NlllW YORK &. O. MAIL STEAMSIDP CO.
(C1rcu1t Court of Appeals, Second Circuit. May 23, 1893.)
DEMURRAGE-DELIVERY OF CARGO-CUSTOMABY DISPATCH-WHARF FACILITIES.
A charterer who Is bound to furnish facllitles for discharging "with customary dispatch" Is not liable for demurrage when the delay is caused by want of space on the dock, caused solely by the ship's attempting, without orders from the charterer, to keep separate the bales belonging to different consignees. 55 Fed. Rep. 324, affirmed.
EXPENSE OF PILING USAGE OF PORT-
SHIPPING - DISCHARGING CABGO CHAR'fER PARTY.
The custom of the port of New York, requiring a vessel discharging hemp to pile the bales on the dock for one-half its width and the length of the vessel, is not inconsistent with a clause of a charter party providing that "cargo shall be received and delivered alongside of the vessel · · · within reach of her tackles," and the charterer is not liable to the vessel for the expense of such piling. 55 Fed. Rep. 324, affirmed.
Appeal from the District Court of the United States for the Southern District of New York. In Admiralty. Libel by John C. Seager against the New York & Cuba Mail Steamship Company for demurrage and for extra compensation for handling freight. The court below dismissed the bill. See 55 Fed. Rep. 324, for the opinion of Judge Brown, in which the facts are fully stated. Libelant appeals. Affirmed. J. P. :KIrlin and E. B. Convers, forjappellant. Geo. H. Balkam, for appellee. Before WALLACE and LACOMBE, Circuit Judges. PER CURIAM: 1. Without expressing an opinion as to the precise meaning to be given to the clause in this charter party providing that the vessel "discharge with customary dispatch," we concur with the district judge in his conclusions that whatever delay there was for which demurrage is claiil}.ed "arose solely from the ship's attempt to keep separate not merely the bales belonging to the different consignees, but the different lots of the sanie consignee, according to the different marks;" that.no such instructions were given by the charterers, and that for delay consequent upon such attempt they are Ilot chargeable. .2. As to th<;, claim for expense of piling, we do not think the custom, of the port which was abundantly proved, requiring the vessel to pile theb.eD'\.p On the dock for one·half its width and the length of the vessel; inconsistent with the printed clause of the charter party providing' that "cargo shall be received and delivered alongside of the vessel ·.· · within reach of her tackles." tl'he decreeot. the.di.strict court is therefore with costs.
BRIGHAM V. C. C. THOMPSON LUMBER CO.
BRIGHAM et aI. v. C. C. THOMPSON LUMBER CO.
(Circuit Court, W. D. Wisconsin. May 15, 1893.)
REMOVAL OF CACSES-LJMT'I'ATJON-EFFECT OF AMENDED PETITfON.
A cause was remanded to a state court because of the failure of the pelition for removal to sllow tlle requisite jurisdictional facts, after which furtller proceedings were had in the state court, and more tiran six months after the expiration of the time in which a removal might originally have been had, an amended petition was filed, and an order for removal made. that the amended petition did not relate back to the filing of the original petition so as to bring the application within the limitation, and that an order to remand must be granted. Freeman v. Butler, 39 Fed. Hep. 4, disapproved.
At Law. Action by E. K. Brigham and o.t'llers against the C. C. Thompson Lumber Company. Heard on plaintiff's motion to remand to state court. Motion granted. Lamoreux, Gleason, Shea & 'VriglLt, (George G. Green, of counsel,) for' plaintiffs. Dockery & and 11cDonaid & Barnard, (Hayden & Start, of counsel,) fo,r defendant. BUNN, District Judge. This is a motion to remand the cause back to the circuit court of Hayfield county, 'Vis., whence it originated. It was begun in that court on September 24, 1892. The summons and complaint were served, and the time to answer the complaint expired on Odober 14, 18\12. On Odober 12,th, two days before the time to answer expired, the defendant filed a petition and bond, and applied for a removal of the cause to this court. An order for the removal was made by the state court, and a copy of the record was filed in this (',ourt on October 17, 18!l2. On November 1st an answer to the complaint was filed by the defendant in this court, and on November 21st a reply by the plaintitIs. On December 8, 1892, a motion by the plaintiff8 was made to remand the cause to the state court, and the same was so remanded, on the gTound that the requisite jurisdictional faots were not alleged in the petition to entitle the defendant to a removal. The diverse citizenl'lhip of the parties was not set ant, nor did it appear anywhere in the reeord. On April 8, 18B3, four months after the C3:se was sent back to the s'tate court, and after further pl'oceeding's were had by the parties in that oourt, and six months after the time for removal had expired, a seeond or amended petition was filed by the defendant in the conrt for a removal of the cause to this eourt, and an order was made for the removal. The l'ause l'omes np now on a second motion to remand to the state court, and the question is whether, under these cireumstances, a removal of the cause 1:)0 this court ha,s been effected. This court had suppO'sed that the rule was fairly well settled in this circuit that the right of removal depended upon tIle defendant's filing a propr petition alleging all the necessary jurisdictional facts, accompanied by a proper bond, within the time presoribed