For decision below, see 143 Fed. 920, which affirmed a decision of the Board of United States General Appraisers, which had overruled a protest against the assessment of duty by the collector of customs at the port of New York.

The pertinent part of said protest reads as follows: "Protest is hereby made against your ascertainment and liquidation of duties and your decision assessing duty at 35 per cent. ad valorem, or other rate or rates, on lithographic prints, krippen, mechanical cards, etc., covered by entries below named. The reasons for objection under the tariff act of July 24, 1897, are as follows: Said merchandise is lithographic prints. It is covered by paragraph 400, and is dutiable thereunder at five cents per pound, or six cents per pound, or other rate or rates, according to thickness, cutting size, etc. If not as aforesaid, it is printed matter or otherwise covered by paragraph 403, and is dutiable thereunder at only 25 per cent. ad valorem. This protest is intended to apply separately and collectively to every part of goods assessed under paragraph 418, as well as to all other goods assessed at 35 per cent. ad valorem."

It appeared that the merchandise covered by the entry mentioned in the protest consisted of lithographic prints and booklets, assessed at the rate of 20 cents per pound and 8 cents per pound, respectively, under Tariff Act 1897 (Act July 24, 1897, c. 11, § 1, Schedule M, par. 400, 30 Stat. 188 [U. S. Comp. St. 1901, p. 1672]), and that no part of the importation was classified at 35 per cent. or under paragraph 418. The board held that the protest was insufficient on the ground that it was in terms confined to merchandise assessed at 35 per cent. and therefore could not be construed as covering the articles classified at a different rate. This ruling was affirmed by the circuit court in the decision above cited, but on different grounds from those stated by the board.

Comstock & Washburn (Albert H. Washburn, of counsel), for the importers.

D. Frank Lloyd, Asst. U. S. Atty.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. Decision reversed, for reasons orally stated at the close of the argument, and protest held to be a sufficient compliance under Customs Administrative Act June 10, 1890, § 14, par. 14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933].

STANDARD OIL CO. v. ANDERSON.

(Circuit Court of Appeals, Second Circuit. February 26, 1907.)

No. 162.

MASTER AND SERVANT-FELLOW SERVANTS-SERVANTS OF SEPARATE MASTERS IN SAME WORK.

Plaintiff, a longshoreman, engaged in loading a vessel as an employé of a master stevedore, who had contracted to do such loading, and who had contracted with defendant for the steam power, is not a fellow servant of the employé of defendant, who worked the steam winch, and through whose negligence plaintiff was injured; the winch man being hired and paid by defendant, and the master stevedore having no power to discharge him.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 485.

Who are fellow servants. see note to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]

In Error to the Circuit Court of the United States for the Eastern District of New York.

This cause comes here upon appeal from a judgment of the Circuit Court, in favor of defendant in error who was plaintiff below. The action is to recover damages for personal injuries, and the jury brought in a verdict for the plaintiff.

J. W. Fuller, for plaintiff in error.

B. L. Pettigrew, for defendant in error.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

LACOMBE, Circuit Judge. Plaintiff, who was in the employ of one Terence, a master stevedore, was engaged with others in loading the steamship Susquehanna with case oil at the dock of the Standard Oil Company, in Bayonne, N. J. A foreman and a gang of men hired by Terence were located at different stations about the ship or on the dock, each engaged in performing his respective duty. The plaintiff was in the hold, and was struck by a draft of cases which was lowered at a time when he was not expecting it to descend. The hoisting from the dock and lowering into the hold was accomplished by the use of a steam winch located on the dock some 50 feet distant from the hatch. A gangwayman, one of Terence's employés, gave signals by whistle to the winchman, thus advising him when to run the winch forward or back, and when to stop. The evidence shows that the accident happened because the winchman reversed the winch (so as to lower the draft) before signal to do so was given him. The jury found that he was at fault, and that the plaintiff was free from any contributory negligence. There was evidence to warrant both these findings, and their verdict thereon is to be taken as conclusive. Some argument is presented here as to the plaintiff's alleged carelessness, and as to the negligence of some others of his gang; but the only point seriously urged is that plaintiff and the winchman were fellow servants. If they were not, the judgment must stand, because the verdict has eliminated all other questions from the case. If the gangwayman or the man who hooked the slings were also negligent, plaintiff, if not a fellow servant with the winchman, could recover, if the latter's negligence was a proximate cause of the accident.

The master stevedore hired the longshoremen, and contracted with the defendant for the steam power, agreeing to pay "$1.50 a thousand for hoisting." The winch was the property of defendant, standing on its dock, and it selected, hired, and paid the winchman who ran it. The master stevedore did not pay the winchman, nor hire him, and could not discharge him if he did not suit; in the latter event he would complain to the defendant company. This case is therefore on all fours with The Slingsby, 120 Fed. 748, 57 C. C. A. 52, where we held that a sailor operating a ship's winch by order of her captain to assist a gang of longshoremen in discharging cargo was not their fellow servant, although he received the signals to run the winch forward or to reverse from their foreman. Our attention has been called to The Elton, 142 Fed. 367, 73 C. C. A. 467, in which the Circuit Court of Appeals in the Third Circuit reached a different conclusion upon a similar state of facts. We

regret that we are not able to agree with the conclusions of law reached by that eminent court, but we see no reason to change the opinion heretofore expressed in The Slingsby, which was reached after a careful examination of the authorities cited in The Elton.

The judgment is affirmed.

SOUTHERN PAC. CO. v. BURCH.

(Circuit Court of Appeals, Ninth Circuit. February 11, 1907.)

No. 1,345.

REMOVAL OF CAUSES-JURISDICTION OF FEDERAL COURT-NONRESIDENCE OF PARTIES.

A federal court cannot acquire jurisdiction by removal of a sult in which such jurisdiction is dependent on diversity of citizenship, where neither of the parties is a resident of the district, and the plaintiff does not consent to such jurisdiction or waive his rights.

[Ed. Note. For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 32, 33.]

In Error to the Circuit Court of the United States for the District of Nevada.

See 145 Fed. 443.

S. Summerfield and P. F. Dunne, for plaintiff in error.

Herbert R. Macmillan and H. H. Henderson, for defendant in error. Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS, Circuit Judge. This action was originally brought in one of the courts of the state of Nevada by the defendant in error as plaintiff, against the plaintiff in error as defendant, to recover damages for personal injuries alleged to have been sustained by the plaintiff to the action by reason of the negligence of the defendant thereto. The plaintiff being a resident and citizen of the state of Utah, and the defendant to the action being a corporation of the state of Kentucky, and therefore a resident and citizen of that state, upon the defendant's motion, and the filing of a petition and bond, the case was removed from the state court of Nevada to the United States Circuit Court for the District of Nevada, where the plaintiff to the action, defendant in error here, moved the court below to remand the case to the state court for lack of jurisdiction in the federal court over it, which motion the court below denied, and a trial thereof having been subsequently had, resulting in a verdict and judgment for the plaintiff, the case was brought here by the defendant thereto by writ of error.

Neither party to the suit being a citizen or resident of the state of Nevada at the time of its commencement, we must, without reference to the merits of the controversy, upon the authority of the case of Ex parte Abram C. Wisner (decided by the Supreme Court December 10, 1906) 27 Sup. Ct. Rep. 150, 51 L. Ed., reverse the judgment, with costs to the defendant in error, and with directions to the court below to remand the case to the state court from whence it came, for lack of jurisdiction of the federal court over it.

In re CRAWFORD..

(Circuit Court of Appeals, Eighth Circuit. March 19, 1907.)

No. 68.

BANKRUPTCY-JURISDICTION-INDIAN TERRITORY-JURISDICTION TO REVISE OR

DERS.

The United States Circuit Court of Appeals of the Eighth Circuit has no jurisdiction to revise in matter of law, under section 24b of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 553 [3 U. S. Comp. St. 1901, p. 34321), the orders of the courts of original jurisdiction of the Indian Territory sitting in bankruptcy.

[Ed. Note.-Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]

(Syllabus by the Court.)

Petition to Revise Order of the United States Court for the Southern District of the Indian Territory, in Bankruptcy.

Clinton A. Galbraith, Thomas D. McKeown, and Joseph B. Thompson, for petitioner.

James T. Blanton, Leonidas C. Andrews, and Alvin F. Pyeatt, for respondent.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN, Circuit Judge. John P. Crawford has presented his petition to revise in matter of law, under section 24b of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 553 [3 U. S. Comp. St. 1901, p. 3432]), an order of the United States Court for the Southern District of the Indian Territory, sitting as a court of bankruptcy, to the effect that he pay over to R. C. Fleming, the trustee of the estate of one Gibson, a bankrupt, $1,300, and that his exceptions to the report and order of the referee to the same effect be overruled.

The Indian Territory has never been assigned to this circuit, as have the territories of New Mexico and Oklahoma, under section 15 of the act to establish the Circuit Courts of Appeals (Act March 3, 1891, c. 517, 26 Stat. 830 [1 U. S. Comp. St. 1901, p. 554]; 139 U. S. 707, 11 Sup. Ct. iv); and for that reason, as was decided in Re Blair, 106 Fed. 662, 664, 45 C. C. A. 530, 532, upon a review of the acts of Congress, the Court of Appeals of this circuit is without jurisdiction to entertain petitions to revise, in matters of law, the orders of the courts of original jurisdiction of the Indian Territory sitting in bankruptcy.

The petition is therefore dismissed for want of jurisdiction.

VENUS SHIPPING CO. v. WILSON.

(Circuit Court of Appeals, Second Circuit. January 31, 1907.)

No. 99.

1. SHIPPING-NONFULFILLMENT OF CHARTER-DAMAGES.

The question of the damages to a shipowner arising from a loss of earnings under a charter which was abandoned by the charterer depends upon contingencies of navigation more or less speculative and incapable of being precisely ascertained, and in such case approximate accuracy is all that can be reasonably expected.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Shipping, § 213.] 2. SAME-MEASURE OF DAMAGES.

Defendant chartered libelant's vessel to carry a full cargo of cotton from Savannah to Bremen, agreeing to pay a specified sum per ton for the vessel's registered net tonnage. Subsequently he refused to fulfill the charter, and after some days of negotiation a new charter was made to take a cargo of cotton from Galveston to Bremen, but without waiver of libelant's right to recover damages for breach of the first charter. Held, that in estimating such damages the court was justified in assuming that the time taken in loading and discharging would have been the same under the first charter as was actually taken under the second, and in taking as the measure of damages the average daily earnings made under the second charter as compared with the average which would have been made each day under the first if the voyage had been made in the time estimated.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Shipping, § 2131 Appeal from the District Court of the United States for the Southern District of New York.

Frederick M. Brown and Butler, Notman & Mynderse, for appellant. George M. Clarke, Henry G. Ward, and Robinson, Biddle & Ward, for appellee.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. The decree appealed from awarded damages to the libelant, the owner of the steamship Neptune, for the nonfulfillment of a charter party. The case involves the question of the probable loss sustained by a shipowner through losing the net earnings of a vessel upon a voyage which was abandoned, an inquiry which generally presents difficulties, because its solution depends upon various contingencies of navigation more or less speculative and incapable of being accurately ascertained. In such cases approximate accuracy is all that can be reasonably expected.

By the charter between the parties, made September 27th, the full cargo capacity of the steamship was let for a cotton cargo upon a voyage from New York to Savannah, and thence to Bremen, including the period contemplated for loading the cargo at Savannah and discharging it at Bremen; and the charterer was to pay freight at the rate of a specified sum per ton for the net tonnage of the vessel. The voyage under that charter would have begun October 24th, but several days previously the charterer notified the libelant that owing to conditions in the cotton market it would be impracticable for him to obtain a cargo at Savannah, and suggested the substitution of Galveston as the load.