THE GUY ANDOTTE.
to two of her signals, upon receiving a reply to her third signal, she starboarded hard and opened her engine in an endeavor to cross the Admiral's bows, she took the risk upon herself, and failing is responsible for the result. The reply of the Admiral to her signal gave the Croton no immunity from the responsibility cast upon her by the law. A mistaken idea seems to be entertained in behalf of the Croton that it was a fault all the part of the Admiral to blow two whistles in reply to the two whistles of the Croton, unless it was the judgment of the Admiral that there was room and time for the Croton to pass ahead in safety. It was not for the Admiral, but for the Croton, to determine whether there was room and time for her to pass the Admiral's bows in safety. Her signal to the Admiral announced her determination of that question, and the reply of the Admiral simply informed her that her determination was known to the Admiral, and constituted no fault. It is further claimed, on behalf of the Croton, that the Admiral was in fault, because, after blowing her two whistles in reply to the Croton's signal, she ported her helm, when, by starboarding, she would have assisted the Croton in her attempt to cross the Admiral's bows. The answer here is that it was no part of the duty of the Admiral to assist the Croton. The limit of the obligation upon the Admiral was, when danger of collision appeared to her, to adopt such measures as she had at command to avoid collision. Upon the evidence I doubt whether it was a mistake on the part of the Admiral to port when the Croton starboarded to cross her bows, but if it was a mistake it is not to be laid at the door of the Admiral as a fault. If it was a mistake, and if in the absence of that mistake the Croton would have passed in safety, the mistake is not to be attributed to the Admiral, but to the Croton, whose unwise action alone required the Admiral to determine a question that otherwise would not have been presented. The libel must be dismissed, with costs.
THE GUYANDOTTE. 1 CHAPPELL
(District Oourt, E. D. New York.
COLLISION-VESSEL ANcrroR-ANCHOR LIGHTS.
July 26, 1889.)
'rhe schooner barge 1'11. was run down at night while at anchor near the middle of the Elizabeth river, a little below Lambert's Point pier, by the steamer G. Held. on conflicting testimony as to whether the barge exhibited an anchor light, that she did exhibit such light, and, the night being good for seeing lights, that a vigilant lookout on the steamer would have discovered, in time to have avoided, the barge. but the latter not having an anchor watch when lying in an exposed place, she was in fault also, and the damages should be divided.
Reported by Edward G. Benedict, Esq., of the New York bar.
In Admiralty. Action by Frank H.Chappell to recover damages caused by collision. Carpenter & Mosher, for libelant. Biddle & Ward, for claimants. BENEDICT, J. This is an action to recover far the sinking af the schooner barge Marion by the steam-ship Guyandotte, on the night of the 17th of December, 1887. The Marion, laclen.with a cargo of coal, consisting of about 1,595 tons, was anchored in or near the middle of the Elizabeth river a little below Lambert's Point pier. While so lying she was run down and sunk by the. steam-ship Guyandotte, at the time bound down the Elizabeth river from Norfolk, Va. The amount of the claim is upwards of $24,000. Upon the greatly disputed question in this case, whether the barge was displaying an anchor light, I incline to the opinion that the strong array of witnesses which the barge has been able to produce upon that point must be held to outweigh the testimony produced in behalf of the steam-ship. The case of the claimants is somewhat weakened by the fact shown by the circumstance in proof, that at the time of the inspectors' examination, held shortly after the accident, thev were desirous that the lookout on the boat should not be examined by the inspectors, and by the further fact that, although the master of the boat is now positive that the barge had no light, in his letter to the agents, written the day after the collision, he said that she had a dim light. Upon all the testimony I am unable to hold the barge in fault for not displaying an anchor light. But she must be held in fault for not maintaining an anchor watch. Anchored where she was in such a night, she was bound to take every precaution to warn approaching vessels of her presence. A vigilant watch on her deck might by shouting and swinging a lantern have attracted the attention of thOSe on the steam-boat to her presence in the locality where she lay at anchor in time to have enabled the steam-boat to avoid her. The probability that a watch on deck would have prevented the disaster seems to me greater in this case than in the case of The Clara, 102 U. S. 200, where the decision of the circuit justice that neglect to have an anchor watch was fatal to a recovery was affirmed by the supreme court. If, as the weight of the evidence is, the barge had a light displayed, the steamer was also in fault for not seeing it in time. The night was good for seeing lights, and I cannot doubt that a vigilant lookout on board the steam-boat would have discovered the barge in time to enable the steam-boat to avoid her. Both vessels being found in fault, the damages will be apportioned.
TEHANtI. FIRST NAT. BANK.
v. FIRST NAT. BANK
(Circuit Court, No D. New York.
REMOVAL OF CAUSES-FEDERAL QUESTIOK.
August 16, 1889.)
An action between a receiver of an insolvent national bank and a depositor, involving only the right of set-off of deposits against notes due by the depos' itor. does not present Ii federal question, under Rev. St. U. S. 85242, avoiding preferences to creditors of such an insolvent bank.
Motion to Remand. Action by William H. Tehan against the First National Bank of Auburn and Frank M. Hayes, receiver of said bank, to have certain indebtedness due plaintiff as administrator, by said bank, applied to the payment of notes held by the bank against him. It was removed from the supreme court of New York by defEmdants on the ground that a federal question was involved, it being contended that Rev. St. U. S. §§ 5234, 5236, 5242, were drawn in question. These sections refer to the appointment by the comptroller of the treasury of a receiver to take possession and administer the assets of an insolvent national bank, and the distribution of the funds among the creditors. They also avoid all transfers and assignments, etc., made by the bank with a view of preferring creditors. Frederic E. Storke and Sereno E. Payne, for plaintiff. Bacon, Briggs & Beckley and John N. Beckley, for defendant Hayes.
COXE, J. This action was commenced in the supreme court of the state of New York. It was removed to this court upon the theory that a federal question is involved. The plaintiff, as administrator of the estate of Eliza Tehan, had at various times deposited in the First National Bank of Auburn the sum of $2,279, for which he held certificates of deposit, payable to him in his official capacity, at the time the bank closed its doors. The bank was also indebted to him individually, as a depositor, in the sum of $40. At the iime of its failure the bank held the plaintiff's notes for $5,500, upon all of which paper he was individually liable, and upon $2,000 of which his name also appeared as administrator. The plaintiff contends that the amount of the deposits due him should be applied pro tanto upon the notes. The receiver, on the contrary, insists that the plaintiff should pay the amount of the notes in full, and receive the ordinary dividends upon the certificates. The nature of the controversy is thus concisely stated in the brief submitted by the defendants: "The controlling question upon the trial must be whether this plaintiff as an individual is entitled to an off-set on account of trust moneys deposited with the bank." It is expressly conceded by the defendants that, unless the determination of this controversy involves a federal question, the suit must be remanded. No other ground of jurisdiction is asserted. As thus stated, v.39F.no.12-37