serial No. DC10506, motor No. E24432, with James R. Kerley as claimant, in which the Pacific Acceptance Corporation, as claimant, intervened. Decree of forfeiture.

H. E. Ray, U. S. Dist. Atty., and Wm. H. Langroise, Asst. U. S. Dist. Atty., both of Boise, Idaho.

J. P. Pope and Fisher & Coffin, all of Boise, Idaho, for claimants.

CAVANAH, District Judge. The United States filed a libel in the usual form against one Oldsmobile automobile, alleging that there was deposited and concealed therein whisky less in amount than five gallons, upon which a tax is imposed, with intent to defraud the United States of said tax, contrary to section 3450 of the Revised Statutes (Comp. Stats. § 6352 [26 USCA §§ 1181, 1182]). The Pacific Acceptance Corporation intervened as claimant and filed an answer, setting up three separate defenses. The first presented the issue of whether the government had established that the tax was unpaid on the intoxicating liquor transported in the automobile. The second asserted that the burden is upon the government to prove the intent to defraud the United States of the tax. The third set up that, when James R. Kerley, the driver of the automobile, was discovered in the act of transporting liquor in the automobile, it then became the duty of the district attorney to proceed under section 26 of title 2 of the National Prohibition Act (27 USCA § 40) for a forfeiture of the automobile, and failure to do so precluded a forfeiture under section 3450. It is further contended that intervener holds title and a lien under a contract of sale by reason of the default of Kerley in making the payments therein provided for, and that intervener is innocent with respect to the use of the automobile for illegal transportation. The driver, Kerley, also contends that, while he is not prosecuted under the National Prohibition Act for the offense of transporting intoxicating liquor in the automobile, yet his plea of guilty of possessing intoxicating liquor at the time in question is a bar to a forfeiture of the car in this proceeding.

The case was presented upon an agreed statement of facts, and that part relating to the questions for decision discloses that on the 19th day of March, 1927, at Boise, Kerley deposited and concealed within the automobile whisky in an amount less than five gallons, and while doing so he was arrested and the automobile seized by the officers. On April 19, 1927, the district attorney filed an

information, charging Kerley with the unlawful possession of intoxicating liquor in violation of the National Prohibition Act, to which he entered a plea of guilty, that Kerley paid no tax to the United States under the internal revenue laws on said liquor, and that there were, at the time of the arrest, no labels, marks, or stamps upon the containers thereof to show or indicate that any tax had been paid thereon to the United States. Kerley states that he did not know where the liquor was manufactured. There was no tax paid in the internal revenue district of Idaho on said liquor during the past five years. The liquor was purchased by Kerley about two miles west of Mountain Home, in Idaho, and placed in the automobile and brought to Boise. The intervener Pacific Acceptance Corporation had no knowledge that the automobile was being used or was to be used for the transportation or concealment of liquor. [1, 2] An analysis of the evidence sustains the conclusion that the tax on the liquor seized had not been paid to the United States, as it is disclosed thereby that Kerley paid no tax thereon; that there were no labels, marks, or stamps upon the containers of the liquor to show that any tax had been paid at any place; and that none had been paid in the internal revenue district of Idaho during the past five years. Idaho has what is popularly known as a "bone dry" law, and the courts are taking judicial notice of the fact that the Commissioner of Internal Revenue will not issue a permit for the importation of liquor into such a state, and the presumption is indulged in that the tax had not been paid. [3] This line of reasoning was adopted in the case of United States v. One White OneTon Truck (D. C.) 4 F. (2d) 413, 414, and which was approved and cited in the opinion of the Circuit Court of Appeals, Ninth Circuit, in the case of Commercial Credit Co. v. United States (C. C. A.) 17 F. (2d) 902, 903. The liquor found in the automobile was subject to the basic production tax, and the tax not being paid, and the liquor having been concealed and transported in the automobile, establishes under the record the intent to defraud the United States of the tax. [4] It further appears from the record that Kerley, the driver of the automobile, was not proceeded against for the transportation of liquor in the automobile, as the only charge filed against him was for having possession of intoxicating liquor. Therefore the third contention of intervener and Kerley is disposed of and decided adversely to them by the Ninth Circuit Court of Appeals in the

1. Release 17 (2)-Successive receipts and releases given by seaman held given under circumstances tending to deceive, and not binding.

Successive receipts and releases given insurance company by injured seaman held to have been given under circumstances such as to deceive seaman, though not so intended, and hence not binding in subsequent libel for injuries.

2. Contracts 93(2), 99(1)-Generally one signing document is presumed to have read and understood it, and in absence of fraud will not be protected against improvident action.

Generally speaking, when one signs a document, he is presumed in law to have read and understood its contents, and in the absence of fraud will not be protected against an unwise agreement.

3. Release 15-Seamen's releases are never conclusive, except when knowingly and understandingly made; doubt being resolved in favor of seamen.

Releases by seamen are never conclusive, except when knowingly and intentionally made, with full understanding of the situation; doubt being resolved in favor of seaman. 4. Release

15-Courts should be reluctant to sustain release of liability of which releasing party was ignorant, or which was not in contemplation of parties.

A court should be slow to hold that a release becomes operative as to a matter of liability of which the releasing party may have been in ignorance, and which was not in the contemplation of the parties when the release was made.

5. Trade unions 6-Agreement between local longshoremen's union and stevedore companies for compensation Insurance, acceptance of which should bar recovery In admiralty for injuries, held not binding on libelant.

A voluntary agreement between local longshoremen's union and stevedore companies, pursuant to which such companies obtained compensation insurance for members of union on

the understanding that they were not required to accept it, but that, if they did, it was a total bar to any recovery in admiralty, held not binding on seamen accepting payments made by insurance company, in view of showing made. 6. Shipping 84 (3/2)-Ship held not liable for injuries to stevedore caused by falling

hatch cover.

Ship held not liable for injuries to stevedore resulting from fall of hatch covers, which were neither removed nor secured by bolts. 7. Shipping 84 (2)-Shipowner owes stevedores duty of exercising diligence to furnish reasonably safe place to work, reasonably suitable appliances, and warning of latent dangers.

diligence to furnish a reasonably safe place in which to perform services, as well as appliances reasonably suited to the purpose for which they are customarily used, and the further duty of giving stevedores notice of any latent defects in the ship or appliances.

8. Shipping 86 (24) Stevedore's injury from falling hatch cover held proximate result of negligence of stevedore company.

Evidence held to show negligence of stevedore company or its employes in failing to remove or properly secure hatch cover, which proximately resulted in injury of stevedore.

9. Shipping ~84(5)—Under statute, contribu. tory negligence of stevedore will not bar, but may diminish, recovery, under doctrine of comparative negligence (Merchant Marine Act 1920, § 33 [46 USCA § 688]; Employers' Liability Act [45 USCA §§ 51-59]).

Under Merchant Marine Act 1920, § 33 (46 USCA § 688 [Comp. St. § 8337a]), making the federal Employers' Liability Act (45 USCA §§ 51-59 [Comp. St. §§ 8657-8665]) applicable to libel for stevedore's injuries, contributory negligence will not bar recovery, though it may diminish the amount of recovery, under the doctrine of comparative negligence. 10. Shipping

84(32)-Absence of tent covers, resulting in failure to remove hatch cover during rainy weather, held no defense to stevedore's libel for injuries.

In stevedore's libel for injuries from falling of hatch cover, which was not removed because of rainy weather, it is no defense to say that removal of covers was not customary in rainy weather without tent covers, which the respond. ent stevedore company did not have.

In Admiralty. Libel by John W. Gant against the steamship Henry S. Grove and the Atlantic Coast Shipping Company, Incorporated. Decree for libelant against the last-named defendant only.

Julius F. Sandrock, of Baltimore, Md., for libelant.

William L. Marbury, Sr., Fendall Marbury, and L. Wethered Barroll, all of Baltimore, Md., for Atlantic Coast Shipping Co.

George Forbes and Henry L. Wortche, both of Baltimore, Md., for the Henry S. Grove.

COLEMAN, District Judge. This is a libel for personal injuries suffered by the libelant while working as a stevedore in loading sheet steel, varying in length from 6 to 16 feet, on the steamship Henry S. Grove at one of the Locust Point piers, Baltimore harbor, on September 23, 1925. The libel is against both the ship and the stevedore company. The facts surrounding the accident are these:

The owner of a vessel owes stevedores en

steel sheets down through the hatch, and removing the loaded tray or dish, attaching in its stead an empty one, which in turn was hoisted and refilled. On the day in question it began to rain, as a result of which the work was carried on with the hatch, which was in three sections, each 9 feet long and 21 feet wide, only partially open; that is, the aft and middle section covers were left on and only the forward one removed, although prior to the rain on the same day the work had been done with all three sections removed.

Two heavy iron king beams running across the hatch, 9 feet apart, divided it into the three equal sections, and these beams, together with intermediate cross-beams and the hatch coamings, formed the supports for the hatch covers, which were heavy boards, some 12 or 13 in number in each section, 9 feet long and 22 feet wide and 2 inches thick. The beams and coamings were fabricated for bolts to be inserted in them in order to secure the beams, but no bolts were in use at the time; the testimony of the ship and stevedore being that it was both uncommon and unsafe to use the bolts, because the risk of accident was thereby increased by reason of the fact that if, upon ascending, the tray should strike one of the beams thus secured, the added resistance against the winches, booms, and tackle would have the tendency, not merely to dislodge the beams and hatch covers, but to break the boom, causing it to fall through the hatch covers, resulting in greater damage than if merely the beam and hatch cover fell.

What actually happened was that the tray, ascending empty, struck the beam, and one or more of the hatch covers, falling through, struck the libelant on the head and other parts of the body. The tray, which was operated with a bridle made fast at four corners, was 6 feet long and 32 feet wide; so it had a clearance in the hatch of only 12 feet fore and aft. The marine surveyor of the port of Baltimore, who testified on behalf of the ship, admitted it was always dangerous to work any hatch with any beams left in it. The ship defends on the ground, first, that it had nothing to do with the loading operation, that being exclusively under the control of the stevedore company, an independent contractor, which was, therefore, entirely responsible for the condition of the appliances directly contributing to the accident, and that the boom, winches, and tackle, which were supplied by the ship, were in every way in first-class condition; and, second, even if the ship had been at fault, there exists a valid

written release running from the libelant to the stevedore company, which also released the ship under the joint tort-feasor theory.

The stevedore company defends, first, on the ground that it has already fully compensated libelant for his injuries, and holds a complete valid release from him; second, that libelant was contributorily negligent; and, third, that several years prior to the accident an agreement had been entered into by the local branch of the International Longshoremen's Association, of which local branch libelant was then, and also at the time of the accident, a member, and by certain stevedore companies, including this respondent, and also by certain insurance companies, including the one which represented this respondent in connection with the release above mentioned; that by this agreement it was understood that, in view of the fact that the Workmen's Compensation Act of Maryland (Code Pub. Gen. Laws 1924, art. 101), as a result of what the Supreme Court of the United States had decided (State of Washington v. Dawson, 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646), was no longer applicable to accidents sustained by stevedores upon the navigable waters of the state, the stevedore companies named were to obtain from the insurance companies policies providing compensation for injuries to the same extent as if the Workmen's Compensation Act applied; and it was further understood that, in case any member of the local branch of the International Longshoremen's Association should be injured in any such accident, he must elect between filing a libel in admiralty to recover for said injury and filing a claim for compensation under said policies; and further that, if he claimed the latter, this would forever bar him from his right to the former.

[1] Because of the rather peculiar circumstances surrounding the release, the court insisted upon hearing the testimony in full before passing upon the effect of the release upon either respondent. The court has now come to the conclusion that the character of the receipts and releases, and the way in which they were taken, were such as to deceive the libelant with respect to the transaction as a whole, even though this was not intended, and that, therefore, to allow the last receipt and release, dated January 19, 1926, to be in bar of any further claim by libelant, would be tantamount to permitting a fraud to be practiced upon him. [2] The court is not unmindful of the fact that libelant is a man of fair intelligence, able to read and write fairly well, and, generally