THE GEOBGE' TAtlLANEo
Jenkins for the collision. As the respondents ohose to litigate that question,ll.nd the proofs show them :tq be in the wrong, they oannot very well complain that they are adjudged to pay the costs. Let a deoree in favor of the libelant be drawn for $16 and oosts;
THE GEORGE TAULANE.
(District Court, D. Delaw0A'6. January 23, 1885.)
PBACTICE IN ADltIRALTy-AMENDMENTS-DISCRETION OF CoURT.
Particular facts necessary to be stated in libels in rem, the character of amendments and conditions on which they may be made, prescribed. by admiralty rules 23 and 24; the design of.the rules being to &Ccure certainty and uniform-, ity in pleading and practice. "
Hoffecker et Hoffecker, for libelant. Harry Sharpley, for olaimant. WALES, J. Libel in rem for damages to a cargo of canned fruit
shipped on board the Taulane, at Lebanon, in the state of Delaware, and consigned to parties in Philadelphia. Libel filed July 15, 1884. On the same day the marshal attached the vessel at Lebanon. Claim, stipulation, and order of discllarge were made July 1:9, 1884j answer and exception filed September 3, 1884. It is alleged that, by thtl carelessness and negligence of the master and crew in stowing the goods, the latter were exposed to the rain and damaged to the amount of several hundred dollars. Speoial exoeption has been taken that "it is not alleged, nor does it appear by said libel, that the said schooner was or is in this district." The libelant is, in fact, a oorporation oreated by the laws of the state of Delaware, whereas it is desoribedin the libel as a corporation of the state of New Jersey. The allowance of the exception is not resisted, but the libelant now appeals for leave to amend by substituting Delaware for New Jersey, and by adding to the seoond section of the libel the words, "and that the said schooner is now within the district of Delaware and the jurisdiction of this honorable court." The question is, should this amendment be allowed as of oourse, and without terms? And this is a matter, within the discretion of the oourt, which is to be exercised in view of all the circumstances of the oase, of the rights of the parties, and of a proper application of the admiralty rules and practice. It is contended that the proposed amendment would not change the cause of action, or affect the stipulators who will not be discharged by an amendment, but are subject to all legal dispositions of the oase by the court within the amount of their bond. Amendments in form only, in the addition and subtraction of parties, and
in all matters which do not prejudice the rights of the other side, are. liberally allowed; and amendments in matter' of substance may be allowed, at any time before final decree, upon such terms as the court shall impose. Ben. Adm. 4:83; 2 Pars. Shipp. & Adm. 4:15; 2 Pars. Marit. Law, 713-715; The Harmony, 1 Gall. 124:; Newell v. Norton, 8 Wall. 266; The Oarozal, 19 FED. REP. 655. Before the have been filing of the answer and exception this amendment made as of course, without notice, on motion to the court; but at this stage of the proceedings, after general appearance, answer, and exception, the privilege of amending cannot be allowed without notice, and on such terms as the court may impose under the rules and practice of the court. Admiralty rules 23 and 24 prescribe the stateto be made in a libel, and the extent and ments of fact manner of allowing amendments. It is the duty of the libelant to state, "if the libel be in rem, that the property is within the district;" "and where any defect of form is set down by the defendant npon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libelant." The attaching of the vessel in the district, on the same day on which the libel was filed, does not cure the defective omission in the libel, nor give jurisdiction to the court. The marshal could not execute the process outside of the district. The averment that the vessel was in the district is made essential by rule 23, and cannot be dispensed with, whether treated as a matter of form or of substance. In McKinlay v. Morrish, 21 How. 844:, the court calls attention to irregularities of pleading in admiralty and to the importance of enforcing the rules and practice and proofs in admiralty cases. These rules have been for established for the purpose of securing certainty and uniformity in pleading, and cannot be relaxed without danger of continuing the evils they were designed to cure. The exception is allowed, with leave to the libelant to amend, on payment of costs.
CITY OF NEW YORK V. INDEPENDENT STlll,Ul-BOAT 00.
MAYOR, ALDERMEN, ETC., OF NEW YORK, V. INDEPENDENT STEAM-BOA.T
(Oircuit Oourt, 8. D. New Y01'k.
REMOVAL OF CAUSE - FEDERAL QUESTION - FERRY PRIVILEGES OWNERS OF LICENSED AND ENROLLED VESSELS.
Plaintiffs tiled a bill against defendants, alleging that they are entitled to enjoy the exclusive right to establish and maintain ferries between New York and the opposite shore of North river, including Staten islanrt,' and that defendants have established and maintained a ferry between Pier 18 and various places on Staten island, and praying foran injunction and an accounting. Defendants denied plaintiffs' right to the exclusive privileges claimed, and asserted that they were not operating a ferry, but were engaged as common carriers in transport.iug persons and freight on the navigable waters of the United States, and that all of their boats and vessels were duly enrolled and licensed for carrying on the coasting trarle, under the laws of congress. Held, that no federal question was involved, and that the cause was not removable from the state court into the United States court.
Motion to Remand. E. Henry Lacomb, counsel to the corporation. Work et McNamee, for defendant. WALLACE, J. The question arising upon this motion to remand is whether the suit is one arising under the constitution or laws of the United States. If to any extent a federal law is an ingredient of the controversy by way of claim or defense the suit was properly removed, and the motion should be denied. The bill of complaint alleges, in substance, that the plaintiffs enjoy the exclusive right to establish and maintain ferries for the transportation of passengers and freight between the city of New York and all places upon the opposite shore of the North river, including Staten island; and that the defendants without permission of the plaintiffs have established and are engaged in maintaining a ferry between pier 18 on the North river and various places upon Staten island. The prayer is for an injunction restraining the defendants from employing any ferry-boats or other vessels in the transportation of persons or merchandisefrom or to pier No. 18, or any other place included in their franchise, to or from any landing place on the shores of Staten island. There is also a prayer for an accounting and damages. The answer denies the plaintiff's right to the ferry privileges claimed, and asserts that the defendants are not a ferry, but are engaged in the lawful transportation of passengers and freight, as common carriers, upon the waters of the United States, between pier No. 18, in the city of New York, and the several landing places on Staten island; and alleges that all of the boats and vessels employed by the defendants were duly enrolled and licensed for carrying on the coasting trade under the laws of congress. If the right to maintain a ferry and exclude the defendants from establishing one cO\lld in any way preclude the defendants from the v.22F,no.14-51