But not so as to the other libelants. I see no reason why they ilhould not be bound by their release. The arrangement by which they received advance wages was entered into solely for their benefit. No fraud or imposition has been practiced upon them. They underI:ltood what they were about when they were shipped and when they were discharged. They intended by their release to discharge the debt which they are now suing f,or. They have received all they bargained for, and there is nothing in the nature of the claim that makes it incapable of being released. A decree is to be entered in favor of John O'Neil, the second mate, for $48.22, and costs. As to all the other libelants the libel is to be dismissed. Ordered accordingly.
(District Oourt, 8. D. NfAIJ York. May 4,1886.)
CoLLIBION-WHARVEB-PROJECTING BOOMS-EAST RIVER-Too NEAR APPROACH.
Where a sloop, unloading, lay along a bulk-head at the mouth of Bushwick creek, East river. with her bowsprit projecting partly across the mouth of the creek, and her boom swung out into the river, and a tug, in going into the creek when it was nearly dark, ran into the boom, held, upon a dispute of the facts, that it was so nearly dark as to make it negligence in the sloop to have her boom projecting in that manner, without any light or other means of warning; and also a lack of proper care in the tug to go so near to the sloop at night; and both were held in fault, and the damaKes divided.
In Admiralty. Hyland Zabriskie, for libelant. Knox Woodward, for claimants.
BROWN, J. On the first of December, 1884, the libelant's sloop Citizen lay along the bulk·head at the foot of Quay street, Green Point, on the northerly side of Bushwick creek, discharging a cargo of stone. Her bowsprit projected partly across the mouth of the creek, and her boom was swung out over her starboard side, and made fast by a guy. The steam-tug Industry, about dusk, came up from Pier 8, East river, with the flood-tide, to lay up for the night in Bushwick creek. In rounding to, so as to come down against the flood-tide, and to make the pier on the south side of the creek, in order to back into the creek, she ran into the Citizen's boom, and broke it, and inflicted some other damage. The principal controversy upon the trial has been in regard to the time of day when the accident occurred. The witnesses on the part of the tug insist that it was already quite dark; and that, as there
was no light either upon the sloop or upon the boom, the boom could not be distinguished in time to avoid it. The libelant's witnesses insist that it was not yet dark; that the boom was sufficiently visible; and that the workmen were still employed in discharging stone from the sloop. There is no means of fixing the time of the occurrence with certainty. '}'he fact that there was one sling of stone remaining to be removed seepls to be substantiated; but, as the stevedore was working by the hour, it is not certain that he might not be willing to continue until it was nearly dark. The evidence leaves no doubt that the tug's lights were lighted; and that the assistant foreman went to her aid at the dock, because the workmen who would otherwise have tended her had already gone home. Without determining tbis point precisely, I think both vessels must be held in fault. The boom of the sloop, according to the evidence, must have extended some 15 or 20 feet from the sloop's side. It was unnecessary that it should extend so far, as the claimant's witnesses acknowledge; and it was a dangerous obstruction. From the whole drift of the evidence it is plain that if not quite dark it was quite deep dusk. It was the time when boats were likely to be coming in to lay up for the night, and a place where they were to be expected; and it was negligence in the sloop to leave her boom projecting out in such a way, and beyond what was necessary, without anything to call special attention to it. On the other hand, there was nothing that required the tug to go so near to the sloop in l'ol1llding to and making the wharf below. There was abundant room further off and no obstruction. Vessels were accustomed to discharge at the upper wharf; and I must regard it as a lack of reasonable prudence and caution to approach so near when it was too dark to see what might be about them. A state statute forbids one vessel passing another in motion nearer than 20 yards. While this is not applicable as a matter of strict law, it is applicable by analogy, in the sense that vessels under way should keep at a reasonable distance from others, to avoid the contingencies of accident, particularly at night, where there is nothing requiring a close approach; and snch is the undoubted maritime obligation. The damages should therefore be divided. The libelant testifies tbathe paid $150 for the repairs. A decree for half this sum may be taken, unless the claimant desires, at his own risk of any additional costs, to take an order of reference to ascertain the amount.
THEURKAUF O. IRELAND.
(Oircuit Oourt. D. Oalifornia. March 22,1886.)
COURTS - JURISDICTION STA'l'UTE. STATE AND NATIONAL COUItTS CONSTRUCTION 0)1'
A question involving the right to public land claimed by one of the parties to have been pre-empted by him under a statute of the, United States, does not fall within the jurisdiction of the circuit court unless it actually involves the construction of a United States statute.
Motion to Remand. S. F. Geil, K. V. Morehouse, and J. P. Meux, for plaintiff. N. A. Dorn and Thomas Benison, for defendant. SAWYER, J. On December 14, 1885, the last day for answering, a demurrer to the complaint was filed; one of the grounds being that the complaint does not state facts sufficient to constitute a cause of action. On December 21st, the demurrer was withdrawn by consent of parties, and defendant allowed 10 days' further time within which to answer to the merits. At the expiration of the 10 days allowed defendant procured another extension of time to answer, which carried it to January 10,1886. On January 9, 1886, defendant answered, and immediately afterwards, on the same day, filed a petition for removal. Section 78, Code Civil Proc., provides that the superior courts "shall hold regular sessions, commencing on the first Mondays of January, April, July, and October," and it further provides that said courts "shall be always open;" "except on legal holidays and non-judicial days." The sessions thus provided have often been held, by this court, to be "terms" in this state, within the meaning of the removal act of 1875. McNaughton v. Southern Pac. R. 00., 10 Sawy. 113; S. C. 19 Fed. Rep. 881. Thus, it will be seen that this case might have been, in fact, tried at the October session or term; and if it was not then tried, it was not the fault of the law, but the fault of the attorneys in dallying along by stipulations for further time. A new term commenced January 4th. The cause was at issue, ready for hearing on the general demurrer, and could then have been heard on December 14th, at the October term; as the court is "always open;" and a trial on general demurrer is a trial within the meaning of the act, as held by the supreme court in Alley v. Nott, 111 U. S. 4:72; S. C. 4 Sup. et. Rep. 495. But the demurrer was manifestly frivolous. and put in for delay. An answer might then have been filed, and the case would have been at issue on the facts. The demurrer was withdrawn by consent, and defendant given 10 days' further time to answer. Had the answer, even theIl, been filed, it would have been at issue on the facts, and could have been tried during that term; but the time was again extended, and by such delays and extensions the case was carried over the term. The October v.27F.no.12-49