,i.
!''1'BE'ATLANTA.·
!T'i.
GSD
temporarily absent from ,the Chickasaw, and that the mate, James Rice. was temporarily. in charge. 'It' is neither claimed nor; shown that the master's absence was unauthorized, wrongful, or· negligent. It is 110t legedorshown that he had any conne,ction whatever with the negligent 8,cts charged against the steamer, or her owners. He, does not appear to have given the mate any commands or direction in reference to the flat. The mate was not aeting,as his agent in what he did, but as the agent and employe of the owner of the Chickasaw; and how theabsent master can be held responsible personally, under the circumstances, for the action of the mate in command, I cannot see. But, aside from this, when it is established that the action of the mate was lawful, and not performed in a negligent and. reckless marmer" that will relieve the master 8S well as the Chickasaw. In the opinion of this court, no fault or negligence' on, the part of appellants in. not protecting the flat against floating drift, in cutting .the flat loose' under' the circunistances, is established. It follows that the decree ofthe district court is erroneous, and should be reversed, which is accordingly so ordered and adjudged, and that the libel be and is hereby dismissed at libelants' cost.
THE A'rLANTA. 1 THE BYRON M.
JiI'.SS et at v. THE ATLANTA. ALDRICH v. THE BYRON'M. (DiItJrlct Court, E. D. New York.
March 19,1890.)
CoLLISION-BBTWEBN BAILING VBSSBLS-Il'lEVITABLB AOCIDBNT-SNOW-STOltH.
Where twosaUing v:essels came in ccllision outside of New York harbor, and the evidence indicated that the vessel bound by rule to avoid the other was under shortened sail, and that a blinding snow-storm prevailed at the time which rendered it impossible for either vessel to be seen by the other in tIme to avoid the accident, it was heW, that the collision was an inevitable occurrenoe, for which neither vessel was responsible to the other.
In Admiralty. Cross-actions for damages by collision. Owen, Gray & Sturges, for the Atlanta. Wing, Shoudy & Putnam, for the Byron M. BENEDICT, J. These actions arose out of a collision that occurred between the brigantine Atlanta and the schooner Byron M., on March 30, 1 Reported
by Edward G. Benedict, Esq., of the New York bar.
FEDERAL'. mIlPORTER,
vol. 41.
1889,<on ,the high 'seas, outside'the light-ship off New York harbor." The tim60fthe collision was abont 2:30in the mCirning. Wind stthe N. N. W. The Byron M. was sailing close-hauledjthe brigantine Atlaritaalso sailing on the wirid, with shortened sail.: -Neither of the vessels changed their courses prior to tbe collision. :The'Byron M. had the privileged tack. The decision of the case, in my opinion, turns on the question whether, as is alleged by the brigantine,at'the time of the collision the vessels were sailirig:ih a blinding or, as is alleged by the schooner, tJ:i:le weather was fairly clear. Upon this question the conflict of testimony is strong, but my opinion is that the weight ofthe evidence is in favor of the proposition that I the time of the collision, the vessels were enveloped in a storm of blinding snow, which rendered it impossible for either vessel to be seen from the other in time to doahything to avoid collision. This determination renders unimportant" the point made in behalf of the schooner that the man on the lookout orthe brigantine was engaged in other ,duties upon the forecastJejssalso the further 'point that the failure of'the brigantine to call all the persons who were',oQ her forecastle r&:quires the presumption that the witnesses not producAd would have shown an inattention on the part of the lookout. It is proved that the brigantine was under shortened sail, and in such a. storm, as the evidence proves, neither the inattention of the brigantine's lookout, if proved, nor the absence of the master from the deck of the brigantine, if proved, nor the failure to sound a horn on board the if proved, nor the absence of any orders from the master after he came on deck, could be held to have contributed to the disaster. UP9U the, evidence, it is not seen that anything possible to be done on board the brigantine more than was done would have avoided the collision. As I view the case, the collision was an inevitable occurrence, for which neither vessel is responsible to the other. Let both libels be
,
..
AMSINOK V. BALDERl:lTON.
64'1
AMSINCK
et al. v.
BAWERSTON.
(OirCl/lf,t Oourt, D. Rhode 181,and. June 15, 18!l9.) BBUOVAL 011' CAUSES-NoN-RESIDENTS 011' DISTRICTS.
Under Act.Cong. March 8,1887, c.878, § 2, authorizing the removal into the plrcuit by a defendant, being a non-resident of the state of an action ofwbich circuit courts "are giveu original jurisdiction by the preceding section, " an action may be removed, though by the previous section,· requiring suits between citizens of different states to.be brought in the district of the residence of "ither plaintiff or it could not have been originally commenced in the districti neither party being resident therein.
At Law. On motion to remand to state court. This was an action at law, to recover a sum of more than $2,000, brought November.7, 1887; by citizens of the state of New York against a citizen of the state of Massachusetts, in the supreme court of the state of Rhode Island, and removed into this court upon the petition of the defendant, March 22, 1888. The plaintiffs moved to remand the case to the state court, on the ground that neither the plaintiffs nor the defendant were citizens of the state of Rhode Island, and consequently this court could not have original jurisdiction of the action, and there" fore the case could not lawfully be removed into this court, under the act of March 3, 1887, c.' 373, the material provisions of which, as amended by the act of Aug. 13, ·1888, c. 866, in respect to clerical errors in its enrollment, are as follows: "Section 1. The circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds,exelusive of interest and, costs, the sum or value of two thousand dollars, and arising under the constitution or laws of the United States, or treaties made. or which shall be made, under their authority; or in which cOl).troversy the United States are plaintiffs or petitioners; 01' in which there shall be a controversy betweencitizeDs of dilferentstates, in which the matter in dispute, exceeds, exclusive of interoot and costs, the sum or value aforesaid; or a controversy between citii'.ens of the same state claiming lands under grants of. <Jif. ferent states; ,or a controversy between citizens of a state and foreil{n .states, citizens or subjects, in which the in dispute exceeds, exclUSive of rn· terest and costs, the sum or value aforesaid. ... '" ... But no person shall be arrested in oDe district, for trial in another, in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts, against any person, by any original process or proceeding in any other district than that whereof he is an inhabitant; but, where the Jurisdiction is founded only on the fact that the action is between citizens of different state!!. suit shall be brought only in the district of the residence of either the plaintiff or the defendant. Sec. 2. Any suit of a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties made, or which shall be made; under their authority, of which the circuit courts of the United States Bre given original jurisdiction by the precedi.ng section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. Any other sulL of a civil nature, at law or in equity, of which the circuit courts of the United States are given jluisdicv.41F.no.12-41