no specific damage was proved, or evidence offered to show it. No further proof of damage was, in my judgment, The stipulation is a lawful one. The amount fixed upon by the charter as the estimated damage on default, viz., some $97, is not unfe1l,sonable, and less than might often arise, and the agreement must therefore be enforced as it stands. Decree fo. the amount of freight, deducting the £20, without costs.
CONTINENTAL INS. Co.
(District Oourt, S. :0. New York. ,JlI,nuary81,1887.),
COLLISION-P1nOXIMAT:Il: AND REMOTE CAUSES-NAVIGATING NEAR PmRS AND, STATUTE. < ,
, Although navigating contrary to the statute does not necessaril:ycharge'the 'vessel with fault in a ¢ollisioJ)" where her position was perceived In tinW. aJld there was, plenty'of space and 9pportunity for each to avoid collision, yet it will be deemed a fault,and olie of the proximate causes of the collision, when the violation of the statute has created embarrassment in the movements of either vessel.
, A steamer having another, crossing steamer upon het own starboard hand is notrelieved of her duty to keep out of the other's way, under rule 19, merely ; from receiving first a signal of two whistles from th.e other, which are assented to, indicating that they will Pl\ss starboard to starboard. She remains. as be,fore. bound to do all that she reasonably can to keep out of the way.
8.'SAME-FERRY-BoAT-EASTRIVER-CIRCLING COURSE-'-NoT STOPPING'AND ;BACKING. ,',' ,
SAME-RULE 19-AsSENTING eIGNALS.
The ferry-boat C., on leaving her slip in Brooklyn, bound for the CatharineW. coming up :with the flood-tide, street slip, New York, observed the ,close to her New York slip. The river IS so narrow that on that tide a ferrybOat, under a hf}.rd a-starboard helm, is sometimes scarcely able tQ make her necessary downward turn. circling around somewhat in the shape of t)le letter "S." Tlie C. gave the W. a signal of two whistles, indicating that she should go outside of her, to which the W. replied with two. The W. properly sheered Ilom,ewhat further towards the New York shore. and as near as was prudent with a tow along-side, and slowed. but did not back. The danger of collision was perceived when they were from 600 to 900 feet apart. The C. was all the time under a hard a-starboard wheel, but did not turn ,fast enough to clear the W.'s tow, striking her with her starboard wheel or wheel-honse, and sinkingher immediately. Held, both were in fanlt,-the ferry-boat as being specially charged with knowledge of what she conld do or riot do in tnrning, and therefore bound to stop and back in time, when the danger was perceived; and the tng (1) for navigating unlawfully near the piers and slips, which created an embarrassment to the ferry-boat. and prevented her going to the westward of her, following her ordinary course, while she was not able,with()ut stopping, to tnrn rapidly enough to go to the eastward;(2) back:
ing when danger.of cbUisionwas perceived;ancUro that it was immateri:a! that the two whistles were given first by the 0., and that tug was therebY relieved from her duty to keep out .of the way, haVing the other oJ). her sti1rb()ard hand, by the use of all rell.6uuble JmlllJis within her power.
Hyland k Zabriskie, for libelant. B. D. Silliman, for ·. <Jharles Murray, for the Williams. Carpenter &: Mosher, for'lnsuranGe Co.
L · , . . ; ;
BROWN, J. At about half past 1 in theaftemoon of 1886, as thecanal.boat:MaryBrown, loaded with coO:1, ",as going up the East river, in, tow of the steam-tug R. H. WUliams. and lashed upoq tlw tug's starboard side, she came into collision. with the ferry":boat C<!lUllli bia, not far from Pier 39, and within less thlltn 30P feet of the shore. The was upon one'Of herregular ;Mainstreet3 BrQoklyn, to Catbarinestreet, New York. At thetimeoft.ba e,ollisiontbe tug.and tow were hea:dednearly straight up,river, probPibly a J.i,ttle towards Yorkshore,and the ferry;·boa.t. nearly straigbt. down,problil,l;>lyai titHe towards the Brooklyn shOlle. ,The after-corne,r' oftha house of theferry·boat, 'Or. the itself" struck the sta.rboal!d side ofthe'oanal·boatalittle' forward of the after-cabin, callsing ter tOlilink immedia.telv.' The above libel" are, filed forthe)oss of the boat and .cargo, respectively:. .. The river 'at the point of collision is only about 1,400 feet. wide. Fer,:, ry-boats.on rthe flood-tide, under a; bard wheel from the start, require near-},y, the whole width of the river to turn in, Gourse. ba:ing like the letter" S," and varying somewhat with the wind and E\trength of the current" The pilot of the tug observed the ferry-boat when she left her slip. The tug, he says, was then about 300 feet from the New York shore, and oppositEl, or a little above,theCatharine He testifies that the ferry-boat, soon. after leaving her slip, on the:arooklyn side, gave him a signal.of two whistles, indicating that she would pass outside of him, to whieh he. replied with two, and immediately star· boarded his wheel, and 'steered further in towards' the New York shore j that when' the was somewhat more than half way across the river, observing that she had turned down but little, if any, he wasapprehensive of collision, and again gave a signal of two whistles, to which the ferry·bOat immediately replied with two; that. he kept in shore as near as it :was possible, passing within some 10 or 20 feet of sOm.ebarges that lay moored at the end of Pier 39 j and that: thecollisionoccurreq. when he was just above that, pier, after he had stopped his engine. The witnesses for the ferry-boat deny that there was more t1}an exchange of signals, the time agreeing mostly with the second signals testified to by the tug's witnesses. It is more probable .t1;lat there was witnesse$, also a pdor exchange Qfsignals, as testified to by the which were forgotten by .thewitnesses for the ferry-boat. Tha.tis'dho\y. ever, immaterial. 1 am satisfied that the last signals in
a.hundal'lttiIiie for either boat' to have avoided, the' eollision by· suitable .. tug, after the exchange of whistles, did not sheer at all to port, as she might and should have donej that the Columbia had a right to count upon thisj and, had the tug so sheered, the collision would not have occurred. Conceding that, under the circumstances, the tugWaEl bound to sheer to port, in accordance with her signal,so far as was reasonable and prudent, the evidence on her part, sustained also by disinterested witnesses, proves thatsbe did sheer considerably to port, and that this point in defense oft}je is rtdt'S'ustaibed. " The presehtcase, 011 both sides,illustrates,forcibly the rule of evidence so frequently applied to the testimony of witnesses on the water, conthe movements of other vessels, that such testimony must be receive,d with-great Caution,when the vessels nre· changing their relative positions; "ahd 'that,in general; the statements of a vessel's own witnesses lnregard"to her own movements are to be accepted, unless there be stunethinglmprobable in their story; or. they he il). some other way discredited than by the merEl ·appearance of her' own tiloti'Ons to those on board of another Illovingvessel. 'The ferry-boat in tHis case was not only her position constantly, but was all ·the time upon the tum under a hard a-starboard wheelj all wstify,aud no doubt were honestly of the opinion, that the tug did not sheer'to'the westward, but kept straight up the river. In like manner,the tug's witnesses also, for a considerable time; ;did not perceive the constant change of heading which-the ferry-boat was making,'6.1'1d'thetug's second and last signal wasgiv6n oe'cause her changewasnot,and could not be,properly seen and appreciated. . ' However 'much of the riVE!l' Illay have been needed for the ferry"boat's turn,' her own pilot, kn6wing her accustomed motion, and familiar with her handling, was,in a mtich'Illore special degree than the tug's pilot, bound to calculate upon her course in rounding, and was chargeable with knowledge of what he could do; and what he could not do, in turningl; and to allow accordingly the proper Illarginfor safety. The Drw, ,25 Fed. Rep. 457 ·. Upon the circling course which the ferry-boat must , pursue, the tug, on the contrarY,could not calculate with any precision. If a reasonable margin ofsafety could not clearly and certainly be made ferry-boat in her tUTD llDder a hard a--starboardwheel, it was her pilot's plain duty to stop and back betimes, so as to get a different headin¢ for his rounding course. He should have knoWn'what he could do, arid should not have kept du. When the last signals Were exchanged, the two boats were from 600 to 900 feet apart. The tug was going very 'Slowly, for the latter part 'Of the interval, under a slow bell, or stop'pi:ng. The ferry-boat couldcotne toa dead stop in the water within 400 'feetj' so that, whatever the tug's· fault, there was no need of the collision. The ferry-boat could. have avoided it, and was bOUlldto do so by backing In time. The Fa1,iwood,28 Fed. Rep. 373. " As the ferry-boat, was under a: hard a-stai-board helm, she must have
swung, after the time when the last whistles were exchanged, several points before the colliSion; whioh shows that at the time of thosewhistles she could not have been heading, as her witnesses state, nearly down river, bilt, in my judgment, at least two to three points towards the New York shore; since all the witriessessay she was heading but little, if any, towards the Brooklyn shOre at the time of the collision. The evident witnesses, in re:erro.rs and inconsistencies of several of the spect to her heading and slight change of course from the time of the last two whistles, detract much from the reliance to be placed upon the detailsoftheir testimony I though their general account is doubtless correct. ' It is sufficient, however, for the present case, to say that the boat, ha.ving undertaken by her signal of two whistles to go ,outside .of the tug, was bound not to crowd the tug too near to the New York shorej andthll.tshe WaH bound to stop and back in time, if she could not leave the tug'areasonable margin for safety in going along the shore with her tow along-side. I am satisfied that the tug, after'the whistles, did at once sheer further towards the New York shore,and as much 80 as the ferry.-toa:tunder the circumstances, had any right to count upon, and that the"furry-boat is·thetefore to blame for not stopping sooner,as ahe might 'have done, and was bound to do. 2. The' tug was navigating in close proximity to the ferry ,slip .ann piers of the state statutes, which required her togo,Uas near as may be.»' Tbatcircumstance alone, however,. if it :in no -way' 'interfered with the navigation of either vessel so as to tend to. bring about the collision I has been in 'several cases held to be immaterial. Where there is. ample time space and opportunity for navigation, and for avoiding each other, such prior faults are regarded as remote and not proximate causes, and het-iCe immaterial. . The De:xterj 23 Wall. 69, 76; Phe Fanua, 8 Ben. 11; The F. M. Wilson, 7 Ben. 367; TheDelawar6,,6 Fed. Rep.'195j The Nereua,23 Fed. Rep. 457.j Oayzerv. Carran 0>.,9 App; Cas. 873. In many 'other cases, where the position of the boat unlawfully navigating near the slips and piers has created embarrassment in the movementi! of either, so as to be in direct with the cbllisi6has one of its proximate causes, the: violation of the statute ·hasbeen uniformly treated as: a legal fault. The 'Pavorita,8 Blatchf. 599;. The Maryland, 19 Fed. Rep. 551; The O>lwmbW.. 8 Fed. Rep. 716; The 15 Fed. Rep. 474; McFarland v. Selby, etc., Co. t 17 Fed. Rep. 253j The Uncle Abe, 18 Fed. Rep. 270j The John S. Darcy, 29 ,Fed. 644. Itfthe present case, it cannot be doubted, I think, that the position o()f the tug opposite and near' to the ferry-boat's slip in New York,wben the left the Brooklyn side, was a plain embarrassment:to her navigatiort.. Her preciseneamessto the shore could not then be determined by the ferry-boat. Each W8·S bound by the inspectors' rules to give signals indicating on which side of the other she should go. 'The ferry-boat chose the signal of two whistles, undertaking to go out,side of the tug. This signal was no doubt justifiable, as there was not .room, considering the other boats between the tug and the New York
shore, to go inside other; while if the ferry-boat's testimony is to be believed, that her wheel was aU the time hard' a-starboard, the result proved that she had 1l0t"l'OOm ·to turn and go outside of the tug. Had the tug been law required herto be, there would have been· no embarrassment of thiskilldj the ferry-boat could easily have crossed the tug's bows, and had. abundant room to go between her e:nd the New York shore, in following her ordinary course. The tug's unlawful :place in the river was therefore one of the proximate causes of the collision. Again, the tug had the ferry-hoaton her; own starboard hand as .the imposed upon latter was ,crossing the river.'Th-eburden was thetug't(i)(keep out of the ferry-boa:t's way. J;twas immaterial which vessel gave the signal of tw:o ,w.histles first. The ferry-boat admits they were first 'given' by. her. The assenting sigJ;lals of two: wpistles, given by 'the tug, did not relieve the tUg of ,her duty to keep out of the waY,nor change theburdendmposedby,therules of navigation.. Doubtless the tug 'was' rlobbound togo' inshQre beyond what was safe, but nothing preventEld 11er backing in time. , She did not reverse at all. The onl-yexcuse :given,is tlllit, <!loingso: would }jave thrown the l,)ow of the tow out into the river, and exposed her, still more to. the liability. of collision. ,ThatwouJd:be doubtless true within the last quarter of a minut6 before the collision.iTt could not apply half a, minute or a, rpin-q.te before the 'cQIlisiotl,:since the backward.movement of the tow would take her out muchtnore, than h:er,swjng:to starboard would carry 'her in her, way. Some time before thecollisioll, as is evident from the pilot'sstatement,hewasllpprehensive .ofcolliflion, because the ferry"boat appeared, to be so slow: in making her turn. ,When he first be:came 'apprehensive of collision; and. when tbeJerry-boat was at some distance froni, him, though he. knew, the necessity of· ber turning, he took no sufficient steps to give)ler, plenty of room to turn arqund. He did notslow!i\lIlfil withinabol1t.300Jeet of her, nor stop.hisengines until somewhat nearer, norba'Cka,t all. This was not·a compliance with ,rellisonable prudence to avoid,the::danger thepilothlidseen some time rule of navbefore, n()f with·the, express requirement of the to ,stop and back, when oolUsion is .The tug ;therefore\ on these severalgrounds,beheld in fault.. .' .· But these faults do not frombla.me for similar ,neglect to reterse in-time. Het engineerflaysthQ,t he. got the hell to reverse only one-third or half a minute before the collision. The danger iwall evident :Some :considerable time ,before .that. The cannot fOr miscalculation in the rapidity .m"! herswingto'port; . . i, i . . , .' The libelant ;in' each case. is :entitled to a both vessels.
:8ERKELEY CO. RY. & LUMBER CO.
CO. Ry. &
(Circuit CQurt, 8. D. New York. 1887)
'REMOVAL OF CAUSE-TIME TO FILE PETITION-ExTENSlON OF TruE TO ANSWER.
In New York a case cannot be tried as a cause until there is an issue, and not then, unless the issue can be brought to trial bya notice; and although thed'efendant procured several extensions of time to answer, in consequence 'of which;issue was noHntinie to bring the cause to trial at that term. which put for.the extensions might· have been done, a petition by the defendant for the ;re,movitl of the cause under the removal act of 18'75, § 3, is tiled in time if filed 'at the next term before the trial.
Motion to Remand Cause. Smith kBGwman, forplaintifl'. Stie7rlney· & Shepard, for defendant.
WALLKCE, J. The decision upon this motion to rema.nd was reserved consider the point made by the plaintiff that; the ,application for removal was not; made at the first term of the state court at which the cause cOuld'lha;ve been tried. The plaintiff'insists·that,the C!1usecquld have been triM, within the meaning of the third section of the ren)Oval aeto! 1875" at the October term of the state court, if the (lefendanthad not procured several·extensionsof time to answer,.in consequence of whiehissuewas not joined in· time to bring the oo.se to trial at that term. It has never been decided in any case to which the. attention of the court has been called that an application for removal is too late .when made at the first term at which there was an issue in the cause in a condition to be tried, except in Gurnee v. Oountyof Brunswick, 1 Hughes, 270. In case, under the laws regulating the practice of the state court, the cause which was removed was triable without pleadings. The case is therefore an exceptional one. 'rhere are expressions in the opinions in Pullman Palace Q:l.rOo. v.Speclr" H3U. S. 84, S. C. 5 Sup. Ct.. Rep. 374, Mut"Tay v. Holden, 2 Fed. Rep. 740, which imply that the removing party is to be held to a rule of diligeuGe, and .that the application is too late if after a term at which the pleadings might have , been in readiness for atria) ..o f the cause. In poth of ,these cases, however, ·the.application was -not macae until aterlJ;l supsequent to one at which there was an issue,offaetar oflaw in condition for trial; and what .' ,was therefore in harmony with the adjudications gentltat the at whiCll the application must be tnade is theftrst term at which there is an issue, whether of fact or lflaw, which is c!l.pable of trial, and in a condition to be tried. Knowlton v. (J(Y(i:[jrei8kEmpireSpringCo., 13 Blatchf.170j Forrest v.Keeler, 17 Bl.atehf. 522; S. C. 1 Fed. Rep. 459; Cramer v. Mack, 20 Blatchf.481; S.C. 12 Fed. Rep. 803. . In the language of Chief Justice WAITE in Babbitt v Olark, 103 U. S. 612: ., .'. "The act of congress does not '}>l'clvide tortIie'reinoval ofa at the first term at which a trial can be had on theissuell', as filially settled. oy leave v.29F.no.15-46