June 2<3, 1883.)
(District Court, S. D. New York.
If a canal-boat, aft,'r heing assIgned a bcrth within the slip, is moved so to project beyon'l the pier, and there left with no one on board, it is at her own risk of collision with other vessels making a landing.
The steamer 0., in making a landing at the pier below, baving struck the bows of the canal-boat in rounding about, held, she was also chargeable with fault, as there was room for her to land without coming up so far as the canalboat; and the damages of the collision were divided.
'Where the owner of the cargo recovers his whole damage from one of two vessels in fault, the vessel sued may set-off in another suit hetween the owners of the two vessels, tried at the same time, the one-half of the damage to tlw cargo which ought to be paid 1Jy the other vessel.
J. A. Hyland, for lihelants. Butler, Stillman J: Hubbard, for claimants.
BROWN, J. The libels in the abo ve cases were filed by the owner of the canal-boat Charles T. Redfield, and by the owners of the 223 tons of coal on board of her, to recover their respective damages from the sinking of the canal-boat by a collision with the steam-boat Canima, about 11 A. !II. of the twenty-seventh of AI.lgust, 1880. The weight of evidence shows that the canal-boat, though previously assigned by the harbor-master to a berth wholly within the slip on the north side of pier 48, North river, the afternoon before, had been movod further out that morning by her captain, preparatory to discharging the coal, and that at the time of the collision she was lying on the north siue of the pier, with her bows projectilig some 10 or 15 feet into the river beyond the end of the pier. The Canima had come up the river with a strong flood·tide and a southerly wind, and was preparing to land at the sOIlth side of pier 47, bows out. For that purpose a line had been cast from her starboard quarter and made fast to the end of pier 47, and as she drifted up slowly with the tide, and with her eugines reversed, the bluff of her starboard bow struck, or rubbed against, the starboard bow of the canal-boat, causing the latter to sink almost immediately. No one was aboard the 'canal-boat at the time, and the steamer's hail to move, or loosen her lines, were therefore unheeded. The witnesHes frOm the steamer say that the blow was only the ot"dinary rubbing of yessels against each other in such circumstances, and that the canal-boat sank only because she was old, and too rotten to 'withstand the ordinary pressure. The canal-boat was 12 years old, and had been extensively repaired, except her bow and stern. That hails were given to the canal-boat to mow, or loosen her lines, leads to the inference that the collision was not a Ulere rubbing or pressure, but was some·
thing of a blow. I do not think it necessary, however, to determine, upon the meager evidence before me, the question of the soundness of . the boat. The evidence shows that the Canima migM and ShOUld have avoided the canal-boat altogether, although the latter projected beyond th.e pier. The Canima, to effect her landing, was under no necessity of going up so far as the canal-boat lay, d.S is shown by the distance between the piers as compared with he}! own length,-in this respect dIffering from the case of The Cornwall, R Ben. 212; and it is clear that earlier and more effective backing would easily have prevented the collision. Shd c::mnot, therefore, be held free from fault. But the canal-boat is also chargeable with negligence contributing to the collIsion from the position which her own captain voluntarily assumed; her bows moved oulbeyond the pier, after having a berth wholly inside the slip. position was one of peculiar exposure to just such collisions, and has rereatedly been adjudged to be a fault, wbel' voluntarily and Ulll1ecessanly assumed. The Baltic, 2 Ben. 452; The Corll/ra'l, supra; The Avid, 3 Ben. 434. After being once safely located inside the slip, she had llO right to 11Iove her bows so as to project outside, ex.:ept at her peril. In .he case of The Nellie, 7 Ben. 497, the elevator was intentionally swung by the tug against the barge, and consequently at the tug's own risk. In addition to this, the canal-IJOat was left fastened 111 tms exposed situation with no one on board to render any aid in averting threatened danger. There was negligence, therefore, in both respects; a d GrImes, tlJe owner 01 tlJe canal-boat, is,-therefore, entitled to but half his with costs. Duncan, the owner of tho cargo, is entitled to recover his whole with costs, as in the case of The Atlas, 90 LJ.- S. 302. But as tLe steam-ship, in paying the owner of the cargo, sustains damage to that amount, she is entitled on payment to orrEct this against the luss recoverable by the owner of tlJr canal-boat, so far as that will go; (Jr, what comes to the same thing, the steam-hoat may charge against the sl1m payable to the owner of the canal-boat, the one-half of the damages to the cargo; which the latter ought by reason of his negligence to pay for the cargo, as in the case of The Ell'fllltira, 17 Blatchf 88, 105. The C. fl. Foster, 1 FED. REP. 733; Leollard v. Whitwill, 10 Ben. 633, 658; Auantic Mut. Ins. Co. v. Alexalt(!re, 16 FED. REP. g7U. A reference may be taken to compute the-amount.
V. UNION PACIFIC BY. CO.
By. Co. and another.
(Circuit Court, S. D. Neto York.
OF CAUSE-REV. ST. § 639-AcT OF :r.LmcII 3, 1875, § 6. The act of March 3, 1875, § 6, ref"r, to the stagJ of thc in the suit at which the pl'Oceedmgs in the circuit court are to commence, ruther than to ilw form, foree, or e,feet of the plcadmgs in the ca Ise previously hact, leaving; the provisions of Hev. St. § 639, in force as to them; and if the p eadings are in form, and verine;), so as to be regn'ar and valid in the state courts, the intention and etrecl of the statnte and rule, w(/uld seem to he thlt tlley are to IJe taken to he so on reaching the federal cuurts in cases of removal. 2. Surl' BY STOCKHOLDER-EQUITY RULE 94. Equity rule 94 apple, only to bill, brought hy a stockholder against a corporat.oll and others, "founded on rights which may properly be asset·ted by the corporation," and does not apply to a suit brought IJy a stockholder, not "founded on snch rights," agamst a corporntton to le.:ltrain curporate action, and against the president for discovery merely.
;So :MOTION Fan INJUNCTION-AFFIDAVITS.
On motion for a preliminary injunction, the case, with its gronnrfs for relief, mnst he made by tlIe IJill itself, and the scope of tlIe bill canuot LJe enldr,:;ed by atfiuavits fLed.
COHPORATION-PoWEn TO Pr,EDGE SECUIlITIES Fan DEBT.
The power of a corporation to pledge 81'curities owned by it for the payment of its debts is induded iu the power to sell such securitie, for that purpose. In this cnqrJ the av"rments of the hill are too indefinite to entitle complainant tt) a preliminary injunction as moved, and the motion is accordingly denied.
In Equity. for defendant. TlJis snit is brought by the orator as a stockholder in tlle defendant corporation, of which the other defendant is president, to restrain the corporation from raising money on its bonds secnred hy a pledge in trust of the securities of other roads held by it, to aid in the construction and ope\:,ation of connecting roads not a part of its own liues. 'fiJere is a motion for a preliminary injunction, which has now been heard. 'l'lJe defendants make qnestion in advance of the merits of the case as to whether it is bronght within the requirements of the ninety-four! h rule in equity. The suit was commenced in the state court and removed into, and copies of record have been entereJ in, this court. Section 639, nev. St., provides, with reference to suits removed like tllis, tuat'WHEELER,
George ZlIhri!;kie, for orator. John F. Dillon and Artemlt8 [I.
"'Vhen the said copies :Ire entered as aforesaid in the ('ircuit ('onrt, the cause shall proceed in the same \DaHner as if it hal! Leen brought tllf'lre by original process; and the copies of plearlings Shall have the same force and effect. in every respect and for every pnrpose, as the original plpadings would have had by the laws :lnll practice uf the cuurts of such state if tue cause 11ml relUained iu the state ('ourt."