3 F.(2d) 369 lished by patents to the state of California in 1918-1919, title to such of the lands as came from the state was subject to a reservation of the right to fish, as provided for by section 25, article 1, of the Constitution of California, which reserves to the people a right to fish upon public lands of the state except upon certain lands reserved for fish hatcheries, and that no land shall be sold or transferred without reserving to the people an absolute right to fish thereupon. There is no force to the position, for the reason that when Ward and Pearsall made their contract both understood where the title was vested, and because the title, being in the United States, was subject to be acquired by the state, to be by the state transferred. Both had knowledge that the land was subject to such legislation of the state of California as might be subsequently enacted. Kuhn v. Freeman, 15 Kan. 423. [4] The decree awarded interest from May 31, 1918. This is objected to. The contract contained no reference to interest. The last patent issued by the state was to Mrs. Pearsall for 80 acres, of date August 5, 1919, but there was no tender of an abstract with the first tender of the deed, July, 1918, and none until after the District Court decided that, inasmuch as Ward had repudiated the whole contract, Pearsall was under no obligation to tender an abstract at the time he offered, in May, 1918, to convey title, as such tender would have been futile. But the contract required Pearsall to turn over the tract with good and unincumbered title as soon as title to same was perfected and to furnish proper abstracts of title. Pearsall, however, did not clear up the title to the tract until trial of the case, and did not furnish abstracts of good and unincumbered title until after the trial, and after the District Court had made an order dated August 14, 1923, requiring him to deposit with the clerk of the court abstracts of title to the lands showing that the deed, when delivered, would convey good and unincumbered title. We therefore think that he cannot equitably claim interest on the purchase price prior to the time of the deposit of such abstracts and the date of the overruling of the objections by Ward to the title, which was December 17, 1923. Our conclusion upon the main case is that the District Court was correct in ruling that the equities are with the plaintiff, and that the decree when modified as to interest is just. 3 F. (2d)-24 The order therefore is that the decree of the District Court be modified by awarding to plaintiff interest upon the principal sum from and after December 17, 1923, and as so modified is affirmed. GREEN STAR S. S. Co. v. NANYANG BROS. (Circuit Court of Appeals, Ninth Circuit. Jan- 1. Shipping No. 4319. 132(2)-Limitation in contract of time for bringing action for damages must be specially pleaded. The defense that an action against a carrier for damage to cargo is barred by a limitation contained in the contract is waived unless specially pleaded. 2. Shipping 142-Defense of limitation held waived. A carrier, by answering to the merits in an action for damage to cargo, without pleading a limitation of time to sue contained in the contract until 22 months later, held to have waived such defense. 3. Shipping 142-Authority of representative to waive limitation in bills of lading. In bills of lading issued by a steamship company providing that no action for damages should be maintainable unless commenced with in three months after notice of the claim, a further provision, that "no agent or employee" should have authority to waive such limitation, held not to apply to a corporation which was the company's general representative in a foreign port, so named in the bills of lading and recognized by it as having authority to receive notice of claims and act therein in its behalf, and the action of such corporation in receiving the claim and in stating to claimant that its settlement must await advice from the company's main office, thus inducing delay until the time limit had expired, held a waiver of the limitation. 4. Shipping 142-Limitation of time for bringing suit for damage to shipment held unreasonably short and invalid. A limitation in bills of lading of an American steamship company of three months for bringing suit for damage to cargo held unreasonable and invalid as applied to shipments from the United States to China. In Error to United States Court for China; Charles S. Lobingier, Judge. Action at law by the Nanyang Bros. Tobacco Company, Limited, against the Green Star Steamship Company. Judgment for plaintiff, and defendant brings error. Affirmed. Farnham P. Griffiths and McCutcheon, ant at Shanghai. The plaintiff was a ChiOlney, Mannon & Greene, all of San Francisco, Cal., Davies & Bryan, of Shanghai, China, and William E. Collins, of New York City, for plaintiff in error. Warren Gregory, Allen L. Chickering, Evan Williams, and Donald Y. Lamont, all of San Francisco, Cal., and Schuhl & Schoenfeld, of Shanghai, China, for defendant in error. nese corporation doing business at Shanghai. On August 9, 1920, on the arrival of the cargo at Shanghai, Struthers & Dixon notified the plaintiff that the goods were in bad condition and denied the defendant's responsibility for the loss. On August 16, 1920, the plaintiff wrote to Struthers & Dixon concerning the damaged condition of the goods and. giving notice that the plain Before GILBERT, HUNT, and RUD- tiff would take delivery of the portions not KIN, Circuit Judges. GILBERT, Circuit Judge. The defendant in error, as plaintiff, recovered a judgment in the court below against the steamship company for damages to a cargo of tobacco shipped to Shanghai on one of the latter's vessels. The parties will be named herein plaintiff and defendant as in the trial court. There was a stipulation between the parties that unless the action were barred by a limitation clause in the bills of lading the plaintiff should recover from the defendant damages in the agreed amount of $40,000. For that amount the judgment was rendered. The limitation clause so referred to, after providing that the defendant should not be liable for any claim whatsoever unless written notice thereof were given it before the removal of the goods from the wharf, contained the following: "No suit to recover for loss or damage shall in any event be maintainable against the carrier unless instituted within three months after the giving of written notice as above provided. No agent or employee shall have the authority to waive any of the requirements of this clause." On August 16, 1920, and before the removal of the goods from the wharf, the plaintiff gave the defendant written notice that a claim of damages would be filed, and on September 14, 1920, the claim was filed. But the action upon the claim was not begun until May 9, 1921. The only question before the court below was whether the action was barred by the failure of the plaintiff to bring its action within the specified time. The court held that the requirement was waived by the defendant. In reaching that conclusion no finding of fact was made upon conflicting evidence. It was deduced from facts which were not in dispute. Upon the re-examination of the case in this court the same question of law is again presented. The following are the facts: Struthers & Dixon, Inc., was the agent of the defend An em damaged and "file a claim against you for shortage for whatever hogsheads that arrived in such bad condition that we could not possibly use them." On September 14, 1920, the plaintiff's claim of damages was presented to Struthers & Dixon. ployee of the plaintiff testified that after he had drawn up the claim he delivered it to Struthers & Dixon; that about two weeks thereafter, receiving no reply from the agent, he went again to Struthers & Dixon and was told that the latter could not say what would be done in the matter; that the plaintiff's claim and report and all documents were being sent to the company's offices in San Francisco and New York; that Messrs. Platt, MacLeod, Gregson & Ward were the attorneys for the United States Steamship Owners Protective Association; and that they were writing a report on the case to be sent to New York for consideration. He further testified that Struthers & Dixon promised to give the plaintiff a reply and advised the witness that he had better go to some American lawyer for advice, and that in any case the plaintiff would have to wait for a reply. No reply was ever received. The answer to the complaint alleged that the damage to the tobacco resulted from the plaintiff's negligence and pleaded the terms of the contract whereby it was agreed that in the event of loss or damage the defendant should not be liable for more than $100 per package. The defense which is now relied upon was not pleaded in the answer. It was not until 22 months later that an amended answer was filed, setting up that defense. [1] It is the settled rule that such a defense, in order to avail the defendant, must be specially pleaded. Otherwise it is waived. 10 C. J. 370; Gilinsky v. Illinois Cent. R. Co., 98 Neb. 858, 154 N. W. 730; Kansas City P. & G. R. Co. v. Pace, 69 Ark. 256, 63 S. W. 62. [2] It seems to us that the defendant, by filing an answer to the merits and failing to plead the limitation of the time to sue, 3 F.(2d) 369 waived the limitation, and that the trial court might properly have denied permission to amend by setting up that defense. In a case in which there was failure to give the notice required by the contract, Kaplan v. Metropolitan Express Co. (Sup.) 98 N. Y. S. 228, the court said: "Even if the contract were as claimed by defendant, it is not clear that substantial justice would be promoted by the amendment." As against this view the defendant points to the terms of the stipulation, and contends that thereby the parties submitted the case for decision solely upon the legal effect of the limitation clause and the effect of the testimony tending to show waiver thereof. But we do not think that the inquiry should thus be narrowed, and we incline to the view that the question before us is whether upon the pleadings and the evidence the defendant has waived the requirement that the action be brought within the designated time. [3] But aside from the question of the waiver by the defendant's answer, we agree with the trial court's conclusion that waiver was shown by the facts. We do not think that Struthers & Dixon, Inc., was of the class of agents or employees contemplated by the limitation clause of the bills of lading when it was provided that they should have no authority to waive any of the requirements of that clause. It was stipulated by the parties to the action that the defendant was represented at Shanghai, China, by its agent, Messrs. Struthers & Dixon, and it was also so provided in the bills of lading. The original answer to the complaint was signed by Struthers & Dixon and was sworn to by the vice president of that company. That corporation, thus having sole charge of the defendant's business at a foreign port, was the alter ego of the defendant, and from and after the arrival of the goods at Shanghai it was the sole representative of the defendant in all the latter's transactions with the plaintiff. In the stipulation between the parties to the action the defendant admits that the acts of Struthers & Dixon were its own acts. Thus it is admitted that the "plaintiff wrote and delivered a letter to the defendant" informing it of the claim of damages, and that the "plaintiff wrote and delivered to the defendant" an itemized claim. The defendant thus identified itself with Struthers & Dixon in all the transactions at Shanghai, and held out Struthers & Dixon as possessing the power to represent it, and justified the plaintiff in believing that the agent had such authority. If Struthers & Dixon thus had authority in the due course of business to enter into negotiations with the plaintiff concerning the latter's claim, it must follow that it also had authority to forward the claim to the defendant and to inform the plaintiff that it had done so, and to advise the plaintiff that a report on the case was being sent to the defendant for consideration and that the plaintiff would have to wait for a reply. The law applicable to the case is expressed in Thompson v. Phenix Insurance Co., 136 U. S. 287, 299, 10 S. Ct. 1019, 1023 (34 L. Ed. 408), where it was held that such a stipulation may be waived, that the waiver need not be in writing, but may arise from such course of conduct upon the part of the defendant as will equitably estop it from pleading the prescribed limitation in bar of a suit. Said the court: "It would be contrary to justice for the insurance company to hold out the hope of an amicable adjustment of the loss, and thus delay the action of the insured, and then be permitted to plead this very delay, caused by its course of conduct, as a defense to the action when brought." Among cases in point are Pacific Coast Co. v. Yukon Independent Transp. Co., 155 F. 29, 83 C. C. A. 625; Fellman v. Royal Insurance Co., 184 F. 577, 106 C. C. A. 557; Lynchburg Cotton Mill Co. v. Travelers' Ins. Co., 149 F. 954, 79 C. C. A. 464, 9 L. R. A. (N. S.) 654; De Farconnet v. Western Ins. Co. (D. C.) 110 F. 405; Alten v. McFall (C. C.) 89 F. 463. The defendant cites cases such as Southern Pac. Co. v. Stewart, 248 U. S. 446, 39 S. Ct. 139, 63 L. Ed. 350, and The General G. W. Goethals (C. C. A.) 298 F. 933, in which the courts strictly construed stipulations in bills of lading requiring that notice and demand of damages should be made within a time limited therein. Reasons why such provisions should be strictly construed have been pointed out in many decisions. But no decision holds that after a timely presentation of notice of claim and demand for damages the time limited by contract for bringing suit may not be waived by the carrier. [4] In addition to the foregoing, we are inclined to the view that the judgment should be affirmed on the ground that the period of three months so limited for the commencement of the action after the giving of written notice was, under the circumstances, such as the great distance be tween the point of delivery of the goods and the home offices and the carrier and the length of time required for transmission of communication by mail, an unreasonably short time. We are impressed with the views expressed by the Court of Appeals of New York in South & Central American Commercial Co. v. Panama R. Co., 237 N. Y. 287, 142 N. E. 666. In that case the court, while admitting that the Cummins Amendment of March 4, 1915, to the Interstate Commerce Act (38 Stat. 1196 [Comp. St. $$ 8592, 8604a]), providing that no shorter period than two years shall be allowed for the institution of action on claims, is inapplicable to a common carrier by water, whose carriage is unconnected with carriage by land, was of the opinion that its standards are relevant to the inquiry whether public policy will permit the enforcement of a stipulation in a bill of lading issued by such carrier requiring the institution of suit within 60 days after notice of claim, and held that such legislative declaration of the policy of the law should be recognized and obeyed, and that consequently such a requirement of a bill of lading is invalid as affording less than a reasonable time. Said the court: "We do not say that carriers not subject to these acts must adhere to the standards thus established with literal fidelity. That is obviously unnecessary, since the acts do not touch them ex proprio vigore. We say, however, that there is a duty of approximate or reasonable conformity, a conformity so great as to escape flagrant disavowal of the conception of reasonable opportunity reflected in the will of Congress." The judgment is affirmed. ROGERS, Circuit Judge. The relator was born in Greece, and arrived at Ellis Island in New York Harbor, on the steamship Providence, on July 22, 1924. She had with her a passport issued to her in Naples, Italy, on June 13, 1924, which was visaed by the American Consul at that place on July 8, 1924. It stated that she was "proceeding to the United States on pleasure." After a hearing before a Board of Special Inquiry at Ellis Island on July 23, 1924, the relator was denied admission. Two members of the Board voted to exclude her, the third member announcing himself in favor of her admission believing that she had established her status as a nonimmi CHRYSSIKOS v. COMMISSIONER OF IM. grant. (Circuit Court of Appeals, Second Circuit. An appeal was taken to the Board of Review at Washington on July 26, 1924, and the decision of the Board of Special Inquiry was affirmed. It was also affirmed by the Secretary of Labor on July 30, 1924. Thereupon a writ of habeas corpus was sued out, and on the return of the writ and after hearing, the District Judge dismissed the writ and the relator was remanded to the custody of the Commissioner of Immigration at the Port of New York. The District Judge based his action upon the conclusion that the relator had a fair hearing before the Board of Special Inquiry and that the Board had before it some evidence 3 F.(2d) 372 upon which it could have based its decision. He therefore dismissed the writ and in his opinion relied on the case of Chin Yow v. United States, 208 U. S. 8, 13, 28 S. Ct. 201, 203 (52 L. Ed. 369), where the court said: 66 Unless and until it is proved to the satisfaction of the judge that a hearing properly so called was denied, the merits of the case are not open, and, we may add, the denial of a hearing cannot be established by proving that the decision was wrong." The proceedings before the Board of Special Inquiry on July 23, 1924, were subject to the Immigration Act of May 26, 1924 (43 Stat. 153), and the regulations promulgated thereunder define the term "immigrant" as meaning "any alien departing from any place outside the United States destined for the United States, except (1) a government official, his family, attendants, servants, and employees, (2) an alien visiting the United States temporarily as a tourist or temporarily for business or pleasure. And section 15 of the act provides that "the admission to the United States of an alien excepted from the class of immigrants by clause (2) of section 3 shall be for such time as may be by regulations prescribed." And under Regulations to Govern Enforcement of the Immigration Act of 1924 is General Order No. 30, June 6, 1924. It reads as follows: "An alien visiting the United States temporarily as a tourist or temporarily for business or pleasure' shall be construed to mean an alien coming to the United States to remain not more than six months." And General Order No. 30 further provides as follows: "In cases where an alien is possessed of a document which has been visaed by the consular officer on the basis of a claim that such alien is visiting the United States temporarily as a tourist or temporarily for business or pleasure, or that he seeks to enter for the purpose of transit through the United States, or solely to carry on trade under and in pursuance of a present existing treaty of commerce and navigation, and the officer in charge at the port is not satisfied that the alien is coming for the purpose stated, such officer in charge, as a condition precedent to the admission of the applicant, may exact a bond in the sum of $500, conditioned that the applicant shall depart from the United States within six months, if vis iting the United States temporarily as a tourist or temporarily for business or pleasure, or within ten days if in transit through the United States, or that he shall maintain his exempt status if admitted solely to carry on trade under and in pursuance of a present existing treaty of commerce and navigation." It thus appears that this relator, if she came to the United States as an alien visitor or tourist as she claims, was neither a quota nor a nonquota immigrant nor an immigrant at all, and was not subject to exclusion, but was entitled to be admitted and to remain in the United States not more than six months. And if "the officer in charge at the port" was not "satisfied" that the alien was visiting the United States temporarily as a tourist or for pleasure, he might exact a bond in the sum of $500 conditioned that she should depart within six months; she being possessed of the "document" mentioned in General Order No. 30. [1] It is, of course, well established that if the Board had before it some evidence upon which it could base the decision it reached and its action has not been arbitrary and unfair, the courts cannot go into the merits and set the Board's aetion aside because in the court's opinion the Board misjudged the evidence. Lewis v. Frick, 233 U. S. 291, 300, 34 S. Ct. 488, 58 L. Ed. 967; Low Wah Suey v. Backus, 225 U. S. 460, 468, 32 S. Ct. 734, 56 L. Ed. 1165. It is equally plain that if the Board has acted in an arbitrary and unfair manner, and directly contrary to law, and there is no evidence before it upon which the exclusion can be based, the courts have the right to set the exclusion order aside and order the alien discharged from the custody of the immigration officials. The decision of these officials must find adequate support in the evidence. Kwock Jan Fat v. White, 253 U. S. 454, 458, 40 S. Ct. 566, 64 L. Ed. 1010; Zakonaite v. Wolf, 226 U. S. 272, 274, 33 S. Ct. 31, 57 L. Ed. 218. It is undoubted that a decision of the immigration officials holding an applicant not of a status entitling him to admission is not to be rejected in habeas corpus unless it resulted from manifest abuse of power and discretion. Tulsidas v. Insular Collector, 262 U. S. 258, 43 S. Ct. 586, 67 L. Ed. 969. But if the record discloses that these officials have exceeded their powers, the alien may demand his release on habeas corpus. Gegiow v. Uhl, 239 U. S. 3, 9, 35 S. Ct. 661, 59 L. Ed. 1493. And if the Board |