622
months and 20 days, at $150 per month, would make $400 more, or a total for wages 0[$583.33. Add to this nine days' board in New York, at $5 per day, $45, and $10.50 fare from New York to Philadelphia, and we have a total of $638.83, as the largest amount to which libelant could have been entitled in the way of credit at the time of his discharge. This calculation omits charge for board in New Orleans, as the date ofeniployment is uncertain, and no amount proved to have been paid. . In the'supplemental libel libelant admits having received from respondent the following sums, to-wit: · $300 In New Orleans, 50 In New York, 275 At various times after December 14th, Making, · $625 -To which should be added, as proved to have been paid by Moroney, agent, and not credited in either libel, $22.50, making a total of payment of $647.50. In other words, the most liberal calculation to be made in favor of libelant, and from the earliest date at all compatible .with the evidence, shows that libelant has been overpaid, and has 0,0 just demand against the respondent for any of the. matters propounded in either his original or supplemental libel. This finding renders it unneCElElsary to go .into the question of maladministration, and. the failure of the libelant to account for moneys disbursedand expended for account of the Gulnare and her owners, during the time he (libelant) was master, as the respondent is not before the court seeking, relief therefor. A decree will be entered dismissing. both the libel and supplemental libel, with. CQsts.
THE MARY POWELL. THE PHILLIP SINNOTT. MOORE. tI. THE MARY POWELL. .:POWELL CO. 17. THE PHILLIP SINNorrr.
(District (lourt, S. D.
Pe'IJJ York.
April 14, 1887.)
CoLLniION-WXARVES AND SLIPS-'PROJECTlNG BOATS- DANGEROUS SITUATION.
. While. may be charged with contributory fa\lIt for voluntarily assuming an eX;Q0sed and dangerous sit\lation, this rule Is not to be applied, in the absence of 'any statutory or local regulation; except to an exposure clearly liable to. receive or to inflict injury in the ordinary chances of navigation, where injury is to be appr:ehended. The barge' S. lay along the south side of the Twenty-fourth street pier, North river,with her bow projecting from 10 to 20 feet beyond the end of the
2.
SAME-CASE STATED.
TlIE MARY POWELL.
623
pier, but not extending beyond the line of another vessei lying against the end of the ,pier. The passenger steamer M. P., on leaving the Twenty-second street pier, which was 550 feet below and 100 feet shorter, in a strong northwest wind, ran against the S"inflicting a blow not outBide of the line of the Twenty-fourth street pier. Held, that the S. was not chargeable with contributoryfault; that there were abundant space and means for the M. P. to have kept off, by being headed more out Into the river before casting off from the Twenty-second street pier; that the S. did not encroach upon thE. space or water that the M.P. was entitled to· use; her situation was not an obstruction to the M. P., It0r did it make her nll-vigation dangerous; and that the M. P. was legally bound to provide against the contingencies of wind and tide, and was therefore solely chargeable with fault.
In Admiralty. Goodrich, Deady Platt, for the Sinnott. WhiteMad, Parker Dexter, for the Mary Powell. BROWN, J. Upon the facts of this case I cannot find that the' Sinnott; while lying along the south side of the 'Twenty-fourth street pier, North river, projected beyond the end of that pier any further than the outer line of the other vessel that was moored against the end of the pier. The barge had been in that position'a considerable time. She was' not in motion, and she was· struck by the Mary Powell just after the latter had left her usual landing at the foot of Twenty-second street, bound up river. . Whatever my own views might be as regards the duty of vessels, in theJnterests of safe navigation in this thronged hllirhor, not to allow any part oftheirhulls to project beyond the corners ofthe piers. or lliS regards the circumstances under which such projections should be deemed so dangerous lliS to be held contributory fault in case of a collision, my decision 'in this ,case is controlled by the'case of The Canima, in which, upon appeal, (23 Blatchf. 165,) the decision of this court, (17 Fed. Rep. 271,) holding the projecting' boat in fault, was reversed. That case is undistlnguishable in principlel so far, as I can perceive, from the present. The 'subsequent cases of The Fort Lee, ante, 570, and The Margaret J. Sa:i/ford, 80 Fed. Rep. 714, in- both of which I held the projecting boat in fault, seem to me quite different from this ClliSe and from that of The Canima. In the former case, the· projecting schooner obstructed and interfered with the usual and relliSonable course of the ferry-boat in entering her slip,-'-a course that the latter was entitled to take; and the position of ihe schooner was also in violation of the harbor-master's rules, which re{).uired boats not to obstruct 01' interfere with ferry-boats. In the case of The Margaret J. Sanford. the Tantallon was held chargeable with negIi-gence,·because the canal across which she partly projected was a public thoroughfare, which was narrow at best, and which could not be encroachedupon without making the plliSsage dangerous to ordinary navigation. I therefore held 'the Tantallon in fault for that encroachment. No similar special circumstances exist in the present case. The distance between the Twenty-second street and Twenty-fourth street piers was -over 550 feet of clear water, and the upper pier projected into the river less than 100 feet beyond the line of the Twenty-second street pier.
'624
FEDERAL REPORTER.
Neither the mooring of the other vessel at the end of the Twenty-fourth street pier, nor the projection of the Sinnott to the outer line of that vessel,can fairly be held anyencrQachment upon the space or the water that the Mary Powell was entitled to use, or which was any need of her usinp;, in approaching or leaving her pier at Twenty-second street. The Sinnott vi0latedno regulation, and she certainly did not make the navigation of the Mary Powell dangerous or hazardous, or in any way substantially tend to complIcate her movements. The Mary Powell had abundant space and opportunity to clear the vessels lying at the end of the Twenty-fourth street pier, and, in the language of 'l'he Canima, "had no business to be where she was" when she struck the Sinnott. The fact that a vessel "has no business to be where she is," or to go where she goes, seems to 'me chiefly pertinent as respects her own fault. As rtspec'ts the other vessel, the question is whether she has any business to be where she is, and whether she contributes to the injury by her fault also; and· thtl inquiry whether a vessel, voluntarily moored in an ex'posed position, is or is not in fault because of her exposure, and of her liability to be injured herself, or to injure another vessel, by some accident or mistake or fault· of the latter in approaching her, is doubtless a question of practical judgment, to be determined according to all the circumstances of the situation. Bya dangerous exposure, I understand, not the.mere possibility of injury through some mischance not reasonably likely to occur, but an exposure that is clearly liable to receive or to inflict injury in the ordinary chances, mistakes, and hazards of navigation; such as are to be reasonably apprehended as liable to arise. In this case there was certainly quite as little ground to apprehend danger as in the case of The Canima. The evidence indicates that the blow of the collision was not outside of the line of the end of the pier itself, so that the Powell would have run into the pier, if the Sinnott had'not been there, unless she could have stopped before going ahead some 18 feet further. In order to get away safely, it was merely a question with the Powell how much she should be headed out into the river before casting off frorp the Twenty-second street pier. There was nothing to prevent her being headed round just so far as was necessary for safety. She was headed around as far as was supposed to be necessary, but, as it proved, not enough. The mistake made was one of judgment by the Powell's officers; and it occurred, naturally enough, in the very wind that prevailed; just as the Canima's collision was owing to the high southerly wind .and strong tide. In neither case is the general skill and judgment of the officers and pilot impeached. But they were legally bound to provide against such contingencies of the wind and tide, or pay the damages inflicted upon others that were without legal fault. Decrees may be entered accordingly, with costs.
SENIOR
'I).
PIERCE.
625
CHADBOURNE 11. GERMAN-AMERICAN
INS. CO.
«(Jircuit (Jourt, S. D. New York.
July 28, 1887.)
COSTs-TAXATION-REMOVAL OF CAUSE-COSTS IN STATE COURT.
After the removal of a cause into the federal court a party cannot, on recovering judgment, be allowed the costs prescrilled by the state statutes up to the time of removal, unless such items are taxable under sections 823, 824, Rev. St.
Roger Foster and Samuel Blythe Rogers, for plaintiff. Wm. D.Murray and Luke A. Lockwood, for defendant. LACOMBE, J. This case was removed from the state court after service of notice of trial. Plaintiff has prevailed, and presents his bill of costs. Upon taxation, he claimed to be entitled to the costs prescribed by the state statutes up to the time of removal. The clerk disallowed these items, and plaintiff seeks to review his action, relying on the report of an anonymous case in 13 Abb. N. C. 54. It is therein stated that in that case Judge WALLACE ordered that "the defendant recover the state court costs up to the time of removal, and the statutory costs in the United States court.subsequent to the removal." I have communicated with Judge WALLACE, and learn- from him that the report given of this case is inaccurate. The order signed by him was one, the form of which was agreed to by both parties, and no deCision such as is above indicated was made by him. The rule laid down in this circuit in Clare v. National City Bank, 14 Blatchf. 445, has been in no way qualified and is still in force here. The clerk's taxation is affirmed.
and others
'V. PIERCE
and others. 1887.)
(CirCUit (Jourt, S. D. [()'/Da.
1.
FEDERAL AND STATE COURTS-CO:NFLICT OF JURISDICTION-PROPERTY UNDER SEIZURE.
Property'iu the possession of an officer of a state court uuder legal process is in the possession of that court. and by that reason within its exclusive jurisdiction; and the federal courts, by replevin or any other process, cannot disturb such possession. l And in questions not invotving the constitution and laws of the United States, the jurisdiction of a state court. having first attached by seizure and custody of the property under process, remains inviolate from the interference of a federal court. irrespective of the rights of the parties or the validity of the proceedings. l
SAME-RIGHTS OF PARTIES-VALIDITY OF PROCEEDINGS.
I Respecting conflict of jurisdiction between courts of co-ordinate jurisdiction, see Melvin v. Robinson,' pod, 634; Kohn v. Ryan, po,.t, 636; Connor v. Hanover Ins. Co., 28 Fed. Rep. 553, and note; Domestic & Foreign Miss. Soc. v. Hinman, 13 Fed. Rep. 165, and note; Davis v. Life Association of America, 11 Fed. Rep. 781, and note.
v.31F.no.1l-40