TBECITY OF CHESTEB.
I do not, however, rest my decision upon this point; for; whatever may be the truth in regard to the signing of the document, I am of the opinion that it must be held invalid, for the reason that the execution of such a contract was not within the scope of the master's authority, under the circumstances disclosed by the testimony. The contract is, in legal effect, a contract of bottomry. It is executed by the master of a ship, and it purported to bind the vessel and her freight for money borrowed, the repayment of which is made dependent upon the performance of the voyage. Inasmuch, therefore, as the evidence shows that the owner of the vessel was at Castel-a-Mare, in Italy, within reach of the master by telegraph, and that a letter from Tarragona would reach him in five days, and he was in actual communication with the master while the "essel was at rrarragona, it was necessary for the validity of the contract that the owner be notified of the master's intention to borrow money on the security of the ship, and his approval first obtained. There is no evidence of such approval or notification, and for this reason the contract, so far as it affects the ship or her freight, must be declared ,aid, without considering the other points of objection to the validity of the instrument.
THE CITY OF CHESTER. t RUTTER
THE CITY OF CHESTER.
(District Court, E. D. New York. April 7, 1886.)
f'JOLLTSION-STEAM-BoAT AND TuG-CONFUSION OF LIGRTS- T,OOKOUT- NEGLIGENCE.
Where two tugs bound from the East river into the North river, in New York harbor, were approaching the steam-boat C., in the night, one at a course to pass outside of the steam-boat, and the other inside; and the steam-boat apparently confused their lights, and so sheered in, under the supposition that there was but one tug approaching, and so collided with and sank one of the vessels: held, that more careful attention on the part of the steam-boat would have prevented the mistake, and also the collision, for which the steamboat was held liable.
In Admiralty. Carpenter <t Mosher, for libelant, James H. Rutter. Wilcox, Adams et Macklin, for claimants.
BENEDICT, J. I am unable to discover how the fact that the Aliee carried two vertical lights in addition to her side lights was a fault conducing to this collision. Her vertical lights were seen, and her side lights ought to have been seen. If due attention had been paid
Reported by R. D. & Wyllys Benedict, Esqs., of the New York bar.
by those on the City of Chester, they would have discovered the Alice coming towards the North river on a conrse inside of theirs, and would have held their course, instead of sheering in to the New York shore, as they did, under the supposition that a single boat was approaching, and outside of them. The explanation of the collision is doubtless this: The Alice and the Eagle both left the pier in the East river, one soon after the other. Both these tugs were bound into the North river, and both, after leaving their pier in the East river, rounded about to gain a course for the North river. The Eagle went down outside of the Alice. The City of Chester was seen by both of the tugs to be approaching them from the North river. The Eagle took a course outside of the City of Chester, and passed her safely on the outside. The Alice took a course inside the City of Chester, and was sunk by the City of Chester, because of a sheer by the City of Chester towards the docks, and upon the Alice, then inside of her. There are many things in the testimony indicating that the City of Chester, although she may have at first seen the vertical lights of the Alice as she says, afterwards confounded.those lights with the lights of the Eagle, which was passing outside, and so sheered in, under the supposition that there was but one tug approaching, and that on a course outside, when the fact was that there were two tugs approaching, one outside and the other inside of her. More careful attention on the part of those on the Chester would have prevented this mistake, and also prevented the collision. The libelant must have a decree.
CITY OF GALESBURG tJ. GALESBURG WATER CO.
CITY OF GALESBURG '/J. GALESBURG WATER CO.
(Circuit Court, N.
REMOVAL OF CAUSES-SEPARAllLE CONTROVERSY.
S. made an agreement with the city of G. for the construction by him of water-works, and the supply of the city with water, the city by its ordinance granting to S. and his assigns the exclusive franchise for this purpose, for a definite period of time. D. afterwards assigned his franchise, and the city of G. subsequently filed a bill in the state court against the assignee alone, seeking, on grounds therein set forth, to have the franchise vacated and annulled. After the agreement between S. and the city of G. had been entered into, the assignee executed a mortgage npon its property and franchise to the F. L. & T. Co., of the City of New York, for the purpose of raising money thereon. In the progress of the cause the F. L. & T. Co., upon their application, were admitted as a party defendant, and upon their motion the cause was removed to the circuit court of the United States. Upon a motion by the city of G. to have the cause remanded to the state court, held, that as the record shows a separable controversy between the F. L. & T. Co., a citizen of the state of New York, and the city of G., the motion to remand must be overruled. Held, further, that althol1gh the contract between S. and tile city was between citizens of the same state, yet as the franchise was assignable, any property rights which had accrued to citizens thereunder in other states may be litigated in this court.
Motion to Remand. Mr. Ca1'ney, Mr. Willoughby, and Mr. Ryan, for complainant. Ryerson and Mr. Barry, for defendant.
BLODGETT, J. The case now comes before us upon a motion to remand the same to the circuit court of Knox county, from whence it was removed on the application of the Farmers' Loan & Trust Company, one of the defendants herein. The original bill was filed by the city of Galesburg for the purpose of setting aside an agreement made between the city and Nathan Shelton, or his assigns, for the construction and maintenance of water-works in the city of Galesburg, said agreement having been made May 17, 1883, by the adoption of an ordinance by the city granting to Shelton and his assigns the exclusive franchise for supplying the city with water for the term of 30 years. The franchise thus granted to Shelton was by him assigned about August, 1883, to the Galesburg Water Company, and the construction of the water-works contemplated by the ordinance was entered upon by said company. In the latter part of lR84 the original bill in this case was filed in the Knox county circuit court by the city of Galesburg against the water company alone, charging that Shelton and the water company, as his assignee, had failed to comply with the conditions of their contract with the city, and seeking a decree vacating the rights granted under the ordinance. The water company answered the bill, and filed a cross-bill, and on the twentythird of February last the Farmers' Loan & Trust Company, a corporation of the city and state of New York, intervened in said case, representing to the court that the water company, on the first day of August, 1883, executed a mortgage upon all of its property, rights, v.27F.noA-21