THE W. A. LEVERING.
credit for the amount received of the defendant by him, and the amount earned by hini. during the season subsequent to his discharge. As to the demand of the crew, there seems to be no defensell.t all. They were employed by the master for the defendant. They were engaged for the season, and they were discharged without any cause whatever. They are each entitled to receive the amount they would have earned during a service of six months, less the amount of their actual earnings during that period, and any sums that have been paid them. If the parties cannot agree upon these amounts, let there be a reference to compute the amounts'due the respective libelants upon the basis above indicated.
DARROW '11. THE
8. 7J. New York. October 22, 1888.)
TOWAGE-NEGLIGENO:m--STRANDING-HoISTING BAIL ON Tow.
The schoonerM.· which was lasbed on the port side of the tugW.· and bound through the East River into Long Island sound, when about abalf a mile from the passage between The Brothers islands, hoisted her foresail. ,The testimony was conflicting as to whether this was contrary to the orders from tug or not. The view of tbe pilot of the tug to hisporthand was thereby somewhat obscured. !nentering the passage between tbe Brothers. the M. struck on a reef projecting from the North Brother. Held, thatt,b.e scl;lOoner was in fault for obstructing the view of the pilot of the tug by hoisting her foresail, that the master of the tug was in fault for continuin#t his course with his view obstructed. when he could have insisted upon the lowering of the foresail. or could have taken the passage to the north of the island. an,d that the damages should therefore be divided.
In Admiralty. Libel for damages. R. D. Benedict, for libelant. Edwin, G. Davis, for claimant.
BROWN, J. The libelant's small two-masted schooner F.H. Miller, while in tow along-side the tug W. A. Levering, bound through Hell Gate to Long Island sound, wasrunupofi the shoal that makes out from the south-west side of the North Brother island. The Miller was on the port side of the tug, and between them was another two-masted schooner, the Cheseborough. 'l'here was a good breeze from the south-west, and the tide was flood. As the schooners were to be left by the tow a short distance beyond the North Brother, the Cheseborough, about half a mile before reaching those islands, hoisted her mainsail and foresail. Hercapbl.in testifies that he understood by signal that he had the consent of the pilot in charge of the tow) although such assent is denied by the pilot. The
captain of the Miller, seeing the Cheseborough's sails hoisted, followed suit and hoisted his. The acting captalO of the tug, who soon after took the wheel, and two other witnesses, testify that the captain of the Miller was notified not to hoist his foresail; the latter denied that he had any such notice. The captain of the tug also says that before the Miller's foresail was hoisted there was sufficient space left between the Cheseborough's foresail and mainsail for him to see where he was going, but that the Miller's foresail, when hoisted, closed up that space, so that he had a view on his port bow of only about two points range. The passage through The Brothers was the straight and usual passage for craft of this size. The passage is narrow, and, in the flood tide and. a south wind, requires careful observation and good judgment to avoid the reef above referred to, when, as in this case, there were other vessels to the southward. Upon these facts I must hold both in fault. It was imprudent for the pilot to proceed through that passage with his view obstructed so much as it was. He should have insisted that the foresail of one or both of the schooners on the port side be lowered, or else have gone around to the northward of the Brothers islands. He might easily have done either. This obstruction of view was completed at least a quarter or a third of a mile before reaching The Brothers, so that there was plenty oftime and room to go to the northward. It is clear that it was not insisted on that either foresail should be lowered, and the captain took the risk of going on with a very imperfect view of the north shore, Qn the other hand, I cannot discredit the testimony of the three witnesses, who state that objection to hoisting the foresail was communicated to the plaintiff's captain. Though the latter is not answerable for so much of the obstruction as was caused by the Cheseborough's sail, he isanswljlrable for closing up the open space between it and the Cheseborough'sIIlllinmast; and I cannot find, against the testimony of the claimant, that the view through the open space, after the Cheseborough's foresail was up,was of no value. It seems to me that the captains of both schooners should have known that it was very imprudent and unjustifiable to obstruct the view of the pilot towards the port side in going past the reef between the two Brothers. The captains of both schooners evidently expected that they would go through that passage. Whatever other causes may have existed, such as the wind and tide and miscalculation, these difficulties must necessarily have been aggravated by the obstruction of the pilot's view; tl,nd I must therefore regard the plaintiff as contributing to the accident. \ Decree for the libelant for half the damages and costs, with a reference if the parties do not agree as to the amount.
GARRETT v. NEW GARRETT et al.
NEW YORK TRANSIT &
CO., Limited, et ale
(Circuit Court, S. D. New York. October !7, 1888.)
lNJUNCTION-COURTS-CONFLICTING STATE AND FlCDERAL JURISDICTION.
Where the state court enters a decree before an order in the United State I circuit court to show cause why a temporary injunction should not issue is heard. making the acts sought to be enjoined a cJntempt of the state court if done. andrendering the process of tbe United 'States court merely ancillary, the injunction will be denied, and complainants left to their remedy in the state court.
In Equity. On motion to show cause. Bill by Robert'Garrett and others against the New York Transit & Terminal Company, Limited, and others. Wm. W. Macfarland, for complainants. Francis L. Stetson, for defendants. LACOMBE, J. Complainants sued defendants in the supreme court of the state. Upon trial, at special term, the relief asked for in the complaint was granted as to some of the defendants, but was refused, and the action dismil)sed, as to others. Thereupon complainants brought suit in this court against the defendants who had prevailed in the state court, praying for the same relief. Upon beginning this suit, complainants obtained an order to show cause why a temporary injunction should not issue, forbidding the defendants from making any disposition of the property in.controversy, or from incumbering the same in any way. This order to show cause was returnable on June 7, 1886, and until the return-day of the order defendants were by its last clause restrained from doing the acts sought to be enjoined. The return-day of the order to show cause has been adjourned by consent, from time to time, until now. Meanwhile an appeal was prosecuted in the state court, the decision of the special term reversed, and judgment for the relief prayed for entered against aU the defendants. This judgment has been affirmed by the court of appeals. 2 Defendants, who have not obeyed the mandate of the state court, are now, it is alleged, in contempt- of that tribunal, and motion to punish them for such contempt has been made. Upon the argument of this motion for a preliminary injunction, counsel for the complainant conceded that there was no act which, being committed by the defendants, would be a contempt of the temporary injunction now asked for, that would not also be a contempt of the decree of the state court. It is also practically concl'ded that the process of this court is sought only as ancillary to that of the state court, and that complainants have no expectation of prosecuting the case here to final hearing, and thereupon obtaining the permanent injunction prayed for. Under these circumstances, the. complainants should be left to their remedy in the state courts; and their motion a temporary injunction must be denied.