and does not contain glue, and is not similar to glue in material and texture. As it bears no substantial similarity to glue in material and texture, and has different uses, it is dutiable as claimed at 20 per cent. ad valorem, under section 6, as a nonenumerated manufactured article.

The decision of the Board of General Appraisers is reversed.

THE ABBAZIA.

(District Court, S. D. New York. January 7, 1904.)

1. SHIPPING-CARGO BURNED AS FUEL-LIABILITY OF SHIP BECAUSE OF UNSEAWORTHY CONDITION.

Evidence held to establish that the failure of a steamship to make her normal speed in a voyage across the Atlantic, and her increased consumption of coal, by reason of which her supply was exhausted and she burned a part of the cargo, was due to her weak and defective boilers, which were 18 years old and leaked, and the foul condition of her bottom, which had not been cleaned for an unusual length of time, which rendered her liable for the cargo consumed, notwithstanding the fact that she obtained surveyors' certificates of seaworthiness at the beginning of the voyage

In Admiralty.

Black & Kneeland, for libellants.

Ullo & Ruebsamen, for claimant.

ADAMS, District Judge. These actions were brought by the respective libellants, the Ford Morocco Company and Emanuel S. Kuh, to recover the value of about 60 bales of goat skins and 60 packages of tallow, parts of larger lots delivered by them to the steamship Abbazia, in Trieste in January, 1902, for transportation to New York.

The steamship was running in a regular line from Mediterranean ports to New York, thence to Tampa, Florida, New Orleans, Baltimore and back to Trieste. On this occasion, she left Trieste on the 17th of January and called at Girgenta, Messina and Algiers. She left the latter place on the 4th of February at 4 A. M. with 600 tons of coal in her bunkers. Her regular speed, in favorable weather, was from 200 to 205 knots per day on a consumption of about 221⁄2 tons. The distance from Algiers to New York is 3,800 miles and upon an ordinary rate of progress, the voyage would occupy from 19 to 20 days, under favorable conditions. The steamship made her full speed on one day only, the first day out from Algiers, up to the 27th of February, when she was obliged to bear away for Bermuda to renew her coal supply, it being then exhausted, excepting 96 tons. In proceeding to Bermuda she used up the remnant of her supply, excepting about 4 tons, and burned her fittings and the cargo in question. Having obtained a new supply of 169 tons of coal in Bermuda, she continued her voyage on the 9th of March, and reached New York on the 15th of March, with 47 tons in her bunkers.

The libellants contend that the prolongation of the voyage was due to unseaworthiness of the vessel when she started, in that her boilers

were leaking, on account of the defective and corroded condition of parts of the combustion chambers, aggravated by the unclean condition of the ship's bottom.

The claimant contends that the delay was owing to the perils of the seas, due to strong head winds, lasting for over a month, so that the provision she had made for 26 or 27 days steaming, was exhausted in about 20 days, creating the necessity for the deviation and the new supply. That, therefore, the case is one of general average.

The testimony shows that the vessel was delayed by the leaky condition of her boilers before she reached Algiers, but the claimant insists that if a defect had existed before sailing from Trieste, it would have been discovered there, because an examination was made of the vessel by surveyors of the. London Lloyds, the Austrian Veritas and Austro Hungarian Government, who issued their certificates to the vessel to the effect that she was sound, staunch and fit for the voyage. After passing Gibraltar, almost constant trouble was had with the boilers, principally the one on the starboard side. They leaked, causing- detention, and although there was some heavy weather, it does not satisfactorily appear that the weather was the cause of any material delay. The weather was not more severe than should have been expected at the season of the year and provided against. In any event, it did not affect the boilers. There were some defective and corroded plates in them, which were removed after reaching New York. The boilers were at least 18 years old and had become generally thin and weak. They could not be inspected satisfactorily in Trieste. Some attempt was made to examine them there, by putting a light inside, but admittedly such method was defective. The result was that the vessel put to sea with weak boilers, which seriously retarded her progress, and caused a greater coal consumption.

Another cause of delay was the unusually foul condition of the vessel's bottom, which was covered with grass and slime below her load line. This foulness had been accumulating for some ten months when the vessel sailed and helped to retard her progress. The usual time for cleaning the bottom was every nine months but on this occasion it was allowed to go longer.

Under the circumstances of this case, the vessel should be liable for the burned cargo. Hurlbut v. Turnure (D. C.) 76 Fed. 587; Int. Nav. Co. v. Farr & Bailey Mfg. Co., 181 U. S. 218, 21 Sup. Ct. 591, 45 L. Ed. 830.

I do not regard the fact of the vessel having obtained the surveyors' certificates of great importance, although admitted in evidence, by consent, as substitutes for the surveyors' testimony. The diligence required of vessels to enable them to claim the benefit of the Harter Act (Act Feb. 13, 1893, c. 105, § 2, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]), with reference to due diligence, is diligence with respect to the vessel, not in obtaining certificates. If there had been actual diligence in this case of the proper kind, it is probable that there would not have been any necessity of resorting to the cargo as fuel.

Decrees for the libellants, with orders of reference.

ALABAMA & G. MFG. CO. et al. v. RIVERDALE COTTON MILLS.

(Circuit Court of Appeals, Fifth Circuit. January 12, 1904.)

No. 1,258.

1. JURISDICTION OF FEDERAL COURTS-CITIZENSHIP OF PARTIES-CORPORATION CHARTERED BY TWO STATES.

The states of Georgia and Alabama each chartered a corporation having the same name and the same incorporators, conferring thereon certain riparian rights on the Chattahoochee river. The business was conducted as that of a single corporation, having one set of officers, and a dam and manufacturing plant were built on the river, partly in each state. Thereafter a mortgage was executed on the property in the name of the corporation, it not being stated of which state it was a corporation, and subsequently the property was sold, subject to the mortgage, to a second corporation of Alabama. Later a suit to foreclose was brought against the mortgagor and its successor in interest in the federal court for Georgia by the trustee, who was a citizen of Alabama, it being alleged that the defendants were citizens of Georgia. Answers were filed admitting such allegation, and the cause proceeded to a decree and sale, a third corporation being the purchaser of the property. Held, that it was beyond the power of the state of Alabama to so combine the original corporation it created with one of Georgia as to make it a citizen of that state for jurisdictional purposes, and also beyond the power of the corporations themselves to do so by any action of theirs or manner of conducting their business; and, since neither of the Alabama corporations could be parties defendant to the foreclosure suit without ousting the jurisdiction of the court, neither they nor their property rights in Alabama were affected by the decree and sale, and a bill by the purchaser thereunder to restrain them from maintaining a suit in Alabama in relation to such rights was not within the jurisdiction of the federal court in Georgia as ancillary to the foreclosure suit.

Pardee, Circuit Judge, dissenting.

Appeal from the Circuit Court of the United States for the Northern District of Georgia.

Marion Erwin, for appellants.
Thos. H. Watts, for appellee.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

MCCORMICK, Circuit Judge. In our opinion the Circuit Court erred in taking jurisdiction of appellee's bill.

On February 7, 1866 (Acts 1865-66, pp. 259–261), the state of Alabama passed an act to incorporate the Alabama & Georgia Manufacturing Company, the provisions of which act are as follows:

"Section 1. Be it enacted by the Senate and House of Representatives of the state of Alabama in General Assembly convened, that James Metcalf, George Huguley, Benjamin H. Hill, William P. Chilton and George W. Huguley, together with such other persons as hereafter may be associated with them, and their successors, be and they are hereby made and constituted a body corporate in fact and in name, under the name, style and title of "The Alabama and Georgia Manufacturing Company,' and by that name shall be, and are hereby made able and capable at law, to have, hold, receive and purchase, possess and enjoy to them and their successors all real and personal estate, of what

¶ 1. Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.

127 F.-32

ever kind or amount said corporation may deem necessary to carry all the objects of said corporation into full force and effect, and may sell, grant, convey or otherwise dispose of the same, and may sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all courts having competent jurisdiction; to make, use and have a common seal, and the same to alter, break and review at pleasure, and to do all the acts incident to a body corporate and politic.

"Sec. 2. Be it further enacted, that the objects of said corporation shall be the manufacture of wool and cotton into thread and cloth, the manufacture of meal, flour, lumber, shingles, boards and machinery of any description, or such branches or parts thereof as they see proper to engage in. The place of business shall be on the Chattahoochee river, in the neighborhood of Campbell's Mills, in the county of Chambers and in the state of Alabama; and to enable the said persons named in the first section of this charter to carry out the purposes of this charter, they and their successors and associates may control and use the water of the Chattahoochee river, so far as the riparian rights of this state are concerned, by locks, dams, canals, or otherwise, for manufacturing purposes generally; and to secure their property against loss by fire or other injuries may prevent persons from building fires or camping within two hundred yards of the factory buildings.

"Sec. 3. Be it further enacted, that said body corporate shall have power to prescribe the number of shares into which the capital stock of said corporation shall be divided, the mode in which it shall be taken, paid, transferred or assigned, and also to prescribe votes to which each share shall be entitled; that the rules adopted shall be uniform, equally securing the rights of each stockholder; and also to provide for the election of such officers as may be deemed necessary for the government and management of the affairs of the corporation, to ordain, establish, and put in execution such by-laws, ordinances and resolutions as they shall deem necessary and expedient for the government of said corporation, not inconsistent with the Constitution and laws of the state of Alabama, or of the United States; and in general to do and execute all and singular the acts, matters and things which may be necessary for manufacturing.

"Sec. 4. Be it further enacted, that said corporation shall not exercise banking privileges, but is authorized to carry the foregoing granted powers into execution, according to the true intent and meaning thereof.

"Sec. 5. Be it further enacted, that said corporation shall have the power to borrow money and to loan out its surplus earnings on similar security or mortgage, and to ordain such rules and regulations in respect to stockholders who refuse to pay up any balance on their stock, and to compel him to pay upon penalty of forfeiture to said corporation provided, no stockholders shall be liable beyond the amount of his, her, or their stock."

On March 21, 1866 (Laws 1865–66, p. 130), the state of Georgia enacted as follows:

"An act to incorporate the Alabama and Georgia Manufacturing Company. "Section 1. Be it enacted, by the Senate and House of Representatives of the state of Georgia, in General Assembly met, that James Metcalf, George Huguley, Benjamin H. Hill, William P. Chilton, and Geo. W. Huguley, together with such other persons as may hereafter be associated with them and their successors, be, and they are hereby made and constituted a body corporate in fact and in name, under the name, style and title of the Alabama and Georgia Manufacturing Company, and by that name shall be, and they are hereby made, able and capable at law, to have, hold, receive, purchase, possess and enjoy, to them and their successors, all real and personal estate of whatever kind or amount said corporation may deem necessary to carry all the objects of said corporation into full force and effect, and may sell, grant, convey, or otherwise dispose of the same, and may sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all courts having competent jurisdiction; to make, use and have a common seal, and the same to alter, break and renew at pleasure, and to do all other acts incident to a body corporate and politic.

"Sec. 2. That the objects of said corporation shall be the manufacture of

wool and cotton into thread and cloth, the manufacture of meal, flour, lumber, shingles, boards, and machinery of any description, or such branches or parts thereof as they see proper to engage in. And to enable the said persons named in the first section of this charter to carry out the purposes of this charter, they and their successors, and associates, may control and use the water of the Chattahoochee river, so far as the riparian rights of this state are concerned, by locks, dams, canals, or otherwise, for manufacturing purposes generally provided, that nothing in this act shall be so construed as to give said corporators, or their successors, the privileges to interfere with, or disturb the vested rights of any person or persons whomsoever, either on the east or west bank, or islands in, the Chattahoochee river, and that said dams, locks, and canals shall not extend more than half way across said river, from the west side, and to secure their property against loss by fire, or other injuries, may prevent persons from building fires, or camping, within two hundred yards of the factory buildings.

"Sec. 3. That said body corporate shall have power to prescribe the number of shares into which the capital stock of said corporation shall be divided, the mode in which it shall be taken, paid, transferred, or assigned, and also to provide the mode by which stockholders may vote, and the number of votes to which each share shall be entitled; that the rules adopted shall be uniform, equally securing the rights of each stockholder, and also to provide for the election of such officers as may be deemed necessary for the government and management of the affairs of the corporation; to ordain, establish, and put into execution, such by-laws, ordinances, and resolutions, as they shall deem necessary and expedient for the government of said corporation, not inconsistent with the Constitution and laws of the state of Georgia, or of the United States, and in general to do and execute, all and singular, the acts, matters and things, which may be deemed necessary for manufacturing.

"Sec. 4. That said corporation shall not exercise banking privileges, but is authorized to carry the foregoing granted powers into execution, according to the true intent and meaning thereof.

"Sec. 5. That said corporation shall have the power to borrow money on mortgage, or other security, and to loan out its surplus earnings on similar securities, or mortgage, and to ordain such rules and regulations with respect to stockholders who refuse to pay up any balances on their stock, as well as compel them to pay upon penalty of forfeiture such stock to said corporation; provided no stockholder shall be liable beyond the value of his, her, or their stock.

"Sec. 6. That said corporation shall have the right and privilege to build, erect, make and preserve all dams, locks, canals, abutments, or other needful structures half way across said Chattahoochee river, as may be necessary to give them the greatest amount of water power, and to use for that purpose the islands contiguous to their lands for abutments and dams, and to erect all needful buildings on the east side of the river, and to carry on any of the business and manufactures, or any branch, or branches, of the same, in this state, that said charter authorizes them to engage in, or carry on in the state of Alabama, and generally to do all acts coming within the legitimate scope of their business and objects aforesaid, which usually belong to bodies corporate and politic.

"Sec. 7. That the private property of the stockholders shall be liable for the debts of said corporation, to the amount of their subscribed stock not paid in at the time any suit may be commenced.

"Sec. 8. That the capital stock of said company shall be fifty thousand dollars, with permission to increase the same to one million dollars, which stock shall be divided into shares of one hundred dollars each.

"Sec. 9. That nothing in this act shall be so construed as to prevent the Legislature from taxing the property of said company as other property in this state.

"Sec. 10. That said corporation shall not organize or commence business until the capital stock shall have been subscribed and ten per cent. of the same paid in.

"Sec. 11. That the place of business of said corporation shall be Columbus, Georgia, or Lagrange, Georgia."