swing outofthe way of the Townsend and Relley,-in all of which respects the Sunrise was at fault and negligent; that the Townsend, in coming down the river, occupied the usual channel or roadstead at the point where the Sunrise was anchored and located; that it had proper lights and a proper watch at the proper places; that the lights of the Sunrise, being so dim at the time, were not seen by the Townsend far enough away to have avoided the collision, although proper diligence was used for that purpose; that when the lights were seen, being close upon the Sunrise, the master of the 'l'ownsend used proper seamanship in trying to avoid the coliision; and that, thereor carelessness in fore, the Townsend was not guilty of causing the injury; that the Kelley, being the tow, was guilty of no negligence, and therefore not liable for the injury to the Sunrise. The claim of the Kelley in the cross-libel not \:Jeing pressed by counsel, the cross-libel is dismissed. Decree dismissing libel at libelant's costs. Appeal allowed.
(Dz'strict Conrt, N. D. Ohio, E. D.
LInEJ, FOR WAGES OF l\IASTER.
April Term, 1883.)
The master of a vessel has .no lien cn the cargo of the vessel for his wages beyond the amount of the freight thereof, ann where, for any reason, be does not unload the cargo, he is only entitled to a lien upon such of the freight as the vessel has actually earned, that being the freight less what it costs to uuload.
In Admiralty. Mix, Noble cf: White, for libelant. Goulder If: Wek, for the Arcturus. WELKER, J. The libelant was the master of the Arcturus, and had wages due him as such master from the owners of the vessel about the month of November, 1882. At that time he had on board the vessel a quantity of telegraph poles, owned by A. A. Colby, which had been carried on board the Arcturus, and were to be delivered at port of Sandusky, upon which the said Colby was to pay freight In the usual way. Before the telegraph poles were unloaded at Santhe vessel was seized by the United States marshal under a lIbel filed by W. H. Wolf et al. against the Arcturus, so that the master could not, and did not, unload the poles at Sandusky, and Colby, the owner, was compelled to pay $70 to procure the poles to be ,unloaded, and before he was allowed to do so he paid the whole freIght money into the registry of the court which would have been earned by the Arcturus if the contract of affreightment had been ful-
filled by the delivery of the poles. The libelant, Jones, the master, claims the whole freight should be applied on his unpaid wages, and also a lien on the poles, the cargo, for the amount due him for services as master. 'fhe court finds that the libelant had no lien on the cargo for the wages beyond the amount of the freight thereof; that in this proceeding he is only entitled to the freight actually earned by the vessel, that being the freight less what it costs to unload it at Sandusky; that the libelant is entitled to a decree for that part of the freight so actually earned, to be applied on his wages as such master; that Colby is entitled to repayment out of the registry of the amount he paid for the unloading of the cargo, being the sum of $70. Decree accordingly.
See The DeSmet, 10 FED.
483, and note, 496.
(District Court, N. D. Ohio, E. D.
PERSONAL INJURIES TO SEAMAN.
A seaman recover for injuries resulting from his own carelessness in executing a proper order of the maSler.
Libel for damages for personal injury.
Willey, Sherman & Hoyt, for libelant. GauZder & Weh, for respondent.
WELKER, J. The libelant was the wheelsman on the Montauk, and while in the Sault Ste. Marie river the schooner, on the fourth of August, ]881, in tow of a tug, ran aground, and the libelant, then at the whE:el executing an order of the master, was injured by the wheel spinning around and striking him. The libelant claims that the master gave him an improper order, and that, while executiug it, he was injured without his fault. This is denied, and it is alleged the libelant was injured through his own carelessness. The court finds that the order given the wheelsman, from the weight of the evidence, was a proper one; that the libelant, in executing the order, was himself guilty of carelessness, which produced the injury, and therefore not entitled to recover. The libel is dismissed, with costs, and the appeal allowed.
B. & Q. R.
Under suhdivision 3 of section 630 of the Revised Statntes it is not necessRTY, in order to the removal of a cause, that it should appear from the record that the parties were citizens of difIerent states at the time the suit was commenced.
OF CAUSE-LoCAL PnE.TUDTCE ACT-CITTZENSHIP.
Motion to Set Aside Order Remanding Cause. McCRIRY, J. This suit was removed to this court from the state court under what is known as the "local prejudice act" of 18tH, now embodied in the third subdivision of section 63U of the Revised Statutes of the United States. At the last term there was an order remanding the case to the state court. After said order was entered, the counsel for the defendant moved that it be set aside, and thereUpon the court suspended its execution until that motion could be heard before the full bench. The question is whether, under the said third subdivision of section 639 of the Revised Statutes, it is necessary, in order to the removal of a cause, tllat it should appear from the record that the parties were citizens of ditl'erent states at tIle time the suit was commenced. It was held in the case of Ins. Co. v. Pechne1', 95 U. S. H13, that, under the twelfth section of the jUdiciary act of 1789, this was necessary. In tIle case of Kaeiser v. lltlilroad Co., recently decided in this court, and reported in 6 FED. REP. 1, it was held that the same rule prevails under the act of March 3,1875. In Johnson v. Monell, 1 Woolw. 390, it was held by Mr. Justice MILLER, while holding the circuit court, that under the local prejudice act, now embodied in the third subdivision of section 6.3!.l, it was sufficient to show the citizenship of the parties at the tIme of the filinJ of the petition for removal. If, therefore, the lastnamed decision is not to be regarded as overruled by the two more recent decisions above cited, in both of which Mr. Justice MILLER concurred, the present motion must be sustained, and this court must retain jurisdiction of the case· . In view of these facts, and considering the importance of the questIon of practice involved, I have thought proper, with the concurrence of Judge LOVE, to suhmit the question to Mr. Justice MT. LER for bis opinion and advice, which he has very kindly furnished to us, RS follows:
... I think it may be taken for granted now that the act of March 3, 1875, dId not repeal the third clause of section 639 of the Hevised Statutes. That clause, in descril.Jing the class of cases in which it authurizes a remuval from a state to a federal court, begins by saying: ·When a suit is between a citizen of the state in which it is brought ami a citizen of another state,' etc., it be removed on account of prejudke or local influence. If the language el"e used is to be construel! literally, unduuutedly suell a suit is pellilillg wilen