THE .TWENTy-ONE' FRIENDS. , THE JOHN
THE TWENTY-ONE FRIENDS V. THE JOHN
(District Court, E. D. Penn8ylvania. November 28,1887.)
COLLISION-LoOKOUT-WHAT CONSTITUTES':"'ATTENTION TO VARIOUS DUTIES.
Libelant, having the right of way, was run into by respondent in a thick night. .It was in evidence that the respondent's lookout had been dividing his attention between looking out and reefing sail. Held that, where a vigilant lookout might possibly have 'prevented the result, ,the plea of inevitable , accidentsb.ould not be sustained when that duty was neglected.
In Admirality. Libel (ordlJ-mages. The Twenty-One Friends, libelant, sued the John H. May, respondent, for damages, the result of a collision·. Flanders & Pugh, for libelant. Edmunds & Tilton, for respondent.,
BUTLER, J. I will do no more writing in this case than is necessary to indicate the grounds on which the decisiop rests. As in all similar cases, the testimony is conflicting and irrecortcilable. !fan analysis of it were desirable, I would not have time to make it. Ido not see, how'ever, that it could answer any useful purpose. The libelant had the right of way. The respondent was therefore bound to keep' off. She did not, and the burden is on her to show why. "(The libelant's admission that the ,weather was "thick" does not remove it.) The excuse assigned is inevitable accident, arising from inability to see. To support this assignment she avers, and has called witnesses to prove, th'at a vigila.nt lookout was maintained; and that the libelant ,was not seen, and could not be, until too close to be avoided. If this averment is proved, her case is made out; if not, she is'responsible for the collision. The night required a most vigilant lookout. If the respondentfailed to maintain it, her negligence tended directly to the disaster, which must therefore be attributed to it, in the absence of clear, unerring proof that some other cause intervened to which the result should be assigned. In the presence of such proof, the question of lookout is unimportant, as said in The Farragut, 10 Wall. 333, and The Wanata, 95 U. S. 610. Where the circumstances, however, are such that a vigilant lookout might, even possibly, have guarded against the result, the allegation of "inevitable accident" should not be sustained when this duty has been neglected. In such case, it is impossible to know that the faithful observance of it would not have avoided the disaster. Where, therefore, it is shown that the duty was neglected, (or, moreaccurately, where it does not affirmatively appear to have been observed,) we cannot say the accident was inevitable. One who sets up this de-
THE TWENTY-ONE FRIENDS.'
fense, under such circumstances, should be held to the clearest proof; In the ,case before us, witI.1esses have been called from other vessels, by' both sides, to the character of the night, and the ability to see. ;No one ofthem was at the point of collision, and it is impossible to sayfrom whether the lights of a vessel could there be seen or not. It is certainly insufficient tdprove they could not. The point can only be settled by one who was 'present, endeavoring to see. ':The'case turns, therefore, on the question whether the respondent a proper lookout. If she did, and could not see, we may !lllofely affirm tha.t the collision was inevitablej otherwise, we cannot. Did the respondent ,maintain such a lookout? Not only is it not shown that shedid,in my judgment, but, on the contrary, it is shown that she did not. This conclusion is drawn from her own testimony, and that Of Aisinterested witnesses on the other side,excluding the crew. It distinctly appears that no one was devoting his undivided attention to thlsduty. All hands were engaged in reefing sale,the mate going back and fOtth, in the intervals he could spare, to look out; Of course, there is the usual conflict of testimony respecting this, but the clear weight of evidence, direct and circumstantial, supports the conclusion stated; indeed, it seems to be admitted. The respondent's brief says: ."The momentary absence of our lookout from the bow is shown to be immaterial', because, as soon as the vessels approached near enough for a lookout to be of service,our lookout was on the bow, in his propet placej" and again: "There was no element of negligence in calling our l06kont. from the bow." Thus is it conceded that a vigilant lookout was not maintained. The excuse that all hands were needed to feef sail is invalid. The respondent had no higher, nor more urgent and imperative, duty, than'that of maintaining a constant, unremitting out. In view of the weather andlocality, it was gross negligence to disregard it. , Her own, safety, as. well as that of other vessels and crews, demanded the utmost vigilance in this respect. If she could not observe it, and continue her course, she should have stopped. To call a furtive glance now and then from the bow, by one assigned to other duties as well as this, a proper lookout. especially under such circumstances, is an abuse of, language. The position assumed-that the neglect was unimportant, "because, as soon as the vessels approached near enough for a lookout to be of service, the lookout was in his place"-is a narrow and perilous onej it is almost, if not quite, fatal. The negligence admitted raises a strong presumption against the respondent generally, and particularly as respects the sittiationwhen the vessels came within view. If thus negligent, it is difficult to believe that the lookout happened to be in his proper place at the critical moment. If he was, it was purelyaccidental. I believe, however, he was not,-that libelant was in view before he went forward, and as soon as he was in position to see past obstructions he saw her. He testifies otherwise, but he is contradicted by previous statements, by other evidence on the subject, and by the probabilities of the case. Besides, the witness is too deeply interested in the subject to be relied upon with confidence. His statements 011 com-
ing ashore,(to his father,) and those of the master soon after the occur· renee. support the belief stated. No argument can be based upon the allegation that libelant failed to see. respondent. The respective situations were different. It is probable the latter's opportunity of seeing was better. She had the storm nearly astern, while the other had it in front. But we do not know that the libelant did not see the respondent. Unfortunately, the testimony of her crew cannot be accepted. They have testified .on both sides, and shown themselves unworthy of credit. I attach no importance to the allegation now mad", that the libelant's lights were imperfect. No suggestion of this or of any other fault is found in the answer, and the witness by whom alone it is suppOl:ted teg. tifies under circumstances which forbid reliance upon his statements. Not only his testimony, but that of all members of the libelant's crew, has been disregarded. They have shown themselves, as just stated, unworthy of confidence. I will not unnecessarily dwell upon this subject. It is sufficient to say I am satisfied that, impelled by gratitude for their rescue, kindly treatment on board the respondent, sympathy for her master, who w,as.much distressed by the accident, and apparently fearful of responsibility for it, as well as by persuasion to that end, they conspired to suppress the truth. Immediately upon coming ashore, they accompanied the master and his crew to the office of respondent's counsel, were there examined, apd seemed zealous to exculpate the respondfrom blame. Subsequently they supported the statements then made, under oath;> and, later, told the story of their misconduct, recanted, and appeared as witnesses on the other side. The cook, who testified respecting the libelant's lights, went immediately into the respondent's ;service, and has continued there ever since, under influences apparently hostile to the libelant. It is proper to. say that there is no evidence to ,connect the respectable owners of the respondent in ,any way with the misconduct, and that the very high character of their counsel forbids "that he should be suspected even of having had knowledge of it. I have attached no importance to the fact thllt neither vessel was signaling, by horn or otherwise, at the time of the accident, or previously. It was not customary to do so in such weather, and no inference, therefore, can justly be drawn against either for omitting it. Although the statute which requires the use of a horn in snow-storms had been passed a few days before, it had not been promulgated, and is not, thereforo, applicable:to this case. A decree must be entered for tbe libelant.
YPSILANTI PAPER CO.
(Circuit Oourt. E. D. Michigan. January 3, 1888.)
COURTS-FEDERAL JURISDICTION-ASSIGNMENT-CITIZENSHIP-ACT OF MARCH
8. 1887. An action to recover damages for a refusal to accept and pay for merchandise purchased under an oral contract, is a suit to recover the contents of a cho8e in action, within the meaning of the act of March 3,1887, and the circuit court has no jurisdiction of such suit in favor of an assignee, unless it might have been prosecuted in such court if no assignment had been made. (Syltabu8 by the CQurt.)
On Motion to Set Aside Nonsuit. action upon contract to recover damages for the refusal This was of the defendant, the Ypsilanti Paper Company, to accept and pay for 300 tons of rags which it had agreed to buy of the firm ofS. Simons & Son. One member of this firm being a citizen of Michigan, the firm as· signed the cause of action to the plaintiff, the other mem ber of the firm, who was averred in the declaration to be a citizen of Russia, and a subject of the czar of Russia. Defendant pleaded to the jurisdiction, and upon the trial plaintiff submitted to a nonsuit, and thereupon made this motion to set the same aside. Conely & .Lucking, for plaintiff. Charles R. WhitrtWll/, and George S. Hosmer, for defendant. BROWN, J. The only question raised upon the trial relates to the capacity of the plaintiff, who is an alien, to maintain this action as the assignee of S. Simons & Son, one of which firm was, and still is, a citizen of this state. By the aet of March 3, 1887, the circuit court has no jurisdiction "of any suit except upon foreign bills of exchange to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder, of [if] such instrument be payable to bearer, and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents, if no assignment or transfer had been made." The precise point in this case is whether an action for damages for the refusal of the defendant to accept and pay for goods purchased by it under an oral contract is an action to recover the contents of a chose in action within the meaning of this act. These words, it must be admitted, are not very happily chosen, and it would have conduced somewhat to the clearness of a very obscure and unintelligible act if the simple language of the statute of 1875, "founded upon contract," had been retained. These words, however, were taken from the original judiciary act of 1789, and in the 85 years which elapsed between the passage of that act and the act of 1875 their meaning was settled by repeated judicial interpretations. Primarily they were intended to apply to commercial instruments, such as promissory notes, acceptances, and bonds, in which the sum promised to be paid is familiarly spoken of as the "contents" of such instrument. But the words v.33F.no.4-13 .