to be made before executing the written charter for carrying the lumber. Their witnesses testify that in the negotiation for the cargo of railroad ties it was explicitly provided that that trip should not affect the charter the cargo of lumber. The witness for.the respondent denies that there any such condition. and asserts that it was understood to be a substitute for the charter. In the details of the testimony there are doubtless to be found some circumstances tending to corroborate each. On the one hand, all the prior charters of the ship between the same parties had been in writing. On the other hand, as the agreement for the transportation of the ties was not made until about the time of the arrival of the vessel at Fernandina, and as she was to enter immediately upon the performance of that contract by loading at Fernandina, and was so ordered, there was not the same need of a written contract as in the other cases providing fora future voyage. The libelants, moreover, were under a definite contract with other parties to transport the lumber by a given date; so that itis scarcely probable that they would intend to abanddn the existing charter of the vessel for carrying the lumber by substituting ties, and leave the transportation of lumber in fulfillment of their contract wholly unprovided for. The particular time when the lumber was to be transported was not stated in the charter; so that the transportation of the ties first, did not require any modification of the written charter as to the lumber. The written charter was an agreement to carry a particular cargo. Confessedly, that specific cargo has not been carried. The burden of proof to show that something different from what was agreed on in writing has been done and accepted as a substitute for it rests on the party that alleges the substitute. Upon evidence so evenly balanced, and looking also at the various circumstances, I do ndt think the respondent has made put the substitution by any preponderance of proof; and the written charter., as it stands, must therefore prevail. The respondent, having refused to send a vessel to take the lumber as required by the libelant under the written charter, must therefore be held bound to pay the difference in freight, for· which amount, with interest, the libelants are entitled' to a decree.
THE 1luNACRIA.1 MARX
tI. THE TRINACRIA. .
(DImict Oourt, S. D. New York.· May
8J1Il'PIWe-CABRUGB OJ!' GOODs-BILL OJ!' LADING-NEGLJGENCE-FORBIGN LAW.
Glycerine was stowed on a British ship at Genoa, Italy, and brought to this oountry under a billoflading, which, besides the ordinary exception of perils of the sea, contained an exception against liability for loss occasioned by leakage or stowage, or by negligence of any person in the service of the ship. TIiis latter exception 18
Reported by Edward G. Benediot, Esq., of the New York bar.
Valid both by English and by Italian law. The vessel bad a very long and boisterous passage, and out of 116 drums 5 were delivered damaged by cuts, with some conseloss of glycerine by leakage; Held, the foreign law governed as to any negligence within the foreign jurisdiction, and whether the damage was oce·asioned by perils of the sea, or by negligent. stowage at Genoa, the libelant could not recover i there being no negligence shown or preswued. in this country. or from acts com.. . mitted on the high s e a s . ·
George A. Black, for libelant. Hill, Wing &;, Shoudy, for claimant.
BROWN, J. The libel was filed to recover damages for the loss of glycerine iQ. transportation from Genoa to New York. One hundreuand sixteen drums were shipped, five of which were found on delivery to show cuts in the drums, through which more or less of the glycerine had escaped. The vessel was a British vessel, and the bills of lading excepted loss through negligence by any person in the service oftha ship, loss from leakage,stowage, or peril of the seas. Both the English and the Italian laws sustain thelleexceptions'tIS valid. As the contract was made in Italy by an English master of an English ship, and by an English bill of lading, the contract and the exceptions above referred to are valid as respects all acts done thereunder within Italian territory. It is no part of the law or policy of this country to invalidate the contracts of parties lawfully made abroad, so far. as respects performance there, or to apply our law to the consequences of such performance there, the acts being neithercrimi,nal, by our law, nor mala in Be. It is a wholly different question whether the courts of this country should austain contracts or stipulations, as regards acts performed and designed to be performed, .either On the high seas or within the exclusive jurisdiction of this countl'J, when such stipulations are by our law void on grounds of public plllicy. See Liverpool, etc., Steam Co. v. PhenUc Ins. Co., 129 U. 397, 459,9 Sup. Ct. Rep. 469; TheBraniford City, 29 Fed. Rep. 373, 391. Upon the evidence in this case, I am satisfied that the cuts through ",hich this leakage arose wera not made within this country, but arose upon the voyage, in consequence of the long-continued very heavy weather that the ship experienced; that is, by sea perils. Other parts -of the cargo showed damage from the same cause. For such damage the ship is not liable unless the stowage was negligent. The evidence here shows all possible care in the stowage. If, however, there was any fault in the stowage, inasmuch as that was done at Genoa, where the ·contract was made, and where the exception as to stowage was valid, and there was no negligence except at Genoa, no recovery on that ground could be had. The libel must therefore be dismissed, with costs.
STATE fl. CHUE FAN.
STATE OF CALIFORNIA V. CHOE FAN.
(Oircuit Oourt, N. D. Oalifornia. June 28, 1890.)
Bln!OVAL OF CAUSES-LoCAL PREJUDICE.
Under Rev. St. U. S. § 641, providing for removal of a cause before final hearing. "when any civil suit or prosecution is commenced in any state court, for any caUSi! whatever, against any person who is denied, or cannot enforce in the judicial tribunals of the state, .. * * any right secured to him by any law providing for the equal civil rights of a citizen," a prosecution against a Chinaman for having in his possession .a lottery ticket, under a law applying to "any person, " cannot be removed on the ground of local prejudice or maladministration of the law.
On Motion to Remand to State Court. John Lord Love, for motion. Alfred Clarke, for defendant.
SAWYER, J. The defendant, a Chinese subject, was arrested upon a complaint filed in the police court of San Franlisco, charging him with having in his possession a lottery ticket, in violation of section 70 of Ordinance No. 2187, making the act a misdemeanor. The section provides that "it shall be unlawful for any person to have in his possession * * * a lottery ticket," etc., and that "any person violating any of the provisions of this section shall be guilty of a misdemeanor," etc. The prisoner, upon being arrested, filed an elaborate petition setting up numerous grounds intended to show why he could not obtain an equal protection of the laws in the state court, and asked that the case be removed to the United States circuit court for trial, in pursuance of the provisions of section 641 of the Revised Statutes of the United States; and the police judge having refused to allow the cause to be removed, he obtained a writ of habeas corpus cum caU8a, as provided in section 642, Rev. St., and the cause and the custody of the prisoner were trallsferred to the United States circuit court. The state district attorney now moves, that the cause be remanded to the state court, and the custody of the prisoner restored to the sheriff of the city and county of San Francisco, on the ground, among others that, no sufficient case is made by the record and petition, under said provisions of the statute, for the reml1val. That the statute is valid, and, that a case properly coming within the provisions of the statute, may be so, legally removed, is settled by the decision of the supreme court, in the case of Strauder v. West Virginia, 100 U. S. 303, and other cases. The only question, then, is, whether the record and petition present a case within the purview of that statute. Upon careful examination, I am satisfied, that the supreme court, in Virginia v. Rives, has settled the point, that it is not. This was a case of two negroes charged with murder, who alleged, very fully, the facts, and, that, on account of the action of the judges, and of popular prejudices, they were unable to obtain an equal protection of the laws. The case was removed to the circuit court \1Dder the provisions of section 641, Rev. St. In discussing the question, arising on the petition, the supreme court makes the following observations, equally applicable to this case. v.42F.no.15-55