There was no one aboard the Nellie, and this emphasized his duty to give her some supervision. There is no evidence that he gave her any. When the wind blew, even for five minutes, at 46 miles per hour at 5:40 o'clock, November 13th, and was blowing during the afternoon of that day at the velocities indicated, Hansen had full notice of serious weather conditions present and promised, and it was his duty to bestir himself, and make provision for the safety of the yacht; at least to examine whether any further security was needed. The nautical habit of laying up untenanted vessels and trusting to the forbearance of the elements for escape from injury is too often disclosed in court. Care, diligence, observance of the rights of others, are demanded of the owners of vessels at docks and at anchor. Hansen, with the storm at his very door, should have shown some vigorous oversight of property committed to him. One burdened with such a duty may not be idle while an increasing storm makes his charge a menace to the property of another. The libelant should have a decree.

THE D. HARVEY.

ERIE BOATMEN'S TRANSP. CO., Limited, v. GENERAL SUPPLY & CONSTRUCTION CO.

(District Court, S. D. New York. June 15, 1905.),

1. SHIPPING-DAMAGE TO CARGO-NOTICE OF CLAIM.

A provision of a bill of lading that the vessel should not be liable for damage to the cargo unless written claim for the loss should be made within 30 days is sufficiently complied with by a letter sent to the carrier within 30 days by the proctor for the cargo owner, stating that he held. a claim for damage to the cargo for collection, where both parties had actual knowledge of the damage at the time of discharge.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Shipping, § 496.] 2. SAME-BREAKAGE IN LOADING.

Where a cargo of cement in bags, which were in fairly good condition, was loaded by the vessel, she is liable for damage arising from the breaking of the bags, due to the negligent manner in which they were handled. 3. SAME-DAMAGE TO CEMENT CARGO BY WETTING.

A vessel is liable for damage to a cargo of cement which was received in good condition, but was lumpy and set when delivered, due to its having been wet, in the absence of explanation of the manner in which it became wet.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Shipping, §§ 452454, 479-483.]

In Admiralty. Suit for freight and cross-suit for damage to cargo.

Hyland & Zabriskie, for Erie Boatmen's Transp. Co. and the D. Harvey.

James J. Macklin and La Roy S. Gove, for General Supply & Construction Co.

ADAMS, District Judge. An action was brought by the Erie Boatmen's Transportation Company, Limited, against The General

Supply Company to recover the freight amounting to $114.50 on 3000 bags of cement transported by the canal boat D. Harvey from Jersey City to Schenectady, New York, in July 1903. There was also a charge of $4 for insurance procured by the libellant for the Supply Company and a further charge of $20 for 4 days demurrage @$5 each for detention in loading and discharging, making a total claim of $138.50, no part of which is seriously disputed.

The controversy in the matter arises out of a claim on the part of the Supply Company against the canal boat to recover certain. damages said to have arisen from an injury to the cargo of cement during the voyage, amounting to $650. It is alleged that the cement was delivered in good order but when it was discharged it was found to be hard, lumpy and badly set as a result of water taken aboard or leakage of the boat so that 468 bags were injured in that way, and all of the bags were more or less damaged or torn, 45 being entirely empty.

There is some testimony to show that the bags were roughly handled in loading, which would account in some measure for their bad condition, but there seems to be no way of explaining a hard lumpy or badly set condition except from contact with water.

The bill of lading contains the following, which is pleaded and expressly relied upon by the Boatmen's Company and by the boat: "The said Company shall not, nor shall any carrier, person, or party, vessel, or her master aforesaid, be liable in any case or event, unless written claim for the loss or damage shall be made to the person or party sought to be made liable, within thirty days, and the action in which said claim shall be sought to be enforced, shall be brought within three months after the said loss or damage occurs."

The testimony does not show that any such claim on the boat as the bill of lading required was made in season. The boat finished loading on the 15th day of July and the bill of lading was then executed. It contained a receipt for 3,000 bags of cement, "3 bags empty." Schenectady was reached the 20th of July, discharging commenced the 21st and finished the 23rd. Many of the bags came out of the boat broken. The loose cement which came out of them was shovelled into other bags excepting 4 or 5, which apparently was called "sweepings" and put into 3 barrels, but no written claim was made for that or any other reason. There is nothing to show that any definite claim was made in writing until the action was commenced on the 2d of September, 1903. Even if there was damage to the cargo, I do not see how recovery can be had for it, in view of the explicit language of the contract above quoted. The St. Hubert, 107 Fed. 727, 46 C. C. A. 603; The Westminster, 127 Fed. 680, 62 C. C. A. 406.

After the foregoing was prepared, but before it was filed or became the opinion of the court, I called the attention of the proctor for the General Supply and Construction Company to the apparent technical defect in its case, whereupon an affidavit was made to the effect that, by an oversight, a letter from him, dated August 18th, 1903, giving notice of the claim against the Harvey, was omitted to be put in evidence, and he asked to have the case re-opened upon

this point. An order to show cause was thereupon granted, which resulted in a stipulation between the parties providing that no other cargo was carried on the boat than that of the General Supply and Construction Company, and that the following letter was received by the Erie Boatmen's Transportation Company on the 19th of August, 1903, viz.:

To Erie Boatmens Transportation Co. L'td 17 South St. N. Y.

Gentlemen:

"New York, August 18th 1903

I

A claim has been placed in my hands for collection against the barge 'D. Harvey' by the General Supply & Construction Co. for damages to cargo. would be pleased to see you in regard to the same.

Yours respectfully,

(signed) James J. Macklin."

The proctors for the claimant in making the admission and stipulation, expressly objected to the opening of the case for the purpose of introducing the letter and noted an exception in advance to the court's anticipated ruling, allowing the proof to be made.

The evidence should, in my judgment, be received and I grant the motion.

It seems that the notice, in connection with an almost immediate actual knowledge on the boat's and claimant's part of the claimed. damage was sufficient to comply with the terms of the bill of lading. The technical objection being thus overcome, I proceed to consider the case upon its merits.

It appears that the cargo was damaged in two ways, viz.: (1) by the breaking of the bags containing the cement and (2) by a portion of it being set by its becoming wet.

1. The cargo was loaded by the boat and it was responsible for the adoption of a proper method. Instead, however, of providing for a careful manner of receiving the cargo, it was loaded from the cars by means of a simple plank, which permitted a drop of several feet into the boat, with the result of a number of the bags being broken. They were in reasonably good order before they were taken by the boat from the cars to load and the boat should respond for the damages in this respect.

2. Three of the bags were receipted for as being "lumpy" but the remainder were in apparent good order. As stated above, there seems to be no way of accounting for the bad condition of the remainder, except by contact with water. There was nothing in the weather during the voyage to explain the wetting and it is probable that there was some defect in the boat, although it was not discernible just prior to the discharge, when greater portions of the loose and other cement seemed to be dry. The fact remains, however, that the cargo was delivered to the boat in good order and delivered by it damaged and in a set condition, which it is testified by a credible expert was the necessary result of wetting.

The set condition was not the subject of consideration until after the delivery of the cargo at Schenectady. The breakage damage was at once noticed and the cargo refused by the consignee upon that ground but it was not until the cargo was piled up after de

livery, that the set condition of a number of bags was observed and the damage in this respect discovered. Subsequently the full claim now presented was made.

There will be a decree for Erie Boatmen's Transportation Company for $138.50 with interest; also one for The General Supply and Construction Company, with an order of reference for such damages as it may be able to prove. The final disposition of the cases and questions of costs will await the coming in and consideration of the commissioner's report.

STATE OF NEW JERSEY v. CORRIGAN et al.

(Circuit Court, D. New Jersey. July 28, 1905.)

1. CRIMINAL LAW-REMOVAL OF CAUSES-MOTION TO REMAND-TIME OF MAKING.

A motion to remand to the state court an indictment found therein, and removed to this court, can be made prior to the first day of the then next term of the federal court, upon the production by the state of copies of the proceedings in the state court; and this notwithstanding Rev. St. § 641 [U. S. Comp. St. 1901, p. 520], gives the petitioners until the first day of the next term in which to produce and file a copy of said proceedings in the federal court. The act does not prevent the nonpetitioning party from filing such copy before the next term, and if this be done, and a motion to remand be thereupon made upon notice, such motion will be entertained. 2. SAME-QUALIFICATION OF GRAND JURORS-EQUAL CIVIL RIGHTS.

The statute of the state of New Jersey relative to the qualifications of grand jurors considered, and held, that neither the statute itself, nor any decision of the highest court of that state, has denied to or prevented the enforcement of any rights secured to the petitioners by any law providing for the equal civil rights of citizens of the United States. Held, further, that under the facts disclosed by the petition the petitioners have adequate remedy for their alleged grievances in the state courts, and, failing therein, can obtain such relief by a writ of error to the United States Supreme Court.

(Syllabus by the Court.,

On Indictment. On motion to remand to the state court.

Robert H. McCarter, Atty. Gen., for the motion.
Alan Strong, opposed.

CROSS, District Judge. Application is made by the Attorney General of this state, upon notice to the petitioners, to remand to the state court for trial an indictment found against them in the Middlesex county court of oyer and terminer, which has been removed to this court. The record was brought into this court during the present term. Counsel for the defendants raises the point. that the motion to remand is premature, for the reason that the petitioners have until the first day of the next term in which to file the record in this court, and that until that time this court has no jurisdiction. The act under which the case was removed is section 641, Rev. St. [U. S. Comp. St. 1901, p. 520], which provides for the removal of any criminal prosecution commenced in any state court "against any person who is denied or cannot

enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States or of all persons within the jurisdiction of the United States," etc. It further provides the procedure to be followed for the removal of such cause for trial into the next Circuit Court to be held in the district where it is pending. The act makes it the duty of the state court to furnish the petitioner with copies of all proceedings in the case, and provides that, if such copies are filed by the petitioner in the Circuit Court on the first day of the next session, the cause shall proceed in the same manner as if instituted in that court by original process, but, if the clerk fails to furnish such copies, the suit may be docketed by the petitioner in the Circuit Court, which court shall then have jurisdiction therein, and may take steps to require the plaintiff to file a complaint in the cause upon pain of dismissal. It then provides that if, without refusal of the clerk to furnish such copies, the petitioner fails to file the same, a certificate under the seal of the Circuit Court stating such failure shall be given, and upon its production in the state court the cause shall proceed as if no petition for removal had been filed.

It clearly appears by the act that, upon a proper petition being filed in the state court, that court at once loses its jurisdiction, although any bail given therein is continued in force. The petitioners now contend that this court does not acquire jurisdiction until after they have filed a copy of the proceedings, which they are not required to do until the first day of the next term. If this be so, the cause is in the air for a period of possibly six months. Such a condition of affairs would certainly be most prejudicial to the interests of justice, as witnesses might die or become scattered, or questions arise requiring immediate solution. Some court should have constant jurisdiction of the case. There should be no hiatus of jurisdiction. Indeed, it is impossible to conceive of a court case which is not continuously and at all times subject to the jurisdiction of some court. A construction of the statute which would compel such an anomalous situation ought not to be adopted, if there is any reasonable way of escaping it. The statute puts the duty upon the petitioners of producing the record and filing it within a fixed time, upon pain of dismissal, but there is nothing in the act which prohibits the state from anticipating such action of the petitioners. As already indicated, it is in the interests of justice that, once the state court loses jurisdiction, the federal court should forthwith acquire it. By such a construction the petitioners lose none of their rights. It is true, an opposite construction would afford them some delay, but to this they have no claim. On the contrary, their only right in the premises is that accorded them by the Constitution-of a speedy trial.

The language of section 641, under consideration, varies somewhat from the sections which provide for the removal of civil causes, although in the latter case the burden is likewise cast upon