THE RARITAN. THE RARITA'N. , THE WILLIE.' THE RAMBLER. THE THOMAS P. BALL. BERWIND COAL Co.
THE RARITAN and others.
8. D. Ne11J}'"ork. November 19, 1887.}
Tows""':NA'RRow AI'PMAOlL The tlig R.. towing the schooner B.· met, in the Arthur Kills, a long tow in .cbarge of two other tugs. The wheelslll.an o. f .the S.Ch.ooner., who was th.e'Olily man on deck. could not :well see forward. his view being obstructed. The R. passed 'very near libelant's boat, though the evidence showed that there was from 150 to 300 feet of available water to leeward,. and the schooner sl.ruck boat. which wason the POl't side .of the tail of the tow. He;d. that the schooner was in fault in going through a narrow passage with no lookout and tlie wheelman's 'view obstructed;' that the tug R. was'ln fault in passing unjustifiably near the other tow. and for not taking measures to countoract a made by the s,chooner. _
WilcQQ:, 4dam8 &: Macklin, for Berw.ind Coal Co. Rambler. E. J).McCarty.. H.G.Ward, for Willie and the Raritan. OIlJcn Gray, for, the Thomas P· Ball.
BROWN, J.. :The collision in this case I find was about Ii half a mile -or a little over beyond Smoking Point iilthe Ar.thur Kills, and to the westward of Story's Flats. The evidence indicates that the channel way ·ofavailablewater for all the vessels; viz., a depth of 8 or 10 feet, was .,at least 500 :or600 feet wide, and the chart would indicate an even greater width. Imu.st find that this gave libundant room for the Ram·bler·with, the schooner in her tow on a hawser ,to have gone safely on ·.eitherl:lide ofthe long tow .of the Raritan and Willie, had the proper signal been first given to indicate on which side the twoworildpasseach other. No signals, however, were given by either; and the Rambler took the ordinary course to the right. The Willie and the Raritan thereupon ported, and hauled somewhat to the westward. Though the channel, like the shore, was somewhat curvilinear, and the west wind caused the tail of the tow to sag to the eastward, and a little across the channel, the evidence shows that there was undoubtedly from 150 to 300 feet of avail. able water to the eastward of the libelant's boat, which was on the port ·or leeward side of the tail of the tow, and that the Rambler with the .schooner ought to have passed clear of her without difficulty. The weight of evidence is certainly that there was a decided sheer of the schooner to port, at least from the time she was abreast of the mid· .dIe of the tow, and I cannot doubt that this was the immediate cause of
the collision. There was no lookout on the schooner, and only the wheelsman was on deck. His view was much obstructed; he was able to see only the flag-staff and the smoke-stack of the tug. Under such circumstances, he could not be expected"to steer accurately, or to know whether he was in strict line with the tow or not. The master was balow, and did not get on deck until the collision was inevitable. I cannot acquit the schooner of negligence in this regard, while she was going through a narrow passage abreast of the Shady Flats. A more difficult question relates to the liability of the tug Rambler. As respectS her', r'think the weight ·of evidence is that she 'went unjustifiably near the libelant's boat; not more than 12 feet from it. The witnesses on the libelant's boat so testify, and the pilot Of one of the tugs is very positive that shewas so near that, as he looked back, it seemed to him' that she actually Tubbed against the libelant's boat, and passed underher,stern as she went by her. This was probably only the effect of perspective in the curved line of the long tow. i. But considering the fact that a schooner of the, size oftheBall upon a hawser of 30 or 40 fathoms is liable to sheer somewhat, even with the best hanJling,I tpink the Rap}bler must be.peld partly responsible for the accident, bothd'or passing unreasonably and unjustifiably near to the tail of the tow when there was so much more space available to leeward, and also for not sooner observing the .sheer of the schooner,and making timely endeavol'sto counteract it. It has been repeatedly held that steamers are bound to allow a fair margin for thecOI;ttingenCies of navigation when they are able to do so, and liable as for negligence when they do not do so, and accidents have in consequence ensued. The Virginia Ehrman, 97 U. S. 309,316; The Benefactor, 14 Blatchf. 254; The Colurriliia, 9 Ben;' 254; The Laura v.Rose, 28 Fed. Rep. 104; The Fort Lee, 31 Fed: Rep. 570. This principle is, I think, applicable to the present case. No fault seems proved against the Willie and the Raritan. I should have held them liable for not sending a helper to the aid of the tow, had it not appeared that, notwithstandIng the sagging, there was still left a reasonably sufficient space for passing. 'Iile libelant is entitled to a de,}ree againsUhe other two vessels; as to the Willie and Raritan, the libel is dismissed, with costs.
& ST. P.
CHICAGO, M. & ST. P. Ry. CO.
BECKER and others.
(Ct'rcuit Court, D. Minnesota. December Term, 1887.)
Minn!lsota act of March 9, 1885. entitled" An act relating to foreign corporations doing business in this state," provides that in suits or proceedings :arising in that state in which a foreign corporation shall be a party, if such corporation shall make application to remove any such suit 1Oto a federal court, it shall be liable, to certain penalties. Held, that the act is repug-nant to the constitution oithe United States, and void, as being designed to deprive a citizen of another state of the right to sue and be sued in a federal court. CORPORATIONS-DoUESTIC CHARACTER-LAWS MINN. 1881",oH. 221. The Chicago, Milwaukee & St. Paul Railway Company, a Wisconsin corporation', is not constituted a domestic corporation by Laws Minn. 1881,c. 221, which authorizes that company to construct and operate'roads in Minnesota, provided that it shall be deemed a domestic corporation in all procedings upon causes of action arising in .that state; following Mahoney v.Railway (}o., 21 Fed. Rep. 817. ' CONSTITUTIONAL LAW-INTERSTATE COMMERCE-REGULATION OF SWITCHING CHARGES. l;lailroad ,service known as "switchin.ll;" is local. and the charge made for it is not a part the through rate fixed beforehand. and has no ref!lrence to intel'state shipment, but may be regulated by a commission appointed 'under a state act by virtue olthe police power of the state. SAME. If railroad known as "switching" be an act of interstate commerce, the price to be charged for it may neverthllless be regulated by a commission appointed under ,a state act, as such regulation would not refer to the carrying of f'reight the limits of the state. 1 ..... SAME.:..;.REGtn.A'rION OF SWITCIUNG CHARGES-COMPULSORY PnOCEEDINGSDUE PROCEss OF LAW. The compelling of a railroad company to comply with an order 1'ates made by a commission appointed under the Minnesota act of'March 7, 1887,for regulating common carriers, isa due process of law, and in such a case tbe company cannot be heard to complain that the act of the commissioners operated to take the property of the company for public uses without process of law.
On Motion for an Injunction to restrain defendants, George L. Becker, Horace Austin, and John L. Gibbs, as the railroad and warehouse Commission of the state of Minnesota, from enforcing a certain order directed to the complainants, the Chicago, Milwaukee & St. Paul Railway Company, made by said commission for regulating the rll.tes to be charged for switching in the city of Minneapolis. Flandrau, SquireB Outcheon; for complainants. M08e8 E. Olapp and Geo. P. Flanery, for defendant. NELSON, J. This suit is brought by the complainant against the rail.road commissioners of the state of Minnesota, and a motion is made for
lAs to what is a regulation of comJ;Ilerce b!ltween the states, within the constitulional provision reservinll: the exclusive right to cOllll'ress to regulate such commerce, see Pearsen v. Distillery; (Ipwll,)M N. W. Rep. 1, and note.