BowER BAJlFF
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RUSTLEsI'!IRON:Co,,,,;'W'dib RUSTLESS hON Co.
ceptiOJ1ll.
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Dot 8ubject to ex-
t. SAMB. '" " ,", ," , ' " , ,: : , : ' ," , Exceptions which fail to the charges in thebUl to whteh th,eanswer is addressed, and the exact terms:of tlle answer, are'too'general tobellOnsidered. i ""i
In Equity, On'exceptions to answer." ,Blair &:Rudd,for'compw'nant. ' Witter &: Keny(fn,,' for defendant. r"·
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J.,The 6rsHive exceptions,to th*'! answer of'tbedefendanti f<>r insufficiency llre overruled because they Ttllate to new matter set up in the answer by way of defense, andnotto matWl:whichis not sufficiently responsive, to the interrogatQri,es of the ,bill. A: substantive'" defensej' not responsive to the inquiries in the bill, 'buUlonaistingof newniatterj 6:l(c!usi velf. is not the subjectofexceptioos.. ,Exceptions' only lie, to, an: insufficient discovery, or to scandal andimpertinehce., '!Adams v.lrM (h., 6 Fed. Rep. 179;U. K v. McLaughlirt,'24:Fed. Rep. 823. The r.emll.ining, tbree, exceptions to the answer ale :taken in, form' and manner entirely,too general. "The;exceptionshould l;Iave stated the 'charges in the, bill and ,the interrogatory applicable thereto to which the answer is addressed, and then have stated 'the terms ofithe aDswerverbatim, so that the court. without searching the bill and anllwerthroughout, might have at once perCeived the grounds for the excepti(}n, and ascertained ,its Buf.. fici4mC.>'."BrO!)kB v. Byam, 1 Story, 296.: The exceptions are overtuled.: WALLACE, ,f: . ,i,
KEMl' 11. BROWN _, al., i", ,
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(Dt,Btrlct Court"E. D. Loui8I.ana. DepeJDbllr,14, 1889.) ' . '. ,': ',: _ , ' """ f" ,' ' , , ' , _",: ',< ' : ;,': , .. , · · , " ;
l.ADJolI1lALTY-DAJdAGBS ON
DiSMissAr. 01!'LmBL-llAtrOiotTlI l'Bo8BOUTrOJr. , ' " one· wbo libels a ship in good faith and withOut malice, and tails in theewt, till .' Dot liable theretor in ex delictO.. , " ; On dtsJbissaI of a libel,a 'Ordss-libel which Is titit eOconnedted wit.h the _tter ohllelibel,ai must;also bedisminea.' ;:·dl :> , " " " ,· '., " " ,
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. BIu.mGStJ.. f.', 'O,lisis a suit for, damages, for . t.be' I!teAnJ.-13hip: CliftQn" whi.ch ,
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p!'n.
alleged ,seizure of, a tbetk,ne of by
FEDE'RAL REPORTE'R,
vol. 43.
the North Atlantic Steam-Ship Company, Limited, of the estate of which libe1a.l1U.s'liquidator. 'The facts attending the seizure,' necessary to be considered, are as follows:J3rown Bros. & Co., believing that eeltain drafts drawn by the master oitha Clifton 'Carried'·n. lien upon the vessel, and that they were for necessary disburse;rpents in Jt foreign p.prt.. libeledtb,e They lihEiled her on day o(March, 1888, and released her, and discontinued the suit, upon the 22d April. l;I.fter,. it .a ppearEld by. the master's testimony. that. the,agemts from .l\;hom Brown Bros. & 00. received the drafts, at the time they were drawn, had no need of funds, but were supplied with funds sufficient to enable them to make an necessary, expenditures "for tha vessel. . Dmlng all the time of detention after the disclosures made by tne master in his testimony, the vessel was held by other libelants. ,On the day after Reizure, Brown Bros. & Co. consented that an order should be made allbwfng'thennloading of the vessel· ns if there Was' no seizure. . <T:hereare two questionspreserited by :these facts. First, as to the Iia!JiIitY'ofa party who, in g60d faith and without mttlice, cornes int6an fldmil'altycourt and libels ahi ps or vessels, and fails in 'his· suit. The practicEr:and rules in admiralt!y require that all parties,except mari.; uersrshall, before having admiralty prOlJeSS against ares, give a bond in' thesumof $250, and further eohtairi liberal provisions for the release of on bond. It has. beenllrged very strongly' by the proctor for the .libehint'.that, notwithstanding this, even in ,tQe absence of malice, and with probahlecR\lRe) he n1ay. recover actual' da'mages. He relies upon the law of this state indepandent of admiralty rules and practioe.: Rut':Lupderstand the .Iawin ·this state to be'as stated:hy the supreme eourt r,in- Transit 00. v.McCerren, 13 I.J8. Ann.:214, where 'it is'·'heid· that :noaction lies, for:, a civil suit, where;'plaintiff fails; unItlss it· be allegedaQd. shown to, he';lllalicio\i.s, withoutprobabl& cause. I think that, under the settled practice in aomiralty, suits may he brought, and process issue i.ll which the libelant fails to establish his cause of action; and the libelant, in good faith and without malice, will not be responsible ex delicto, but only upon his bond. This suit is brought, not upon,'an;V-' bond;' but ex' delicto. I think, therefore, this falls within the universal doctrine applying to all courts, admiralty and others, wHich 'is'e'iItiIielateditt Stetva1't'v/S6finebOrli," 98 U. S. 187, that 0'£ iap oqtpe rIghtful remedll:ls" ,e:)C.empts, hIm from a siut for a wrong. Butlt is urged with great pertinacity, and nunierou's' cases are cited to Qf that where the j?ris.dicti.on the plamtlff IS a trespasser. But the court here :had JUrISdlOtIon; for JUrisdiction depends upon the issue presented by the pleadings, ,and the libel states a case o(admiralty h,ad undoubtedjutistHction, viz., advanoes:W 'thiHnas'terupon the'creditoIthe vesse1, in 80 foreign port, for necessary disbursements.: The faliutle of.the libela.nt in the original suit was not from want of jurisdiction, but because the facts whattbe v.essEl'I'B'ittgehts !fUlda 'diem that,! in,oraer· ta ,securethol administration' 0f;JfiS;I'
'THEMILDBED.
393
tice, and to make the determination of disputed rights possible in human tribunals, suitors should be allowed to come into court and prefer their complaints freely, and without any penalty in case of mistake, so long as they do this in good faith. Originally, all suits were commenced by the arrest of the person, or the attachment of the property of the debtor: The rule has always been that good faith exempted from liability for damages even when property was attached. In the common-law courts, attachments have by statute been restricted to specified cases, and thtm only upon a bond with surety. A similar requirement exists in the ad.. Il1iralty, which exacts an indemnifying stipulation before there cim any process in rem. A statute of congress further protects the owner or claimant 6f the vessel, by permitting immediate release uponbon4 which takes the place of the res. In the common-law courts and in miralty, whc;lrc ilrrest of property is permitted, any actual damage may be recovered under the statute, upon the bond or stipulation; , But .no' 'suit except' upon that statutory contract can be maintained tinleS!! 'malice is! alleged and established. The rule is correctly stated in lion"; Three Hundred Tons oflrO?i Ore, 38 Fed. Rep., at page 41. Inthm last opinion 'are cited the early cases showing that the 'rule as to the right to recove,r Cdr seiiure und'er process in admiralty is the same asthnt nul jUdged, iriStewart v.SonnebDr'li" ,to be the general rule in jJourtsasto the , 'tight 'to recover d'atnages, wrought through judicial process. In this case there caube no doubt of the good faith of the defendants. They Wenced their suit under the' advice of learned proctors. ": They consented to the seizure being qualified so as to do the seized vessel the least harm; and discontinued the suit very soon after it was difilClosed by the mony of the master that their obligation could not import any lier{upon the vessel. , The form of the obligation, and the usages of the master ,fj,nd agellts tif vessels',might easily have induced, and did induce, the On the, part' of Brown Bros'. & Co. that the agents of the' Without funds, and that the drafts were drawn against the vessel. , My conclusion,therefore, is that the libel must be dismissed. ',' ' . · The ('ross-libel is not so connected with the 8ubject-nluttcr of the libel to be maintainable, and must also be dismissed. .'
as
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THE MILDRED.
(OtrcuU Oourt, E. D. MicMgan. July 28, 1800.) IrURITIMB LIBNs-:MATERtAL-MEN.
The lien of a material-man does not attach to a wrecking outfitleased by the of 8 tug, not as a part of its general equipment, but for a special purpose, althotign a part of such outfit is attached to the hull and deck by timbers and bolts, andUbel. ants ,supposed it belonged to the tug, and bad never heard that a third,llerson cli:limed an interest in it. " ",' <I (SyliabuB b1J tfj,e Court.)
· .: .. '. '.. ' . , :;., .',', "" sole a ,wreclpn:g»llt6t, +,Q90 feet of hose, on,e m Jl;Ine, he leased the <?wher to 1:>e,: U PQll" the tug ,And, atlel')vards upOll the o( whlch ShllrW owner; owner hus :89fl1: 11tS. that ,the said tug Il!orel;/aid" :upon fl,ttachment agalllst 'li1Ppart,qfthe of the tug, but faGts are not tpspo\V that" during th!, :'Vas; Elngaged ,upon ri yer, contr.act witl1,mill-owMrsand .. in, questiqn ;\Vas nrmlyand and Wll,8 aJ80 J>j,pes to b9,iler;J¥ldto the and that one of the that that tpe to ,the pel'sgn "!ho owped the, tug" !tn-li, pev,el' ,anyolleel$,E) .Qr claiOlediin mterest in the sllme, tug is Q,lg."llnd .ofno great vahle, ,thllt'lin ,t(j f()r, the fOf which this th,a tug ,as a ",lthtbe said l\nd connections attached .' .. . forihe motion. : " . .'. ,. , . Gilk.« forlibelunts., $.98, tqg
W,Fi1lrteY,
that 'un,de t;,a,bi11 ofsale or tackle, apparel, ,and evwhich ,is, on board the ship, Ilnd used for the. l;lUsiness in which is it owners. 1 Pars,. & inthiscaseiswhether the word "f:',pparel" or 4'appurtenances" applIes to whicb pas been ,hired fQr the use of the vessel. There'is a singular' want of authority upon this question. the one in point being that of The Edwin P08t, 11 Fed. Rep. 603, in which it was held that a wrecking apparatus passed under an attachment, although not belonging to the owner of the vessel, if it was on hoard by the consent of its owners at the time the lien upon the vessel in,<;lucemept for the credit given to the accrued, and thus furnished vessel. The authorities cited by the learned judge in support of his except ,1\0- far, ,all. they define,as to what may opinion are not. iI),. properly be considered "appurtenances" under an attachment in an action for damages. , .In this case .there was no'satisfactory,proofo£ the evidencerather ·toshow-<that ,both the ship and apparatus were t'lwtit'll'by' a: wrecking company which' had voluntarily placed the material on board the ship, and furnished an induceme,nt to sailo:rs to en:.. ip
list in the wrecking service. In the case under consideration, the prool is clear that the fire-pump and hoSe ooloiigetl to the petitioner, and had been leased to the owner of the vessel at a certain fixed sum per year. · Now, while it is quitetrtiethat if an·entite vessel be leased to a charwould terer, debts contracted by him for supplies furnished to such constitute a lieri;l!!Iimi not preparedt6 say that ,this 1'tl1l:l;w()uld apply to property hired by him, not for the general outfit of the vessel as a vessel, but as ,ll,nout6t for a special business W' opject.,l';am in-! elined to think thlltthe comtnOli-lawdootrihe in felationtofixtures would be applicable to ,a case, of this and t.hat"unless was anm. tentioo on the part ,of the owner of the outfit that it should become a part of the permanent appurtenances of the vessel, he would be entitled to reclaim it·.. fhe tendency of. modern ,authorities is to Qold that the question, whether a of property. has, be(,lome a 6itureor not, is ohe of intention as between the parties to the original that the) courts will not hold such property to 'be lI. fixtureuriless it was tbe, obvious intent of the owner that ifshould be so considered. Crippen v. Marrison, 13 Mich., 23; Manwaring v· ·lenison, 61 Mich, 27 N. W. Rep. 899; Ferris v. 202, 2 9.· , .. ItsMms toriie that it would be needleis obstacle iil the! way Ofmaritim'ecdrilrnerce t6 hold that a master ctmldnothire, nor ani owner Jelid;periloriili property 10rtheuse of a vesSel except llt thenak' of its becOliling'apart ofeueh vessel, and liable for its debts; . In salvagebusiness/;particu]arly, it is the constant practice of the owners: of steam-tugs fufhirtia wrecking outfit for the rescue ofvEisselsindistress., but itIlus never been supposed that such oiItfitwassuhject to the lien i of thesllilorsfol' 'their wllges,' of the fi1ateriaI·mlmfor'their cool and .pro:, visions, or of tHe,oWner of t'hesal Ved vessel for non-perfomlsnceof' Of the tugs, whether 8u(jh ,third parties knewthatt such outfit did ilOtbelong to the tug or'not. In such case the 'question: is not detertnined by their belief, but by thefaot. ' ,'. . .' . . But, in order that the rights ofthe'pal'tiEii3 thny'be preserved pending l snappeal; uu'brder willbellntereit for a sale or saP"" arate from: the tug; thnt petitioner be lit liberty to bid, and that the i property bedel,ivered' to the purchasei' upon his- ,executing a bond to the' clerk' to pajrthepurchase; money Into court wl1ell6verbe shallbere-: qiIired,to tlosa.·, ' , Ii, ,. ,, ; ·"1 ill '; ,: :l);\": i!: '
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CATALONlA.
11IE REBECCA
A.
TAULANE. April 18, 1890.)
(DIstrict CO'U", D. Massachusetts.
1., Co.t.LJsioN-Ff;lG-NEGLJGENOB. , 'A steamer rnnningat the rate of more than seven knots in a fog so dense that a :ship can. hardly be seen ali the di.tance of a ship's ,length is guilty of negligence. S,.,S,A.!llB-:-FoG-E:ORN. " .. " '.... ", , ' · ' A ve8sel which us!ss'a fog-horn sounded by the breath instead of one :' sounded by a bellows, as required by, article 12 of the sailing regulations1is guilty of' f:" negligen 96\ " I .. " ·.. :, r.. t I ·
::: collision between the QitaloUla,o:ud the schooner R.ebecca A. Taulalle. ,the Ca,ts,iqnfll(. ' f..., the A.. Taulane. \ / {, If .,' "; ,
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NEI.SON, J. This Gollision hnpened about 8;0 miles north-east of lIighIItI1d..liglit f in:a thiek of July 14, 1889. Tb,eCataou'avoyage ;was heading:, d1l.e;W,eatfor B?&ton light. :T.he,Rebecca A.Taulane was pursllillga voy·, agel Righ/nond, Me.; to Rhiladelphia, wit4:acargQof tCE!, ·$he waa, on; !the . :1(ack, clQse-hauled, steering a, :by, ;thewind. 30 ,Sound of a fog-hprn w.as, hea'td,oll ,the steamer, lind the same Dlomeut the schooner was seen. tQ,r.o:ugh ,;the, fog by the, lookout on the sta,rboard, bow, ,and reported. The::order. was,immediately given from the the wheel to slarbuard" but ,before the\order could be it WaS changed,and the hard a-port, and the engtpes reversed f!,t: .full speed. 1.'he steamer struck the schooner on ,the, port !lide, just; fQrwl,\rd, of tpe xpaitll'if{ging;; cutting into her, the width of the deck. 1.'he schooner was ,afterwards ,taken in tow by the steamer, .but, the hawser partiJ,1g,.: on board ,the steamer, and she ,She, was afterwards picked up, PY another steamer, and into this ,port. Sbe has:$incebeenJibelecl fQr,aalvage. The iron plates the sterqQf.:. the steamer were broken and bent by the collision. The. the steamer were heard to leeward by the men on the schooner for some minutes before the collision. The schooner made no change of course. Both vessels must be held in fault for the collision,-the steamer for not going at a moderate speed in the fog, and the schooner for not having on board, and for not sounding, a fog-horn of the class prescribed by the sailing regulations. The master of the steamer deposed that the steamer's speed did not exceed 5 or 6 knots, and it was argued that under the circumstances such a rate of speed was not immoderate.' But the estimate of the master was disproved by the entries made at the time in the log kept in the engine-room. Full speed of the steamer was 12 knots, and according to the testimony of the engineer this was attained
with 60 revolutions of the propeller. The engineer's log shows that the ship was running with 44 ,revolutions,or at half speed, and it was testified that half speed was 7 knots. This must mean merely an estimated average half speed, since 44 revolutions would indiCate nearly 9 knots. As the wind was light and the sea smooth, the ship was probably making much more than 7 knots. But jfno more than 7 knots in a frequented part of the ocean, and in a fog so thick that a ship's hull and sails could not be seen hardly more than a ship's length distant, that was clearly excessive. The Martello, 34 Fed. Rep. 71. Article 12 of the sailing regulations provides that a steam-ship,. besides her steam-whistle, shall be provided with an efficient fog-horn, to be by a bellows or other mechanical means, and that a sailing s,hipshall be provided with 8 similar fog-horn, and that a sailing ship under way shall make with her fog-horn, at intervals of not more than two minules, when on the starboard 'tack, one blast; when on thepdrt' t,ack',twol:ilastsin succession; and when with the, wind 'abaft the'b6/+m, three blasts in succession. The fog-horn on the schooner was a common hol'U, sounded by'the breath. She did not have on board, and ,tp,erefore did not blow, a fog-horn, sounded. by a bellows or other mechanical argutnentofthe learned proctor forthe schooner faile? to convince me that the human lungs are an equivalent for the bellows.: I l!ave,already decided in two cases before this that neg;lecting to. the reguJationJ'og-horn in a fog was a fault on the part of a sailing ship, unless it is shown. with certainty that theomission could not have cll-Qsed the collision.' '. t quote, as applicable to the' preserit.case;th(l apt.language of Judge LOWELL, in a case arising under the old rules, where a sailing ship omitted to show a torch: . , ," "Cifngressl1as-refused to relieve steam-ships of the burden of avoiding sailing ships. difficult it may be for large steamers t<l be handled readily; anc;l for some light sailing craft; but uppn the latter Weduty of giving notice of their presence certai,n defiQite means. We are bound, therefol'e; to believe that the exhibition of a torch 'is useful underohiinarymrcumstances.· Experts may perhaps be found to testify that a· moderate. speed 'is' harmful, a fog-horn useless, 'and a torchaclually 'lnis: ll;Jading.buUhe statute must be obeyed. The Hereules.17 Fed. Rep. , In this case the schooner's fog-horn was not heard' on the steamer tin: til the very m'Omentshe came in sight. A regulation which niust be supposed to give a louder blast, might;arid probablywohld, have been heard sooner, and the accident have beeuprevented. It:was' argued for the £Ichoonp,r that the steamersholiI'd ,have stat"" board wheel, and' not pOl'ted,and for the stoometitis argued that the schooner should have come up into the windwhbn:shehearil the steamer' whistle, to leeward; citing The Zttdok,9Prob'.i 'Div.ll1. 'The I d,is" position ofthe case up0D: other groundsrehdersiWtinriecessary either <lfcthese points;bnt'neither, of them appes:l.'S to' havemuch'ftirce. Decre& fOlflibelant on both caseS" l " . '
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A IlOhOoneI',i her' 'port tack, heading nearly! north, and making about eiltht about five miles an hour, and a steaItler heading eastward, and miles an were approaching converg'ing courses, and their courses un. til Within liVe" lengths of each ·other;· when the schooner'st8rDoal'ded and the steamer pl!r¥d,andthe vessels qollided, The niltht wall Qll!ar, and the preponder. ance of eVldeI\ce showed that the schooner's lights could have been seen from the steamer when ,the'vessels were at least a:mile and a half apart. :. Held that, though ,it wasoQt entirely clear,that a cOllMonwasinevitable ifthiilsjlhooner had held her course, the liteamer was in fault for holding her course \Intu vessels were in such close proximity. . , , " . " , .. " ....
STEAM' AND
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on
8; .BAM..,..Dl1!i'Y iOF STBAHBR.
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A,llOhool1er on he.r port nearly and a steamer making east, . were approaching 'on converg%ng"ooni"ses; When about five' apart, the : I!tel'mer, ha\"ing, according to ,ber,teetilllony, seen the schooner for theflrst time, . pOI'ted,and her ellgin!3s, to collision: Held. the steamer was in fault for n.ot also'reverslOg her eIlgmes as portlOg. . . , schooner and. steapler were apprOlloQhingo courses., The former, , after 'a. collision had btjcome apparently inevitable unless a cl!ange of course was to endeavQr to: paill' astern of' the steaml!lr;At the same time tile, ported. and. ¥!jgRt tiluspavecleared her' if .she h84 contin1!ed. her course. Held, as the 'steamer .l!ad Improperly continued her course until the schooner was in extreme: danger' of COlliSiOn, and as tbeaetlon' of' the steamer ,wb,ereb.yshe might bl'.ve ,cleal1ld unde,rthe circumstancell,: Improper, and could not have been antioipated by the slJnooner, the schooner was nol. in fault for ,.changing bercourse. '. ' . . 8.u!:1I..-.cCIiIAJIIGJI: OFCOtTaSIll BY' SAII<lNO 'VESSEL.
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In Admiralty. schooner Cha:rlee ' El. Schmidt against the steamer Readandcross;.Ubel by the Relltlingagainst the SchnJidt, lor'damages lor pn the ,coasting With ·ll. cargo Me., to when *lmrt!le light-ship, of Vinyard Haven, sighted the Qna 'lQ\lTSe cmwerging to her·own ata tlistance of Ilte:3.milesawliy. Theebantlel at this point is about 2t miles wide. 'l'be gear The night WIIS. olellr and fine, The libelllnt 'ffl1JcJ.o,!le-hauled Qn her por.t tack, hendi,9S,Qt:tarlY l?orth .. '.the; heading near the ,and ul;lder speed, lllakingill.bout 8 miles w:hlll'lthe about. 5. Tbevessels held tllltll wijhjn: 5, lengths of el\cholher,when the I at about the SllUle time, fln.rl-, into C91liSion·. injured, aJ,ld each is incQurt "',,, ' ,' " ,<1¥'1-ili,'fifpm.and ,the ,Schmidt, cited,flSto the duty of the ,.The§tel;lIlJElr lIllJple margin of s[Jace. Tll£ Laura V. ROse, 28 Fed. Rep. 108j The Oity, J
Reported by :Mark Wilks Collet, Esq., of the Philadelphia bar.
862; . The '()iJ;y hf BrorJctxm;;3-7; Fed.'Rep. 899; <if Fed. Rep. 923j·The Ogemaw, 32 'Fed., Rep;'922: ;Wells'v. j 29 Fed. Rep. 2:L8. The steamer must ahapeher couI'M,to The CarroU, 8 Wall. 306, As to the change ',' ofcourselnp . A mistake in extremis 'is' ndt· to be imputea as ,·afault.. ,'J!heJoh'n80n, 9 Wall. 154; The Carroll,8 Wall.30B; The Maggie J.;Smith,:l2'3:,U. S. 355, 8 Sup. Ot.Rep:159 : The Elizabeth Jones, '112 :Ul,S.51i4fo Sup. Ct. Rep. 468; The Gtdw, 20 ' Fed.Rep. 157;TMNIir.walk,.ll'Fed. Rep. 922; The John MitcheU, 12:Fed: Rep. 511; '1'heAmer·ica,4",FlitLRep.337;The EUa B., 19 Fed. Rep. 792; The Farnr,eg, 1 ,Fed.:B;&pJ·631; TheState of Alabamai 17 Fed.· i Rep.847. John G. Lamb and Th08. Hart, Jr., for the Reading, cited, as to'the · duty.of a.'sliilhigivessel to bep her .StiJO/m.Ship 0,; v; Rum:bcdl, 21 How. 37'2; Phe·IUi'T'lOi8, 103 U.8;'298. ·:And as'ito the rightofa,veSsel from her' coul'Sewhen in e.itremis: "The. e«8ica;9 WaU.630; ,1M Aliianca,39Fed.'Rep.476;TheJJairtellO, ·ld. 505; The 'OlaraDa'lJ'i..d.Mm v. The Virginia, 24 Fed. Rep. '763."." , , :BUTLER,: J.j (after stati:ngithe facts as above.) It was the respohden't's for boldingher course as elle did 'ubtiliJo hear the Iibelantt she was in fault;· unless an excuse can' be found; for' · duct. ·.The':proximity was clearly dangerous; It alarmed the l ;on both vessels; aatbeir acts at the time show Each sought; by :the · most p1'otnptand vigorous efforts to 'escape. The libelant's change of ,cc>ursemay.haveincreased ,thedll.nger, in view of the respondent's sudden Whether the collision would lia.te been · avoided if she'hQd held :her course, is not clearj indeed, I consider it very it would or not, however, the respondentwaselearly ,in fault for approaching so near, unless she could not a:void ,it.: She ·says· 'sbe could, not, nnd· this is her only excuse; that the' i libelant's lights, were not discoverable' earlier; that· she had 'a vigillint ;look-out. and changed her course the moment the lights came into·view... I' am satisfied that the libelant could and should' have been seen' much ear:lier. Her lights were burning, brightly, and the night was favorable ·to! seeing :them'at 3' distance'. The respondent's lights werelleen from .:tliiHihillant.whenfar: away,"';"'the witnesses say 3miles'j: it is· aa:fe to say I! to 2 miles. Di:atllrices can.notbe accurately'ttleasured 'lindei' such circumstances. Why then did not the respondent see the libelant's lights earlier? The suggestion that the latter vessel had been running her southward tack, and turned just before she was seen, cannot be accepted. If she had been so running she should have been observed, and her turning must have been seen. The suggestion is based on inference alone, and it cannot stand against the positive testimony of the libelant's witnesses, who swear that the vessels were miles apart while she was running northward, and when the respondent was first seen from her deck, supported as they are by the probabilities of the case. Why should libelant shorten her Routhern tack by changing in mid·channel? The wind favored this tack, and she had every motive to pursue it to the south side.
·REI>9RTER,
wind was against ber. I cannot doubt that tbe failure · :resplted from- negligence, notwithstanding the respondent.'s tea·timop.y respecting per lookout. She must thE!refore be treated as in fault for holding her course until the vessels were in dangerous proximity. She was in (ault also for not reversing, instead of simply porting. ! She ·was too close to rely upon the latter. It was unsafe. She might possibly astern, if tbelibelant had held her course; but this, quite She should have considered the danas before ger that might falter and turn, as she 'did, under the circumshe was ,placed. It was not unreasonable to suppose shd would. To reverse .w.as safe, and this the respondent should have ,Q61W;. _... ' : .'. .'
, 'W'.t,l3 the libelflJltin fault f<)I.·changing? She was required to hold her 'courlle, a change was necessary to avOid collisioIl..·. ; Shew413.not. however, required to incur greaterrisk,--to a,m,erely :p:ossible or hair-breadth escape. Did the a heliefthatthe change was necessary? Thatshe believed it necesRary is clear; and she was in the best position to judge. ..,Shesaw the' respondent at a distance, 'and ,;saW t.Qat l1t.ept Per,; fi'lil: ;if ignorant .oUibelant's presence, or · j WCr0$8 . her. ,bows, until. collision. had become· ill· A change of course in one if not both of WMi .. ; A., of. .what was there to indicate. that the recl:\ll-Q.geZ, "lOa no answer to saythe;fact:thatsuch was dQJy ..H"was h.erduty to do, this much-earlier; but I.Ier indicate,dthat she intended to pursue her ignorantoUhe situation,ol:' r.eckless of the.conse.Vnd,edhe circum,stances, .the libelant's only chance of escape jn<,ioing what,ahe. did. She could not;anticipate the reIf the latter made any change it was reasonable to believe this would be by reversing and backing,forit 8.10Pe wRssa.feand proper. The libelant could. have no o( ber attempt to tum as she did, until· her head came around exhibit. her· red light. . Her change of course could not, thereuntil the vessels were: virtually in contact. The libel will be entered accordingly·
BAIlBLINIl. CHICAGO, B·. & Q.
CO.
401
HAMBLIN et
al.
t7. CHICAGO,
B. &. Q. R. Co.
(Circuit Court, N. D. nUnoiB. September 8,1890.) RDOVAL OJ' CAUSES-REJUNDING-DECISION OJ' FEDERAL QUESTION.
After overruling a motion to remand a cause, which had been removed from a state.to a federal court on the ground that a federal question· was involved, the fedei'Bl court sustained a demurrer to the special plea interposed by defendant, and thereby disposed of the only federal question presented for decision. Held, that a subsequent motion by plaintiff to remand the cause to the state court would be sustained under the' act of conjtress of March 8,1875, (section 5,) providing that if, in BUY'.utln:ommenced in or removed to a circuit court of the United States, it shall aJill"'l'r to the satisfaction of the court, "at any tiIlle" after such suit has been or removed thereto, that such cause does not Involve a dispute within its juris lotion, said court shall dismiss such suit. or· remand it to the court from wh1c it was removed.
At'Law. ;Motion to remand., '. . F. 'S.',)iwrjJ'hy and Prederick A. Willoughby, for plaintiffs. ere AUen, for defendant. _'0' -" . . . . . ·
J. The defendant charged and received from the plainlive-st9ck from Galesburg to Chicago, over the·defendin Illinois, a higher rate of freight than was authorized by the fixed by the. railroad and warehouse commissioners. The s:t.!ttute Fhich conferred upon the commissioners this authority was passed (2 Starr & C. St. and to recover the penalty foritsviola.tionjhis suit was commenced in the state court in March, 1882. The & Quincy Railroad Company was formed by the conSQlida,tion of the ·Branch Railroad Company, the Central Mil.itaryTragt Railway Company, the Peoria & Oquawka Railway Company" and.1;he Northern Cross Railway Company, all of which were incorporated a,nd consolidated prior to 1873. The general issue and a special plea were filed in the state court. The special plea set out the charters granted, tQ the constituent companies, the statute under which they consolidated, the articles of consolidation, and other facts: and averred that the defend.ant succeeded to the rights of the constituent companies whose charters constituted contracts between them and the state, which could not be impaired by any law enacted by the state; that by these charters the had the right to establish such rates of toll for carrying passengers and property on its road between Galesburg and Chicago, as itmigpt determine from time to time by its by-laws; that the rates of toll charged in the declaration to have been demanded and receivedhy defendant had been previously fixed by by-laws adopted by the board of directors as the regular rate; and that the legislature had no power to ellact the statute under which the railroad and warehouse commissioners assumed the right to establish the rates against the defendant, as .alleged in tqe declaration. On March 5, 1883, the defendant filed its petition for the removal of the suit to this court, and the 'state court entered an order allowing the removal. Besides the usual averments, the petition alleged that the defendant had a defense arisiIlg under the constitution v.43Jf.no.6-26