672
FEDERAL
THE W ALLACE. 1 ."j'
COMFORT !'.THE WALLACE.
(District Court, E. PILOTS - NEGLIGENCE MAIN CHANNEL.
n. NetUJ
York. November 9, 1887.) SHIP TOUCHING BOTTOM .
SWASH. CHANNEL -
ICE
IN
Libelant, a pilot, took a ship to sea through the Swash Channel. On the passage she touched bottom, and damaged her keel, and in this. action by the pilot for his pilotage fees the vessel set up, the said damage, and alleged it to have been caused by the pilot's negligence. The evidence showed that the "essel was in the channel, the depth of Water in which exceeded her draught, when she encountered a heavy and unusual wav.e"which lifted her, and caused her to strike; that the reason of her not taking the main channel was the presence in the latter of ice; and that libelant, before starting, had been warned by the owner not to take the ship through ice. Held, that no negligence on the part of the pilo,t was shown, and that he was entitled to his pilotage fees.
{krpenter &: M08he:r, for libelant. . Wing, Shoudy '&: Putnam, for claimant. BENEDICT, J. This is an action by a pilot to recover his pilotage for taking to sea. the ship Wallace, in February, 1885. The pilot took the ship through the Swash Channel, and, while passing through the channel, the ship touched the bottom, and damaged her false keel to the extent of about $200. The defense set up is that "the libelant, in whose sole charge the boat was, directed her course through the Swash Channel in so negligent and imprope!' a manner as to cause her to touch bottom." The negligence here charged is not keeping the vessel. in the channel proceeding through the Swash. .This charge is wholly unsupported by evidence. The negligence contended for in the brief of the claimant is in "attempting to take the ship through the Swash ChanneL" The answer does not permit such a contention, but, if it did, the contention must fail. It is proved that the Swash Channel, although narrower thlln the Main Channel, has the deeper water, and is Constantly used by vessels coming to and departing from New York; that, when this ship went through, the depth of water exceeded her draught; that the cause of the ship's touching bottom was a heavy and unusual wave,. which was encountered while in the channel, by which the ship was lifted so as to cause her to strike bottom; that when the pilot reached the Swash Channel there were large quantities of ice in the Main Channel, and before starting the pilot had been warned by the owner not to take the ship through the ice, because her bottom was of soft wood. These circumstances relieve the pilot of the charge of negligence. Attempting to take the Swash Channel under any circumstances is not to be held negligence, and I am not willing so to hold. The libelant must have a decree for the amount his pilotage, with interest and costs. 1 Reported
by Edward G. Benedict, Esq., of the New York bar.
F.ALES
V.
CHICAGO,
M. &. ST. P. RY.
CO.
673
FALES, Adm'x, v. CHICAGO, M. & ST. P. Ry. 90. «}irouit OOurt, No D. Iowa, .E. D. November Term, 1887.)
1.
REMOVAL OF CAUS.ES-CrfIZENSHIP-AoT OF MARCH ·3,
J.
1887. Act of congress of March S, 1887, § 1, provides that the circuit courts of the United States sball have jurisdiction of civil causes between citizens of different states,Bnd .that, when the jurisdiction is founded only on diverse citizenship, the suit may be brought in the district where either the plaintiff or the defendant resides. Id. § 2, provides that civil suits of which the circuit court has jurisdiction. and which are brought in the state courts. may be removed to the circuit courts by the defendant if a J!9n-resident of the state. An action was brought in the' district court of Dubuque county, Iowa. the amount involved being over $2.000. The plaintiff was a citiien of Iowa, and the defendant of Wisconsin. On the application of the defendant the cause was removed to· the circuit court of the United States. Held. that the removal was authorized by the statute, the defendant not being a resident of Iowa, and the cause could not now be remanded to the state courts.
Corporations 'are citizens and residents of the state under the laws of which they were created. and they cannot, by engaging in business in another state, acquire a residence there. 8. SAME-PLACE OF BRINGING SUIT-AOT OF MARCH S. 1887. The provisions of act of congress of March 3, 1887, § 1, regarding the place of bringing suit by original process in the circuit courts of the United States, do not applyin determining the question of jurisdiction on an application for removal of causes from the state courts.
SAME-CITIZENSHIP-CORPORATIONS.
At Law. Motion to remand cause to state court. H(!/flderson, Hurd, Daniils Keisel, for petitioners. W. J. Knight, for defendant. - SHIRAS, J. This action was originally brought in the district court of Dubuque county, and upon the application of defendant was removed to this court, whence it is sought to have the same remanded for want of Jurisdiction. . The motion to remand requires for its determination a construction of the second section of the act of March 3, 1887. To ascertain the true reading of this section, it is necessary to collate with the several clauses thereof portions oOhe first section of the act, as that section is expressly referred to in the second section, and is thereby made part thereof. Reading the one, therefore, in connection with the other, it appears that removals from the state to the federal courts may be had in the following classes of cases: . (1) Suits of a civil nature, at law or in equity, arising under the constitution, laws, or treaties of the Dnited States, involving over $2,000, exclusive of costs or interest, may be removed by the defendant, whether hebe or not a resident of the state wherein suit is brought. (2) Suits 'of a civil nature, at law or in equity, in which the United States are plaintiffs, .without reference to the amount involved, may be removed by the defendant, ifhe ian non-resident of the state wherein suit is brought. (3) Suits of a civil nature, at law or in equity, between citizens of different states, involving over $2,000, exclusive of interest and costs, v.32F.no.1l-43
