Much additional testimony was given upon this subject on the question of seaworthiness, all of which I have considered; but in my judgment it does not materially affect what has been said above. The test is not whether the ship may possibly make one or several voyages without foundering, but whether she is so staunch in her character as to approve herself as fit for the navigation contemplated, in the judgment of competent men, according to the customs and usages of the port or country; and this, clearly, this vessel was not in a condition to do. The Vesta, 6 FED. REP. 532; The Titania, 19 FED. REP. 101; 105-107; Tidmarsh v. Wa.shington Ins. Co. 4 ::\lason, 439, 441; The Orient, 16 FED. REP. 916; French v. NeU'gass, 3 U. P. Div. 163. In this case there is no possible suspicion that the respondents were actuated by any other motives than to avoid great risk of loss through their inability to obtain insurance of the cargo, notwithstanding great exertions to do so. It was greatly to their interest to load the vessel, if she were a fair risk, since freights were rising; and they finally effected a new charter in place of this one at a greatly increased cost. The refusal of insurance had reference solely to the unsatisfactory condition of the ship. To hold a charterer, under such circumstances as appear in this case, bound to load the ship and become his own insurer, would in my judgment defeat, in a great measure, the very purpose of the covenant of seaworthiness, and impose upon the charterer an alternative and a risk never intended by this contract. The case of The Vesta, supra, is applicable here, and commends itself to my jndgment. I do not impugn the good faith of the master in his belief that this vessel could actually cross the Atlantic in safety, as sbe actually did. Nevertheless, I am quite satisfied that she was not in sucb a sound and staunch condition as to meet the approval of competent and impartial judges as to seaworthiness, and that the respondents were therefore justified in refusing to load her. The libel must therefore be dismissed, with costs.
(Oircuit Oourt, S. D. New York. March 20, 1885.)
COJ,LISION - NEGLIGENCE OF PILo'r ACTING AS MASTER -INJURY TO DECK HAND-FELLOW-8EHVANTS.
A (leck hand who was not on duty, and had no part in the navigation at the vessel, may recover for an injury caused by a collision due to the negligence of a pilot who was at the time in command; following Ohicago, Jf. rf; S. P. By. 00. V. Ros8,5 Sup. Ct. Rep. ]84.
It is only when a lookout would have been of no service in guarding against a collision that his absence can be excused.
3.BAME-PRlIlllUM'PTION AS TO OBSERVANCE OIl' RULES OF NAVIGATION.
While ordinarily a vessel has a right to assume that another vessel is not derelict in the observance of the rules of navigation, this presumption is not to be carried so far as to exonerate her from ordinary precautions on her own part, or to excuse her from the consequences of a mistake, when, by slight exertion aud without any peril to herself or other vessels, she could certainly avoid hazard. The rule requiring lights may as well be disregarded altogether as to be only partially complied with, aud in a way which fails to be of any real service in indicating to other vessels the position and course of the one carrying them.
In Admiralty. Owen et Gray and Peter Oantine, for appellants. Peckham et Tyler, for appellee. WALLACE, J. Upon the proofs it seems perfectly clear that both the Titan and the Hills were in fault for the collision by reason of which the libelant was injured. The collision took place about 7 o'clock in the evening of September 22,1882, in the Hudson river, about 1,000 feet out from the Jersey shore, somewhat above the Pavonia ferry slip. The tide was ebb, running about three miles an hour; the wind was light, and the night was gray but fairly clear. The Titan was proceeding up the river bound for Hoboken, against the tide, at a speed of about four miles an hour, on a line with the westerly shore but heading in somewhat towards the shore, towing the float Mohawk, which was heavily loaded with two rows of railway cars, and was lashed to her starboard side. The float as lashed projected some 20 feet beyond the bow of the Titan, and had an umbrella or shed roof which sloped on each side to within about six inches of the top of the cars. This umbrella obscured the green light on the starboard side of the Titan so that it did not show a uniform and unbroken light from right ahead to two points abaft the beam on the starboard side, and there was no green light on the starboard side of the float. The Hills had left the New York side at Twenty-third street bound for Jersey City, light, and proceeded on her course down the river and bearing to the westward at So speed of about 15 knots with the tide. She had no lookout, but her pilot, who wa.s acting at the time as master, and was at the wheel in the pilot-house, saw the Titan when nearly half a mile away. He was able to see the vertical white lights of the Titan and the white light of the float, but he was unable to see the green light of the tug because it was obscured from view by the cars and the umbrella of the float. Not seeing the green light he assumed the tug and float were going down the river, and kept rapidly approaching tbem at full speed. Hoon after seeing the tug and float he observed the ferry-boat Gould, which had left her ferry at Hoboken and was coming by to the westward of the Titan about ]50 feet away, and passed across the Titan's bow, but he supposed across her stern. The Gould gave a signal of two whistles to the Hills and the Hills responded by a like signal. The Titan supposing the signal of the Hills in answer to the Gould was a signal to herself answered the Hills signal with two whistles, but the pilot of the Hills supposed·
these were a signal to the Gould. The Hills starboarded somewhat for the Gould and passed her on her port side a couple of hundred feet away, and then her pilot when within 100 feet of the Titan, still assuming that the Titan was going down the river and seeing that a collision with her was imminent, hard ported his wheel to go under her stern. The result was that the Hills came into collision with the bow of the float, and the shock was so severe that the libelant, who was on the Hills, was thrown down and his skull was fractured. The Hills could have avoided the collision with proper effort at the time she came abreast the Gould, being then about 100 yards away from the Titan. She maintained her full speed from the time her pilot first saw the Titan to the time of the collision. If the pilot in charge of the Hills was warranted in assuming that the Titan was going down the river as he was overtaking and intending to pass her, he assumed the responsibility of passing her safely, and unless he allowed ample distance for the purpose, he was bound to slacken speed, and if need be to reverse in order to avoid collision. In this behalf it was his duty to maintain a diligent observation in order to govern himself as circumstances might require. Instead of doing this, he found his vessel within 100 feet of the Titan, bearing upon her float amid-ships, and sought to save a collision by the maneuver in extremis of hard porting his wheel. For a distance of nearly half a mile his view was unobscured, except for the brief interval when the Gould was between him and the Titan. Probablv he relied upon his first observation when he concluded the Titan 'was going down the river, and relying upon this he permitted his attention to be distracted by watching the Gould. Undoubtedly the appearance of the Titan and her float with their vertical white lights apparently in a cluster, while the vessels were approaching each other, with no background by which to determine readily in which direction the lights were moving, and no green or red light to indicate that she was approaching, was well calculated to mislead the pilot of the Hills. But it seems impossible to believe that the real situation would not have been discovered if proper diligence had been exercised. The Hills should be held in fault for not having a lookout. It is only when a lookout would have been of no service in guarding against a collision that his absence can be excused. 'rhe situation here was peculiarly one in which the observation and judgment of a lookout might have been useful. It was one of those doubtful situations in which different points of observation might suggest different conclusions and in which two men might form a different opinion from the same stand-point. There was enough in the rapidity with which the vessels were approaching each other to attract attention and suggest the probability that they were not going in the same direction. The Hills was also in fault for pursuing such a high rate of speed at night, and with the tide, upon waters customarily traversed by numerous vessels, when she was rapidly nearing a tow.
The situation required a high degree of vigilance and circumspection, yet she disregarded every rule of prudent lll:wigation in reliance upon an hypothesis which might be erroneous, and proved to be so. While ordinarily a vessel has a right to assume that another vessel is not derelict in the observance of the rules of navigation, this presumptiun is not to be carried so far as to exonerate her from ordinary precautions on her own part, or to excuse her from the consequences of a mistake, when by a slight exertion and without any peril to herself or to other vessels she could certainly avoid hazard. There was ample room, plenty of time, and no intervening obstacles in the way of perfect safety if the Hills had slackened speed while she was passing the Gould. After this, it was obvious that the danger of collision with the Titan was imminent, and she should have been stopped and reversed. Instead of doing this, the pilot took the chances of a maneuver which could only be justified by the certainty that he was correct in supposing the Titan was going away from him. The Titan was in fault for so locating her starboard light that it was not visible, as required by the rules. No doubt is entertained that it was obscured by the umbrella of the float and by the cars on the float forward of the place on the tug where it was located, so that it was not visible to the pilot of the Hills. The rule requiring lights may as well be disregarded altogether as to be only partially complied with, and in a way wl;1ich fails to be of any real service in indicating to another vessel the position and course of the one carrying them. The libelant was a deck hand upon the Hills, but was not at the time on duty, and had no part in her navigation. The pilot was in command. Within the case of Chicago, M. et St. P. Ry. Co. v. Ross, 5 Sup. Ct. Rep. 184, decided recently by the supreme court, he was not a fellow-servant of the libelant; and the latter is entitled to recover for the injuries he sustained by the collision against the Hills as well as the Titan. Treating the pilot as the master, he was responsible for the management and navigation of his vessel. He was negligent in failing to have a lookout stationed where he ought to have been, and negligent otherwise. The collision was solely the re'sult of his negligence, and the libelant had no part or lot in it. The decree of the district court is affirmed, with interest and costs of the appeal.
(Circuit Court, D. California. April 20, 18B3.,
bF CITI;,>:ENSIIIP. As a party may be a re$ident of a state without being a cith. \n thereof, a simple averment that a party seeking to remove a cause ia a of a certain state is not sufficient. 2. SAME-REV. ST. + 639, CL. 2. Hev. 8t. § 639, cl. 2, haa been repealed by the act of March 3,1875; following Hyde v. Ruble, 104 U. S. 407.
REMOVAL OF CAUSE-ALLEGATION
On Motion to Remand. SAWYER, J. This case will have to go back to the state court, on the ground, if on no other, that it is not alleged in the petition or in the pleadings of what state the plaintiff is a citizen. It is alleged that Wetherbee is a citizen and resident of Boston, Massachusetts, but it does not allege of what state the plaintiff is a citizen. It is averred that he is a resident, but does not state that he is a citizen, of California. He may be a resident and not a citizen of California. It is defective in that particular. The petition to remove the case is expressly based on clause 2, § 639, of the Revised Statutes, and the supreme court held last winter, in the case of Hyde v. Ruble, 104 U. S. 407, that that section is repealed by the act of 1875. Thus the petition to remove is not based upon an act in force at the time. The application to remove, in express terms, is limited to section 639, which the supreme court hold is repealed. On these two grounds the case must be remanded. I am not certain that it ought not be remanded also on the other ground that the motion to remove was' not made in time; but an opinion on that point I shall reserve till some other occasion. I am inclined to think, however, where the rules of the court provide that a calendar shall be made up, and cases go upon the calendar for trial at the beginning of each month, that each month ought to be regarded as the beginning of a new term. There are no technical terms of the courts under the present and laws of California. Where the rules provide that a trial calendar shall be made up at the beginning of each month, I am inclined to think that the several months, when new calendars are made out and taken up, should be regarded as terms within the meaning of the act of congress. Now this case passed over a good many of such monthly terms after suit was brought, before the application to remove was made. It. is true that the law does not contemplate that there shall not be reasouable time for preparing the pleadings and forming the issues, settling preliminary questions of law, and so forth; but it does intend that there shall be reasonable expedition, and that attorneys shall bring on a trial as soon as can reasonably be done in the regular course of proceedings in conrt, and not delay. If they so delay beyond the time when it v.23F,no.9-27