the district court is affirmed, but, since both sides appealed, without inter

est or costs.

(94 Fed. 897.)

ALABAMA IRON & RAILWAY CO. v. AUSTIN et al.

(Circuit Court of Appeals, Fifth Circuit. May 23, 1899.)

No. 786.

1. EQUITY-JURISDICTION-NATIONAL BANKS-PREFERENCES, Equity has jurisdiction of a bill by a receiver of a national bank to set aside a transfer of notes made by the bank to prefer a creditor.

2. SAME-PLEADING AND PROOF-VARIANCE.

A bill by the receiver of a bank to set aside a preferential transfer of notes, in violation of Rev. St. § 5242, is not sustained by proof that the notes were put into the transferee's hands for payment by him, and that. instead of paying them, he wrongfully kept them.

3. SAME-EVIDENCE-RES JUDICATA,

Where an order dismissing a law case is pleaded in bar in an equity suit, and no proof is offered except the order itself, defendant cannot show the nature of the law case by affidavit after trial.

Appeal from the Circuit Court of the United States for the Northern District of Alabama.

In April, 1893, R. W. Austin, as receiver of the First National Bank of Sheffield, Ala., filed his bill of complaint in the United States circuit court for the Northern district of Alabama against the Alabama Iron & Railway Company. He alleged that he was duly appointed by the comptroller of the currency to the office of receiver of said bank; that on the 11th day of November, 1889, the First National Bank of Sheffield was indebted to the Sheffield & Birmingham Coal, Iron & Railway Company in the sum of $10,000; that at that time said First National Bank was largely indebted, and that the amount of its liabilities exceeded the value of its assets; that this fact was known to the president, cashier, and directors of the bank, and it was known and apparent to said officers that said First National Bank would presently be unable to meet its obligations, and that it would soon be obliged to suspend its business; that in contemplation of such insolvency, and with a view of giving preference to Jacob G. Chamberlain, receiver of the Sheffield & Birmingham Coal, Iron & Railway Company, over its other creditors, and also with a view and for the purpose of preventing the application of its assets in the manner prescribed by the laws of the United States, said First National Bank did on the 11th day of November, 1889, transfer, assign, and deliver to said receiver, as collateral to secure its said previous debts, certain seven notes of H. B. Tompkins, aggregating $8.506.27; that Chamberlain was appointed by said court receiver of said Sheffield & Birmingham Coal, Iron & Railway Company, which was subsequently dissolved and reorganized under the name and style of the Alabama Iron & Railway Company; that said notes were by said receiver, Chamberlain, delivered to the defendant corporation, the Alabama Iron & Railway Company, and that said notes are held by said defendant corporation, and were received by it, with full notice of all the facts above stated; that the defendant corporation also holds and owns the said claim against the said bank: that the defendant corporation now holds the said assets, and claims the right to apply them or the proceeds of their collection to the said debts of said First National Bank to the defendant corporation, and that, if the defendant corporation is allowed to do this, it will be an illegal preference over the other creditors of said First National Bank; that the assets of said bank are insufficient to pay its debts: that the said transfer to the defendant corporation was fraudulent and void; and that the said assets are the property of the orator, Richard W. Austin, to be administered by him as such receiver. The bill of complaint required the defendant corporation to answer, but without oath, the following interrogatories: Whether the defendant corporation, on the 11th of November, 1889, had on account the claim against the First National Bank of Sheffield, and, if so, the amount thereof; whether or not the notes were transferred to the defendant corporation, and, if so, when and on what consideration; whether or not at the time of said transfer the First National Bank of Sheffield was insolvent; whether or not at the time of said transfer it was in contemplation of insolvency; whether or not any of said notes so transferred to the defendant corporation have been collected, and, if so, what sums were collected. The bill of complaint prayed that the court decree the transfer of said notes to the defendant corporation to be null and void, and that the same are still the property of said First National Bank; that the defendant corporation be required to deliver the notes to the complainant, or to pay him the proceeds of the collection thereof; that the complainant have a decree against the defendant corporation for the said assets; and that the complainant recover the same, to be administered and applied to the payment of the claims of the creditors of said First National Bank. On October 10, 1894, the defendant corporation filed its answer. It admitted that on the 11th day of November, 1889, the said First National Bank was indebted to the Sheffield & Birmingham Coal, Iron & Railway Company in a large amount of money. It admitted that said bank was at that time largely indebted; but whether its liabilities exceeded the value of its assets, and whether this fact was known to the president and other officers of the bank, and whether it was known and apparent to the officers of the bank that it would soon be obliged to suspend its business, the respondent averred that it did not know, and asked that strict proof of said allegations be required. The respondent admitted that the notes were delivered to Chamberlain, as receiver, but denied that they were transferred in contemplation of insolvency, or with a view of giving a preference to Chamberlain, as receiver. The re

spondent averred that it was informed and believed that the notes were transferred to Chamberlain in the usual course of business, and denied that they were transferred with the view and for the purpose of preventing the application of the assets of the bank in accordance with the laws of the United States. The respondent further answered that a day or two prior to the 11th day of November, 1889, Chamberlain, as receiver, made a deposit with said bank of a large amount of New York exchange, which was to be collected for him by the bank, and was to be delivered to him when collected; that the cashier of the bank, without instructions to that effect, credited the account of Chamberlain with the amount of such deposit; that on said 11th day of November, 1889, Chamberlain, learning that some drafts drawn by said bank on its New York correspondent had been protested, went to the cashier of said First National Bank, and telegraphed to its president, who was then in New York, and informed both of them that he would stop payment of said drafts if the same were still unpaid, and, if his said drafts were paid, he would demand the proceeds of said collections and the payment of his account; that the cashier of said bank informed him, when he was about to withdraw the amount to his credit, that there had been protests made of one of its papers, but that the same had been made good, and that the bank was in good condition, and, said Chamberlain insisting on drawing out the amount to his credit, the cashier informed him that he had sufficient funds to pay his deposit, but that the payment of such a large amount of money was more than the bank had expected. and its withdrawal would be a great inconvenience, and would temporarily cripple the institution; that Chamberlain insisted on withdrawing the balance and stopping the payment of his drafts, unless the bank would secure him against loss; whereupon the cashier delivered to him said notes as collateral security for the amount of his account. The respondent denied that the Sheffield & Birmingham Coal. Iron & Railway Company was dissolved, and reorganized under the name of the Alabama Iron & Railway Company, but that the fact is that the property of the former corporation was, by order of said court, sold and purchased by one Napoleon Hill, trustee, and, while it is true that a large part of the property formerly owned by said Sheffield & Birmingham Coal. Iron & Railway Company was subscribed to and became the property of the respondent, yet the respondent denies that said notes were delivered to it by Chamberlain, as receiver, but the same were sold and delivered by the officer of said count, who made sale thereof under its decree to the purchaser thereof, and the notes came in the possession of the respondent by being subscribed to its capital stock for valuable consideration, and without any notice to it of the facts alleged in the bill. The respondent admits that it holds said notes, and claims the right to apply the proceeds of their collection to the debt of said First National Bank, but it denies that such action would give it an illegal preference over the other creditors of said bank. The respondent admits that the assets of the bank are insufficient to pay its debts in full, but denies that the transfers to the respondent are fraudulent or void, or that the notes are the property of the complainant as receiver. In answer to the interrogatories, the respondent said that it did not at any time have an account or claim against the First National Bank, except as transferree of the account of the Sheffield & Birmingham Coal, Iron & Railway Company, which, on the 11th day of November, 1889, amounted to dollars; that the notes were transferred to the respondent on the day of, and the consideration was; that, at the time of the transfer of the notes to the respondent, the bank was insolvent, and had been in the hands of complainant, as receiver, for a considerable time; that none of the notes have been collected. On November 1, 1895, it was agreed in open court "that the defendant have leave to amend his answer herein, and to file demurrers, and that 60 days' notice be granted for submission of proof, and that decision may be had in vacation upon arguments or briefs to be submitted within 90 days." On November 12, 1895, the defendant demurred, averring that there is no equity in the bill; that it appears by the allegations of the bill that the complainant has a complete and adequate remedy at law; that it appears by the bill that the notes were never in the possession of said bank after Richard W. Austin was appointed receiver thereof; and that the defendant derived title to and possession of said notes from said Chamberlain, receiver of the Sheffield & Birmingham Coal, Iron & Railway Com