Joseph B. Jacobs, of Boston, Mass. (Henry G. Molina, of San Juan, Porto Rico, and Jacobs & Jacobs, of Boston, Mass., on the brief), for appellant. Harry F. Besosa, of San Juan, Porto Rico, for appellees. Before DODGE and BINGHAM, Circuit Judges, and BROWN, District Judge. DODGE, Circuit Judge. The appellants sued the bankrupt firm in a Porto Rican court, attaching personal property belonging to the firm in accordance with the local procedure. This was done more than four months before the involuntary petition was filed, under which said firm was adjudged bankrupt by the federal District Court. The suit thus begun was to recover the price of goods sold. It resulted in a judgment in the appellants' favor, and a subsequent order of execution issued by the local court; both within the four months preceding the filing of said bankruptcy petition. After the bankruptcy petition had been filed, the marshal of the local court proceeded, under the execution in his hands, to advertise the attached property for sale, in order to satisfy the judgment. It had remained in his custody since it was attached as above. The bankruptcy court enjoined the proposed sale, holding that the appellants acquired no lien by their original attachment, and that any lien acquired by virtue of the judgment or the steps taken subsequent thereto had been avoided or nullified according to section 67f of the Bankruptcy Act. It reversed an order by the referee declaring the appellants "in possession of a valid lien," from which order of reversal they appeal. [1] If the appellants got no valid lien upon the attached property until the judgment in their favor was entered, there is no error in the order appealed from. But, if they obtained a valid lien when they attached the property, section 67f has no application, this order should be vacated, the sale allowed to proceed, and the referee's order sustaining the lien affirmed. In view of Peck v. Jenness, 7 How. 612, 12 L. Ed. 841, decided under a former bankruptcy law, and of Metcalf v. Barker, 187 U. S. 165, 23 Sup. Ct. 67, 47 L. Ed. 122, decided under the present Bankruptcy Act, attachment on mesne process, such as the laws of the states within this circuit permit, is to be regarded as creating a lien in the plaintiff's favor, valid from the time the attachment is made, and not nullified or avoided by subsequent bankruptcy proceedings under the present act, unless the same are begun within the four months following such attachment; and this notwithstanding the fact that the lien so obtained is inchoate only, and subject to be lost if the suit wherein it has been made does not result in a judgment in the plaintiff's favor. The lien is considered as obtained when the attachment is made, and a subsequent judgment for the plaintiff as doing no more than establish the fact that it was rightly obtained. Such a judgment, followed by execution and levy, only enforces the lien created by the attachment. In re Blair (D. C.) 108 Fed. 529, cited with approval in Metcalf v. Barker, 187 U. S. 165, 174, 23 Sup. Ct. 67, 47 L. Ed. 122; Collier, Bankruptcy (10th Ed.) 969; Remington, Bankruptcy (2d Ed.) §§ 1455, 1588. [2] Whether or not such attachments create a lien upon the attached property, valid from the time they are made as above, depends wholly upon the local law. The laws of some, but not of all, the states without this circuit permit attachments on mesne process similar in character and effect. The laws of Porto Rico permit attachments on mesne process according to provisions hereinafter considered. Whether or not attachments such as are thereby permitted are also to be regarded as affecting the attached property with a lien valid from the time of the attachment is the question presented by this appeal. The statutory provisions authorizing attachments on mesne process in Porto Rico are found in sections 5233-5250 of the Code of Civil Procedure. They were originally enacted March 1, 1902, as "An act to secure the effectiveness of judgments." Section 5233 is as follows: "Every person who shall bring an action for the fulfillment of any obligation may obtain an order from the court having cognizance of the suit providing that the proper measures be taken to secure the effectiveness of the judgment as the case may require it, should it be rendered in his favor." The "proper measures" are prescribed by the next section, 5234, and differ somewhat according to the nature of the obligation sued on. When, as in this case, the obligation is the payment of any sum of money, section 5234 (b) provides that: "The provisional remedy shall consist of the attachment of sufficient property of the debtor to cover the amount claimed." Section 5242 provides that an attachment on personal property"shall be effected by depositing the personal property in question with the court, or the person designated by it, under the responsibility of the plaintiff." The same section provides further for deposit with the defendant, upon sufficient bond given by him, in the discretion of the court; for its sale at public auction, on demand by the owner, upon condition that the proceeds be deposited with the court, and for its sale, if perishable, on petition of either party, at public auction, the proceeds to be deposited as directed by the court. With these provisions, however, this case is not concerned. The property attached was deposited with the marshal of the court and kept in his custody. Had it been sold under any of the provisions permitting its sale, the proceeds would, of course, have taken its place for the purposes of the present case. Except that a special order of court authorizing each attachment is required, this procedure does not appear to differ in any essential respect from that which may be availed of, under the laws of the states within this circuit, at his option, by any plaintiff desiring security upon the defendant's personal property, at the outset, for such judgment as he may obtain. Designated personal property of the defendant is taken into an officer's custody, who holds it until the attachment is dissolved, or it is applied to satisfy a judgment for the plaintiff. Meanwhile the defendant may dissolve it by giving bond; discontinuance of the suit or judgment for the defendant will dissolve it; or the court may, pending the suit, for cause shown, order it sold, and the proceeds held under attachment in its place. Judgment having been entered, execution issued in the suit accomplishes application of the attached property or its proceeds in satisfaction of such judgment. Until then the defendant's property right therein continues, notwithstanding the plaintiff's inchoate or contingent lien. Actual transfer is prevented by the officer's custody; the defendant can transfer only his right thereto, subject to such custody and the plaintiff's lien. The provisions of the Porto Rican Code regarding the disposition of attached property on execution are found in the next succeeding title of said Code, "Of the Execution of the Judgment in Civil Actions," and are as follows: * Section 5258: "All property and right of property, seized and held under attachment in the action, are liable to execution. Until a levy, property is not affected by the execution." It is also true, in Porto Rico as with us, that an attaching creditor has priority as to the property attached over a creditor recovering judgment against the same defendant without any attachment, and that, as between creditors attaching the same property, the earlier attachment has priority. See Oronoz & Co. v. Alvarez, 23 P. R. 497. That what is in substance a lien upon the property attached is created when an attachment is made under the above provisions of the Porto Rican Code cannot in our opinion be denied. The right or interest then acquired by the plaintiff in property so attached is referred to as a "lien" in the decisions of the Supreme Court of Porto Rico. See Auffant v. Succession Ramos, 23 P. R. 410 (relating to attachments of real estate); Oronoz & Co. v. Alvarez, 23 P. R. 497, already cited. We find nothing to indicate that the attaching creditor's right or interest, arising at the time of the attachment, under the Porto Rican procedure, is intended to be any less effective for the purpose of securing his. judgment, than an attachment on mesne process under the laws of the states above referred to. In Porto Rico, as under those laws, and as was done in this case, the property attached is segregated from the defendant's other property by the custody of a public official acting under the authority of the court, for the publicly declared purpose of keeping it so segregated until applied to satisfy the plaintiff's claim. Until so applied the defendant's property in it remains subject to the plaintiff's right to such application in priority to the rights of other creditors. After custody under such an attachment has continued for more than four months, we see no more reason for holding the plaintiff's prior right subject to be defeated by bankruptcy proceedings than would exist in the case of an attachment such as was made in Re Blair (D. C.) 108 Fed. 529, cited above. We find nothing in Clarke v. Larremore, 188 U. S. 486, 23 Sup. Ct. 363, 47 L. Ed. 555, referred to in the opinion of the learned District Judge, inconsistent with the foregoing conclusion. The plaintiff in that case had made no attachment before obtaining judgment and got no right of any kind in the defendant's property until he levied execution. Judgment, execution, and levy had been vacated, so far as they affected the defendant's property or its proceeds at the execution sale, by bankruptcy within four months thereafter. The conclusion we adopt is in accordance with that reached in this case by the District Court, in an opinion of earlier date than that before us in this record, which was the result of a reconsideration. See 8 P. R. Fed. 605. The order of the District Court of December 29, 1916, reversing the referee's order of September 27, 1916, is reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion, and the appellants recover their costs of appeal. (243 Fed. 523) THE SKIPTON CASTLE. (Circuit Court of Appeals, Ninth Circuit. May 7, 1917.) No. 2774. 1. SHIPPING 141(1)-LIABILITY FOR DAMAGE TO CARGO-HARTER ACT-CONSTRUCTION. The "negligence, fault or failure in proper loading, stowage, custody, care or proper delivery" of cargo, from liability for which, under Harter Act Feb. 13, 1893, с. 103, § 1, 27 Stat. 445 (Comp. St. 1916, § 8029), a vessel cannot exempt herself by any clause or agreement in the bills of lading, applies to the care necessary to protect the cargo from injury during the voyage, where it does not primarily have to do with the navigation or management of the vessel. 2. SHIPPING 141(1)-LIABILITY FOR DAMAGE TO CARGO-HARTER ACT. On a voyage from Antwerp to California ports, requiring some two months, a portion of the cargo stowed in between-decks compartment, consisting of bottled mineral water and willow baskets, was badly damaged by the heating of a shipment of bone meal stowed in the hold directly below; the hatchway between the two holds having been left partly uncovered to permit the circulation of air. The excessive temperature of the lower hold, showing that the bone meal was heating, became evident on the fourth day out, and greatly increased afterward; but nothing was done to protect the cargo above, although it could readily have been removed sufficiently to permit the closing of the hatchway, and the holds had separate ventilators. Held that, under section 1 of the Harter Act, the ship was liable for the damages, notwithstanding a provision of the bills of lading exempting it from liability for loss or damage caused by sweating, leakage, breakage, or decay. Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge. Suit in admiralty by the American Import Company, a corporation, Tillman & Bendel, a corporation, James L. De Fremery and Henri M. Suermondt, partners as Jas. De Fremery & Co., and the Appolinaris Company, Limited, against the British steamer Skipton Castle; the Lancashire Shipping Company, Limited, claimant. Decree for libelants, and claimant appeals. Affirmed. For opinion below, see 223 Fed. 839. Edward J. McCutchen, Ira A. Campbell, and McCutchen, Olney & Willard, all of San Francisco, Cal., for appellar.t. William Denman and Denman & Arnold, all of San Francisco, Cal., for appellees. Before GILBERT, ROSS, and HUNT, Circuit Judges. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Inches HUNT, Circuit Judge. Action for damages to cargo. The British steamer Skipton Castle, bound to San Pedro and San Francisco, loaded at Antwerp in December, 1910, with a quantity of bottled mineral water, willow baskets, and general cargo. When the ship arrived at the ports of discharge in February, 1911, a great many of the bottles were found in broken condition and the baskets had rotted. Shipment was under bills of lading stipulating that the ship should not be liable for loss or damage occasioned, among other things, by "sweating, leakage, breakage, wastage, decay, or the indirect causes thereof, negligence, default, or error in judgment of the master, mariners, * * * * the * * or other persons employed on or about the ship." The libel charged that the damages were inflicted while the cargo was in the possession of the ship, by water and breakage and leakage of the bottles because of bad stowage and unseaworthiness. The answer admitted that there had been some damage, but alleged that whatever damage was done was within the exceptions of the before-mentioned bills of lading, exempting a ship from liability for loss or damage by breakage, wastage, decay, sweating, and other like causes. The District Court held the claimant liable, because of the failure of those in charge of the ship to remove the cargo stowed on the 'tween-decks hatches, close the hatches, and care for any merchandise then found to be suffering injury because of heat or moisture, by drying and airing it. Claimant appeals. A quantity of bone meal stored in compartment No. 1, lower hold, was loaded in the winter, December 8th, at Antwerp, when the temperature was about 40 degrees Fahrenheit. As far as external examination showed, the bone meal was in good condition when it was taken aboard the ship. The mineral water was stored in the forward part of the 'tween-decks No. 1 hold, and the willow ware and the general cargo in the hatchway and wings of the same compartment. The weight of testimony is to the effect that compartment No. 1 betweendecks was believed to be the coolest, and therefore the best in which to store the mineral water. Compartment No. 1 between-decks and the lower hold were equipped with standard ventilators. The ventilator pipes from the No. 1 hold passed through from the forward "tweendecks compartment" and out upon the open deck, where they terminated in the four ventilator hoods. The ventilator pipe out of the top of the between-decks fitted around the outside of the pipes from the hold, and through it a separate current of air passed in and out. One of the witnesses described the ventilating system as "telescoped," with the object of having ventilation go up, instead of mixing through the between-decks space. Four days after the ship sailed, on December 12th, the temperature of the No. 1 hold was 18 degrees warmer than the next compartment, and 49 degrees warmer than the outside air. No. 2 hold showed 83 degrees. Conditions of high temperature in the hold below continued, due undoubtedly to heating of the bone meal. Again on December 22d the temperature in the forward hold at the foot of the ventilator showed 101 degrees, and on December 30th, when the ship was at Las Palmas, the temperature showed 110 degrees, while the hold No. 2 showed 85 degrees. The evidence is that a temperature of 90 |