,'THE
They had already dispatched tbe Vigilant, belonging to theJibelants,to the assistance of the disabled Bteamer. The Monarch was about to start on the same errand. The Relief was sent out because the Monarch had been engaged. The success of her enterprise and securing of the salvage prize they hoped to gain depended not merely on her beating the Mona.rch in the race, but also the Vigilant, their own vessel, which was under contract to do all in her power to effect the towage Whatever be the jnstice ofthe libelants' belief that the claimants' intention was to" tie up" the ReUef under the expectation of an employment which was not to be offere<i, they would have had no cause of com plaint if the claimants had, when the mate's second dispatch was received, sent out the Relief on the terms agreed upon. I shall award the libelants all that they can justly claim, by giving the sum for which they were willing to nndertake the service j nor shall I do any inj ustice to ,the' claimants, for Gov. Perkins, when informed that the Relief had gone out on the preceding evening, made no protest, and expressed no disRatisfactionjon the contrary, he said that he was glad she had gone. The steamer was brought in by the Relief. Under all the circumstances, I think it just that the claimants should pay the stipulated price for the service.
THE ATHABABCA. REID TOWING
& ,·WRECKING
Co.
v.'THE ATHABABCA.
,(DtBtrict Court, W. D. Michigan, N. D. ,December 17, 1890.)
1. ING VESSEL. ' , ' '
TO
W AnN ApPROACH-
The libelant oonstructed at Saulb Bte, Marie a raft. 1,200 feet long, 250 feetwide, oontaining'l,500,OOO feet of included in consisting oftimbers fast. ened tOgether at the ends WIth chains, and haVing two or three (lables thrown , across 'keep it from sPL'ead,ing , Two tugs we,re stationed, res'!>ec,threlY, at the head and rear of the raft ,to, help it along, and, cNwd it over to one side of the chantiel so as to permit of the passage of vessels. Entering a longhnarrow cl:lannel , 'in theSte,' Marie river, where the cnrrent is aboilt four miles per our, oue of the tugs was sent down stream to warn approac1:ling'"essels,: "l;'Iuch warning wall given the Hiawatha, and her tow, but none was given the Athabasca,a large, ste,el passenger steamer. although her smoke was seen from the tug. 'As soon as the Athabasca beqame aware of the lLpproach of the, ra,ft, she her speed as much ,88 possible without losin/\" her steerage, and kept as close as prudent to the Canadian shore. 'At this time the raft was sweeping rapidly down' stream; with' a tug at either end, striving to pullittotbe opposite side o,fthe rive\". This resulted in car- . ryingover'tbe ends, leaving a large bulge in the middle of the raft, reachillg wi,thin 60 feet of the Canadian sllol'e.' The Athabasca, not having sufiicient room left her in ,Which to pass safe1y,c4angedher course, and wen,t tqrough the tiaft, stem, on, breaking the hoom and scattering its contents, resulting in a totallosll, amounting to sm,ooo. which the libelant seeks to reoover. Held,: that it was '8 hatardous under,tajdng to take a raft of such size. and Ste. Marie river, knowing the perils incident to ,the ,almost constant passage of vessels, tbe swiftness:of the current, and 'th& oooasionalnarrowness 'Of tbe stream; alia 'that' it was an, ,added negligence ,Dot to,takll elIectiv,emeasures t9 'warn the At<haba!lCB ' before" slia reaclied the narrows, bel' approach being known; and that suchnegligence oonstituted the cause to which the collision must be' at'lil'ibuted.. " : to,
602 I.
FEDERAl. DEPORTER,
vol. 45.
TOWING RAFTS IN NAVIGABLB STRBAMS-USAGES AND CUSTOMS O.F NAVIGATIONMUTUAL RIGHTS.
Held, that both Canadian and federal oourts olearly reoognize the right to tow logs in raft on navigable streams, such as the Ste. Mariet but that such must be exercised with due regard to the rights of others, ana the general usages and oustoms of navigation and oommerce on such waters; and that while the libelant, in the exercise of such right of towage, was entitled, for the protection of its raft, to full observance on the part of others of the established prinoiples of navigation, : ret the manner in which the libelant exeroised such right would neoessarily affect Its olaim upon the diligence of others. , Held that, the negligence of the libelant being established as the indUcing cause of $e oollisioD,.the oharge of aooessory negligence on the part of the respondent must be olearly made out before the damages should be divided; and, upon consid· eration of the facts, that none of the grounds suggested as showing contributory negligence on the part of the Athllbasca are suffioiently established to warrant the court in diViding the damages.
8.
SAME-DIVISION OF DAMAGES-AoOESSORY NEGLIGENOE-FACTS CONSIDERED.
,In Admiralty. II. Y. Gulett and H. H. Swan, for libelants. iI. Oanfield and A. McJI.'Iurchy, for claimants·
r.
. J. The River Ste. Marie, which is the outlet for the Waters of Superior,. constitutes the avenue for navigation and commerce between the ports on that lake, (and some upon the river itself,) and those below upon the other great lakes. It is the thoroughfare for a large and increasing number of steam and sailing vessels of nearly all the classes employed in navigation, in the carrying of passengers and freight. As many as 60 vessels, upon an average, pass up and down through the canal at Sault Ste. Marie daily. It is also used in the transportation of" logs in rafts from the forests around Lake Superior, by floating and towon the lower lakes. These rafts ing to thei,r destinationa.t various are made up again at the foot of the Sault Ste. Marie, after they have .passed the rapids at that place, and are taken below in the convoy of tugs. The passage of these rafts down the river has been rather occasional, and not of very frequent occurrence, but has been continued during recent yellrs. The river, after passing Sault f and running some distance below it,sweeps, in a comparatively narrow channel, to the north-east, and, around to the south-east, divides on Squirrel island, and, after it has reunited, descends into Lake George. This narrow channel is about a'm,ile long, and is in thefol'm of an are, the convex side of which is on the north. The current runs through this channel ordinarily at the rate of ahout four miles an hour. The navigable portion of the channel is same. four or five hundred feet wide. : On the west end of it, and on the north side thereof are situMed Hollister's mills, and on the same side, about half-way down to Squirrel island, is Cunningham's dOck. The dock isuot far from the northernmost part of the arc.· ,The western channel around Squirrel island is the one used in navigation, an.dthereis a point c()ve,ted .with trees and shrubbery projecting somewhat· intO the river from the 'south side towards the north-east just above this island, which partially obstructs tbe.view from the river, as one ascends from Lake George alongside of Squirrel island, over the upper portion oithe bend in the river already . .
THE ATHABA.SCA.
653
The facts in the present case, as I collect them from the evidence, are that the libelant, the Reid Wrecking & Towing Company, in July, 1888, having constructed a raft of logs at the foot of the Sault Ste. Marie, undertook to float and tow it down the river into Lake Michigan. The raft was about 1,200 feet long, and 250 feet wide, and was inclosed in a sackboom, the logs lying crowded together in the boom, unfastened, except as they were surrounded and kept by the boom. This latter consisted of loug, stout, heavy timbers, strongly fastened together at the ends with chains. Across the body of the raft, at different places, Were thrown two or three guys, or cables, fastened to the sides, intended to keep the raft from spreading. The raft contained 1,500,000 feet of logs. At the head of the raft was stationed the tug Avery, a.nd at the rear the tug Dowling. On the raft were several, and doubtless a sufficient number of, ha.nds. The purpose of the tugs was to help the raft along, and to pull and crowd it over to one side of the channel, in order to let vcssels going up at down pass by, and otherwise keep it clear of collisions. Thus equipped, the libelant started down the river with the raft, and on the 5th day of July , before reaching Holliflter's mills, where the channel grows narrow, the tug Dowling was dispatched down stream to look be. low the straits and find and warn of the approaching raft any vessels which might be coming up. The tug sighted the Hiawatha, which had the Minnehaha in tow, and gave it warning, and then returned and took its place at: the stern of the- raft. The smoke of some other ascending For some reason, not definitely shown, vessel was seen froni the but probably because the Dowling was needed at the raft, which was rapidly coming into the narrows, no Warning was sent down to the other ascending vessel; - This proved to be the Athabasca, a large steel passenger steamer, of 1,147 tons burden, 270 feet long, and 38 feet in breadth {}f beam, belonging to the Canadian Pacific RailwayCompany,.and forming one of a line of steamers plying between Owen sound and Port Arihur. The steamer had on board a cargo of merchandise, and about 100 passE'ngers, besides her crew. Nearly opposite, but a little above, Hollister's mills lay a sunken vessel, some distance out from the American shore. As the raft came down stream it was carried around by the head towards the Canadian shore to avoid the sunken vessel, and then it was bent around to the south again, so as to avoid and give way for the vesiels which were known to be coming up through the narrows. The effect of this was to whip-the tail end of the raft over against the dock at Hollister's mills, and a scow lying there was swept loose and carried down the river. Meanwhile the Hiawatha had steamed up to and was lying alongside of Cunningham's dock, with the Minnehaha behind in line. At about the time the raft eutered the' narrows, the Athabasca was coming up around the point of the American shore lying over oppOsite and above the upper end of Squirrel islaBd. The raft had not yet been seen by the Athabasca, and was'Oot discovered, as I thinkthe preponderance {}f the evidence shows, until the steamer-hadtra\'ersed about half the distance from Sqtiirrelisland to Cunningham's When at this point, she was signaled by the' Avery's whistle to cheek. Tbisshe did, and
yo!. 45. ,p.tp()eeqed; up, slowly' along/ilipe. pfthe Hiawatha, as ,alowly. steerage,porteq. wheel, keepipg in:tO:wards theCanlld'ianshorej,as closely as:it.w/l.Sprudent to do. During all\the time after the Athahasca became aware of the nature of raft and ita form, the 13:tter w/ts"passing down with the full rate of the current, the tugs at.either end trying to pull and .crowd .the raft oyer to .the south side titl' tog,ive f()rthe approaching vessel. The effect of this was.to,carry over the ends, leaving a large swell or bulge at the middle on the north, within 60 feet or so of the Canadian the great weight and momentum shore. The swiftness of ofthe.raft, ,all.d its pouching structure, rendered it impossible for the tugS to make any cousiderableiw pression on itscouf;se at that point. daring to go so flj,r s40rewardasish13 found necessary The A in order to escape,as sh.e raft, changec;l her course, and wlmt, stem OQ" stra,ight thro.ugh it,.br.e1tkingthe boom. The result was .that the .raft.was qr9,kenUp,A1Pcl its,cOJ;lteQts, scattered and drifting down, fwere.lost in the bayous,alld.8Wal11pS and the open:waters below, the loss ;al11ounting to 812,000., The ll.belantseekstorecover this in the present proceeding. , . .., . In my opinion, it was ahazardouB undertakingol;l the part of the ;libelant to attempt to of the size, form, and structure of this "ODe Ste. tp.e were likely to arise from the almost, the swiftness of the current,and ,its occasionally :narrow It an added negHgenCEj in libelapt .that:it did not ta;k.e ,effective measures to warntpe ·.A.thabasca: before she Cllnlel.lp .intothestr!l;its. Especially is this .so beca.useth\'l approach qfthEl'vessel was .known. The. reason why the \'Varning WIlS not giVtlJ;l, probably, wa.s that th.e forces of the libelant were urge,ntlYQoodecl. t.o mal1age the raft, then conling into the narrows. The necesaity;,fc>r the sho,wn to have. been"understood and was·in lfact ad1l1itled· by the preC/l)Jtioll taken :insl;lnding .the tug helow for that ptlrppse.,B,u't :itll: IP:\1:IIlipn; was too hurriedly and. imperlectly executed. /The imp.rudence,QUhel:JJlQ;e;l.'tilking to move such a raft through this rivE1r, with the Jailu!:eJogiveproper nO*,e. to ,the Athabasca of tPe thisnarr\lW portiull channel, in my ,.Qpinion, ill att.tibutable. :It D;lust uplawiultQt\lw lqgs in rafts on navstreams8uchas the ate!¥aJ:ie. The legislation.and the course of Jj»dicial'decision in well as in the United States, recognize such .:Ufle of these waters a$ Pl10Per apd as of right.. 1 Rev. St. Can. 1886, art. 27. respectiijg'u!:\V!igation ofCanac.lia,J;l waters; St. U. S. The D., Jr·., Adm. 5.01;;0. S. oj,TimQer, 13 Fed. Rep. 79p; ,M1mtz P.>M.Po. 2, The :SeaiJrook .' v. 4.!:laft" 40 .Fed,. . :596; T.he,J{Jggj1lll,!ffl#t)Jd... ;t,bllt right must he with to the general usages ll,J;ld cto.mmeml,l,lW:.Suc.\l isa part of I
\
:THE 'A1'HABASCA.
655
the doctrineeontained in the·references·underthe foregoing proposition . .And while:tbat:right is.being sb e;x:ercised within itsproperlimitations, and with proper regard to and usages of couJmerce, the 'proprietor, is entitled :toc1aim; from 'others due obsel1vance of the fundam ental principle of navigation, which is' ,embodied in the statutes and rules, as well 'as in the ,decisions oCthe courts upon this subject, that the craftl1aving the best;flj.cilitiesfqi:dts own management is charged with a duty--toemploy'thosefacilities, so as to 'avoid collisiQn and ihjury· circumsHmces mightreqriirea modifieation of, the,rule,' such; for.;exartiple, as peril. to human ·lite. And' the manner in which he exerciseS his 'own right, must necessarily'affect his claim upon the diligence of thEr otherparty.i' 'Applyingthe!le'principles to the facts· of .the present .' case-, it 'isJimpossible, in my opinion; to, exonerate thc'libelanHrom fault, or;td:resist the fault was the primary cause ,of the which followed. ., . Rut the 'libelant further insists'that, even if it 'beJadjudgedtohave been guilty of negligence" in ' the. construction· andmanitgement .' of ,the raft, the Athabasca was also negligent in her own that;, aV'least; the: amnages,'shooldbe divided. Sorile< question isnmde l:ij' cidnnsel. for ,the charge inthel:ibel that the conduct o1!the'Athabasba was wanton and.., intentional, the- libelant i'8'8:t, liberty to' stand now upon: an accusation of mere negligence. as. the ground 'for recovery. lJpon:thisthe libelant asks to amend the libel inthat,partibular,-'l'he practice of 11llowitig aID,endments in the admiralty practice: is liberiil,and I should feel. inolined to allow the amendment jf"it 'Were' necessary. to the of the rights ofpai'ties. llen. Adm. p. 3:82, §143'., But, as my opinion is against the:libelant upon'toe facls,' the case,js',disposedofupon its merits. ,It being established that the negligence of the libelant was the indueing Cau86 of the olllUision:and loss,the charge of accessory' negli.. gence OD the pa'tt of the respondent as the foundation foi-compelling it to share: the damages 'lin!1SU be dearly maue out. In this the a'qthorities allcollcur. ::The Comet; 9 Blatchf. 323; The Sljrmyside,Brown, Adm. 247; TaylAJr v.-Harwood, Taney, 444;' The E. B.: ,Ward" Jr., 20 Fed, Rep. 702; Tlw'Catherine, 2, Hagg. Adm. 145; TheStJ Paul, per BftOWN, .T., E. Dist. Mich;, noti-eported. The damages are riot divided if the fault M one be slight;beii.ringbut little proportion to the fault of the other. The Gredi Repubbic, ,23, Wall. 20. In my opinion the evidence fails to make, out inr nnY:'l';atisfactory 'way that the A:thabasca was guilty of such negligenceio."her conduct Rsshould subject her to; liability. It is insisted-Fh'st, could' have ke¥t ·her heading in the current below,Cunningham1sdook, and waited'untilthe tugs had drawn the raft overtQ the other: side and given way, for her passage. But it is doubtful whether the extent of the danger' wils,or should have 'been, known by the Athabasca until she was well up to the Hiawatha and her tow. It is true, she might have seen that there was a raft ahead, when she was a quarter of a mile below, but she had a right to expect that it was manageable, and would be so conducted as to afford passage-way
656
FEDERAL REPOR'l'ER,
according to its duty. Scicluna v. Stevenson, L. R. 8 App. Cas. 549. This belief Was rightly strengthened by the fact already alluded to, that no warning of danger had been given. Only avery few minutes elapsed between the getting of adequate notice of the danger and the actual collision. The Athabasca had on board of passengers and crew, all told; about 150 people, the value of whose lives bore no comparison to the value of the raft, and would fully justify giving a highly paramount attention to the security of the vessel. So long as her passengp.rs were in peril she might rightly consider her own safety as of the first importance, and act accordingly. It maybe that it WQuid have been practicable to have remained below ill' the channel, beating up stream sufficiently to have kept headway:, until the raft passed.. Nevertheless, I do not think negligence ,can be imputed to the vessel 'by the libelant, in view of the of ,the situation, which the libelant had brought on. Large allowance must be made to a respondent who has been obliged to act in a JIlomentof impending peril of collision, produced by the fault of another, and ,a mere mistake does not make the vessel liable. The Jwpiter, 1 Ben. 536,; The Bellej Id. 317; The Santiago de Cuba, 10 Blatchf. 444. ,Besides, it is, indeed, somewhat doubtful,whether the raft would have cleared the vessel lyingwitJilin ,the channelbelow, and she could not be requir.ed to, lie by and receive the blow of the raft on her bow or broadsides, if,' as it would appear, that was the more dangerous position in which to receive it. Secondly, it is urged. that the Athabasca might have stopped along-side of Cunningham's dock. By this must be meant that she could have laid by the Hiawatha and outside of that vessel from the dock. In my opinion, that would have been more dan-, geroua than to have gone ,ab,ead; where the channel was wider and try the chance of getting around the raft. Thirdly, it is urged that she could have run her bow ashore into the bank, and held herself there while the raft passed. The Athabasca had no means of knowing with what safety. this could be done. The charts of the river showed the limits of; the navigable channel, between the northern one of which and the shore was a strip of unknown character. It is impossible for me to hold that the. Athabasca .would have been justified, even, if she had taken such a course. Lastly, it is said she could have turned in the river and gone down out of the way. At one time on the hearing I had an impression that there was some plausibility in this suggestion. But taking into consideration the narrowness of the channel, the length of the vessel, and distance req,uired in which, to make ihe turn, and especially the large preponderance of the testimony of experts in such navigation, showing its difficulty and danger, it appears to me that, at least, it was not dear negligence in the .Athabasca to have refrained from taking that course "in the circumstances in which she was placed. Let a decree be entered dismissing·the libel.
WEBER
v.
TRAVELERS' INS. CO.
657
WEBER '/7. TRAVELERS'
INS. Co.
(Oircuit Oourt, D. N01'fJI, Dakota. April 28, 189l.) REMOVAL oli' CAUSEs-JUBISDIOTIONAL AHOUNT-PLIIADING.
In an action for the specific perforlllance of a sale of land, plaintift alleged tbat she had performed all of her agreements, and asked for a conveyance, The petition for removal of the cause alleged that the matter involved exceeded, exclusive of costs, $2,000. Held, on motion to remand for want of jurisdiction, that, there bein« no question of interest involved, it was unnecessary for the .r.etition to allege that the amount involved exceeded $2,000, exclusive of costs and interest. "
In Equity. Motion to remand. M.· A. Hildreth, for complainant. H. C. Southard, for defendant. THOMAS, J., (orally.) This action was commenced in the district court of Richland county, state of North Dakota, and before the time for answering expired the defendant filed a petition in said court for the removal of said action to this court.. Said petition and the transcript of the record having been filed in this court, the plaintiff moves to remand, on the ground. that it appea.rs on the face of the petitionand the record that this court has not jurisdiction of said action. The matter in dispute, as appears by the complaint. consists of certain lots in the city of Wahpeton, Richland county, N. D., but the value of said lots does not appear. in the complaint, and there is no allegation contained in the complaint which this colirt can ascertain the actual value of said lots, and there is nothing that appears thereon that said lots are not worth over $2,000. The complaint is silent as to value. In the petition for removal it is said "that the matter involved in dispute in the above-entitled action exceeds, exclusive of costs, the sum or value of $2,000." All the other jurisdictional facts sufficiently llppearupon the petition and complaint filed. The contention of plaintiff upon this motion is that it does nc:>t appear, either upon the face of the petition or upon the record, that the matter involved in dispute exceeds the sum or value of $2,000, so as to give this court jurisdiction, and for that reason the case should be remanded to the state court. I do not think it can successfully be maintained that, if it had been alleged in the petition that the matter involved in dispute in the above-entitled action exceeded, exclusive of interest and costs, the sum or value of $2,000, this court would not have had jurisdiction ofthe cause. What is the effect of leaving out the word "interest" in the petition upon the facts as' disclosed by the record? The action is brought for the specific performance of a contract for the purchase of land; the plaintiff alleges that she has entirely performed her part of the contract, and that she is entitled to a conveyance of the property. No question of interest is involved, or can be involved, as might be the case if the action was upon a promissory note, bond, or some other evidence of debt on which interest might be computed. The question is, what is the value of the land which is the subject-matter of the action and the matter in dispute? The petition alleges that it (the v.45F.no.l0-42