conditions which prevented the discharge within the time requisite under ordinary conditions. The government regulations in the above respects were strict, and the discharge of the ammunition was the chief cause of the delay, since the government officials would not receive more from the steamer than could be stored in the magazine or arsenal the same afternoon. The general regulations in force required ammunition to be discharged between 6 a. m. and 5 p. m., and it had to be handled carefully and by daylight. A verbal request made to the authorities to allow lighters other than the government's to aid in the discharge was refused. A negative answer was brought back by the stevedores employed in the discharge, but it does not appear who received the request or gave the reply. This is the only direct testimony upon the point. There are several witnesses who assumed that the government, following its general custom, would not permit it, upon which reliance was placed, and not upon positive refusal. The party with whom the contract was made by the master for stevedores testified (and his testimony is uncontradicted) that he discharged many vessels at Cavite, and that he always acted under the direct instructions of the commandant of the naval station in making such discharge.

Conclusions of the Court upon the Questions of Law Involved.

The respondent claims that, inasmuch as the petitioner has proceeded in this cause in personam and not in rem, the admiralty jurisdiction conferred by the statute cannot be invoked, and the petitioner must proceed as at common law. Under the act no decree in rem could be entered against the United States, and any judgment or de· cree entered must necessarily, therefore, be a personal one. The whole proceeding is controlled by the statute. It is not necessary that a maritime lien should exist giving a right to proceed in rem in order to confer admiralty jurisdiction. The existence of admiralty jurisdiction in a suit in personam is not dependent upon the existence of a right to proceed in rem, for jurisdiction depends, not upon the existence of a maritime lien, but upon the subject-matter of the contract. Boutin v. Rudd, 82 Fed. 685, 27 C. C. A. 526. The rule is well settled that the test of admiralty jurisdiction in contract cases is their nature and subject-matter. Insurance Co. v. Dunham, 11 Wall. 1, 20 L. Ed. 90. The contract in this case is one of affreightment; this is not disputed. Contracts of this character are matters of admiralty jurisdiction. Lands v. Cargo of Coal (D. C.) 4 Fed. 478; The Monte A. (D. C.) 12 Fed. 331; The San Fernando v. Jackson (C. C.) 12 Fed. 341; Dunbar v. Weston (D. C.) 93 Fed. 472; Insurance Co. v. Dunham, supra. The statute above referred to directs the Circuit Courts to follow the rules of courts having admiralty jurisdiction. The petition sets forth a maritime contract, and one over which an admiralty court would have had undoubted jurisdiction if the United States were not a party; but, as the United States is a party, it became necessary to invoke the aid of the statute, and the jurisdiction thereby conferred upon this court to proceed after the manner of admiralty. The action can therefore be maintained under the statute.

It will be observed that there is nothing in the bills of lading stipulating as to lay days or demurrage. The only stipulation relating to the discharge of the freight is that it is to be "received by the consignee immediately the vessel is ready to discharge, and continuously at all such hours as the customhouse or port authorities may give permission for the ship to work, if necessary, to discharge into lighters at the risk and expense of the consignee." It is obvious that the word "continuously" is not to be considered as synonymous with incessantly or uninterruptedly. It would be impossible that the cargo should be discharged from the hold of the vessel over its sides into lighters without cessation, as a stream of water can be made to flow from an open faucet. No such construction was put upon the word by the parties at the time, much less by the petitioner. Such a construction would have required the work to proceed by night and by day; but it appears by the petitioner's own testimony that the stevedores who were employed by the master of the vessel could not work at night. The clause means no more, then, than that the discharge should be reasonably continuous, considering the time, place, and circumstances, the nature and character of the cargo, the situation of the vessel, and prevailing conditions generally. In the absence of express agreement as to the time for unloading, actions of this character are maintained upon the theory that there is an implied contract to discharge the cargo in a reasonable time, and what constitutes reasonable time depends upon the circumstances of the particular case, the facilities for discharge at the port where the discharge is to be made, the nature of the cargo, the weather, etc. In the case of Empire Transportation Co. et al. v. Philadelphia & R. Coal & Iron Co. (C. C. A.) 77 Fed. 919, 925, 23 C. C. A. 564, 35 L. R. A. 623, the court lays down certain propositions as follows:

"(1) Where the charter of a ship is silent as to the time of unloading and discharge, there is no implied agreement that the charterer will unload or discharge her in the customary time at the port of delivery, regardless of all extraordinary circumstances and unforeseen obstacles.

"(2) The implied contract is to unload and discharge her in such time as is reasonable, in view of all the existing facts and circumstances, ordinary and extraordinary, legitimately bearing upon that question at the time of her arrival and discharge.

"(3) This implied contract to discharge the vessel in a reasonable time is, in effect, a contract to discharge her with reasonable diligence.

"(4) The burden is on him who seeks to recover damages for the delay of a vessel under such a contract to prove that the charterer did not exercise reasonable diligence to discharge her, under the actual circumstances of the particular case.

"(5) Proof that the vessel was delayed in unloading beyond the customary time for unloading such cargoes at the port of her delivery throws upon the charterer the burden of excusing the delay by proof of the actual circumstances of the delivery and his reasonable diligence thereunder."

See, also, Uren v. Hager (D. C.) 95 Fed. 493; Fish v. One Hundred and Fifty Tons of Brown Stone (D. C.) 20 Fed. 201; Morgan v. Garfield, etc., Co. (D. C.) 113 Fed. 520; Donnell v. Amoskeag Manfg. Co., 118 Fed. 10, 55 C. C. A. 178; Burrill et al. v. Crossman et al., 130 Fed. 763, 65 C. C. A. 189; Merritt & Chapman Derrick & Wrecking Co. v. Vogeman (D. C.) 143 Fed. 142.

The bills of lading in this case called for a shipment of naval stores and ammunition; the latter consisting of fuses, powder, shells, etc., from the Navy Yard at New York to Cavite, Philippine Islands. Cavite was not a port of entry, but was a naval and military station, in the possession and control of the respondent. A state of war and insurrection existed in the Islands at the time. There were no written or printed regulations existing when the vessel arrived at Cavite as to the discharge of ammunition and naval stores, but certain well understood regulations were nevertheless in force, among which were that the discharge was to be made into government lighters only, between certain hours of the day, and that no more of such cargo would be received from the vessel on any one day than could be deposited in the arsenal or magazine on shore the same day. These precautions were considered necessary in view of the state of war and insurrection then and there existing. That they were, under the circumstances, reasonable and necessary, scarcely admits of question, but, conceding this, were they in any degree binding upon the petitioner? It was matter of common knowledge at the time that the Philippine Islands were in a state of insurrection, and that Cavite was not a port of entry, but only a naval station; furthermore, the petitioner knew of the character of the cargo, that it was being shipped from one naval post to another, and from certain naval officials of the government to certain other like officials. These facts were undoubtedly in the minds of the parties, and were given consideration when the contract of affreightment was made, and might properly, for that reason, be given some consideration in its interpretation; but, aside from that, they must be given weight in determining whether either party was in default in its execution. They are a part of the facts, circumstances, and ccnditions which show or tend to show whether or not the discharge of the vessel was accomplished with reasonable expedition. The cargo to be unladen from the Trunkby was no ordinary cargo, which could be thrown or dumped out in any haphazard way, anywhere, in any kind of weather, by day or by night, and regardless of whether the consignee or any person representing him was present to receive it. It must be guarded, cared for, and kept from the enemy at all hazards, and all reasonably necessary precautions in this direction had to be taken, and so long as they were reasonably necessary and reasonably carried out they bound the petitioner. The bills of lading and the whole transaction must be construed with direct reference to the considerations above presented. If, in the absence of contract, what constitutes reasonable time in the discharge of a cargo is ordinarily determinable by the circumstances of the particular case, the nature of the cargo, and the conditions and customs prevailing at the port of discharge, then this more so. The sixth paragraph of the petition is as follows:

"The custom of discharge of ammunition and naval stores was to take the goods from the steamer into government lighters or barges, which were always under military guards, who maintained close custody of the same till those lighters had been towed ashore, whence the ammunition and stores were disembarked from the lighters into the government arsenal."

The petition then goes on to complain that the government officials did not have sufficient men or lighters to discharge the cargo with good dispatch, and that the few lighters that they had were not sent out promptly. The custom of the government with respect to the discharge of military supplies is here recognized. The evidence shows that the military regulations pertaining thereto were known to the agents of the petitioner at Cavite, and to the other witnesses residing or stationed there. Under the circumstances, I think the regulations were reasonably necessary, and were reasonably to be anticipated by the petitioner. Notwithstanding this, it plainly appears that the government lighters were not kept so steadily at work or for so many hours daily as the regulations permitted. The facts above appearing relating to the discharge of the vessel, the number of lighters daily engaged therein, and the hours they were severally occupied, are taken from the logbook, fortified by the testimony of the master of the Trunkby, and, in the absence of other testimony, must be accepted as fairly accurate. A consideration of this testimony satisfies me that, everything considered, the discharge of cargo was not made as expeditiously as it reasonably might have been. An analysis of the testimony shows that the work seldom began as early in the day or continued as late as it might under the regulations, nor were all of the government lighters kept busy. The log shows that on two or three of the days five lighters came out, and on others a less number. What was accomplished on some days is a fair indication of what might apparently have been accomplished on other days, since the weather was fine except during the last three days of the discharge. There is practically no testimony submitted on the part of the government. Commander Cowles was sworn on its behalf, but his testimony shows that he had very little personal knowledge of the transaction. He did say, however, that the regulations in force at the time required ammunition to be discharged between 6 a. m. and 5 p. m., and that it had to be handled carefully and by daylight. In view of the case made by the petitioner, it was incumbent upon the respondent to show that it discharged the cargo as fast as it reasonably could, under the circumstances, conditions, and regulations existing. This has not been done, and the defenses particularly set up in the answer are not supported by any evidence. Considering the case as presented, I think that damages in the nature of demurrage should be allowed; not, however, for seven days, as claimed, but for a period of three days.

I have reviewed the testimony carefully, and in my opinion it does not disclose-certainly not with definiteness-that the discharge could have been completed, under the circumstances, more than three days sooner than it was. It is true witnesses say that it might have been completed under ordinary conditions in four or five days. On the other hand, the captain says that it would have taken three times as long to discharge the cargo at Cavite as at Manila, but his testimony must, in fairness, evidently be restricted to the discharge of this particular cargo, since he had never been at Manila or Cavite before. Damages by way of demurrage for three days will be allowed, and such allowance will cover, in my judgment, all that the petitioner can

reasonably ask. Damages have been claimed for each day's delay equal to the charter price of the vessel per day. This, however, does not seem to be the true measure of damages. It should rather be the probable net earnings of the vessel during the period of delay. This can be ascertained by finding the gross freight which it would under ordinary circumstances, in the usual course of its employment, have earned, and deducting therefrom what it would have expended in earning it. Sheppard et al. v. Philadelphia Butchers' Ice Co., Fed. Cas. No. 12,757. There is nothing to show that the vessel would have earned anything if free.

A reference will be made to a commissioner to ascertain and report the amount of damages which should be allowed the petitioner for the period above mentioned.

In re SMITH.

(District Court, D. Rhode Island. July 18, 1906.)

No. 574.

1. BANKRUPTCY-PROVABLE CLAIMS-CONSTRUCTION OF ACT.

The several subdivisions of Bankr. Act July 1, 1898, c. 541, § 63a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3447], are not to be regarded as an enumeration of a group of characteristics all of which are essential to a provable claim, but as a classification, each specifying a separate class of provable claims independently of the others, and the provision of subdivision 1, limiting the claims provable thereunder to those which were a fixed liability absolutely owing at the time of the filing of the petition, does not impose the same limitation upon claims within other classes.

2. SAME CONTINGENT LIABILITIES-INDORSER OF COMMERCIAL PAPER.

The liability of a bankrupt indorser on commercial paper which did not become absolute until after the filing of the petition is a debt founded upon a contract within Bankr. Act July 1, 1898, c. 541, § 63a (4), 30 Stat. 562 [U. S. Comp. St. 1901, p. 3447], and provable in bankruptcy thereunder after such liability has become fixed and within the time limited for proving claims.

In Bankruptcy. On petition for review of order of referee disallowing the claim of the Union Trust Company.

Bassett & Raymond, for Union Trust Company.

BROWN, District Judge. The Union Trust Company held trade paper which had been endorsed by the bankrupt, and discounted for the bankrupt by the Union Trust Company before the adjudication. The notes did not become due until after the date of adjudication. At the date of proof, however, the notes had all matured, and the liability of the bankrupt as indorser had been duly fixed by default of the maker and protest. The date of filling the petition and of adjudication was February 16, 1906. The date of filing the proof of claim was May 22, 1906. The referee found that none of the notes was provable against the bankrupt's estate, on the ground that the liability was not fixed, and the claim not absolutely due and owing at the