. WILLIAM.S V. THE
(Oirc'Uit Oo'Urt, B.
OoLLtllIOI!l'-BETWEEN STEAMER AND MOORED BARGES-M11'rUAL FAULT,
In Admiralty. On appeal from district court. Libel for damages. : Libel by Charles C. Williams against the' steam-boat Whisper, -for a , collision between the and libelant's barge. The district court found the 'steam-boat alone fault, and claimant appealed. Benedict, for ,C. ,E. Whittemore, for appellee.
J.The libel in this cast> is brought for a collision in"the Bayou La Fourche, just below the railroad crossing, between the, libel-· ant's barge and. the-stearn-boat Whisper. Tbe Bayou La Fourche is a -navigable strea1ll in Louisiana, and at the place where the alleged collis. ion ,occurred varies in width between high and low water from 120 to ·250 feet. The railroad bridge crossing the bayouia a draw.bridge, and extending flom the one side of the draw down the' channel for a distance , of 75 to 100 feet, is a piling evidently made tQ protect the bridge,and -to guide vessels throughthe draw. On the side of the said piling the , libelant bas been in the habit for several yeai-sof moorlngmore 'or less --of his' bargesj, and at the time of the collision' referred to he had ttQ less "than, six barges, loaded and unloaded, lying at this place.. Somcj were :'-behitld: thepilihg, but the barge which oollided with ,the Whisper,:according to the evidence, was lying moored to the bank about 7500100 feet beyond and below the said piling. The barge had no lights aboard, and although it is said that there was a watchman in charge of the barges, he was not on any particular barge, and there was no light on any of and behind the piling. The them, except upon one, which lay steamboat Whisper, at about half-past 8 o'clock on the night of the 20th of March, 1888, coming up the bayou, did not blow its whistle to open the bridge at the usual distance below, and in time for the bridge-tender to get the bridge open on its arrival there. The consequence was that the steam-boat was compelled to stop and back while the bridge was being opened. In backing its stern swung around, and the wheel struck the top of libelant's barge. ' Tbisstatement of the case, which is a fair one from the evidence, shows that both the steam-boat and the barge were in fault for the colPARDEE,
lision. The steam-boat, because it did not blow the whistle in sufficient time to get the bridge open, or else it came at a too high rate of speed, when it was known that it had to pass a Known obstruction like the drawbridge, particularly when the pilot of the steam-boat knew, or should have known, that barges were lying in and about the channel below the bridge. The barge was in fault because it did not carry one or more good white lights, as provided by law. Rule 12 of section 4233 of the Revised Statutes provides thattradinK-boats. produce-boats, canal-boats, oyster-boats, fishing-boats, rafts, or other water-craft, naVigating any bay, harbor, or river, by hand-power, horse-power, and sail, or by the current of the river. or which shall be anchored or moored in or near the channel or fair-way of any bay, harbor, or river, shall carry one or more good white lights, which shall be placed in such a manner as shall be prescribed by the board of supervising inspectors of steam-vessels." It has been contended in this case that it was immaterial whether the barge had the light required by law or not, as the omission thereof did not contribute to the collision. On this point, which I have carefully considered, I am not prepared to say, under the evidence, that the omission of the light on the barge did not contribute to the collision. The master of the Whisper says that he was looking out for a collision with a barge ahead, and did not, while giving orders to the pilot, see the barge actually collided with. Incases like this, when a light required by law has been omitted, it is nearly always impossible to say what the other partywould have done if the required warning had been given. An examination of the authorities will show that the adjudged cases are conflicting, but that the best rule is to hold, a vessel in fault where it has not complied with the requirements of the law in relation to lights, and a collision has resulted. For a case in point, where I have heretofore examined the question, see Haimark v.Harris, 29 Fed. Rep. 926. Ry the collision the steam-boat was damaged in the sum of $37.95. The barge was damaged, as found by the district judge, in the sum of $75. By the admiralty rule, damages in ClU'e of collision where both are in fault, must be dividedj and a decree to that effect will be entered in this case.
STATE OF lOWA V. CHICAGO, B. &: Q. B. CO.
CHICAGO, B. & Q. R. CO.
(Oircu# Oourt, 8. D. Iowa, C. D. January 22,1889.)
REMOVAL OF CAUSES-CRIMINAL ACTIONS-RAILROAD COMPANIES-PENALTY FOR ILLEGAL RATES.
Act Iowa. April 5, 1888. § 27, entitled" An act to regulate railroad corporations, "provides "that any such railroad corporation guilty of extortion * * * shall forfeit and pay the state of Iowa not less than $1,000 nor more than $5.000, * * * to be recovered in a civil action by ordinary proceedings instituted in the name of the state." Held, that an action for such penalty, brought by the state; is one of a criminal nature. and not removable under act Congo March 3. 1887, § 2, which provides "that any suit of a civil nature, at law orin equity, may be removed."
It is not the form, but the nature, of. the action, that determines the question of removal.
On Motion to Remand. A. J. Baker, Atty. Gen., and O. E. Nourse, for plaintiff. Dexter, Herrick &- Allen and J. W. Blythe, for defendant. Before BREWER, SHIRAS, and LOVE, JJ. BREWER, J. This is one of several actions brought in the state court against the defendant and other railroad companies, to recover penalties alleged to have been incurred under section 27 of an act of the legislature of Iowa, entitled" An act to regulate railroad corporations," etc., approved April 5, 1888. The defendants filed answers, and at the same time filed petitions for removal to the circuit court of the United States, on the ground that the cases were cases arising under the constitution of the United States. Transcripts of the records were filed in this court in apt time, and a motion has been made by the plaintiff to remand the cases to the state court. In support of this motion it is contended: (1) That the cases are not "suits arising under the constitutioll of the United States," within the meaning of the act of congress; (2) that they are not suits "of a civil nature;" (3) that they are not cases of which the circuit court is "given original jurisdiction" by section 1 of the act, and are not, therefore, removable. Noticing the second question, it is provided by section 2 of the removal act of March 3, 1887" "that any suit of a civil nature, at law or in equity, etc., may be remQved;" and it is insisted that this is not a suit of a civil nature. By the act of April 5th, twtpra, certain acts are declared to be extortion. Section 26 declares that "any such railroad corporation guilty of extortion * * * shall, upon conviction thereof, be fined in any sum not less than one thousand dollars nor more than five thousand dollars. * * *' such fine to be imposed to the liain a criminal prosecution by indictment; or shall be bility prescribed in the next succeeding section, to be recovered as therein provided." This next succeeding section provides: "Sec. 27·.Anysuch railroad corporation Kuilty of extortion * * * shall forfeit and pay the state of Iowa not less than one thousand dollars nor more v.37F.no.11-32