THE AQUITANIA. 20 F.(2d) 457 Circuit Court of Appeals, Second Circuit. No. 373. 1. Shipping 209 (2)-Limitation proceeding is not available for convenience, where claims cannot equal ship's value. Limitation proceeding may not be invoked to bring all claims against vessel into concourse, and thus make convenient disposition of a number of actions against owner, where there is no possibility of claims equaling ship's value. 2. Shipping 209 (3)-To secure benefit of limitation, shipowner must file petition showing facts and circumstances, claiming as limitation value of vessel and pending freight (Comp. St. §§ 8021-8023; admiralty rules 51-53). Before owner of ship may have benefit of limitation accorded by Rev. St. §8 4283-4285 (Comp. St. §§ 8021-8023), under admiralty rules 51-53, owner must file petition setting forth facts and circumstances under which limitation is claimed, and limitation claimed must be value of vessel and her pending freight. Appeal from the District Court of the United States for the Southern District of New York. In the matter of the petition of the Cunard Steamship Company, Limited, as owner of the steamship Aquitania, for limitation of liability. From a decree dismissing the petition, and vacating an injunction against the prosecution of the claimants' common-law ac tions (17 F.[2d] 120) petitioner appeals. Affirmed. See, also, 14 F. (2d) 456. this sum. of liability under the provisions of Rev. St. §§ 4282-4285 (Comp. St. §§ 8020-8023). The ad interim stipulation given was in the sum of $9,225,276.30, the value of the steamship Aquitania and her pending freight. The surety company furnished a bond in the sum of $300,000, with the claim that the amount of the liability thereunder would not exceed After exceptions were filed and overruled, claimants answered the petition. A reference to a commissioner was had, his report was filed, and the court below dismissed the petition and vacated the injunction against the prosecution of the appellee's common-law actions. The petitioner appeals from that determination. It was found below that the claims in limitation "might not possibly equal the amount of the ad interim stipulation." [1] May a petition in limitation of liability be sustained, where the amount claimed is concededly less than the value of the vessel and freight to avoid a multiplicity of suits? The authorization for limitation of liability proceedings is that found in sections 42834285 of the Revised Statutes, and in substance permits the owner of any vessel, as applicable here, who has caused loss, damage, or injury by reason of a collision, when it was occasioned or occurred without his privity or knowledge, to limit his damage in such collision to the amount or value of the interest of such owner in the vessel and her freight then pend ing. If the value of the vessel and the freight money is not sufficient to make compensation for each of those suffering loss, the compensaLord, Day & Lord, of New York City (Al- tion from the owner of the vessel is received lan B. A. Bradley and Sherman Baldwin, in proportion to their respective losses, and both of New York City, of counsel), for ap- for that purpose appropriate proceedings are pellant. Silas B. Axtell, of New York City (Eliza-terest in the vessel and freight for the benefit provided for. The owner may transfer his inbeth Robinson, of New York City, of counof such claimants to a trustee, to be appointsel), for appellees. Chauncey I. Clark, of New York City, act as such trustee for the person who may ed by any court of competent jurisdiction, to amicus curiæ. prove to be legally entitled thereto, and after Before MANTON, L. HAND, and such transfer all claims against the owner SWAN, Circuit Judges. MANTON, Circuit Judge. The appellant's steamship Aquitania, is charged with colliding with the fishing schooner Malicia Enos on June 30, 1922, off the Grand Banks, Atlantic Ocean, resulting in the loss of the entire crew of five members and the schooner. Common-law actions were instituted for the loss of those lives and property, claiming damages in the sum of $205,000. They were on the docket for trial when, on May 15, 1926, the appellant filed a petition for limitation cease. The purpose of these statutes, providing for such limitation of liability, has been considered by the Supreme Court in numerous cases, among them Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 3 S. Ct. 379, 617, 27 L. Ed. 1038; The Benefactor, 103 U. S. 239, 26 L. Ed. 351; Norwich & N. Y. Transp. Co. v. Wright, 13 Wall. 104, 20 L. Ed. 585; Butler v. Boston & S. S. S. Co., 130 U. S. 527, 9 S. Ct. 612, 32 L. Ed, 1017; The Hamilton, 207 U. S. 398, 28 S. Ct. 133, 52 L. Ed. 264; Hartford Accident & Indemnity Co. v. Southern Pac. Co., 47 S. Ct. 357, 71 L. Ed. said: - In the last case, the court 103 U. S. 239, 26 L. Ed. 351. The proceeding is for the purpose of limiting liability, and this presupposes that a certain liability will not be exceeded; that is, that there be no personal liability beyond that of the res involved. The Defender (D. C.) 201 F. 189; Shipowners', etc., v. Hammond Lumber Co. (C. C. A.) 218 F. 161. Even a single claim, if large enough, justifies the proceeding. White v. Island Transp. Co., 233 U. S. 346, 34 S. Ct. 589, 58 L. Ed. 993; The Garden City (D. C.) 26 F. 766; The Hoffmans (D. C.) 171 F. 455. But the single claim must be greater than the value of the ship; otherwise, the proceeding is unnecessary. Shipowners', etc., v. Hammond Lumber Co., supra. The proceeding is unnecessary, for, as pointed out by The George W. Fields (D. C.) 237 F. 403, "the reasoning applies equally well, if the aggregate of several claims, definitely known, be less than the value." The statute is intended to limit the liability of the shipowner, but not arbitrarily to give him a particular forum. The Tug No. 16 (D. C.) 237 F. 405. It is clearly established that the claims, all filed prior to the date of filing of the petition, are small in comparison with the value of the Aquitania, and by no possibility could they have equaled or exceeded its value. "These decisions establish, first, that the great object of the statute was to encourage shipbuilding and to induce the investment of money in this branch of industry, by limiting the venture of those who build the ships to the loss of the ship itself or her freight then pending, in cases of damage or wrong happening without the privity or knowledge of the shipowner, and by the fault or neglect of the master or other persons on board; that the origin of this proceeding for limitation of liability is to be found in the general maritime law, differing from the English maritime law; and that such a proceeding is entirely within the constitutional grant of power to Congress to establish courts of admiralty and maritime jurisdiction. It is quite evident from these cases that this court has by its rules and decisions given the statute a very broad and equitable construction for the purpose of carrying out its purpose, and for facilitating a settlement of the whole controversy over such losses as are comprehended within it, and that all the ease with which rights can be adjusted in equity is intended to be given to the proceeding." The appellant concedes that the amount of the claims is small compared to the value C.) 26 F. 766, the value of the vessel was In the early case of The Garden City (D. found to be $30,000, and there were claims filed amounting to $4,000; but the court held that the nature of the accident—a severe fire, where a number of passengers were injured— created a possibility of future claims, and that the shipowner could not be compelled, at his peril, to assume the risk that the claims would be in excess of the value of the vessel. In Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 3 S. Ct. 379, 617, 27 L. Ed. 1038, the question before the court was whether a proceeding of the District Court of the United States to limit the liability of shipowners superseded other actions and suits for the same loss or damage. The question before us was not considered there. In Hartford Accident & Indemnity Co. v. Southern Pac. Co., supra, the value of the claims greatly exceeded the value of the vessel, and the question was not whether the limitation proceedings as such could be maintained, but the controversy was between the claimants and the surety who appeared and executed its bond for the benefit of creditors. The surety failed to carry out its agreement and the claimant sued on the bond. In the other cases referred to by the appellant, the claims exceeded the value of the vessel and freight, as in Butler v. Boston & S. S. S. Co., 130 U. S. 20 F.(2d) 459 527, 9 S. Ct. 612, 32 L. Ed. 1017; L. I. North Shore Passenger & Freight Transp. Co. (D. C.) 5 F. 599. In another group of cases cited to us, there was a possibility that the claims might exceed the value of the vessels and freight, and hence limitation was allowed. The Victoria (D. C.) 3 F.(2d) 330; The George W. Fields, supra. The shipowner is not given the right, as argued by the appellant, to come into admiralty in a limitation proceeding merely to determine whether he is liable at law, and irrespective of whether or not limitation of liability is sought. The Benefactor, 103 U. S. 239, 26 L. Ed. 351. Section 4289 of the Revised Statutes (Comp. St. § 8027) requires the surrender of the whole vessel and pending freight or the giving of a bond for value. It has been uniformly held that the effect of the statute is to make the shipowner's right to claim the benefit of the statute for limitation of liability depend upon the surrender by him, for the benefit of the claims, of the whole value of the vessel and her freight for the voyage. O'Brien v. Miller, 168 U. S. 287, 18 S. Ct. 140, 42 L. Ed. 469; The Great Western, 118 U. S. 520, 6 S. Ct. 1172, 30 L. Ed. 156. All that could be accomplished by appellant, if successful on this petition, would be to avoid jury trials. It would be permitting it to try the case in another forum of its choice, and this is unauthorized by the act. The Tug No. 16 (D. C.) 237 F. 405; Shipowners', etc., V. Hammond Lumber Co. (C. C. A.) 218 F. 161. Upon the facts here disclosed-that the amount of the claims is small compared with the value of the ship and that all possible claims have been received-the appellant is not entitled to limit its liability as petitioned for, and the decree dismissing the petition must be affirmed. Decree affirmed, with costs. SPENCER KELLOGG & SONS, Inc., v. Circuit Court of Appeals, Second Circuit. No. 390. 1. Carriers 38(3)—Provisions of Elkins and Hepburn Acts, prohibiting "any person, persons or corporation" from giving any rebate, is not limited in its application to shippers or carriers (Elkins Act, § 1, as amended by Hepburn Act, § 2 [Comp. St. § 8597]). Elkins Act, § 1, as amended by Hepburn Act, § 2 (Comp. St. § 8597), prohibiting "any person, persons, or corporation" from giving any rebate, concession, or discrimination in respect to the transportation of any property in interstate or foreign commerce, is not limited in its application to shippers and carriers, but includes any person or corporation whose intended acts result in a transportation of property at less than tariff rates lawfully pub lished. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Any.] 2. Carriers 38 (3)-Elevator company, collecting charges from railroad and refunding half thereof to consignees or shippers of grain, held guilty of violating Elkins and Hepburn Acts prohibiting giving of rebate (Elkins Act § 1, as amended by Hepburn Act, § 2 [Comp. St. § 8597]). For this service it was Defendant, a corporation owning grain elevator at Buffalo, elevated grain from Lake boats and loaded it into railroad cars for shipment to consignees. paid one cent per bushel by the railroad companies. One-half of the amount so collected defendant refunded to shippers or consignees, pursuant to prior arrangement and without knowledge of the railroad company. Held, defendant, though neither a carrier nor shipper, was guilty of violating Elkins Act, § 1, as amended by Hepburn Act, § 2 (Comp. St. § 8597), prohibiting any person or corporation crimination in respect to the transportation of from giving any rebate, concession, or disany property in interstate commerce. 3. Commerce 3-Congress may regulate interstate commerce and action of persons engaged in it. Congress has power under Constitution to regulate interstate commerce, and therefore the action of persons who are engaged in it. 4. Carriers 38 (3)-Agents and persons acting for carriers are bound by congressional regulations. Agents or persons acting for a carrier are bound by congressional regulations. 5. Carriers 38 (3)-Offense of giving rebate or concession is not limited to cases of collusion between carrier and shipper (Elkins Act, 1, as amended by Hepburn Act, § 2 [Comp. St. § 8597]). Offense, under Elkins Act, § 1, as amended by Hepburn Act, § 2 (Comp. St. § 8597), of giving a rebate, concession, or discrimination, is not limited to cases of collusion between carrier and shipper. 6. Carriers 38 (3)-Elkins Act was intended to eliminate every form of discrimination, favoritism, or inequality (Elkins Act, § I [Comp. St. § 8597]). Elkins Act, § 1 (Comp. St. § 8597), is remedial, and intended to do away with every form of discrimination, favoritism, and inequality. interstate commerce, and it brings error. Affirmed. Lewis & Carroll, of Buffalo, N. Y. (W. C. Carroll, of Buffalo, N. Y., of counsel), for plaintiff in error. Richard H. Templeton, U. S. Atty., William J. Donovan, Asst. Atty. Gen., and Elmer B. Collins, Sp. Asst. Atty. Gen., of Buffalo, N. Y. Before MANTON, L. HAND, and SWAN, Circuit Judges. MANTON, Circuit Judge. This writ seeks to review a judgment of conviction under section 1 of the Elkins Act (32 Stat. 847) and section 2 of the Hepburn Act (34 Stat. 587 [Comp. St. § 8597]). The plaintiff in error is the owner of a grain elevator, receiving grain from the West, elevating it, storing it for a limited time, and loading it again on a common carrier's freight cars for transportation to seaboard. The shipments in question moved during 1924-1925. The common carrier named in the several counts filed with the Interstate Commerce Commission its legal and joint proportional freight tariff, which became effective prior to the dates named in the indictment, and which named rates "ex lake grain, in bulk, for export, in carloads," applicable at and east of Buffalo, N. Y., to Atlantic coast points. Application of the rates named in the tariff were subject to rules made governing the tariff. Under the rules governing the tariff, the rates constitute the total charge to be paid by the shipper for movement, including elevation and transportation of the grain from the holds of the Lake vessels at Buffalo to destination on the Atlantic coast. Rule 6 published an allowance of 1 cent per bushel for the service of elevation out of the freight rate to the Buffalo elevators, including the plaintiff in error. The grain involved in the counts of the indictments, while still aboard the vessels on the Great Lakes, was tendered by the shippers or consignees at New York to the carriers, and by them accepted for elevation and transportation from Buffalo to destinations. The grain was then elevated by the plaintiff in error from the hold of the vessel through its elevator and loaded onto railroad freight cars of the carrier, which had contracted with the shipper for transportation. Upon delivery of the grain at destination, the carrier collected from the consignee the freight charges applicable to each shipment as published in the tariff, and, as required by rule 6, paid to the plaintiff in error the allowance of 1 cent per bushel for the performance of the elevation. It is alleged and proved that, as to each count of the indictment upon which a conviction has been had, the plaintiff in error previously agreed with the carriers to perform the elevation services in accordance with the provision of the tariff and accepted the allowance of 1 cent per bushel. Out of the portion of the freight rate received by it from the carrier as an allowance for elevating the grain, the plaintiff in error refunded and paid one half cent per bushel to the shippers or consignees of the several shipments of grain mentioned in the indictment. The refund of the moneys thus paid to the consignees was made through grain brokers whose offices were in New York City, pursuant to a prior arrangement between the broker and the plaintiff in error. Under this arrangement, the rebates and concessions were paid to the consignees as an inducement to them to designate the plaintiff in error's elevator to elevate their grain from the Lake boats to railroad cars, and resulted in a larger volume of grain being handled by it. It also enabled the consignees to obtain transportation for their grain at less rates than those named in the filed and published tariff. In counts 1, 2, 3, 8, 9, and 10 it is alleged that the plaintiff in error granted concessions to consignees of the grain described in those counts, whereby the grain was transported at a less rate than that named in the tariff. In counts 4, 5, 6, and 7 the plaintiff in error is charged with giving rebates to consignees of the grain therein made, whereby the grain was transported at a less rate than that named in the tariff. And count 12 alleges that the plaintiff in error granted a concession to the consignee of a shipment of grain whereby a discrimination was practiced. It was upon these 11 counts that the plaintiff in error was convicted. [1, 2] The writ presents the question of whether a corporation, other than a carrier who acts in performing interstate transportation service, commits a breach of the laws referred to by giving such concessions and rebates. The application of the statute is not limited to shippers and carriers, but includes and punishes any person or corporation whose intended acts result in the transportation of property at less rates than those mentioned in the tariffs lawfully published and filed by common carriers. Nor is it essential to convict, within the terms of the statute, to prove that there was co-operation by a common carrier. The result forbidden by the statute was accomplished by plaintiff in 20 F.(2d) error's payments to consignees and shippers, and resulted in shippers receiving their transportation at rates less than those named in the tariffs. As section 1 of the Elkins Act reads, anything done or omitted to be done by a carrier, which, if done or omitted to be done by any person acting for or employed by such carrier, would constitute a misdemeanor under the act, is also held to be a misdemeanor committed by such carrier, and, upon conviction thereof, punishment therefor is inflicted as prescribed. It declares it to be unlawful for any person or corporation to offer, grant, or give any rebate, concession, or discrimination in respect to the transportation of any property in interstate or foreign commerce, whereby any such property shall be, by any device whatever, transported at a rate less than that named in the tariffs. Its broad and sweeping language is a clear expression of the intendment of Congress to make the purposes of the act applicable to any person or corporation who might be in a position to commit an act which would accomplish the forbidden result, namely, the transportation of property at less rates than those named in the tariffs published by the carriers. The penalty is inflicted for the purpose of punishing all those who do acts declared to be unlawful and is directed to and includes the person or corporation whose acts result in the transportation of the property at less than tariff rates. The plaintiff in error contends that the words "any person, persons or corporation," and "every person or corporation," are restricted in their application by the words "whether carrier or shipper," found in the penalty provision. It is claimed that the words "whether carrier or shipper" were not included in the original enactment of the statute in 1903 (32 Stat. 847), but were added by the amendment of 1906 (34 Stat. 587), and that these words were for the purpose of designating specifically those capable of committing the offenses created by the original act; in other words, that it restricts or limits the application of the Elkins Act. But the argument overlooks, not only the purpose of the act, but also its letter. The purpose of the act was not to regulate carriers or shippers. Congress intended to prohibit all rebates, concessions, or discrimination with respect to railroad transportation service. This was not confined to the regulation of carriers and shippers. The Supreme Court has broadly interpreted the Elkins Act, so as to render ineffective any arguments made that the amendment placed a limitation upon the original act. The act concerns itself with preventing concessions and rebates with respect to in-, terstate transportation of property, and not with carriers, shippers, their agents, or any one else, unless and until their acts result in the accomplishment of that which the statute forbids. It was not intended and does not permit any one else, other than shippers and carriers, to grant rebates or concessions. [3, 4] Congress has the power, under the Constitution, to regulate interstate commerce, and therefore the action of persons who are engaged in it because of that fact. Gibbons v. Ogden, 9 Wheat. 1, 76, 6 L. Ed. 23. Agents or persons acting for a carrier are bound by these regulations. N. Y. C. R. R. v. U. $., 212 U. S. 481, 29 S. Ct. 304, 53 L. Ed. 613. This plaintiff in error, in using its elevator for transportation, performed transportation services, and effectuated the through movement of interstate shipments of grain. It was engaged in interstate traffic. Southern Pac. Terminal Co. v. Int. Com. Comm., 219 U. S. 498, 31 S. Ct. 279, 55 L. Ed. 310; B. & O. S. W. R. R. v. Settle, 260 U. S. 166, 43 S. Ct. 28, 67 L. Ed. 189. The motive in paying rebates was to increase the volume of business which passed through its elevator and to add to its income. Even agents and persons acting for a carrier are within the statute. U. S. v. Union Stockyards, 226 U. S. 286, 33 S. Ct. 83, 57 L. Ed. 226. The test to be applied in determining whether the act is violated is whether the terms of the statute include the acts committed. Whether the person committing the act is a shipper or carrier is not determinative. United States v. Koenig Coal Co., 270 U. S. 512, 46 S. Ct. 392, 70 L. Ed. 709. [5, 6] Congress did not intend to limit the offense described in it to cases of collusion between the carrier and shipper. What was done by the plaintiff in error is not in dispute, and therefore the question is whether what was done constitutes an offense by this plaintiff in error, even though it were not established to have been done in collusion with a carrier or with its knowledge or consent. The law was intended to reach either individuals or corporate entities who contribute knowingly and understandingly to a rebate or concession by any manner or device, and the relation which the culprit bore to the carrier is not necessary as a foundation upon which to rest responsibility. It is next contended by the plaintiff in error that it can violate the act only as an accessory. Nowhere is reference made in the act to principals or accessories or principal offenders. Again the question is whether the plaintiff in error, by its action, committed |