States, having jurisdiction of the contract as a maritime one, might enforce liens given for its security, even when created by the state laws. The inference is plain that the court meant to affirm that no such jurisdiction existed when the contract was not of a maritime nature. The libel is therefore for want of jurisdiction.
February 27, 1885.)
(District Oourt. S. lJ. New York.
COLLISION-MISCALCULATION OF PILOT-LoOKOUT.
The ferry-boat P. was approaching: her New York slip on the North river on a strong flood· tide, which compelled her to go below her slip and swing into it as the tide swept her up. The ferry-boat W., running on a different ferry, at this moment came out of her slip, 744 feet below that of the P. it was the custom of the W. to go to the right of the P. on such occasions, if the P. were" well out" in the river, otherwise to go to the left. On this occasion, the pilot of the W., judging that the P. was well out in the stream, attempted to go to the right, when the P. was already swinging in, and in ahout 45 seconds aher leaving her slip struek the \Y. on he'" port side. The pilot of the P. was giving his entire attention to making his slip; the deck hand who should have acted as lookout was under the hood, and did not see 01' report the W. until a few seconds before collision, when the P., too late, reversed full speed. Held, that the W. was in fault in misjudging the distance of the P. aud in atto go inside and across her bows; and that the l'. was in fault in not having a lookout besides the pilot properly stationed and attentive to his duties; and that the damages should be diVided.
'rhe legal obligation of ferry-hoats to maintain an efficient lookout has been repoatedly declared, and can never be relaxed.
Abbett d: Fuller, for libelants. Wilcox, Adams d: Macklin, for claimants.
BROWN, J. At about 6: 30 P. M. on the fifteenth of October, 1883, as the Erie ferry-boat Pavonia was approaching her slip at the foot of Chambers street on the North river, she ran into the starboard side of the ferry-boat Weehawken, of the Hoboken ferry, running from the foot of Barclay street. This libel was filed for the recovery of the damages arising from the collision. The tide was strong flood, and the wind heavy from the north-wesb. It was dusk; but bright moonlight and clear. The upper side of the Barclay-street slip is 744 feet below the upper corner of the Providence pier, which forms the lower side of the Chambers-street slip. The Pavonia was intending to make the upper division of the Chamhers-street slip; the lower division being occupied by her sister boat. The flood-tide, at its strength, sweeps past these piers at about the rate of three knots or over. To make their landings on the New York shore at such a time,
by R D. & Edward Benedict, Esqs., of the New York bar.
the ferry-boats from the west shore usually go somewhat below the slip, and run into it as they drift upwards. Such, according to the testimony of the witnesses on the part of the Pavonia, was her course at this time. Every natural probability gives it credit, there being no obstructions in the way. The pilot testifies that before making his final swing to run into the slip, he looked to see if the Barclaystreet boat was coming out, it being time for her, but could not see her; that he then put his wbeel hard a-starboard, and swung for his slip, to which he gave his whole attention, until the Weehawken appeared very near to him, when he reversed his engine, but not in season to stop and prevent the collision; and that the collision took "place within 100 or 200 feet of the end of the Providence pier and opposite to it. On the part of the Weehawken it is admitted that, inasmuch as the boats cross each other's course, the established practice is that the Barclay-street hoats on a flood-tide shall pass inside, that is, to the right, if the Erie boats are at the time "well out" in the river, i. e., 1,000 feet or upwards; but that otherwise tbey must go outside of the Erie .boats in order to permit the latter to make their landings. This is a manifest necessity to which, under rule 24, the prior rules give way. Her witnesses say that as the Weehawken left her slip the Pavonia was "well out" in the river; that she had not got down as far as the Chambers-street slip, and had not commenced her turn for the slip, which she would not usually do until she had passed below Chambers street; that the collision itself took place some 400 or 500 feet out in the river, opposite the Erie pier, which forms the upper side of the Chambers-street slip, and occurred in consequence of the Pavonia's turning rapidly about, under a starboard helm, and trying to run ahead of the Weehawken. Tbere is considerable testimony on the part of the Weehawken to sustain this theory and the place of the collision as alleged in her behalf. Repeated consideration of the testimony compels me to reject this account as to the place of the collision. I am satisfied it was opposite, or very nearly opposite, the Providence pier, on the lower side of the slip, or a little only above it, and occurred as the Pavonia was coming in her usual course to make the upper rack, and that it was not more than 200 feet outside of the .lower pier. The boats, doubtless, within half a minute after had drifted up abreast of the upper pier, and thereby had come nearly into the position testified to by the Weehawken's witnesses, except as to distance out in the river. The testimony of the pilot of the Secaucus, which layout in the stream, is referred to as establishing the position of the boats opposite the upper pier at the time of the collision, because the pilot testifies that he could see the bridge of the slip astern of the boats. This, however, is not of much weight, unless the exact position of the Secaucus were known, and that is as liable to error as the position of the Pavonia; and also because; as I have said, the boats dl'ifted im-
mediately to the npper pier, and the Weehawken, being under full 'headway, would have passed from one pier to the other in about 15 seconds. There are circnmstances that strongly confirm the account of the Pavonia as to the place of the collision. Her pilot, not seeing the Weehawken, had no reason to keep off; nor, on the other hand, is there the slightest probability that, not seeing her, he would have changed his course to run into his slip at a point where it was impossible for him to make the slip. Had the Weehawken been in the position her witnesses allege, there is no conceivable reason why the Pavonia should not have continued down river in the usual manner, until she had passed somewhat below Chambers street, before her final turn for her slip. On the other hand, if the pilot's statement that he did not see the Weehawken is untrue, and if he did see her, it is not credible that he would depart from his usual course to go below Chambers street before turning, so as to be unable to make his own slip, and at the same time so as to run into the Weehawken. All the probabilities of the case, therefore, sustain the witnesses of the Pavonia as to their position nearly opposite the Providence pier at the time when the boats first collided. If that was the place of collision, the fault of theWeehawken necessarily follows; for the time that elapsed after the Weehawken left her slip until she reached the Providence pier, only 744 feet distant,considering the flood-tide, could not have been upwards of 45 seconds; and during this time the Pavonia could not possibly have come inwards more than 500 or 600 feet, at the most, the tide; so that she could not, at the time the Weehawken left her slip, have been "well out" in the river, so as to justify the Weehawken in undertaking to go inside. The result proves that the pilot of the Weehawken miscalculated her distance out. Considering the nearness of the Pavonia to her slip, and that she was already on her swing, I couclude that it was the duty of the Weehawken to have waited and passed outside. r cannot acquit the Pavonia of the charge of negligence in not having an efficient lookout. Assuming it to be true, as the pilot states, that just before he his final swing for the slip he looked for the Barclay-street boats and saw none coming out, it is clear that it must have been very nearly at the same time, at all events but a few seconds afterwards, that the Weehawken started out. The Pavonia's lights, and the changes in them that the pilot of the Weehawken saw, show that she was then just commencing her final swing. From that time the pilot was, as he says, required to give all his attention to make his slip. That made an efficient lookout the more indispensable from that moment onward. The legal obligation offel'ry-boats to maintain an efficient lookout has been repeatdeclared, and considering the lives that are endangered through collisions this rule can never be relaxed. The Monticello, 15 FED. Rl!lp. 4;H, ,and cases cited. There was a. deck hand whose duty it was
to act as lookout; but it is clear that he was not performing his duty as such, nor in the proper place for performing it, but was under the hood. If he had been doing his duty, the Weehawken would have been seen coming out of her slip and reported three.quarters of a minute at least before the collision. Had she been thus observed and reported at that time, the Pavonia, by reversing her engine at once, instead of waiting until half this interval had passed, would very clearly either have been stopped altogether before the collision, or else would not have reached the place of the collision until the Weehawken had passed by, which would have been accomplished 10 seconds later. Both boats must, therefore, be held in fault, and the damages divided.
THE STANDARD. 1
(D1'strict (Jourt, 8. D. New York. February 16,1885.)
COLLISION BETWEEN STEAlIERS-CROSSING COURSES-SIGNALS.
As the tug M., with three boats lashed to her sides, was commg out of the Kills into New York bay with the ebb-tide, she came into collision with the barge 8weepstakes, in tow, on a hawser, of the tug S., bound down the bay into the Kills. Previous to the collision, the 8. gave two whistles, indicating that she would pass to the left, to which the .M:. responded with two. But the S., after signaling, did not change her course to correspond, or slacken her speed, but with her tow kept a perfectly straight course. The M. changed her course in accordance with her whistles, but very slightly, and stopped and backed, but not in time to avoid collision. Held, that both vessels were in fault,-the 8., because, having the M. on her starboard hand and being bound to keep out of the way, she did not change her course to correspond with her whistles; the lH. for not changing her course earlier than she did, and for not seasonably stopping and backing.
SAMJl:-MrsCALcuLATION OF PILOT.
The ebb-tide out of the Kills and the ehb down the hay meet near the place of collision; and each vessel, as she approached, had the tide in her favor. Held, that both pilots dountless miscalculated the rapidity with which the boats were approaching. But both were familiar with the tides, and both are chargeable for such miscalculation, and for neglect in not taking measures sufficiently early to avoid each other; and consequently the damages must be divided.
In Admiralty. Benedict, Taft et Benedict, for libelants. Beebe, Wilcox If Hobbs, for claimants. BROWN, J. On September 8, 1882, at about half past 10 in the forenoon, as the libelants' steam-tug Monitor, having in tow one boat lashed upon her port side, and two others lashed to her starboard side, was coming eastward out of the Kills with the ebb-tide, when a little to the southward of the Can buoy, (No. 17,) below Robbins' Reef light, she came in collision with the oil-barge Sweepstakes, which was in tow, on a hawser, of the steam-tug Standard, which bad just passed the buoy, and was bound down. the Kills. The pilot of the
Reported by RD. & Edward Benedict, Esqs., of the New York bar.
Monitor was about half.way between Constable's point and the Can buoy-that is, about half a mile distant from the latter-when' he saw the Standard coming nearly straight down the bay, and a little above Robbin's Reef light, with her two barges in tow upon hawsers, one behind the other. The Standard signa.led to the Monitor with two whistles; to which the lq,tter replied with two, indicating that they would each go to the left. The evidence shows that the Stand· ard, with her tow, kept a perfectly straight course, without changing her helm or slackening her speed, until the collision happened with her tow. The libelants' testimony is to the effect that the Monitor starboarded her wheel so as to change her heading sufficiently to point inside, or to the westward, of the Can buoy; and that before the collision she reversed her engines. The other evidence in the case satisfies me that the Monitordicl not starboard much, or change her course to any considerable extent to the northward. The fact that the Sweepstakes, the aft boat of the Standard's tow, struck all · three of the boats which were lashed to the Monitor's side, and the fact that the barge ahead of her was going down the bay upon a S. S. W;course, are utterly irreconcilable with any cousiderable pre· vious' cllange by the Monitor. The Standard passed the Monitor some 200 feet or more distant from her. The Acme, the first boat of her tow, some 200 feet behind, was passed less than 50 feet ilistant from the Monitor, while the Sweepstakes, about 150 feet behind the Acme, collided with the Monitor's tow, as above stated. It is very clear that both boats were to blame for this collision; the Standard, because, having the Monitor on her starboard hand, she was bound to keep out of the way, and yet made no change in her course; and, second, because, in giving two whistles to the Monitor, she agreed to pass to the left, and having abundant room to do so, and no obstruction, she did vary her course, but kept nearer to the Can buoy than was necessary or proper, considering that the only reasonable course for the was to pass to the eastward of the buoy and not through the narrow channel to the westward of it. The Monitor was equally in fault for not starboarding earlier than she did, and also for not seasonably stopping and backing, which were eqnally within her power. The peculiarities of the tide there at that time doubtless contributed to the collision. Each, as she approached the other,had the ebb-tide in her favor; the Monitor in coming down the Kills, and the Standard in coming down the bay. These two tides met near the place of collision. The real cause of the collision was doubtless the miscalculation of both pilots as to the raw pidity with which they were approaching each other; but both were familiar with these tides, and both are chargeable for such miscalculation, and for not taking in time the measures necessary to avoid each other. The damages must be divided, and a reference ordered to compute the amount, with costs.
WILLARD V. MUELLEl\.
(Oircuit Oourt, S. D. Ohio, W. D. March 21,1885.)
REMOVAL 01l' CAUSE-FEDERAL QUESTION-SECTION
3477, REV. ST. Complainant brought suit in a state court to subject a judgment, obtained hy the defendant against the United States in the court of claims, to the payment of a judgment he had against defendant, and for injunction to restrain defendant from coUecting, transferring, or otherwise disposing of said claim against the government, and for the appointment of a receiver to collect and hold the fund. The suit was removed to the United States court, and upon motion to remand, held, that the suit involved the construction of section 3477, Hev. 1St., which declares that all .. transfers and assignments made of any claim upon the United States, '" '" '" shall be absolutely null and void, unless they are freely made, and executed in the presence of at lea,;t two attesting witnesses," etc., and the motion was therefore denied,
On Motion to Remand. Long, Avery, Kramer Ii K1'amer, for motion. Lincoln, Stephens Ii Lincoln, contra. BAXTER, J, This suit, commenced in the common pleas court of Hamilton! Ohio, was, on the defendant's application, transferred to this court for trial. The removal wa3 under the act of March 3, 1875. The complainant moves here to remand it. The complainant seeks, through the aid of a court of equity, to seize $22,000, adjudged hy the court of claims to be due from the United States to the defendant, and have the same applied in part payment of a judgment for a larger amount which he holds against the defendant. As a basis for this relief he alleges that the defendant has no property subject to execution, and that he is about to assign his said claim on the government, to prevent the complainant and other creditors from subjecting it to the payment of his debts. Wherefore, he prays for an injunction to restrain defendant from either collecting, transferring, or otherwise disposing of said claim, and for the appointment of a receiver to collect and hold the fund subject to the order of the court. Both parties being citizens of Ohio, the motion to remand must prevail, unless the controversy involves some federal question. The government is not and cannot be made a party to this litigation, and I presume would not respect any order which the court might make, directed to the officer charged with the duty of paying the defendant's claim. Whether it would recognize an assignment or power of attorney executed by the defendant under judicial coercion to the court's receiver, is not important to this inqairy. It is certain that a decree compelling the defendant to assign his claim or to execute a power of attorney, authorizing its collection, is the only possible way for the court to obtain possession and control of the money sought to be reached. But the defendant contends that he is protected against
by Harper & Blakemore, Esqs., of the Cincinnati bar.