n:!lERAL
REPORTER,
vol. 44.
:stmnded;J'she'''tJuld llave, to sho'w: the inference' that she stranded' without iili:UIt.' 'There 'is il,othingto sMwany concealrnerit or 'the ship,'alld if the libelantS did' n'ot bave full knowledge:ofallthe facts ,attending thestranding,they had in the marine protest, and in the excerpt therefrom prefixed to the average bond, .sufficient to inform them that the ship went ashore while making her way up the Jersey coast on an inshore tack (when his rec6:rded observations should have shown the ,master that she 'was making in' towards shore) in tMckweather, and :without using the lead. The libelants are chargl:'able not only with what they knew, but with what their available meansofkriowledge would have dis.closed to them. Having paid the ship's clairnfor contribution, ,voluntarily, with these facts before them, they cannOt now insist that the ship shall repay it to them, UPOD the theory that when they paid it they were mistaken in supposing that the ship, whose stranding, 1I0t being in itself a sea peril, was prima facie negligent, colild show that she used due diligence and proper skill to avoid the accident, and that it was inevitable.
THE TITAN.! THE FRANCIS.
SANBERN ". THE TITAN AND CAR-FLOAT
No.6.
(Dl.BtrI.ct
court, So D. New York. December 18,18OO.)
CoLLISJON-S-rBAll(oVBSSBLS 'MBBTING-TJDB"RrP-SwINGING-'-EAST RtVBB NAVIGATION -SAFE l{A.RGIN-WBONG SI,DE' OF RrVEB-PROXllIUTB CA.OBB.
The tug T., moving slowly with two car-floats along-side, ,came around tbe Battery into the East rive,., near the New York shore. The steam-boat F. came down the East river with the ebb-tide. ata speed of about 12 knots, and shaped her course to pass the T. starboard to starboard, each /;:ivinga signal of two whistles. On the ebb, there is a tide-rip oft the Battery, which tends to swing to starboard tbe bead of a vessel entering the East ,river near the New York shore. This was known to the pilots of both vessels. 'l"he T. swung about two points to the star. board on itriKing the tide-rip, and coJlidedwith the F. The river was clear of vessels at the time. Held, that the F. was bound to have so shaped her course as to leave a aafemargin for the known effe,cts of the tide; that the course Of the T. along the New York'shore, contrary to statute, was not the proximate cause of the collision, and was immaterial, the F. bavlng had ample time and space to keep out of the way; ,and that the F. alone waaliable for the collision.
In Admiralty. Suit to recover damages caused by collision. Sidney Chubb, for libelant. Goodrich, Deady & Goodrkh, for respondent. I ,.
BROWN, J.The array of witnesses against the libp1flnt on everY,important point is too great to warrant a decree in his favor. The weight
lReported by EdwardG. Benedict, Esq., of the New York bar.
THE TITAN.
:61'1
of testimony is that the. oollisiollwas from 300 to 500 feet off pier 3. 'The Titan was with two car-flQ!1ts along-side. She oame out of the North river around the Battery, near the New York shore, in order to avoid the strong ebb-tide, and continued near that shore until she struok the ebb, probably shortly before the collision. The Francis had come down the East river at the rate of about 12 knots, including the tide, and passed under the within one-third of the dis.. tance across from the Brooklyn shore. The place ofcollision was less than thir<l of the channel-way acrollS from the New York piers to Diamond J:eef.The required the Francis to keep in mid-river, as near as may be, and 'nothing prevented her doing so, as the river was unusually of other When her master and pilot first noticed the Titan, ea.ch ves'sel was oQ.' tbl'! starboard hand of the other, though probably very slightly. The Titan, as the libelant's officers say, was then headed a little towards the New York shore, and so her own witnesses state. Herpositiou and. course were evident to the Francis,and she was proCeeding very Slowly, and there was abundant room for the Francis to out of the ,way by going to the left, by a large and sale margin, and passing starboard to starboard. Two whistles were exchanged between the vessels, indicating their intention to, pass in that way. The libelant'li witnesses claim that they would have passed safely had not the Titan sheered to starboard on striking the ebb-tide; but they state that this sheer did not commence until about 15 seconds before the second of two whistles, and that the Francis ran only about 200 or 300 feet after that last signal. From this it is evident that the swing of the Titan began less than half a minute before collision, and that any change in her position arising from her swing must have been comparatively small, as she was going very slowly. Her own witnesses, including some disinterested witnesses, who were watching her, did not observe any such swing; and the whole amount of her swing, as indicated by the diagram of the angle of collision, allowing one point for the swing of the Francis to port, as her witneE'ses statt', was only two points. The liability to such a moderate change of heading in meeting the ebb-tide is well known to those navigating the harbor, and must be counted on and allowed for in passing. A change of two points within less than half a minute, and going so Slowly as the Titan was going, could not have changed her position in the river over 50 feet. The Francis in passing to the left was bound to allow much more than that. The statute required 20 yards even in ordinary circumstances, and here the liability of the Francis to swing to port was known. I am quite satisfied that the collision happened because the Francis, at the first signal which her witnesses mention, in shaping her course to go to the left, did not allow a sufficient margin for safety. She starboarded, but not hard. She headed to the left, very likely enough, if her heading could have been made good; but she could not make her heading, because the strong ebb carried her down so rapidly; in other words, she did not make sufficient allowance for the effect of the tide on
a
512
FEDERAL' REPORTER',
".
'
,
either Ve8Be1. There was abundant time and space for the;· Francis .to have kept away in mid-river after the position and course the Titan were seen and understood. The position of the Titan nearthe New York shore. instead of in the middle of the river, presented no difti.(mlty or embarrassment to the Frands, and was therefore nota proximate cause of the collision. (layzer v. Carron Co., L. R. 9 App.Cas. 873; The City of Springfield, 29 Fed. Rep. 923; The Britannia, 34 '. The testimony of many ofthe defendants' witnesses, a number of them disinterested, makes it difficult to resist the conclusion that the Francis did cross. the river somewhat rapidly afterpassinguuder the Brooklyd bridge, so as to get pretty the New York shore when In the vicinity of Wall-StI'eet ferry. This . explains the· testimony- of the Titan's· pilot; and his uncertainty as to the intended course cifthe ·. I am not satisfied that there was any maferialporting of his wheel, Of any suchehange in his position through the swing in the tide, as to exCuse the Francis for not passing by a safe margin to starboard, in accord. . ance with the signals excnanged. I do not; perceive any fault contributing to the collision in the management,of the Francis, under the circumstances, and ,must. therefore direct a decree dismissing the libel. ., .
of
.
,<
r:
PAUL V. BAmI)l:ORE & 0.& C. R. CO.
513
PAUL 1'. BALTIMORE
& O. & C. R. CO.
(Circuit Court, D. Indiana. December 11, 1890.) REMOV At. OP CAUSES-CITIZENSHIP-CORPORATIONS-CONSOLIDATION.
Notwithstanding the consolidation of two railroad corporations of dilTerent states, each retains its identity as a corporation of the state in which it was origi nally created; and in a suit against the consolidated corporation brought in one 0 such states, it cannot obtain a removal to the federal courts on the ground that it is a citizen of the other state, though the consolidation was had under the laws of the latter.
At Law.
Motion to remand.
Penfield Blatncrr and R. W. McBride, for plaintiff. J. H. Collins, for defendant. WOODS, J. The petition for removal wason the ground oflocal prejudice. It is alleged that the plaintiff is a Citizen of Indii1l1a, and the defendant a corporation organized under the laws of Ohio, and therefore a citizen of that state. In the motion to remand it is averred, and the averment is supported by affidavit, that the defendant company is a cifr izen both of the state of Ohio and of the state of Indiana, duly formed by the consolidation (in 1876) pursuant to the laws of the states of Ohio and Indiana, of two several railroad corporations,-one of the state of Ohio, known as the Baltimore, Pittsburgh & Chicago Railway Company, Qhio Di vision, and the other of Indiana, known as the Baltimore, PittRburgh & Chicago Railway Company, Indiana Division,-and that said consolidated corporation is the sole defendant herein. Counsel for the defendant in his brief says: .. It is conceded that the Baltimore, Pittsburgh & Chicago Railroad. COlllpany, Indiana Division. was an Indiana corporation, and that the Baltimore. Pittsburgh"& Chicago Hail road Company, Ohio Di vision, was an Ohio corporation.HOld an attempt been made to remove this case while the corporations were in that condition, the case would have come under the decision of Railroad Co. v. Wheeler, 1 Black, 286. In that case the Ohio &; Mississippi Rail.road Company was a corporation of I,IJdiana and also a corporation of OhiQ,. precisely as the Baltimore, Pittsburgh &; Chicago R.ailroad Company was originally a corporation both of Indiana and Ohio. But this cpnsol-, idation was made under what is now section 3971 of the Revised Stat,ites of Indiana, and sections 3379 to 3392, inc! usive, of the Revised Statutes of Ohio. In this connection it should be noted that section 3971 of the Revised Statutes of Indiana provides simply that any railroad company organized under the general or special law of the state' shaH have the power to intersect, join, and connect its railroad with any other railroad constructed or in process of construction in this state or in any adjoining state. at such point on the state line or at l\ny other point as may be mutually agreed upon by said companies; and said railroad companies are authorized to merge and consolidate the stock of the respective companies, making one joint stock company of the two railroads thus connected, upon such terms as may be mutually agreed upon, in accordance with the laws of the adjoining state with whose road or roads connections are thus formed.' It will thus be noted that the statute of the slate of Indiana authorizes the consolidation to be made and
v.44F.no.8-33
FEDERAL' REPORTER, vol. 44.
the corporation to be formed under the laws of the adjoining state. there being no law in Indiana 'providing for the incorporation of the consolidated company. Accordingly. this certificate of incorporation was executed under the sections of the Revised Statutes of Ohio, to whic,h refel'ence has hereinbefore been made; the certificate wasmac1e under these sections. the consolidation was made under these sections. and the contract of consolidation was executed i,n the state of Ohio. These 'sections make the consolidated railroad laws company to all intents and purposes a corporation 'organized under of the state of Ohio. Such being the case, it is respectfully submitted that the Baltimore & Ohio & Chicago Railroad Company'isanOhio corporation. The case does not come under the case in 1 Black. above referred to, but does come under the case of Railroad 00. v. Har-ris. 12 Wall. 65." Under the decision and opinion in Nashua & L. R. Corp. V, Boman & L. R. Corp., 136 356, 10 Rep. 1004, it seems, clear that notwithstanding the consolidation of the two companies "the separate identity of each as a corporation of the state in which it was created and as a citizen of that state" was not lost. , In J:(uUer v. Dows, U. S. 444, in respect to corporations of MiB7 souri and Iowa, it is said: . "The)w!> corporations became one,but in the state of Iowa that one was an Iowa corporation. existing under the laws of that state alone. The laws of Missouri 'had no operation in Iowa." And in Railroad Co.v. Whitton, 13 Wall. 271, it is said: "In Wisconsin the laws of Illinois have no operation. The dpfendant is a corporation, and as such a citizen of Wisconsin by the laws of that state. It 18 not there a corporation 'or citizen of any other state. , Being tht're sued, it can' oilly be brought into court as a citizen of that state,whatever its stattu orciLizenshipmay be elsewhere." See Bu?ger v. RailroddOo., 22 Fed. Rep. 561, and citations. This suit, brought as it was in Indiana, was necessarily a.gainst the Indianacorp'oIiltion, and the Ohio body, or the defendant describing ,it-. self as an Obiobody,of i:lolirse had noright to ask a removal. a ground of the lll0tion to remand, itrrllty be ob. that in support of the motion for removrJ is defective. It does ,notsutlioiently show the existence of prejudice or local infiuence.Malonev. Ra.ilroad Co., 35 Fed. Rep. 625; Niblock v. Alexander, ante, 306, (thiBcourt, 61edDecember 10,1890.) Motion to remandsuB7 tamed. "
AMSDEN 11. NORWICH UNION' FIRE' INS. SOo.
515
AMSDEN 'D. NORWICH UNION'FIRE SAME fl. TRADERS' INS. CO. OF CHICAGO. (Oircuit Oourt, D. Indiana. December 2, 1890.)
L
RBMOVAL OJ' CAUSES-TIMB Oll' APPLICATION.
Act Cong.¥arch 3,1887, requires a petition for removal to be filed before defet\dant is compelled to plead to the action under the state practice. Held that, under Rev. St;. Ind; 1881, § 516, enables the plaintiff to fix. the day of defendant's appearance by indorsement thereof on the complaint in cases where the summons is returnable in term·time, but which nowhere prescribes a time fot answering or pleading, defendant's appllcation for a removal. made after the appearance day so fixed, is in time. provided it is made Q,t or before the time when an answer or plea Is required to be filed by a rule of the court, whether the rule be general or speciaL CORPORATION.
,.
ll.
'fhe fact that, in compliance with Rev. at. Ind. 1881, § 3765, a foreign corporation doing business within the state has appoi:b.ted a resident agent upon whom process may be served. does not constitute a resident· of state; and, on being sued in a state court, it may .assert its non.residence. and claim a removal to the federal court, under Act March 3, 1887,'providing for' removal by non-residents. DisaP'" , proving 'Scott v. Oattle 00.,4;1. Fed. Rep. 225. '
lime &M()'I"riaon and Berrd & Adam8, for plaintiffs. Duncan & Smith, for defendants. WOQDS, J. In each of these cases there is a motion to remand to the state court, and the grounds of the motion are the same in both cases. The record shows that the action in each case was commenced on the 22d day of May, 1890, in term-time of the Shelby circuit court, by the filing of a complaint upon which there WllS an fixing June 7, 1890, as the return-day of the writ of summons; that the summons was accordingly issued and served upon the proper local agent of the respective companies more than 10 days before the return-day; that ori Thursday, June 6th, the court adjourned until Monday, June 9th; that on June 6th, during the temporary vacation of the court, the defendants filed their re&pective applications and bonds for the remO\'al of the causes to this court, and on June 9th in open court "offered to file the same with the court, to which the plaintiffs objected, for the reason that the same was not filed in open court on or before the return-day of the summons." The same objection is urged here, counsel for the complainants insisting that upon a strict and proper construction of the statute the application for a removal must be made in court; that the filing with thl!' clerk was ineffective; to which point they cite Gilbertv. Hall, 115 Ind. 549, 18 N. E. Rep. 28; Shedd v. Fuller, 36 Fed. Rep. 609; and that the impossibility of presenting the application to the court on the return-day of the summons because of the temporary adjournment of the court', hoW;' ever unfortunate for the defendants, is a fact which, under the law, is not material or relevant to the question; that, under the the defendants were bound not only to appear upon the day named in