(dissenting). I am of the opinion that the libel in this case states a case within the admiralty and maritime jurisdiction of the District Court, and that the decree should be affirmed.
It is alleged in the libel, in substance, that the respondent is a common carrier, and owned and chartered divers steamships which respondent employed in carrying cargo between Philadelphia and other Atlantic ports and Portland and other Pacific ports; that among the steamships so owned or chartered were the steamships “Mills” and “Stanley Dollar”; that the libelant shipped certain merchandise in good order and condition on board the steamship “Mills” at the port of Philadelphia, bound for the Isthmus of Panama, and connecting lines and steamers, to Portland, Or.; that the merchandise was properly packed for carriage and handling, and was consigned to the libelant at Portland, Or.; that the merchandise arrived at Portland, Or., in the steamship “Stanley Dollar” and was delivered to the libelant in a damaged condition, owing to the negligence of the respondent in stowing and handling said merchandise.
*12The “stowing” of merchandise is a technical term, used in maritime law, and refers to “the stowage, packing or arranging of cargo in a ship, in such manner as to protect the goods from friction, bruising or damage from leakage.” Black’s Dictionary. See, also, Scrutton on Charter Parties & Bills of Lading (6th Ed.) art. 50; Carver on Carriage by Sea (5th Ed.) §§ 272, 273; Abbott on Shipping (14th Ed.) p. 505. .
“The stowage of the cargo is the sole act of the shipowner.” Lord Esher, in Harris v. Best, Ryley & Co., 7 Asp. M. C. (1892) 274.
In the “Harter Act” (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]) the word “stowage" is used in the sense of maritime law, providing against any agreement in a bill of lading or other shipping document relieving the shipowner or master from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery, of merchandise committed to his charge; and I do not find it used in any other sense in any of the decisions. When, therefore, the libel charges that the .merchandise delivered to the libelant was damaged through the.negligence of the respondent, in stowing, and handling such merchandise, a case is stated within the admiralty and maritime jurisdiction of the federal court; and this is so whether the case is for a tort or upon a contract of affreightment. Furthermore, there is a presumption that the contract was a maritime contract, arising out of the rule that, if the goods were delivered by the last carrier in a damaged condition, a presumption arises, without further evidence, that the damage occurred while the goods were in the possession of the last carrier, and that the burden is upon him to prove that they were in a damaged condition when Received by him; a double presumption being entertained that the goods were accepted in good condition by the first carrier and that such good condition continued until they were received by the last carrier, notwithstanding transportation over intermediate lines. 6 Cyc. 491.
The merchandise having been shipped in good order and condition at Philadelphia, on board the steamer “Mills,” and delivered at Portland, Or., to the libelant, from the steamer “Stanley Dollar,” in a damaged condition, the presumption is that the merchandise was damaged while in the care and custody of the last carrier, namely, the .steamer “Stanley Dollar.” This presumption adheres to the transaction and determines its character for the purpose of jurisdiction.
But dealing with the transaction as a whole I am of the opinion that the court had jurisdiction of the case under the rule laid down in the case of The Moses Taylor, 71 U. S. (4 Wall.) 411, 18 L. Ed. 397. In that case one Hammons entered into a contract with one Roberts, as owner of the steamship, for transportation from New York to San Francisco, as a steerage passenger, with reasonable dispatch, and to furnish him with proper and necessary accommodations on the voyage. For alleged breach of this contract Hammons brought an action, under a law of the state of California, against the vessel, in the justice’s court in San Francisco. The breach alleged *13was that the plaintiff was detained at the Isthmus of Panama eight days, and that the provisions furnished him on the voyage were unwholesome, and that he was crowded into an unhealthy cabin, without sufficient room or air for either health or comfort, in consequence of a large number of steerage passengers, more than the vessel was allowed by law to have, or could properly carry. The agent of the vessel filed an answer in which he denied the allegations of the complaint, and asserted that the court had no jurisdiction, because the cause of action, as against the vessel, was one of which the courts' of admiralty had exclusive jurisdiction. ' The justice decided that he had jurisdiction, and gave judgment for the plaintiff. The case was taken to the couni y court, where the objection to the jurisdiction was again made and again overruled, and, final judgment being entered in favor of the plaintiff, t[ie case was taken to the Supreme Court of the United States on a writ of error. In the Supreme Court it was contended, in favor of the jurisdiction of the state court, among other things, that, as the land carriage at the Isthmus was a substantial part of the voyage, the jurisdiction of the admiralty court did’not attach, for the reason that a contract, to come within that jurisdiction, “must be wholly of admiralty cognizance, or else it was not at all within it,” citing the case of The Pacific, 1 Blatchf. 569, Fed. Cas. No. 10,643. The Supreme Court held that the case presented was clearly one within the admiralty and maritime jurisdiction of the federal courts, and that the state court had no jurisdiction of the case in a proceeding in rem. The court did not consider the incidental land transportation at the Isthmus, or the breach of contract involved in the detention of the plaintiff on land, as impairing the admiralty jurisdiction over that part of the contract relating exclusively to a service to be performed on the high seas, and pertaining solely to the business of commerce and navigation.
Note. — Petition for certification of certain questions to the Supreme Court of the United States denied August 4, 1913.I do not think the implication of the decision is to deny jurisdiction in the admiralty of the contract as a whole. The court had before it the entire contract, and it was upon the entire contract that the decision was based.
In a subsequent reference to this case by the Supreme Court, in the case of Insurance Co. v. Dunham, 78 U. S. (11 Wall.) 28, 20 L. Ed. 90, the court said:
“In the case of The Moses Taylor, it was decided that a contract to carry passengers by sea, as well as a contract to carry goods, was a maritime contract and cognizable in admiralty, although a small part of the transportation was by land; the principal portion being by water.”
As I understand these two decisions, they sustain the contention that the District Court had jurisdiction in the present case.