the facts I find, '!tsa conclusion of!awj,that 'the libelant is entitled to a decree against the propeller for hisdarnag.es, with costs in the district court and in this court;, the damages to be ascertained by a commissioner on a' reference.
'11. THE ALASKA.
(Gif-cuit GOU'l't, 8. D.
New York. July 8,1888.)
The steam-boat M., in an attempt to pass the S., which was bound In the same direction, suddenly sheered to the starboard, and thereby collided with the steam-boat A., bound in an opposite direction, on a course at a safe distancequtside the S. The A.' starboarded to let the M.· .break her sheer and recover her course, which the latter attempted, but failed. Held, .that though the A:s pilot, by porting his helm an instant before the collision, might have swung her stern enough to have enabled the M. to pass without touching, the failure to do so was no fault, but the sole cause of the collision was the pre· vious fault of the M. . 2. ADMIRALTy-JURISDICTION-CASE HEARD OUT OF DISTRtCT UNDER STIPULA,Cross-libels for damages sustained in the same collision, one tiled in the S. district and the other in the E. district, were tried together in the E. district, before the judge thereof, tinder stipulation, "to save two trials." The decree in the case in the S. district appeared on its face to have been made at a stated term held in that district by the judge of theE. district, and no application' to set it aside was disclosed in the record. Under Rev. St. U. S. 591-1)96, 600, under which such judgemight have been designated to ho.d court for the B. district, held, that it would be conclusively presumed that pe was act'ually holding such court when the decree was rendered, and that the decree was valid. .
In Admiralty. Libel for damages. On appeal from district court. See 33 Fed. Rep. 527. This suit was brought in the district court of the Southern district of New York, by Moses G. Wright and Gilbert A. Wright against the steam ferry-boat Alaska to recover damages sustained from a collision with the Morrisania. The libel was dismissed, and libelants appealed. McMahon & Handley, for appellants. Wilcox., Ada/Tns & Macklin, for appellees.
BLA'I'CHFORD, Justice. I agree with the district judge thattn this case the issue is as stuted by him in his decision, and that, on that issue, the clenrweight of the evidence is with the.A;lasfa;that there>wlUi ,no fault in ,the Ilavigation Of the .AIR$ka; and that the 1I0le, cause of the col.. li3ion WlUi the tim1t, on the, part of the. Morrisania, of suddenly sheering out from under the stern of the SupetiorJ and alll'088 the course' of the Alaska.
The libel in this case was filed: on the 17th of June, 1887. On the 24th of June, 1887, the owners of the Alaska interposed a claim, and
put in a. stipulation for value. in the suit.. On the 27th of June, 1887, they filed a libel against the Morrisania, in the district court for the Eastern district of New York, to recover for damages sustained by them in the same collision between the two vessels. The answer to the libel in the present suit was filed on the 13th of July, 1887, and the answer in the suit in the district court for the Eastern district was filed on the 18th of July, 1887. The suit in the di$trict court for the Eastern district being reached for trial before the present suit was reached for trial, the claimants of the Morrisania moved in the district court for the Eastern district to stay all proceedings in the suit in that until a trial should be had and a decree made in the present suit. The motion was denied. Thereupon a stipulation, entitled in the two suits, and signed by the proctors for the Morrisania and for her owners,. and by the pr(lctors, for. the Alaskaaud for her owners, was filed in the district court for the Easterndistridt;in.' these .words: .; 1"· ',',': '. " ' .. ' . .· "The seconUly-entitled suit ha"'ing come on to be tried in the Eastern !districtthe firstin point of time, and the court having denied the .mo,bon of;the o;\V,ners of ,Morrlsupiato stay proceedings in said. suit because of the pendency,of We tirstsuit in the Southern district, to save two trials, it is con· sented that the causes be heard togetlier, and, when Judge BENEDICT is prepared to decide, that he decide both causes according to his opinion, and enter the decrees in the separate districts, according to the decisions respectively made." . . The trials of both suits were then proceeded with and concluded as a trial, iil the Eastern district, before the district judge of that distJ;ict. He having decided that the libel in the present suit must be dismissed, a pertified copy from the district court for the Eastern district, above named, was filed in the district court for the Southern district, and a decree signed by Judge BENEDICT, who was the district judge forthe Eastern district, was filed and entered in the distridt court Jo,rthe Southetn district, in the following words: . "At a stated term of the district court of the United States of America, for the Southern district of New York. held at the United States court-rooms, in. the city of New York, on Wednesday, day of January, in the year of Moses ol,U'Lord, 1888,' Present, the Hon CHAULES L. BENEDICT, G. Wright, ,et ale against the steam fen",)'-boat Alasl,ia, her engines, etc. This case haVing been heard, on the pleadings and proof!:! presented by both parties, with the case of the Brooklyn and New York F(lrryCQmpany against t,he Steam-boat Morrisania, etc., pursuant to a stip'uHltion entered into by the proctors for the respecti ve parties, a certified copy of which is on file in this court, Aopd'l)t\ving'been arglied ·and 'submitted by the advocates for the respec tive p.arties, an . .. ....ddue d.elib.er.ati.o.n being had in t1)e . . it. is now d'E,red, a!iJwlged, and decreed by., the court, that the libel herein be, and. the saJ11e with ,costs to be taxed, an,d which havelJeen taxed althe sum:'M't'h!rtY'70-100 dol'lars.. 'On motionOf w:ncox.Adams pl'ootorlf:fol: claimahts,it is ordered, adj udged, and decreed, that the clitimants recover herein against"said libelants theamouut of saId costs taxed as aforesaid."
From that decree the libelants appealed to this court. n is cOhtedded by the appellants that the judge of the Eastern district had no jurisdiction to try this case, or to. sign and make the decree which was made herein; and that the stipulation could not and did not confer such jurisdiction. In Merrill v. Petty, 16 Wallo, 338, there was a collision between a' schooner and a sloop, in which the sloop was sunk. The owners of the sloop libeled the schooner in the Southern district of New York. The owners of the schooner sued the owners of the sloop in the Eastern district of New York, in personam. The suit in the Eastern district was first reached for trial, and the two cases were heard together by the judge of the Eastern district on the same proofs, by the consent of counsel, without being the decision of the judge a separate decree was entered in each district court, Respecting the90nsent to hear the causes at the same time before the judge of the Eastern district, where the in personam suit was pending, the supreme court' remarked, that the arrangement was one merely to expedite a decision, and had no effect to withdraw.the suit in the.Southern district from jurisdiction' of the court in which it was commebced. So, in the present case, the stipulation did not transfer, or atti:mipt to transfer, jurisdiction of the suit brought in the Southern district to the district conriof the Eastern district. The arrangement was one, merely, as the stipulation said, "to save two trials," and, so far as appears, was wholly on the part of the libelants in the present suit, The decree of the district court for the Southern district in the present case appears on its face to have been made at ,a stated term of that court held within the limits of that district. The case had been heard with t"he Eastemdistrict case,by the judge of the Eastern district, within the Eastern,district, by consent, "to save two trials," and it must be inferred i from the terms of the decree, that Judge BENEDIcr was actually holding the diRtri«t court for the Southern district, within that district, wl;l,eJ;l tbe decree was entered. The record discloses no application ,to set the decree because such was not the faCt,. and itrnust be sumed that it was the fact, in view of thA of and 600, Qf tbe, Revised. Statutes, under w.tIich, Judge could have been,designatedandempowered to hold the district court for Southern district. Let there be a decree, dismissing the to the the district court, taxed .at $30.70, and'its costs in this court, to be taxed.
.. ,, :
& N. Y.
York. July 3, 1888.)
COLLISION-BETwEEN STEAMERS-SUDDEN SnEER.
As the steam·boat M. was going up the East river. near the New York shore, behind the steam·boat S., she suddenly sheered to starboard in an attempt to pass the S.. and thereby collided with the steam-boat A.. which was coming down the river on a course outside the S. The A., following the sheer. starboarded in an attempt to let the. M:. break her sheer, and recover her course. which the)atter attempted, but ineffectually. Held, that such a sheer. under such circuinstances, was a fault. causing the collision. that the of the A. was not a fault. and that the M. was solely liable for the collision.
Where a libel has been the Southern district of New York against a vessel for damage arising out of a collision. the owner of thevessal so libeled may begin an' Independent action fbr his own damage in the Eastern district of New York, and is not obliged tQprosecute his claim by way of cross-libel in the Southern district. ,
In Admiralty. On appeal from district court. Wilcox, Adams & Macklin, forappellees. McMahon & Handley, for appellants·
33 Fed. Rep; 527.
. BLATCHFORD, Justice. I agree with the district judge that in this case the issue is as stated by him in his decision, and that, on that issue, the clear weight of the evidence is with the Alaska; that there was no fault in the navigation of the Alaska; and that the sale cause of the collision Was the fault, on the part or the Morrisania, of suddenly sheeting out from under the stern of the Superior, and across the course of the Alaska" The libel inthis case was filed June 27, 1887. Prior to that, and on tne 17th of June, 1887, the owl1ers of the Morrisani'a had filed a libel a.gainst the Alaska in the district court for the Southern district of New York to recover for damages sustained by them. in the same collision between the two vessels, and the of the Alaska had, on the 24th of June, 1887, interposed a claim, and put in a stipulation for value in the latter suit. The answer in the present suit sets up that these prior proceedings in the district court for the Southern district gave to that court the prior, right to adjudicate in regard to the collision, and deprived the district court for the Eastern district of the jurisdiCtion to entertain the present suit. Prior to thettial ofthis suit in the district court fol' the Eastern district, the claimants of the Morrisania moved that court to stay all proceed,ings therein until a trial should be had, and l\ decree made, in the suit in the district court for the Southern district. The motion was denied. Thereupon a stipulation entitled in the two suits, and signed by the proctors for the Morrisania and for her owners, and by the proctors for the Alaska and for her owners, was filed in the district court for the Eastern dit:ltrict, in these words: "The secondly entitled suit haVing come on to be tried in the Eastern district the first in point of time, and the court having denied the motion of the
lReported by' EdwardG. Benedict, Esq., of the New York bar.