FEDERAL REPORTER,
vol. 39.
of salvage upon the cargo should be cut down to 40 or 50 per cent., the roesult would be inequitable. Let judgment be entered for the libelant for $1,000, and costs.
THE BARRACOUTA.
CUMMING
et al. v.
(District Court, S. D. New York. July 3, 1889.) SHIPPING-BILL OF LADING-NEGLIGENCE.
Chlorides having been shipped in barrels, instead of the usual carboys, on their arrival a part was found lost by leakage. The bill of lading excepted liability for leakage. Hela, that negligence in the ship must be shown to render the vessel liaMe for the loss, and, the cargo appearing to be well stowed, and no actual negligence proved, the libel was dismissed.
In Admiralty. Libel for loss of portion of cargo. Arnold &; Greene, for libelants. Wing, Shoudy &; Putnam and C. C. Burlingham, for claimants. BROWN, J. The above libel is filed for the loss of a portion of the contents of barrels of chloride, and 20 kegs of salt on a voyage from New York to Trinidad, in December, 1887. The bill oflading excepted liability for loss from "leakage," "effect of climate," and "heat of holds," and forbade "liquids or goods capable of doing damage being shipped, without the nature of their contents being conspicuously marked on the outsic'e of each package." It is evident from the testimony that the loss arose from leakage, and it is incumbent upon the libelant, therefore, to prove negligence on the part of the ship. The weight of evidence shows that such chlorides have heretofore been mostly shipped in carboys. In this case castor-oil barrels were used, and between 600 and 700 pounds were put in each barrel. The use of barrels, if safe, is doubtless much more economical and less subject to breakage. The evidence shows that barrels have been employed to some extent, while some large dealers are wholly ignorant of such use, and testified that barrels were improper and packages. The correspondence between the parties seems to indicate that the barrels in this case were tried to some extent as an experiment. .Without regard to these circumstances, however, I think the libelants fail to establish any such negligence on the part of the ship, as is necessary to a recovery. The Invincible, 1 Low, 225. The goods were well stowed in the hold, being undisturbed by a hurricane of great violence. Four barrels were found 'empty, or nearly so, when discharged, ha"{ing the heads bulged outwards. The evidence also shows that therest of these packages leaked, while the rest of the cargo in the hold was in perfect condition. .There is. 110 proof only reasonable inference that can be of improper stowage, and drawnis that the barrels were illstl'fficient for the weight put into them, and for chemicals of such a quality as they contained. . No negligence beillg established, the libel must }e dismissed, with costs.
DOYLE V. BEAUPRE.
289 et ai.
DOYLE
et ai. v.
BEAUPRE
(Circuit Court, N. D. New York. REMOVAl. (IF CAUSES-TUrE OF ApPLICATION.
July 25, 1889.)
Under act Congo March 3, 1887, (as corrected by act Aug. 13, 1888, 25 St. at Large, 433,) giving a right of removal "at the time or any time hefore defendant is required by the laws of the state or the rule of the state court" to plead to the complaint, where defendant under the Code of Civil Procedure of New York was compelled to answer by October 10th an application for removal made November 19th, was too late, though under section 542 defendant might have filed an amended answer during that time.
At Law. Application to remand cause. John N. Beckley, for plaintiffs. Townsend, Dyett &; Einstein, for defendants. COXE, J. The plaintiffs are citizens of New York; the defendants of Minnesota. The action was commenced in the supreme court of this state to recover $1,250. The complaint was served August 31, 1888. Under the provisions of the Code of Civil Procedure the time to answer this complaint expired October 10, 1888. An answer containing a counter-claim for $3,000 was served October 7th. The plaintiffs served a reply to this answer October 11th. The cause was removed to this court November 19, 1888. The plaintiffs now move to remand upon the ground, inter alia, that the removal was too late. In this position they are right. The provision of the Code (section 542) permitting pleadings to be amended does not aid the defendants. The language of the act of March 3, 1887, (corrected by the act of August 13, 1888, 25 St. at Large, 433,) which provides that the cause may be removed to the circuit court "at the time or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declamtion or complaint of the plaintiff," is clear and explicit. It cannot be construed to mean that the cause may be removed at any time before the expiration of an indefinite period contingent upon an answer containing a demand for affirmative relief and a reply thereto. The time to answer the complaint expired October 10th. In default of an answer on that day the plaintiffs were entitled to judgment. An answer having been served, the removal, 40 days afterwards, was too late, notwithstanding the fact that during that period the defendants might have served an amended answer. Manley v. Olney, 32 Fed. Rep. 708; Dwyerv. Peshall, Id. 497; Railroad Co. v. ld. 711; Wedekind v. Southern Pac. Co., 36 Fed; Rep. 279; Coal Co. v. Waller, 37 Fed. Rep. 545; HUl'dv. Gcre, 38 Fed. Rep. 537; Lockhart v. Railroad Co., Id. 274; Dixon v. Telegraph Co., ld. 377; Kaitei v. Wylie, ld. 865. The m'otion to remand is granted. , v.39F.no.5-19