1I
";;1.
FEDEiil' iiErolirilt,'vol.
40.
tJf the ofparlies, during of the contract, the authorities sustaining trly view of this numerops. 'StleWbart'.Ag. §§ 72.158; 161, H>1,'168j 179;',108;1 add. Cotlt. §M; JiUens, 1 Wan. 369; Pol.Cont. 0,27,' 528; ,Iris:urance, Co. v; Kase1J, 25 (lrat.'270j Grim v'. Byrd, 32 Grat. SOO; V"eazie Willia'TM, 8',How. 134;' '(}fump v. (70., '7 Grat. 352; Norring(()lt v. Wright, 115U; S. 1'$8; 6 Sup. Ct. Rep. 1,2; Bannerman v. White,ro C. B. (N. 8.)844j 2 Add.Cbnt: §§ 625,,626; Smith v. Rich-
v.
'3Mar.;:&R. 2; SalmGrf,V'
&;P. 211; Wo,ocJv. Srmth, 4 Car. 77; Eristowv.Whitmo/"e,9 L. Cas. 404; 'Behn V..Jtu.hie.98, 3 &'8. 751j'LOtvber v. Bangs, 2 Wal1. 736, 737j Glah'olm'v.lIays, 2 Mah.&G. Booker, 1 416; Mel'Blng. N. C. 29;1Ja:visrm v. Lingen, 113 U. S. 5: Ct. Rep., 346. ' " '
38,
Cave".. Coleman,
n.
4q"
Von
, i' "
, ,,(Dl8trtciCOUrt, b.NeW "', t. ',' ,'.
of-., "
"
:.
10,1880;) ,,' ',' ...:'
COUtBJON...vllissl!t8:
'"
M, and b,u-Il: So ,were Iy;ing at dock securely with their bows'poin'tfuK In"'the saine direction. The S. was astern of the M.,about 5 f,eet, and ,dtew OO:feeHO!iward'and,19!faet aft: ThEiM;drew feet; The'depth of water ' <look high-tld,e , r' in feetj witll a rise an!i :(all' of 6. feet. ,The inshoril ancbor of,the S., weigblng4,OOO,p01:mds\withasbank 8 fe,et long, hung from her 'p6n' tibW; '80 tbat'the 1iWGlt was even !Wl'tb, or the eurfa(',e of the water.f (,liee,M.Was jn: bYl tpe !S. !'nd othel-" an4'!i'rM unable to move In any dii'ectic'jri. ' The'dock was full of boats, ana ice with the wind blowing off shore: 'I t'Wben, the' ttdewas half ,ebb, abd th6'S,'aground, the anehotof'the S. caught , e,o! the M.O,D, sta,'rbOard",stern, quart,e,r, ana, ',the, M. waspareened ite port pItched forward. The anchor of, the S, was lowered, not enough to Cllear ttie M., as,tbe tide receded',8nd"t'he flllke;penetrated the seamiof the M., caussank few>llour,a. 'J;lliw" tllall the S. wl¥Isolely te blame, , ,. as her avcnor was not properly stowed. l ' '. . : - j ' l :)
A+
Docx...;,NJlGLIGBNTSToW1NG' OF ANCHOR.
',; !
,l.
l
In, Ai({mirdltf. 'Libel'fordan1ages." p; lly7Abid'« Z1:1Yris1pie; libMant.,' " , (, Sturges, ., (",r" , '" I d t :' ;; : ' " . ; ,: ) ;'
,i'
!"
/,
'
o
'W/.tF.s',i.1"
i
Iibelk'ht
the 'W;ltp
to damagesaUeged tobave been ,T:','A,:,Mclnt1.re, ih contact with BlIChor on the. 15th of Februa,ry, under n,'tie,'',13',f ',B, ssels J been ,:lY,', ip"g seve,rlltl m !ersey, dIrectIOn", and. ,tbelr port ,sldesse'ste'rn '" The Sontag dIstanCe exceedll1g at
pomtnlg In
'Wlnl'aste111' tit the
176 dock/lt 21 flilet,WJth The lUshore 8::I1chqrof 4,OQO with feet lon.g, from h,er p<lrt bow, w;as.. even with or above the s\lrfac.e of the , water., .Tb,e two had remajned in tl1eirrespel,'ltive out either"uQtil, of the accid.ent. On that ,day the McIntyre was hemmed in ,by,tije Sontag at her stern, and by other boats .. and was unable to move in any .direction. The dock wits full of boats andftoating ice, with' the Willd blowing strong from the north-west and off shore. At about 4 P. M., the tide being half ebb, and the Sontag 'aground, the captain of the McIntyre discovered that the anchor of the Sontag had caught under the bilge of his boat, on her starboard stern q.uarter, and, that she was careened to port, immediately caned to the people on the Sonand pitched forward. anchor,wh,ich ,vas doQe,but, not suffiqiently to clear tag to the McIntyre as the tide receded; and as it consequence the fluke penetrated a seam of the boat, making a V-shaped .fracture; and causing a in 'afewboul'S. . ,;,. ". . .' ", negligence ,on the part,of tbe,Sontag:in leaving her anchor suspended in the manner described, when, according to rdlll and usage, it should have been carried at cat-hetid,9r.,hauled in. The answer admits that the injury complainetl' of"\vas';tilllIsed by the anchor, but alleges that she had remained iIi 'the saU1e place. S'e\reral days, with her anchor hanging from without 'doing' any or notice toJ:ell1ov;e i'.: and.thatthe harm ,an.1 without was pro¥ptly'1trweredon req.uest.The' the eXIstence of allY ruM 'cfi' custom whi9h,requires 'In-shoteanchpr ofa vessel, nioored'asthe in, and the '.was'caused prhnarily' by the' 'iriattentiotlof the' Mcintyre's ,captain'toU1'e fastenings of hls'p<Yat; which were allowed' to become'lobse, .. ahlllet'lier'sag down 011 the Sontag's anchOi": is no proof'ofnegShE!' had}liken' 'her berth' first, the ligence on tliElpart in afterwnrds'; abd, if it was incunlbent on eithertQ keep at a proper diStance duWoe)onged to the bark; so long a's thecanill-boat remaitied stationary. TM evidence does not show *asany materialchll.llge in thepositioli of the The . 'situa'tionrequired some vigilance on the part of both vessels:' ·vessels, 'mddred at the same wnlli:fj lying so near to each other as thlise tliere will' be more SOr less playori 'their lines, with 'the·tiseand fall ofthe :tida, and some danger of collision;a1\d iUs .the duty Of each'so to disposed! its ·tackle' inj uring the 'other, in case theycO'me together; 'The Sontag fault'by failing toperfonn thisdJ1ty"" The expert testitnany provei=dhe genehl,l CtlstOnl and 'Ullage . to be'tha:t'veilsels wharves or' piers; !latllesa Were;, must ' ba\re their in-shore anchors catted, and the off-shore ones hauled in on the forecastle. Such also is the rule f',stablished by the board of harbor masters of the port of New York, (rule 9.) The custom is founded on sound prudential reasons, for mutual protection in case of collision; and
fali Qf
feet.
.mia, putPo.se of tbe,rule is to
just such accldents lis dne which the McIntyre; smce, If the Sontag's anc];l,or had been catted, 'tm; '«ccidtent could not have occurred. But. independently'of local cus· toms or rules, the maritime lawreql1ires that vessels,when 'navigating narrow rivers or coming into docks, should have their hamper properly stowed. TMPalrMlto, 1 Biss. 143; The Kolan, 9 Ben. 198, 199. The is thit the Sontag was solely to blame; and there must be a decree 'for the libelant, with an order of reference to ascertain the dam· ' , '
_,;<1
CurlLb". ':;',
COUCH.
(r1f,8trict'court, E. D. Stmth. CaroZtna. October 22,1889.) i
ADllIRALTY...-JURIllntO'1'ION.
Admiralty will refuse to take jurisdiction fQr injuriEl& lnfticted by the master of a foreign vessel on a foreign' Se'aiilll,U while on thll high seaS, where the relatiOJls of libelant to the ship have;been settledb,y his and respondent.. con·
s,uls, ,-
C. B. N(F1"throp,}or libelant., J. N. '"
InAdniiralty.
"',
Tlw libel is 'tor personal injuriesinfticted by the .ter<;>f the' Resqlve,n on on the high seas ,off the Canary i ·islands. '. Wales, on. steam-Ship Resolven, ,slgIpnPi as a of the Isle' of Malta. HIS en· gagel,)1ent year, and. was boun.d for the port of Char!eston. "Rea,c;hing this libelant the French c?nsul, allegmg that be. was a French, Pltlz611 · and askIng hIS good offlces m ob. "taining arelelj.lle from the shipping'articles. The consul saw her consul, and,after some, discussion and negotiation, libelant his discharge,. received the balal1cedue him for wages ,tQ and rel(Jased the ship. The steamer is about to put to sea was filed this .m9rning, and the was ar· ,rllsted. The.1:lIstioIl is between .. ! The cause of action was on the high seaSon a foreign vessel·· The cause, however, is within the ju(The Bdg6nlAJ-nd, 114 U. S. 362, 5 Sup. Ct. Rep. "J60')"if, i, t. Ch.oO,ses, to t,ak,e ju,r,iSdic,ti9 ,n. Th,e relati,ons ,of libelant to th,is , ,by his own consul with the consul of the respondent· discussed tbese when they made the settlement· . 'r',I'hese o,irclfUlstances I wiUn9tinteriere. Dismiss the libel. .J1Hder a#
',)
i"
"DELBANCO tl. SINGLETARY.
\71
DELBANCO V.
et aL SAID:
LEVY
et at. v.
et ale
(Oircuit Oourt, D. Nevada. JulY 29,1889.) 1. REMOVAL 0., 'CAUSES-'rIMIil OJ!' ApPLIOATIOl'l'.
Defendants demurred to \llaintiffs' complaints in tbe state conrt. The demnrrers were b'eard and sustained In the state conrt, and plaintiffs were given leave and time to file amended complaints, which they filed. .To plaintiffs' amended com· plaints,defendants demurred, and at the same time filed their petitions and bonds for removal of the cases to this court. ,. Helit, that the petitions and bonds were not filed within the statutory time, and that the cases must be remanded. Under 79 of this court (ninth circuit) the plaintiff may, at any time after defendant bas filed and submitted to tbe state court his petition and bond for removal of the cause, procure a transcript of the record of the cause from the state court, and file'the same in this court, and, after service of notice tbereof,as prescribed in said rule, this court will take jurisdiction of the case for all purposea. '
.. SAME-FILING TItANSCRIPT-RULE OJ!' CoURT.
(sutzab'lUl biJ the OOun.)
Motion to Remand. J. A. MacMillan and M. S. Bonnifleld, for plaintiffs. W. F. Good, Wm. S. Bonnifleld, and W. C. Belcher, for defendants. SABIN, ,J.' The points involved in each of the above cases are substantially 'the same, and the cases are considered together, the same ruling being applicable to each case. The actions were begun in the state court, and removed to this court. Summons and complaint were served on the defendant Singletary, May 27, 1889. By state statute defendants were required to plead or answer within 10 days after 'the date of service of summons, exclusive of the day of service, i. e., June 6, 1889. On that day, to-wit, June 6, 1889, all of the defendants in the actions appeared by counsel, and filed demurrers to the complaints on various grounds. On June 8th the demurrers were heard by the court, and sustained, 'and plaintiffs were' given 10 days within which to file amended complaints, and defendants were given 20 days after service of said amended complaints to answer thereto. On June 15th plaintiffs served and filed amended complaints in each action', and on July 3d defendants filed demurrers thereto, together with their petitions and bonds for , the removal of the cases to this court, and on July 5th the state court ordered the cases transferred to this court. Under rule 79 of this court plaintiffs caused a transcript of the record in each case to be filed in this court on July 8th, and they now move that the cases be remanded to the state court, on the ground that the petitions and bonds for removal were not filed 'within the time required by the act of congress of August ·13, 1888. Under repeated rulings of this and other circuit courts it is clear that the cases IDustbe remanded. It hal! been repeatedly held by the su'premecourt, under the -removal act of 1875, that the hearing of a demurrer was a trial of the case within the meaning of· that act. Alley v. v.40F.no.4-12
ffl;DERA.L REPOR:J;ER,
yol. ,40.
Nou, 111 U. S. 472,4 Sup. Ct. Rep. 495j SCharffv. Levy, 112 U. S. 711, 5 Sup. Ct. Rep. 36Q; v. IIuntington,121U. S. 179, 7 Sup. Ct. Rep. 855. It has also been repeatedly held by the same court, under the removal act of 18'(6; that &t which the cause could be first tried" was the first term after issu'e joinea., when, in the ordinary for trial. and be tried; and course of procee<;Hngs, the cijse. could be that, where the trial of a case had been continued over the first term of court at which it could be tried" either by order of court or stipulation "M fpr'nh:ilovaJ of tJ;l'e, <;:llSe, filed thereafter, came too late·. BabbiU v. Clark, lOS U. S. 606; .Chr Co. v,. Speck, 113 U. S. 84, 5 Rep. 374j, Greflo/'yv. U. S. 742,5 SuP/Ct. Rep. 743; OleographCJo., 10 Fed. ,Rep. 17; Theurkauf v.Ireland, 11 Fed. Rep. 769j KeeMJI,y. 12 Sp.wy. 39,39 Fed. , Rep. 629: ,,'E'rom these','anthoritiea will ,be seen, tbafparties desiring cases to the' national courts have always been held to a strict, with ,the statute thereto.' " The removal act of 1888 is much more restricti;\Te than that of,1875. The right of removal is confined to th\defendant, and he must file his petition and bond for removal "at the tIme, or any time before, the defendant is required bytbElila,ws of the the'fulesof thestate,eourt in which' is ,broUght; to) answer or, plead to the declaration or complaint of the plaintiff." Under the removal act of 1888 writa of er,not to an ordljlr reJIlanding, n c8:S6 t9 the, stateCO,urt. did, it cannot 'lor a momeRt he but that thesupretne 'C9QJ;t the! to llistIigt complia,nce, with th.e statqte ·inlilL.respectB.; In the:cll&es a,t1;>arthe not file<l . to the .amended cOll1plaints and after on the, ,first were , T:hi/3 was too, late. ;,,' Wedekind V., $outhern 'Pac· .Co., 36 Fed,. Rep. 279j,DW1hY. 38 Hurd.v;. Ger;e, 38 Fep. ,Rep./537j,. f(aitel, v.. Wylie,J38,Fed. Rep. 8E)5. ,We think it will be: bet,ter for l;tIL will save time. litlld expense.to if it is 'pa,rties desiring. :rem()ve their fro.Illthe andcomplY'strictly of rela,tive tllereto; that courts not , with the author,ity to,and wm npt, bydoubtfuJconstruction, enlarge, OfiUodify the ,clear of, tqe statijte,., The statute is clear ;aill)ple ,as tothe time when ,the.·petition and bond fOl'removal must he, filed, and partiel'l must comply with it. In Wedfkind v. Pac. ;C'p.,.Blfpra, b-ythis court" an ttlight !1.rise tha,t posfliblyan, :(millf of the extend,i,ng<lefendant's tiJ;ne to plead , b,eCQI¥ltrued ,as extending his ,which to fi,l,e his petition and, bo,nd,for.re, moval of tPli\'{,)!louse. ' If ai'is(¥J'in thatcase},veWij;h here to correct it, as under the authorities cited it seems clear that !Wch ,'an fitllte- i(lQltrt .cQuld : ,any ,!!UQQefl'ect.·The state court. c,oplji,nQt, bY'orde:r prpvisi911S;()f Iln, ,nOr ,coll,fel', thl$ .,w,hich ';"':;' ;','J ' , " ;, ,."
,fi),w,
DELBANCO 'D.
179
It is urged on the part of two of the defendants that, inasmuch as the summon$ and complaint were served on only one of the defendants, the time of the defendants n6tserved to plead or answer must be 'considered as com1l;leucing at the date. of the order of court sustaining the demurrers,and giving plaintiffs leave and time to file amended complaints. We think this point lmtenable. The defendants all appeared at the time of filing the demurrers to the first complaints, aud judgments were had.in their favor upon said demurrers. Such appearance was a waiver of service of summons, and necessarily of the intervening time between service of summons, had they been served, and the time at which they filed their demurrers. Apd further, the actions are not separable, as between the defendants, ·and they could not be removed a.s to two of the defendants only. They must be removed as to aU or none. It is further urged bY'defendants that these motions to remand are prematlire, at the present time, and cannot now be entertained or heard by the Clourt. It is contended that, as the act only requires the defendant to file a copy of the record of the case in this court ,(on the first day of its then next session, * * * and, said copy being entered as. aforesaid in said ·cii'cuit oourt, the cause shall then proceed in the same thanner as if it had been originally commenced in said circuit colUrt;" therefore the courtnanllot entertain these motions until the next term of court, to-wit, next November term or session. In support of this positionco\1nsel cite Railr:oadCo. v. Kwntz, 104 U.S. 5. We do not consider this case particularly applicable to the cases before us. The point here.. involved was not considered or discussed in that case, but r:ither the reverse, tha:powerof the circuit court to permit a copy of the record to be filed after the first day of the term when it should have been ,·filed. And thesupreme court held that, in a proper,calile, on cause shown, the circuit court might permit the record to be filed after the first day of the term at which it was due. But the opinion in that case does not intimate that the record may not be filed in the circuit court at any time after the petition ann bond are filed in the state court, and before the next term of the circuit court, by any party interested, other than the removing party, or that, being so filed, the circuit court would not have full jurisdiction of the case. Counsel also cite Railway 00. v.Lumber, 00" 36 Fed. Rep. 9. This case is closely analogous to the caseS before us, but we Ilrenot able to concur in the conclusions reached in thatcaEie. Indeed, we think the tendency of the· authorities cited and referred· to in that case ii'l to an opposite result.. It does not appear from that case, Il.sreported, whether or not there is any rule of court in the eighth circuit regulating the matter of procuring the record from the state court by any party other than the party seeking to remove it, and filing it in thecircuit'court. From the fact that no mention is made of any such rule of court, we· infer thaUhe court hl18not adopted any sucb ruie in referen<le'thereto, as prevails in this circuit. Rule 79 of this circuit pro\'ides : . proceedings bavebeen perfected in a court to remove from such cOurt to this to .any statute of t,he