DISBROW 11. THE WALBH BROTHERS.
607
the ship was ready, to-:wit, February 15th, I think the libelants would not have been entitled to any demurrage; for the master accepted the deliv.. ery without objtlction, and· he was bound to load with reasonable dili· gence. All that was obligatory on the charterer in this regard was to furnish and deliver the cargo in time to admit of its being loaded with reasonable diligence within the 181ay days. But it is not shown that the cargo could with reasonable diligence have been loaded in 12 days after it was delivered to the ship. On the other hand, I am not at all satisfied upon the master's testimony that the cargo could not have been easily loaded within 18 days after the 21st; nor that the delivery of the cargo a few yards distant from the reach of the ship's tackles was in any degree the cause of his uee of 30 subsequent days in loading, instead of 18. It is not reasonabletb suppose any such additional time beyond the 18 days contemplated by the charter could have been required on account of so slight a difference in the spot of delivery. If the master was dissatisfied as to the point of delivery, he should have objected at the time. Not only did he not object, but he did not even present any bill for what expense was incurred, though it was small, for bringing the cargo within reach of the tackles. I allow the ship, therefore, the use of the 18 lay days from the time the cargo was delivered and accepted by the master, viz., on the 21st. The ship was ready, however, to receive the cargo on the 15th. Sufficient prior notice of her arrival and expected readiness was given, but the cargo was not furnished till the 21st. During one of the intervening days the loading was interrupted by the necessity of unload. ing the residue of her own cargo. I allow her, therefore, five days' demurrage at the charter rate of £11 sterling per day, amounting to 1275.35, with interest and costs.
DIsBROW et
al. t1.
THE
WALBH
BROTHERS.
(Diltr'Ut Court, 8. D. Ne'lJ)YO'I'k. October 22,1888.)
A barge without sails or rudder. used for transporting brick, on which men are employed in loading. carrying, and delivering brick, is subject to a lien for wages of the m,en employed in such traosportation as seamen.
LmNS-BERVICES-BEAHEN-BRICK BARGE.
BEAMEN-W4GES-HmtNG BY MONTH-DESERTION BEFORE TRIP ENDED.
Though the practice in this harbor upon hiring a seaman "by the month" in harbor navigation permits an employer to discharge, or the employed to leave, at the termination of any trip during the mooth on pro rata wages, neither can terminate the employment .in the midst of a trip without legal cause. The employed quit without leave, while the barge was dis· charging, the wages of that tnpheld, forfeited.
In Admiralty. Libel for wages. Alexander « Ash, for libelants. D. Benedict, for claimant.
608
FEDERAL
RWORTER.
BROWN, J. The libelants sue for and claim a lien as seamen on board the barge Walsh Brothers. The barge had no sails, masts, or rudder. She was used only for the transportation of brick. The libelants were hired for service on the barge, including loading and unloading, in transporting brick from Hackensack to New York and Brooklyn, at the rate of $35 per monthj no further engagement for any definitfl period being agreed on. They made several trips between May 15 and June 19, 1888, and on the day last named, while the barge was discharging brick at Ninety-First street, New York city, they quit work on account of some dissatisfaction with the alleged language and behavior of the master. The services of the men constitute a·lien upon the barge, because she was a vessel engaged in the transportation of cargo. The men lived on board, and though their duties as respects navigation were slight, they did attend to all such duties as were incident to such trips when the barge was taken in tow by the tugj and they were not employed in any duties upon land excepting such as belonged to the loading and unloading of <:argo. Such services are all maritime, and are attended by a lien upon the vessel. See The Minna, 11 Fed. Rep. 759, and note. The men were not discharged by the masterj nor can I find that they left with his as-sent. He wished them to remain until the cargo was unloaded. Though their engagement was by the month, they did not thereby forfeit their pay for the fractional part of the second month, so far as they finished trips of the barge. In Moore v. Neafie, 3 Fed. Rep. 650, it was held by Judge CHOATE, upon proof of the local usage, that upon engagement of searpen at so m.uch a month for service about the harbor of New York, the ·contract might be terminated at the end of any trip, and a pro rata recovery had. The right of the employer to discharge, or of the employed to quit,. extends no further. It would be contrary to the manifest meaning and intention of such an employment that either party should be at liberty to terminate the agreement at any moment in the course of an uncompleted trip. The. City of New Orleans, 33 Fed. Rep. 683. The ·causes assigned by the libelants for leaving in the midst of unloading do not amount to a justification. They were legally required to remain and finish the unloading. The chief part of their work was loading and unloading the cargo. To quit work as they did was to subject the barge to the liability of special expenses, whether she undertook to get other persons to supply the libelants'· places, or undertook to discharge without their aid, and thereby lose two days' time. The libelants must, therefore, either suffer a deduction for the special damage, or forfeit any claim to wages for that trip. The former is all the deduction claimed by the respondent. The amount claimed is no more than his probable actual loss, and is less than the forfeiture of the wages for the trip would be. I deduct the lesser sum of $4.78 from each man. Judgment is allowed {or the rest.
SHEDD
v.
FULLER.
609
SHEDD.'ll.
et :aZ.
(Olrcuit OO'U'1't, No D. Illinois. Novemberll, 1888.) REMOVAL 01!' CAUSEB-P!tOCEDURE-FILING PETITION AND BOND WITH CLERK.
Under the act of for the removal of causes. (March 3, 1887,) providing that a party deSIring to remove a suit from a·.state court to a circuit court of the United States shall file his petition and bond in the state court, s filing of the petition and bond with the clerk of the state court is not sufficient, as the court itself has It right to pass upon them, 'and the cause will be remanded.
On Motion to Remand. Action by Charles B. Shedd against J. Ensign Fuller and others, commenced in the state court; and removed by defendants to the circuit court of the United States, by filing a petition and bond with the clerk of the state court. Motion by plaintiff to remand. Capt. Prescott, for plaintiff. G. Dri{}gs, for defendant. GRESHAM, J., (orally.) The counsel for one of the defendants in this suit presented to the clerk of the state court, in which the suit was pending, a petition and bond in the usual form, for its removal to this court, and upon the request of the counsel he was furnished by the clerk with an authenticated copy of the record, which was filed in this court. It is admitted that the petition and bond were not presented to the state court for its action. The removal act of March 3, 1887, as well- as the prior acts upon the same subject, provides that a party desiring to remove a suit from a state court to a circuit court of the United States shall file. his petition and bond in such suit in the state court, when it shall be. the duty of that court, if the petition and bond be sufficient to satisfy the statute, to accept both, and proceed no further in the c!lSe. The right ofremoval is purely statutory, and the jurisdiction of· the state court remains undisturbed until a proper petition and bond are presented to that court for it!! judicial action. It is not sufficient to present the petition and bond to the clerk, who is the court's mere ministerial officer. While it is clear that the right of rt>Illoval does not depend upon the action or non-action of the state court, it is equally'clear that the state court cannot be deprived of its right to decide for itself upon the sufficiency: of the petition and bond. The presentation of a proper petition and bond to the state court for its action is 8t jurisdictional prerequisite. Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. Rep. 799. Motion to remand sustained. v.36F.no.1l-89
I';.