THE· WISOONSIN·.
'879
winch by which the timber was handled. Held that, even if the accide.l)t ocnot recover, SS, under curred by the boatswain's negligence.. the circumstances of their hiring, he and the l;Joatliwain1tere
In Admiralty. JohnJ. Allen, for libelant. Hill, Wi1l9 &: ShlYUdy. BENEDICT, J. AsstUl1ingthatwhat caused the timberto fall Qut of the sling, and, upon the libelant, engaged at the ti'ine in stowing the timber in theho1d;was negligence on.thepart of the boatswain6fthe ship, 'who for the moment was in charge of the steam-wineh by which the tim'ber wM lowered to the hcild,still the libelant :cannot recover. The opin hand was loading the ship with the lumber. The libelant was 'a stevedore, "engaged in the loading. He was selected by the. boss steve'dore to work as stevedore, bu(paid for his work by the ship's ,owner. 'The ship wasn'ot loaded under 1a contract, but by men employed' by the ship to qo the' work required. The boatswain was employed by the ship, his duties were those of a boatswain on a, ship. While hoistirig, in ,'.cargo, the ws;s run by the ship's crew, and not br the steve'dore'stnen., ,and 'the boatswain who was managing the Winch at the time '·oUne accident was not .subject to the directior(of the steveddte, but)'V.lls ·.oneofthe.ship's crew. Nevertheless. he and the libelant were fellowthey were engaged in It #ingle operilti6n, and :by the filiip's owner to the same. 'The: Hardld, 429. Bein,g engaged ina common undertaking, he '.(Ja.nnot recoVer f6r damages r.esulting to him ·from the negligence of the 'boatswain While so engaged." , ,'. '. . The libel must be , . !' . . ';. "
,',',
,THE W18CONSIN.
.'.
1
I.
J
CtJsHING, a.nd otherst1. THE WISCONSIN.
.
. .New Yorll(. · "
May 6, 1887:) . '
';.
; :
:wARD... ·
RIISK - DOUBTFUi,
.. ,
.' The stelilIl-ship W. went ashore,aud got of[ with the loss ofherruddel'.' She and staunch, and in no especial danger. but the weather was doubUul, 8r.'\.I her master desired to be in the harbol' before the fall of night. in view of her ,diS.ab,JeQ.co, ition,.T,he,1'{"··inc, u, e w, as" $4\>0.000.... The v"lu.e, pf . W.,her ca.. .. ' Q.eI4. ··· 9(lO salvage should be allowed. . , ..lReported by Edward G, :Benedict, Esq., of the New York bal'.
:88{)
FEDERAL· REl'OBTEB.
Nash &: Kingsford, for claimant. ,
In Admiralty.., WilcOx t 44ftrTts &' ,Mack,lin,; fq,r J.
'
It is not disputed that a salvagesemce was rendered to the steam-ship Wisconsin by the !?team,ship Nevada, on the occasion when the Wisconsin, having been' ashore and been gotten off, was asYork. The Wisconsin, at sisted b,y tpeN,eyada the timethf:1,seryices were. undertaken, wai!. near the buoy off island, 9f"pe.J;$crew, aided by her sails t towards the moving astern .by.the h;ubor o(New distress, having losther ruMer, lnlt, aside, from loss of her' rud4er. she was soun<,t anq staunch. She }lad !:1I3en in New York by telrgrap)I, and was, at, the, Mme awaJting awl exp.ecting the coming .of a. tl1g in acT,he was She had. cordance with her times been,Rffe,red and haddecliried it, 'when. the stean:J,-ship Nevada, a steaJller.qf the bou,nd out from N"e",X'q*. The Nevada 'Was ,reqUllsted totijrn,back and. aid 'to steer the Wisqonsin into port. , ,risk of renderiIlg 'her supply short for and, b,y mea1}s,.of hawsers at!a,9Peq. to the" of the Wiscpnsin dur,iI:\g some seven hQl1rs, she controlled the CO\lfSe pi so she, safely,to anch,or in the lower bay.. The or extra labor."The at·the She ,could anchor, and wasjustified in expecting to,pe taken in by the. tug thatqad been sent for. She was, moreover, fl,tthe v,ery m0H-th of the4ax:bor of New the sole reason why the master of the Wisconsin desired tlle assistance of the Nevada was the fear that the expected tug would not reach hirriin time to enable him to get into port before nightfall, 'and the steam-ship would be thus compelled to spend the night outside. Rudderless as the sonsin was, with the outlook of the weather doubtful, her master evidently before nightfall, By thC' thought it the more prudent cOllrse to get aid of the Nevada, rather than wait longer for the expected tugs. The value of the Wisconsin; her cargo and freight, was $505,234.37. The value of the Nevada was $450,000. On her arrival out, the crankshaft of the Nevada was found to be cracked, but tlie evidence is not sufficient to warrant a finding that the crack in the shaft occurred during the salvage service in question. .. the rendition Taking all into,cpnsideration, I am of the opinion that $4,000 will be a proper salvage compensation for the servicesrendeted by the Nevada on the occasion, in question. The apportionment of this :!lumamong. those ei:ltitled to share it is left till the entry of the final decree. " BENEDICT,
,,,,;s:in
In'
of
] Underwriters real parties In iriterest In the above suit. The point as to tbe ownership of the two'Vessela was intentionally not raised upon , trial.-[RBP.
WOOLF V. CHISOLM.
881
WOOLF 11. CHISOLM
and others.
(Owcuit OOU'l't, 8. D. New York. May 27, 1887.) REMQVAL OF CAUSES-,-PRACTICE-PETITION-Tnm
...
,
Under the act of congress of March 8, 1887, which restricts the right of re· Il\.o'ialof an action from a state court to the United States circuit court, as it then existed, Ii. defendant must file his petitiQuwithin the time in which, by the lawS bf the iltate or the rules of the state court, he i!\ required to fil,e his or plea. and not within the time whllDlle ia required or may 'ti1ean amend¢d answer. "
:Frx.mG.
On Motion to Remand. At law. Vdh Duzer &: Taylor, for plaintiff. D08 Pass08 Bro8., for defendants. 'WALJ,.AQJ, J. p})vions purpose act l()relltricUb,eright of removal of an action from it state court to the circuit eourt, as it then existed. The right is restricted as to the parties )Vho can exercise it, as to the classes of actions in which it may be. exercised, and as to the time at which an election to exercise the privilege niust be made. The defendants now invoke this act to give them the privilege otrlemoval under cIrcumstances in which it did not exist previously. They had elected not to remove, and had waived their privilege before the new,aet was passed, by waiting until after the February term of the state oourt, 'the term at which the action could have been tried within the meaning of the former removal act. Subsequently, the pleadings were amended, and the defendants filed a petition for removal with'their amended answer. By the trUe construction of the new act, a defendant must file his petition within the time in which by the laws of the state or the rules of the state court he is requited to sen'e or 'file his original answer or plea, not within the time when he is required or niay elect to file an otsupplemental answer. rhe defendants,therefore,have not complied with the conditions upon which their right to remove depends. Much less can tpey rely upon the language of the new act to revise a lost right<of removal. The motion to remand is granted. v.30F.no.13-56
"