In Error to the District Court of the United States for the Second 'Division of the Northern District of California; Wm. C. Van Elect, Judge.

Action at law hy the Trojan Powder Company against the firemen’s Fund Insurance Company. Judgment for plaintiff, and defendant brings error.

This action was brought upon a policy of marine insurance issued upon 6,000 eases of explosives shipped by the plaintiff in the action, defendant in error here, by the steamer Pleiades, of the California Atlantic Steamship Company, from San Francisco to Balboa, Isthmus of Panama, under a contract of carriage which provided that the freight, whether prepaid or to bo collected, was to be considered as earned, vessel or goods lost, or not lost, at any stage of the transit, and that, on the happening of an.y of the contingencies mentioned in the contract of shipment, the carrier was to have the right to forward the freight to the port of destination on its own ship, and should receive extra compensation therefor, whether performed by its own vessels or those of others, among which contingencies were stranding, straining, and any accidents or perils of the sea. The plaintiff prepaid the freight, amounting to 81,950, and the Pleiades left San Francisco on her voyage with the explosives on board, but was stranded off the coast of Mexico on the 16th of August, 1912, and was then and there, together with her cargo, in danger of becoming a total loss. The plaintiff then undertook to abandon the said goods, which abandonment the defendant insurer refused to accept. The ship was subsequently floated, but because of her damaged condition was unable to proceed upon her voyage, and was taken back to San Francisco for repairs, where her cargo, including the insured explosives, was discharged into lighters. The repairs on the vessel were not completed until December 27, 1912. .The explosives so shipped and insured had been sold to the Panama Canal Commission for use in the building of the canal, with the.right on the part of the commission to refuse to receive the shipment if it did not arrive within a fixed time, and, there being no other market at that place, it was therefore important for the shipper to get the explosives to their destination. To do so it was compelled to, and did, on October 15, 1912, reship the said goods on another steamer of the same cárrier, called Mackinaw, for which transportation it was compelled to and did pay to the steamship company additional freight in the sum of $4,050, for which latter sum the plaintiff brought the present action against the present plaintiff in error, the latter having refused payment on demand.

The insurance was in the sum of $35,000 upon the explosives laden on board the Pleiades for the voyage first mentioned, and it was expressly agreed that the insurance should commence at the time the goods should be laden on board the ship and continue until safely landed at Balboa. The policy also contained the usual “sue and labor” clause, and these further provisions: “And touching the adventures and perils which the said company is content to bear and does take upon itself in the voyage so insured as aforesaid, they are of the seas, * * * restraints and detainments of all kings, princes; and people, of what nation, condition, or quality soever, * * * and of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the aforesaid subject-matter of this insurance or any part thereof. * * * General average payable as per foreign statement or per York-Antwerp Bules of 1890, if in accordance with the contract of affreightment. * * * It is hereby agreed that the rights of assured shall not be prejudiced by the insertion in the bill of lading of the London Conference Rules of Affreightment 1893, or of the following clause: ‘The act of God, perils of the sea, * * * restraint of princes, rulers, and people, collisions, stranding, and other accidents of navigation excepted, even when occasioned by the negligence, default, or error in judgment of the pilot, master mariners, or other servants of the shipowners.’ Warranted free from average unless general, or the ship or craft be stranded, sunk, or burnt, each craft or lighter being deemed a separate insurance. Underwriters, notwithstanding this warranty, to pay for « * » any special charges for warehouse rent, reshipping, or forwarding for which they would otherwise be liable. * * * All questions of liability arising under this policy are to be governed by the laws and customs of England. * * * Freight warranted free from any claim consequent upon loss of time, ■whether arising from a peril of the sea or otherwise. * * * ”