, : THE <lL4N MAC LEOD.
tbe,se facts, I am of the opinion tbat tbe Hudson City is responsible fot tbe because tbe. pilot committed a fault in commencing bis voyage on a nigbt, under circumstances whicb made it impossible for bim to know,wbether bis course was clear, when a delay of a moment or two ,would have allowed tbe car-float to pass by, and the presence of the sailing vessel would have at once been known. The case of The Jam, 14,Wall. 189, relied upon by tbe claimants, differs from this in an particular, it seems to me. There the Java, ina, bright, clear day,in the course of her voyage, passed under the stem of a large school-ship. As she cleared the school-ship, a smail vessel suddenly popped out from bebind the school-ship, under the steamer'sbows"baving up to that moment been invisible to every one on board the because behind the sohool-ship. That was held to be a case of accident. Here the fault on the part of the ferry-boat conher voyage in a .very dark night, under circumstances that rendered it intpossible for her pilot to see"before he started, whether his course was clear" when a delay of a moment in starting out of would have avoided the collision. For a ferry-boat to start out of h,er, slip in sucb a night, under such circumstances, is almost to starting out, blindfold, and, in myopinioll, it was a fault 10 to do. The libelant must have a decree. ,
et al. v.
(Diltriet Oowrt, E. D. NeUJ YO'l'k. March 111,1889.)
8ml'PmG-MASTBB-POWEB TO CONTRACT.
A contract made with a tug by a ship-master 60 miles at sea, that the tug Ihall take him into port, and about the harbor when required. and to sea again when bis vessel il ready, is void, as beyond the Icope of the master'. authority.
In Admiralty. Action against the bark Clan MacLeod, to recover the amount of an alleged towage contract entered into by the master of the bark. Wilcox, Adams Macklin, for libelant. Owen, Gray Sturges, for claimant.
to enforce a lien upon that vessel, supposed to have been created by a
lReported by Edward G. Benedict, Esq., of the New York bar.
This is an action in rem against the bark Clan MacLeod
contract entered into by the master of the ship. It appears hi evidence that the bark Clan MacLeod was purchased by the claiman.t when she was ready to depart from Gravesend, En.gland; for the pott. of New York. At the time of the purchase she was in charge ofa maSter, whom the claimant at once discharged by reason of drunkenness. The same night, however, the master sailed the vessel out of the port for New York. When he arrived some 60 miles off the port of New York, he was metbya tow-boat owned by the libelant; and he then made a contract with its master to employ the tug to tow the bark into the harbor of New. York, and to tow her after her arrival, if requested, in said harbor to any place therein, and as often as it became necessary for said vessel to change her location, and also to take her to sea when ready therefor, if desired; for which the master agreed to pay the sum of $400. The owner, having refused to acknowledge the contract or admit the reasonableness of the demand, offered to pay $100 for the towing into New York, but refused to pay more, whereupon this action was brought to recover the $400. In my opinion the contract entered into by the masterwas beyond the scope of his authority, for the reason that it was a contract for services not necessary at the time, aud as to the necessity for which in the future the. master could know nothing. If he could be said to know that the ship must some time proceed to sea again, he could not know that the owner would desire to have her towed to sea, nor could he know whether any, and, if any, what towing of her would be required when in port. The contract was hardly more than a wager contract, and in my opinion was void, as being beyond the scope of a master's authority. The evidence as to thE;! value of the services rendered shows that the $100 which was paid into court on the tender was sufficient compensation for the work done. Let the libelaut recover $100, less the costs in this action since the tender. .
H. & S. A. RY. CO.
ZAMBRINO V. GALVESTON,
H. & S. A. Ry.
(Clwemit Cloun, W. D. Teil!as, EZ Paso D. March 19, 1889.)
FEDERAL COURTS-ACTION BETWEEN ALIEN AND CORPORATION-WHERE TAINABLE.
Act March 3, H187, provides that no civil suit shall be brought before the federal courts in any district other than that whereof defendant is an inhabitant except where jurisdiction is founded only on diverse citizenship. The act'of 1875 allowed suit to be brought also in the district in which defendan' should be found. Plaintiff is a citizen of Mexico. and defendant is a Texas railroad corporation, whose principal office is in the Eastern district out whose railroad extends into the Western district, in which it has agents to transact its ordinary business.· By Rev. St. Tex. art. 4120, defendant's public office shall be considered its domicile. By article 1198. subd. 21. defendant may be sued in any county into which its railroad extends. and process may be served on its tocal agent, (article 1223.) Held, that suit may be brought in the Western district.
At Law. On exceptions to plea in abatement. A. G. Wilcox, W. B. Sloan, and McGinnis McGinnis, for plaintiff. Davis, Beall Kemp, for defendant.
MAXEY, J. This suit was instituted by Pablo Zambrino against the Galveston, Harrisburg & San Antonio Railway Company to recover damages resulting from personal injuries received by Zambrino in El Paso county, while employed as a laborer upon a constrUction train of the railway company, which was at the time engaged in the work ofrepairing the road. Plaintiff is a citizen of the state of Chihuahua in the republic of Mexico, and the defendant is a corporation created by special acte of the legislature of this !State. Sp. Laws Tex. ·1870, p. 45et seq.; Sp. Laws 1850, p. 194 et seq. A plea in abatement is filed by the defendant, in which is asserted its immunity from suit .within this judicial district, and to this plea exceptions are interposed by the plaintiff. mainly technical in their Several points have been raised in character, which, at the request of the parties, will not be considered, and the sole question to be determined may be thus stated: Is the defendant suable in the circuit court of the United States within the Western judicial district of Texas? It is averred in the plea that the domicile and principal office of defendant is located at the city of Houston, which is within the Eastern judicial district. The pertinent facts bearing upon the issue presented are agreed upon by the parties, and will he regarded as incorporated into the plea, and thus considered by the court in connection with the question of law to he decided. They are asfollows: The plaintiff is a citizen of Mexico, and his cause of action arose in El Paso county, Tex. The defendant is a domestic railway corporation, having its principal office at the city of Houston within the Eastern judicial district, and a railway line extending from the city of Houston through the Western judicial district into the city of El Paso. At the latter place; and at other stations along the line of its road, the defendant has agents and servants through whom its usual and ordinary busi. v.38F';no.6-,-29