THE OSCEOLA. THE OSCEOLA. l
THE OSCEOLA and THE BELLE.
(District Oourt, 8. P. New York. January 81, 1888.) 1.
OoLLISION-Two PARALLEL Tows-TURNING-DRIFT.
The twp tow-boats B. and O. were making up parallel tows in the East river, the B. being 500 to 700 feet nearer the Brooklyn shore than the O. Both ves-· sels were maintaining their positions against a strong ebb-tide. The B., having first completed her tow, attempted to turn to go out of the river, and, in so doing, struck and damaged libelant's boat on the starboard side of the O. The latter. as the B. approached. did not stop her engines and all<;lw her tow to drift back with the tide. Both boats were libeled for the damage. Held. that the B. was solely in fault for the collision, as she took the responsibility tlf being able to effect her turn; and the libel agl1inst the O. was dismissed,'with- . out costs.
2. SAxE-.,.ERROR IN· EXTREMIS. An error of judgment in eitremis Is not a fault.
In Adiniralty. Hyland Zabriskie, for libelants. Carpenter Mosher, for t):Ie Osceola. Gray, for the Belle·. BRowN,J. 'The steam-boats Belle and Osceola were making up ,allel tows at aborit the same time in the East river, off piers 6 and 7, to ,go uptbe North 'river, and while preparing headed up stream against a strong ebb-tide. The Belle was nearer the Brooklyn shore, and ata distance estimated at to 700 feet from the line of the OsqeQli . a,nd her tow. Three canal-boats, .of which the boat 'of the placed, according to custom, alonglibelants was one, were side the line of the tow of the Osceola until they could be put in. the last after the rest of the tow had been made up. These three boats were Jlutupon the starboard side; that is, upon the Brooklyn side of the tow. The Belle was about 225 feet long, and having first got prepared to go up the North river, turned around towards the Osceola to go down the Eastr,iyer, having a helper, theAdams, on her starboard side to assist in turning'quickly. The space for turning was judged sufficient:' The .Adamssteamed ahead; the Belle backed at intervals, as wasjudged neeessary;but she did not succeed in to avoid the libelants three outer boats along-side the Osceola's tow; but,rullning herlitem'jlist ahead of them, struck the three in succession, drifting down upon them with the ebb-tide. The charge in the answer of the Belle, that the tow of the Osceola was shoved by the Victoria, the helper of the Osceola, towards Brooklyn, so as to lessen the available space, is disproved; and as the Osceola is not shown to have been heading across the tide towards
Reported by Edward G.
Esq., of the New Yo:rk bar.
the Brooklyn shore, though her engine was kept in motion enough merely to maintain her place, I must ·findthat there was no material sagging of the tow from this cause towards the Brooklyn shore. The testimony does not sufficiently explain why it was that, after the Belle got headed about straight across the river, and was then on a line abreast of the stern of the Osceola, or, possibly, 100 feet below, nearly abreast of the head tier of the tow, she did not continue rounding, instead of going nearly straight into the space above the three boats attached to the side of the Osceola's tow, as she did. It is not necessary to resort to the conjectures that might account for this; for none of them would relieve the Belle from theresposibility for the tl:!rn which she undertook to make, in full view of all the circumstances. The great preponderimce of evidence shows that the Osceola did nothing to bring about the collision; and that, necessarily, makes the Belle in fault for not keeping away fiom ,the Osceola's tow, which was nearly at rest, as respects the land. though very slowly drifting down. The only uncertainty that I find in the case, upon the weight of proof. is whether the Osceola is fault in not having stopped the forward motion of her engines, so as to suffer her tow to drift down with the tide, when the Belle had approached so near and in such a position that collision was threatened. The case has some analogy to that of ves- . sels at anchor, when, by paying out cable, they may assist in avoidingevident danger. Considering, however, the ability of boats like the Belle to turn quickly; the testimony of her officers on that particular; the natWI1I. of the master of the Osceola that the Belle would be able to turn in time 'to avoid his tow until she had got quite near; and the very f'bort period that elapsed from tpattime until the collision,-I do not think that the circumstances are sufficieutly clear to warrant me in holding the in faultjn this respect. +he danger was very sudden in its oecurrencer It was brought about solely by the fault of the Belle. The time for the eXEilrcise ofjudgment by the master was very brief, and his tow itself was cumbersome ; so that a mistake in this respect, as I am inclined to think the omission to back ,on the part of the master was, should be treated as an excusable error of judgment in extremis, rather than a fault· ..The Dexter, 23 Wall. 69; Steam-Ship 00. v. RumbaU, 21 How. 372, 383; The Elizabeth Jones, 112 U. S. 514,526, 5 Sup. Ct. Rep. 468, and cases there cjt!lQ. ': , ,The damage to the libelant's boat and furniture, with demurrage and interest, I find to be $169.50,for which the libelants are entitled to a decree against the Belle, with The libel against. the Osceola must be dismissed,but, under th,e circumstances, as I think, without costs.
STATE OF ILLINOIS
'STATE OF ILLINOIS ex rd. HUNT, Atty. Gen., V.ILLINOIS CENT./R. Co.
(Oircuit Oourt. N.
REMOVAL OF CAUSES-FEDERAL QUESTION-LAWS IMPAIRING OBLIGATION OF' CONTRACT-DISOLAIMER.
In an action in the nature of quo warranto, brou,ght in the name of the state, by her attorney general, to prevent a railroad company from exerciSIng certain rights and privileges, and from controlling certain lands, the defendant :petitioned for the removal of the cause to the circuit court of the United States, alleging that it acquired ownership in the land under an act of the leg' islature, and hi. accordance therewith exercised rights of ownership; that sub sequentlythe act granting the land was repealed; that such repealing act was in violation. of the provisions of the constitution relating to laws impairing the obligation of contracts, and of the fourteenth amendment, declaring .that no person shall be deprived of property without due process of law. Held, that the petition showed an issue in the action arising under the constitution, withiu the meaning of act Congo 3, 1887, relating to the removal of causes from the state to the federal courts; aud a disclaimer by the attoruey general of the state, that 0.0 reliance was placed on the act, cannot operate to eliminate such "issue. .
8AME-;-CIVIL AO,:\,ION-Q.UO WARRANTO.
An information in the nature of quo warranto, under Rev. 81. Ill. C. 112. against'A-railroad company for exercising possessory rights over lands with<llit authority of .law, .although in form a crimiual proceediug, is in its nature essen"tially a; civil action, within..the meaning of act Congo March 3.J887, relatnig to the removal of causes from the state to the federal courts.
On Motion to Remand wtheState Courts· .The attorney general of Illinois, having first obtained leave, filed, May 9, 1887:, in the criminal court of Cook county, an information in the nature ofa quo warranto,in the name and on behalf of the people of Illinois, against the Illinois Central Railroad. Company. The infonnation sets forth that the Illinois Central Railroad Company was incorporated by an act of the general assemlily of Illinois, approved February. 1851, and for more than 12. months last past has used and exercised. and still uses and exercises, without any warrant, charter, or grant therefor, the following privileges, powers, and franchises, to-wit; It,assumes. to own the submerged lands as the same existed April 16, 1869, constituting the bed of Lake Michigan, and lying east of the tracks and · breakwater of the Illinois Central Railroad Company, for the distance of one mile, and between the south line of the south pier extended eastwardly ami a line extended eastward from the south line of lot 21, south ·of and near the round-house and machine-shops of said company in the South division of the city of Chicago, county of Cook, comprising 1,000 acres, moreot less, which tract or parcel of land is not owned, possessed, ·or used for any of the uses or purposes for which said company was incorporated, and is not owned, used, or held in pursuance of the provisions of said act; and that said company has assumed to exercise,and does usurp and unlawfully exercise, possessory rights and rights of ownership over said submerged lands, has filled portions of the same with earth and other materials, and has constructed, and is constructing, ,docks, pierst,wharves, and breakwaters in ai;ld upon such lands. The information charges that the company, during the same period. has v.33F.no.14-46