Consequently none of these libels can be sustained under the statute; towage not being a "necessary" within the act.

[2] 2. It is not doubted that under general maritime law a lien for towage may be created, or that there is a presumption of pledge supporting lien, in respect of at least many of the essential assistances to navigation, of which towage is one. The Alligator, 161 Fed. 40.

But such a presumption is rebuttable, and means little more than that the burden of producing evidence to show the facts lies upon him that denies a pledge so natural and frequent as one for (inter alia) towage. Therefore, in respect of towage, the facts must always be examined before any lien can be asserted, as was done in this court in The Sarah Cullen (D. C.) 45 Fed. 511, affirmed 49 Fed. 166, 1 C. C. A. 218, and The Stroma, 53 Fed. 281, 3 C. C. A. 530. For the same principle, see The Wandrahm, 67 Fed. 358, 14 C. C. A. 414.

[3] Upon such inquiries the real question often is that presented by this litigation, viz.: How far may one furnishing services to a vessel, without any actual knowledge of her ownership, agents or charterings, and dealing with some person other than the master, shut his eyes, avoid or neglect all inquiry, and rest upon an authority to contract, which is in essence nothing more than an inference from an apparent act of authority?

We lay aside all decisions concerning liens asserted to rest on dealings with a shipmaster. The authority of a master by virtue of his office is so ancient, extensive, and universally accepted as to give to the "captain's orders" a standing quite different from the agreements of all other agents.

In this instance libelant was plainly employed to perform a service maritime in its nature, the subject of a maritime contract and capable of supporting a maritime lien. But such lien could arise only by the hypothecation express or implied of the credit of the vessel, and that pledge, like any other, must rest on the act of the owner, even though such owner's efficient act consisted only in permitting another to be his agent. While any one who appoints an agent takes the risk of liability growing out of, not only the agent's power, but its abuse, the mere fact of acting like an agent does not make an agent out of the actor.

There are only two states of fact possible in this case. Either libelant was told before any substantial part of the towage service was rendered that the person procuring the towage was a charterer, or else nothing more was known until after services rendered than that the New York & Boston Transportation Company in and of New York, had asked to have "our barges" towed.

The District Court found the first state of facts to be the truth. It came to that conclusion, after seeing and hearing the witnesses, and we perceive no reason to disapprove that finding. If so, there was no lien by general law irrespective of statute, under The Valencia, 165 U. S. 264, 17 Sup. Ct. 323, 41 L. Ed. 710.

If, however, we adopt (for argument's sake) the second state of facts, then the libelant was requested by a corporation apparently of New York, and in New York, to tow "our barges." Libelant's infer

ence from such a request must have been that a New York owner was in his home port seeking to make a contract for towage. But we hold as matter of fact that libelant had no right to infer an ownership from the use of the word "our." It is surely common knowledge that a master, a seaman, a ship's husband, and indeed almost any one connected with the management or upkeep of a vessel, commonly and naturally refers to that vessel in a possessive sense as well as in the feminine gender. In short, this tug owner made no inquiry, literally knew nothing, and sought to know nothing, about the relation of the hirer to the barges. Such circumstances amount to shutting one's eyes to keep out the light, and successfully rebut any presumption of lien.

Decree affirmed, with costs.

In re SIMMONS & GRIFFIN.

Petition of SIMMONS.

(Circuit Court of Appeals, First Circuit. February 11, 1919.)

No. 1381.

1. INSURANCE 239-LIFE INSURANCE-RIGHT TO SURRENDER POLICY. A policy of life insurance for the benefit of a third person named therein cannot be surrendered without the consent of the beneficiary.

2. BANKRUPTCY 143(12)-LIFE INSURANCE AS ASSET-RIGHTS OF TRUSTEE The right of a trustee in a life insurance policy on the life of the bankrupt is limited to the amount which the bankrupt could have realized on the policy at the time of bankruptcy as a cash asset.

3. BANKRUPTCY

143(12)-LIFE INSURANCE AS ASSET-BANKRUPT'S RIGHT

TO SURRENDER POLICY.

Where a third person was named as beneficiary in a policy of insurance on the life of a bankrupt, and he was without power to change the beneficiary or to surrender the policy, he had no property interest therein which passed to his trustee.

In Bankruptcy. In the matter of Simmons & Griffin, bankrupts. Petition of Arthur E. Simmons to revise order of District Court. Reversed.

For opinion below, see 253 Fed. 466.

Milton B. Warner, of Pittsfield, Mass. (Warner & Barker, of Pittsfield, Mass., on the brief), for petitioner.

Walter J. Donovan, of Adams, Mass., for respondent.

Before BINGHAM and ANDERSON, Circuit Judges, and ALDRICH, District Judge.

ANDERSON, Circuit Judge. In 1903, the Metropolitan Life Insurance Company issued a $1,000 20-year endowment policy on the life of Arthur E. Simmons, payable in case of his death during the 20-year period to his mother, Martha A. Simmons.

In 1912, the mother released all her right in the policy, and the insured thereupon designated his wife as contingent beneficiary in

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place of his mother. This designation was duly recorded in the office of the issuing company.

We agree with the District Court and with the referee that, as the result of this transaction, the wife became entitled to the same rights that she would have had if originally named as the contingent beneficiary in lieu of the mother; that is, that in case of Simmons' death within the 20-year period, the premium not being in default, the wife would have been entitled to recover the full face of the policy.

On February 19, 1917, the insured was duly adjudicated a bankrupt. At that time "this policy had a cash surrender value of $415.26, according to the computation of the company." This means nothing more than that the company, on receiving proper acquittances and releases from all necessary parties, would pay that amount of $415.26 in order to end its future possible liability for a larger sum.

On petition of the trustee, the referee ordered the bankrupt either to pay this sum to the trustee or to "execute an assignment of such documents and papers as may be necessary to enable the trustee to collect the amount of the cash surrender value from the company." The District Court affirmed this order. Just what documents the District Court and the referee contemplated as sufficient "to enable the trustee to collect the amount of the cash surrender value" does not appear. 253 Fed. 466.

[1] We think this decision cannot be sustained. It overlooks the rights of the bankrupt's wife and their effect upon the surrender value of the policy. "A policy of life insurance for the benefit of a third person named therein cannot be surrendered without the consent of the beneficiary." By Knowlton, J., in Haskell v. Equitable Life Insurance Co., 181 Mass. 341, 343, 63 N. E. 899, 900. The same principle is stated by Chief Justice Fuller in Hume v. Bank of Washington, 128 U. S. 195, 206, 9 Sup. Ct. 41, 44 (32 L. Ed. 370), as follows:

"It is, indeed, a general rule that a policy, and the money to become due under it, belong, the moment it is issued, to the person or persons named in it as the beneficiary or beneficiaries, and that there is no power in the person procuring the insurance by any act of his, by deed or by will, to transfer to any other person the interest of the person named. Bliss on Life Insurance (2d Ed.) p. 517; Glanz v. Gloeckler, 10 Ill. App. 484, per McAllister, J.; s. c. 104 III. 573 [44 Am. Rep. 94]; Wilburn v. Wilburn, 83 Ind. 55; Ricker v. Charter Oak Ins. Co., 27 Minn. 193 [6 N. W. 771, 38 Am. Rep. 289]: Charter Oak Ins. Co. v. Brant, 47 Mo. 419 [4 Am. Rep. 328]; Gould v. Emerson, 99 Mass. 154 [96 Am. Dec. 720]; Knickerbocker Life Ins. Co. v. Weitz, 99 Mass. 157."

[2] Whatever may have been the view in some of the earlier decisions, it is now settled law that the right of the trustee in bankruptcy is limited to the amount which the bankrupt might have received on the policy at the time of the bankruptcy as a cash asset. Burlingham v. Crouse, 228 U. S. 459, 473, 33 Sup. Ct. 564, 57 L. Ed. 920, 46 L. R. A. (N. S.) 148; Cohen v. Samuels, 245 U. S. 50, 38 Sup. Ct. 36, 62 L. Ed. 143. See, also, In re Hammel, 221 Fed. 56, 137 C. C. A. 80; In re Samuels, 237 Fed. 796, 151 C. C. A. 38. There would be no profit in discussing the cases before Burlingham v. Crouse, supra. See the learned and interesting review of them by Professor D. Fred

erick Burnett in 3 Cornell L. Q. 253, May, 1918, "Life Insurance as an Asset in Bankruptcy."

un

[3] We think that the surrender value of this policy was not "property which, prior to the filing of the petition, he could by any means have transferred or which might have been levied upon * * * der judicial process against him," and, therefore, passing to the trustee, under Bankruptcy Act July 1, 1898, c. 541, § 70a (5), 30 Stat. 565 (Comp. St. § 9654); nor did the surrender value fall within "the powers which he might have exercised for his own benefit," thus passing to the trustee under section 70a (3).,

The case is plainly distinguishable from Blinn v. Dame, 207 Mass. 159, 93 N. E. 601, 20 Ann. Cas. 1184, for in that case the insured had reserved "power to surrender the policy at any time and receive for his own benefit the amount of the then existing surrender value.” See 207 Mass. 164, 93 N. E. 602, 20 Ann. Cas. 1184. The decision of the Supreme Court in Cohen v. Samuels, supra, reversing the majority decision below, rests upon the same ground, for the policies involved in that case had each "a cash surrender value at the time Samuels was adjudicated a bankrupt, which the companies were willing to pay him, and in all of them he had the absolute right to change the beneficiaries."

His mother was

In the case at bar Simmons had no such right. originally the contingent beneficiary, and had rights in the policy beyond his control. She gave up those rights in due form. The company thereupon, upon the request of the insured, substituted his wife as contingent beneficiary, vesting in her rights equivalent to those originally accruing to his mother. Under these conditions the bankrupt had no pecuniary interest, which could pass to the trustee, without the consent of the wife. See Wilde v. Wilde, 209 Mass. 205, 95 N. E. 295. We must hold that this policy had no such surrender value as passed to the trustee, under section 70a (3) or 70a (5).

As what we have said is enough to dispose of the case adversely to the claim of the trustee, it is not necessary to consider whether the same result might not be reached under the exemption provided by Rev. Laws Mass. c. 118, § 73, and section 6 of the Bankruptcy Act (Comp. St. § 9590). Perhaps, to avoid misconception, we ought to add that we do not think that statute can be construed as applicable only to paid-up endowment life insurance policies, as is apparently intimated in the opinion of the court below. The history and policy of the statute are fully discussed by the Supreme Judicial Court of Massachusetts in Bailey v. Woods, 202 Mass. 549, 89 N. E. 147, 25 L. R. A. (N. S.) 722, and Bailey v. Woods, 202 Mass. 562, 89 N. E. 149. In the first case (202 Mass. 549, 551, 89 N. E. 147, 148 [25 L. R. A. (N. S.) 722]), that court said:

"Since 1844, with the exception of the seven years from 1887 to 1894, if they can be called an exception, it has been the policy of the commonwealth to enable the husband and father to provide by insurance on his life for his wife and children, subject only to have premiums paid in fraud of creditors within the statutory period of limitation inure to their benefit out of the proceeds of the insurance, and since 1894 the law has included assignments from the husband to the wife of policies issued to the husband. This has

been regarded as a wise and humane policy and the constitutionality of the legislation has never been questioned, and we do not see how it can be successfully. 'It proceeds,' as has been said, 'upon the theory that the interest of a man's wife and children in his life, and his duty to make reasonable provision for their support, are not wholly subordinate to the claims of his creditors, and that he may make an irrevocable settlement of a policy of insurance on his life for the benefit of his family.'"

We have no disposition to undertake to narrow the broad and liberal interpretation put upon that legislation by the Massachusetts

court.

Let there be a decree reversing the decree of the District Court, with costs to the petitioner in this court.

MCKIE LIGHTER CO. v. COLLINS.

(Circuit Court of Appeals, First Circuit.

February 11, 1919.)

No. 1385.

SHIPPING 209(3)—RIGHT TO LIMITATION OF LIABILITY-PRIVITY OR KNOWLEDGE OF PETITIONER.

Action of a District Court in dismissing a petition for limitation of liability for a personal injury, on the ground that petitioner was not without privity or knowledge of the acts causing the injury, held sustained by the evidence.

Appeal from the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.

Petition in admiralty by the McKie Lighter Company for limitation of liability; Charles Collins, claimant. From a decree dismissing the petition, petitioner appeals. Affirmed.

G. Philip Wardner, of Boston, Mass., for appellant.

Wilfred B. Keenan and Damon E. Hall, both of Boston, Mass., for appellee.

Before BINGHAM. JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge. This is an appeal from a decree of the District Court for Massachusetts dismissing the petition of the McKie Lighter Company, the owner of a lighter, to have its liability for an injury suffered by Charles Collins, the claimant, determined, and, if liable, the damages limited.

In its assignments of error the Lighter Company complains that the District Court erred: (1) In dismissing its petition; (2) in not limiting its liability to the value of the lighter and pending freight; (3) in holding that the injury was not inflicted without its privity or knowledge; (4) in holding that the ultimate question was whether, upon the facts stated, Capt. Gurney, by his acts or failure to act so ratified and adopted the work in progress as to make it responsible therefor; (5) in finding and ruling that Capt. Gurney, by his acts

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