THE REVENUE.! THE DREW.
NEW JERSEY STEAM-BoAT CO. 'II. CoLUEB. COLLIER'll. NEW JERSEY STEAM-BoAT CO.
(Dl.stn'1.ct Oourt, S. D. New York. Februarv 27, 1890.)
COLLISION BETWEEN STEAH .urn SAIL-INATTENTION TO LIGHTS-SHORT SCREEN-BoARDS IMMATERIAL.
A collision occurred about 1 o'clock at night, in the Hudson river, a third to onEthalf a mile below Esopus light, and from 800 to 600 feet from the west bank of the river, between the steamer Drew, on one of her regular trips from Albany to New York,and the sloop Revenue, bound up the river. By reas,on of the collision the sloop was sunk, the Drew was injured, and cross-libels were filed to recover the damages.. The channel at that point is 2,000 feet wide. The night was a little misty, but not enough to obsoure lights. On the part oftbe Drew it was oontended that the sloop was at first on the east side of the river, but that, as the Drew swung around Esopus light, the sailing vessel ohanged bel' oourse to the westward, thereby running into the Drew, whiob had shaped her oourse to pass to the west. It was also asserted that defeots in the soreen-boards of the sloop's lights oontributed to the collision. The witnesses for the sloop olaimed thatshe was always only two or three hundred feet from the west bank, and made no ohange of her oourse towards thewest. Held, on conflicting testimony, tbat the accil1ent was in the western third of the river; th.at the navigation of the sloop was proper; that she did not ohange her course; that inattention on the part of the Drew, and her unjustifiable attempt to oross the sloop's oourse to the west, caused the collision; and that if the soreen-boards.were short, that did not mislead the Drew, or oontribute to the 001· 11sion.
In Admiralty. Cross-actions for damages by collision. W. P .. Prentice, for The Drew. Hylandt!t ZabriBkie. for The Revenue.
BROWN, J. The above cross-libels were filed by the owners of the steamer Drew and the sloop Revenue to recover for their respective damages upon a collision between these vessels at a little before 1 A. M. on the 12th of April, 1889. The Drew was making her regular trip from Albany to New York. The sloop was bound up the North river. The collision occurred from a third to half a mile below Esopus light, and from three to six hundred feet oft' the west bank of the channel, which is there over 2,000 feet wide. The sloop's bowsprit struck the port bow of the Drew about 80 feet from her stem, and tore away some 50 feet of her side. The sloop was so injured that she sank shortly after. Her crew were picked up, at the Drew's request, by the steamer Amaonia, which came up the river a few minutes after the collision. The night was mild and a little misty, but not enough to obscure the lights. The wind was southerly, and very light, and the sloop was making only about two knots an hour. At Esopus light there is a gradual bend in the river, so that the Drew, in going a ·half milA around the light to the southward, makes a change in her course of about four points to starboard. After the change there is a straight reach in the river' of from two to three miles. On the part of the Drew it is contended that the sloop was on the east side of the river before the Drew had rounded
by Edward, G. Benediot, Esq., of the :New York bar.
Esopus light, but that while the Drew was swinging the sloop changed and crOssed to the westward, and thereby her course by several ran into the Drew, which had shaped her course to pass to the westward of the sloop port to port. For the sloop it is claimed that she was all the time not more <than two or three hundred feet from the west bank; that she made no change of course to the westward, ,but followed the line of the shore. : ' ' . ' ' , ' There are'many diffioulties in the testimony. The contradictions and are numerous. On the whole, I think the account by the sloop's is sustained by the circumstances and theprob,abilities 'of tbecase. With·out discussing the mass of details inevidence, I· find that the sloop was not on the eastside of the river, but in :the west third of the channel-wilY, going up from three to six hundred -feet only from the bank, and that the collision was about the same ;distancefroIl1 bank; that. the Drew, in rounding Esopus light, passed considerably to the eastward of the sloop, thus crossing the line of thes,loop's course froln port to starboard, so IlS to bear upon the latter'sstarboard bow, while the latter was heading nearly in line with the shorM the' Drew, ceIitinuing her swing, again crossed the line of the sloop's course to the westward, towards the sloop's port bow, and thereby (brought)lll(lut the collision, the sloop striking the Drew before the Drew had orossed the sloop's course; that the sloop, during this time, made no sheer to the westward, as alleged by the Drew, and did not change her course to the westward; and that she made no other change than by a port wheel a few seconds before the cQllhiion in extremis, whicQ had no material effect. The place of the collision and of the wreck, and the very slow speed of the sloop before the collision, confirm the testimony of theslQop's witnesses, that she Wllsnear the west bank. That the Drew,in making her swing, passed first considerably to the east of the sloop, ,and afterwards drew considerably to the westward before the col.lision, I think, at 700 or 800 feet,) is proved, not only by the testimony of the master and lookout of the sloop, but by the witnesses from the steamer Amsonia, which was a little below and considerably to the eustwllrd of the slQop. Up to the time when the stl:lamer began to draw up to the south-westwllrd, the master of the sloop supposed the ;Dre}\' w0'1ld pass to the filastward, as there was plenty of room for her to do.' Up to that time the Drew's green light had been constantly visible from the. time she was. first seen. Upon her turn to the south-west, when perhaps.a thousand feet distant; she showed her two colored lights; and that the first notice .to the sloop that there was danger of a collision. In that llIituation, and going only about one-eighth as fast as the Drew,th.e sloop was helpless to avert it. That the sloop's course was in line, or nearly> in line, with the shore, is proved not only by her own witnesses, but by the fact that she cut off Esopus light from the Bonia below per, and especially by testimony of the Drew's witness AIlardice, who, on hearing the Drew's whistle a few seconds before the the window to look, and .could see nothing; but a few moments afterwards he went to the midships gangway on the port side, and then saw the sloop's red and green lights about 200 feet distant.
Had there been more than a difference of two points ih the courses of the sloop and the Drew at that time, he must have seen the sloop's lights from the side window; and,as the. Drew 'was then heading somewhat across to the westward, the sloop's course must have been nearly in line :with the river. It was the duty of the Drew to keep out of the sloop's way. There were no obstacles to prevent her doing so. The Drew's theory of the navigation of the sloop, which is set up as her excuse, I regard as disproved. I cannot find any fault in the sloop's navigation. It follows that the Drew must be wholly charged with the loss, unless the alleged defects· in the sloop's screen-boards produced or contributed to the collision. The original libel of the Drew contains no charge of fault in this respect;; but the Drew's subsequent answer to the cross-libel charges that the sloop's screen-boards were two feet long instead of three, allowing the red light to show improperly across the starboard bow, and tbat tbe Drew was misled thereby. The only evidence on this point on the part of the Drew is that of the pilot, Gage, who says that the captain of the sloop, in conversation, afterwards told him his screen-board was "about two feet long, and the light in the middle of it." The captain, who was also owner, was afterwards exafllined as a witness at length. No' inquiry was put to him touching this conversation, or his alleged statement, and it was not denied. The wheelsman testified tbat the lights were properly put up, and burning brightly. There is no further evidence as to the screens, or their adjustment. This is a very unsatisfactory state of the evidence. If improper screen-boards were proved, no doubt the burden of the- proof would rest on the sloop to show that it was immaterial here, and in no way contributed to tbe collision. Capt. Collier's attention ought doubtless to have been called to his alleged prior statement. That this was not done may have been due to his deafness, so that he did not hear the testimony on that point. There is countertestimony that the lights were properly put up, and it seems improbable .that the sloopsbould have been navigated by Capt..Collier 15 years with improper screens. But if the screens were not as long as the regulations,it does hot follow that the red light had an excessive range to starboard; and upon the evidence of the Drew's witnesses, I am satisfied thatits precise range. was not material in this case, or that, even if excessive, it contributed in any degree to the collision. The pilot, Gage, says· repeatedly tbat he understood and supposed that the sloop was going right up the river, ina line with the shore, and not crossing to the westward, as he now contends that she was. I am obliKed to reject his theory that she was crossing to the westward, and to find that she was going, as he says that he supposed she was going, directly up the river. The only way in which the exhibition of tbe red light too much to starboard could mislead the pilot of the Drew would be in inducing him to $U ppose that the sloop was crossing· towards the· east, or more to the eastward than she was going. But the pilot, Gage, was not misled into· any such supposition. His management of the Drew. was based, not on any idea thAt the sloop was drawing to the eastward; but on the assumption that she was going straight up. as I find she was goillg.
His only complaint of being misled is in her alleged going to the westward, which I find was not the fact. Moreover, the place of the Drew Wall' so far over in the westward part of the channel way that she was necessarily on the Drew's starboard bow up to withinhalf,a'minute ora minute of the collision. The Drew was then to the eastward of the sloop. The position of the sloop was plainly visible on the westward side of the channeljand no reason is shown why the Drew should ,again cross the sloop's course in order to go to the westward of her, and so near the west bank. Her natural course was down about the center of >the river. The sloop'was not crossing to the eastward, and the Drew did not suppose her to be crossing to the eastward; so that the red light, whether seen at that' time or not, in no way misled the Drew into crossing the sloop's course by going over to the westward. The situation was practically the same as if the red light had been shut in, the green hid by the jib, and a flash light shown from the sloop's bow. Ido not,however, place much reliance upon,the Drew's testimony that the red light, and the red light only, was seen at the time of her first turn to the south-westward; for this testimony is associated with the further statement that the red light was seen on the Drew's port bow. But the red light could not have been brought on her pQrt bow until after a considerable swing by the Drew to the westward, and her real fault was prior to that time, viz., in permitting her to swing at all to the westward of the sloop. Just before that swing the red light, if visible at all, was on the Drew's starboard bow,' and not on port bow. Again, they say they did not see the sloop's green light; but the green light was certainly in range, and could not all that time have been hidden by the jib. The unavoidable inferenoe is that they were not carefully noticing the sloop or her lights. A careful reading of the libel and the testimony shows that the time before the Drew began her swing to the westward, or "straightening down," as it is called in one or two places, i. e., turning to the S. W. or S.S. W., is slurred with no satisfactory explanation. It doesappear, however, that the lookout was not on duty in his proper place forward, but in the wheel-house; and he was so suspiciously regarded by each side that, though he was present at the trial, neither called him as a witness. My'conclusion is that due and continued attention had not been given toihe sloop before the Drew's westward swing, and the pilot says he had not given her much attention; that it was probably the green light, and not the red light, that was then seen, and which seemed to "follow up" the Drew in her westward swing,a phrase possiblyapplicable to the green light, but not possibly applicable, so far as I can perceive, to the red light, in the respective positions of the two vessels; that the vessels were then so ne,ar each other that the particular lights seen were neither specially Mted nor accurately remembered; and that the only red light visible on the Drew's port bow, just before her westward swing, was the red light of the Amsonia, a little below. As I cannot find, therefore, that there was any fault of the sloop that contributed to the collision, the libel of the New Jersey Steam-Boat Company must be dismissed, with costs, and a decree allowed for the libelant Collier, with costs.
INSURANCE COS., (seven cases.)
(OiTCuitOOUn, D. K'ansCUl. Maroh 14, 1890.)
Under J;he removal ac1; of March 3, 1887. cause may be removed to the federal colirt on the ground or local prejudice, though the amount in controversy is 1ell6' than $2,000, but over $500. . .
OJ' CAUSES-LoOAL PREJUDICE-AMOUNT IN CoNTROVERSY.
.. SutE-INJUNOTION AGAINST PROCEEDING IN ElTATE COURT.
Though Rev. St. U. S. § 729. forbids the granting of a writ of to stay proCeedings in a court of a state; the circuit court may grant an inJunction against the prosecution of an in the state courts after its the federal courts; but it will not. resort to such writ where no injury is about to result to the . moviilg party, and the question of the right to remove the cause is not finally decided.
At LaW. On app1i08.tion for writ of injunction. . Rev. St. U. S. § 720, provides that:"the writ of injunction shall not be granted by any court of the United States to stay prcOceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." .F. L.Williams, J. S. Walker, and T. B. Dawes, for plaintiff. Ware, Biddle Cory, for defendants. 'FOST£R, J.. These cases; of which there are seven in number, with tbesame plaintiff but different defendants, have all been removed tothis court from the state court on the ground of local prejudice, under the act of March 3, 1887. In none of the cases does the sum in coutroversyamount to $2,000, nor less than $500. Notwithstanding the removal, the plaintiff persists in prosecuting the cases in the state court, and the defendants ask for an injunction'restraining him from doing so. The 'plaintiffinsisted at the original hearing for removal, and still insists, that the cases are not removable 'by reason of the amount in controv61'sybeing less.than$2;000, and that this court. has no jurisdiction" and that the state court still holds the cases for trial. He further main... tains that the writ of injunction cannot be issued by reason of the inhibition of section 720 of the Revised Statutes. If his first position is correct, it follows, of course, that this court has no jurisdiction, and the cases are triable in the state court. It is not worth while to rediscuss question whether a case involvi'ngo-ve'r 8500 and less the than $2,000 can be removed, under the act of 1887. The federal judges are divided in opinion on that q1lestion. Mr. Justice HARLAN has held such cases were not removable. Mr. Justice BREWER and some other a different .opinion on that question. . However, I rathe matter settled it\ 'thls circuit in favor of the right of removal. As to the power of this court to enjoin the plaintiff from proceeding in the state court in caseS itis well settled that such power exists. French v. Hay, 22 Wall. 250; Dietzsch v. Huidekoper, 103 S.494; Fiakv; Railway Oo.,lO·Blatchf. 518; Sharonv. %,.ry, 36 Fed. Rep. 365;fRqilroadOo.v.Jibrd, 30l.Fed. Rep. 170; Wagner v. Drake, 31 Fed. v.41F.no.8-29