Hornet from .Norfolk, Va., to New London, Conn., met with heavy weather, which caused her to take her tow into the Delaware breakwater for safety, where she anchored the Wasp about halt" a mile from the breakwater, A gale from the north-east came on, and afterwards, on the morning of the 27th of December, the wind shifted to the north-west, blowing heavily, and raising a rough sea at the place where the Wasp wasanchol,16d. The barge labored in the sea, and one or two of her hatches were stove in, whereby some water passed into her hold. She had on board a competent crewiwas not leaking, and her pumps kept the water under control. ,Her master, however, determined that it was wise to have her moved toa safer location near the ice-breaker, and at about 8 or 9 o'clock on the morning of the 27th set a signal in his ging to call the tug America to him for the purpose of being moved by her. At this time the America was at anchorabout a half a mile away, with· sufficient steam up to enable her to navigate. There was also about the,same distance away another tug, called the McCaulley. This latter tug, on seeing the signal on board the Wasp, proceeded to her, and tendered her services. According to the testimony ,of those on board the Wasp, her services were deolined, but she was requested to go to the America, and inform her that the Wasp desired to be towed up to the ice-breaker before the tide changed. After having spoken the Wasp, the McCau.lley proceeded to the America, and there bad a conversation with the master of the America about which there is a conflict of testimony. It resulted, however, in the McCaulley's returning to the Wasp, taking a hawser from her, and holding her up to her anchors until one of her anchorsw8ssecured, and then towing her, with one anchor down, to a place near the ice-breaker, where she was sheltered from the wind and waves. This service occupied from one to three hours, according to the estimates. It involved no extraordinary peril to the McCaulley, and was of benefit to the Wasp. The peculiarity of the case consists in this. According to the testimony of the captain of the McCaulley, when he spoke the Wasp the master of the Wasp informed him that she had 18 inches of water in her, and requested him to iuform the master of the America of that fact. When he reached the America he did report that fact to the captain of the America, and. thereupon the master of the America refused to go to the Wasp, but told the McCaulley togo to her, and do what he could. Accordingly the libelant contends that the refusal of the America to go to the"Wasp placed the Wasp in great peril, because without the aid of some tug the Wasp would have sunk at her anchor; that the McCaulley was the only tug able to relieve her, and, having done sa, is entitled to salvage reward. On the part of the Wasp the evidence is that she had no water in. her of any consequence; that the captain. of the McCaulley was not told that she had 18 inohes of water in her; that the services of the McCaulley were declined in the first instanoe, and only accepted in the end because of the further statement of the master of the McCaulley that. the captain of the America had to take the Wasp to the ice-breaker. There is also a sharp conflict as to what passed between the McCaulley and the captain
of the America at the time iheMcCaulley went to the America. 'l'he master of the America swears that he never refused to go to the Wasp, came to him he but, on the contrary, asserts that when the informed the captain of the McCaulley that he would go ,to the Wasp as soon as he could get up his anchors; and upon the represetltation of the master of the McCaulley that the Wasp had already 18 inches of water in her, and was in a sinking condition, he directed him to return to the Wasp, and hold her up to her anchors until the America should come. If the statements of the master of the America be true, there was no peril in the situation of the Wasp, because there was time enough to enable the America to remove her to the ice-breaker before the tide changed, and the America was bound to render this service by reason of her contract of towage. In determining this issue of fact, some things bearing upon the credibility of witnesses are to be noticed. For instance, the master of the McCaulley states that the master of the America gave as his reason for refusing to go to the Wasp that he had as much as he could do to take care of himself. Such a statement would be palpably false when made, for the America was in no danger, and able to take care of herself without difficulty. It does not seem probable that a statement so evidently false would have been made. The master of the McCaulley also says that the master of the America assigned as a reason for sending the McCaulley to the Wasp that the Waspwould sink before the America could get to her anchors. Such an impression had no foundation in fact, and if formed by the master of the America must have been created by state. ments made by the captain of the McCaulley tending to give an exagger. ated account of the condition of the Wasp. Taking these features into consideration, in connection with the other statements of the witnesses, I have arrived at the conclusion that the America did not refuse to go to the Wasp, as asserted by the McCaulley, but, on the contrary, was willing to go to her, and would have gone to her and moved her as the McCaulley did, before the tide changed. This conclusion is decisive of the case, for iithe America was willing to go to the Wasp, and able to remove her before the tide changed, being bound by her towing contract to render this service, the Wasp was in no peril; and the service rendered by the McCaulley was not a salvage service. If the case of the McCaulley were otherwise free from objection, it might be proper to allow her towage compensation for the time employed, notwithstanding the fact that the only claim set forth in the libel is for salvage. But the claim for sal· vage is made by the libel to depend upon the fact of a refusal by the America to do her duty to the Wasp; and when an assertion like that is found to be contrary to the fact, I do not think it pror'll'. her towage even. I have not passed without notice the paper signeu .rry tntl master of the Wasp the next morning. That paper, however, was signed under the impression that the America had refused to go to the Wasp, and had sent the MoCaulley. It has no tendency to confirm the assertion made by the master of the McCaulley that the America had refused to go to the Wasp. The libel must be dismissed, but without costs.
SHORT fl. ClIICAGO, M. <\ ST. P. RY. CO.
SHORT fl. OHICAGO,
P. Ry. 00.
March 12, 1888.)
On Motion to Remand. Wilson &- Bowers, for the motion. W. H. No7"1"U3 and Flandrau, Squires &:- CutcMon, contra.
J. This is a motion to remand. - This action was bl'<c'tll;ht a citizen of Minnesota against this railroad corporation, which ,is a citizen of of Wisconsin. It is an attempt at remo\'al under the act of)887, on the ground of local prejudice, it being too late for a re.moval on the ground of difference of citizenship. One ground ()f the motion to remand is that this court cannot take original jurisdiction of an action by a citizen of this state against a citizen of anoth,er state, and therefore, if it cannot take original jurisdiction of such an actio ll , it cannot by removal acquire jurisdiction. I had occasion to examine that question in the state of Nebraska, and I there came to the conclusion that that proposition cannot be sustained. I think an action can be maintained in this court against a citizen of another state. I am aware that there is a decision in the circuit court of California to the contrary. FIELD, SAWYER, and SABIN, JJ., County of Yuba v. Mining Co., 32 Fed. Rep. 183. ' 'I sh1111' not discuss that qUf:}Sat length, from the fact' that my brother SHIRAS, in the Northern Iowa, has written an opinion upoll this point, which will be: v.34F.no.4-15