CIANCIMINOS 'Jl()W &TRANSPORTATrON co. ". THE RIPPLE.
peril.ofthe sea, from 'Which he is exempt in the bill of biding. Desty, Shipp. & Adm. §§ 224, 231; 255,258,260. The defense set up in this case is that the losscaJlle under the exceptions in the bill of lading, "perils of tqe sea." The clilim.ant proved the encountering by the ship during the voyage of weather sufficiently heavy to warrant, in my opinion, the conclusion thatJheiJIlmediate cause of the destruction and loss of the goods in question wa:s the motion of the ship in the heavy weather. This proof from the shifted the burden to the libelant to show that this result would ,have been prevented by the exercise'of due care in the stowage of the cargo. Olark v. BarnweU, 12 How. 272. "Mo--, ofthe ship sufficient to account for the damage1;>eing proved to have ocqurred during thevQyage, the presumption, in absence of other tha,t such ,and, when the motion of tPP.ship is shown to have been caused by the sea, the exception of the of lading exemph! the ship,unless bad stowage be proved.» The 30 Fed. Rep. 210. ,The testimony in this case as to the sea to warrant the inference that it was-the sea that caused and there is no evidenee to satisfy the court that there WitS 1)8,4 stqwage, or any other default on the part of the officers or crew of the shipjj; There are some other points raised by the pleadings which it ,is unne<leSS1Ul to notiQe. For the reasons stated the libel must be dis-
(Dl8trlct Oowrt, S. D. New York. January 18, 18110.)
The tug R., having the libelant's scow in tow on a hawser, shaped her coul'l5eto go between the anchored tug Y. and the wreck of the A., between which a hawser 175 yards long was stretched, off Barclay street, North river. The R. had no lookout, save the pilot in the wheel.house, and the hawser WllS not observed until near the Y. The tug then sheared to the westward, and cleared the M., but the scow collided with her and WllS damaged. Held, that the R. WllS in fault, both for not haVing a separate lookont, who might have seen the hawser in time, and also for improperly shaping her course between the M. and A.. instead of going to the westward. .
In Admiralty. Libel for damages by collision. Carpenter & Mosher, for libelant. R. N. Waite, for respondent.
BROWN, J. On the 18th of July, 1889, the wrecking boat Merritt was anchored off Barclay-Street pier, from 175 to 200 yards west of the Bunken wreck Atlas, with which she was connected by a cable from her stem. The Ripple having the libelant's scow in tow on a hawser, not observing the Merritt's hawser until within a couple of hundred yards
Merritt herself; but in the ebb-tide the scow did not clear, and was damaged by colliding with the Merritt's bow. There was no reason why the .Rippleshouldhave undertaken to go between the two boats. The place of the wreck Atlas was; well knOWhjand;the presence of the Merritt, a wrecking boat, at anchor in the immediate vicinity of the wreck, should been of itself a sufficient notice to the Ripple to keep away from it. obstruction to the westward, and that was equally within .the ordinll-ry course of the Ripple. " (, ',l'be necessity oia lookout, who has no other duties to attend to, is always insisted on in maritime causes. The Blo88CYm, Olcott, 188; The 'EmilJg, Id.132j Tlw 'Pillk, 13 Blatchf.514j· Chamberlainv.Ward, 21 How. 548,.570. No doubt, the pilot who is is for the most part a good lookout; but occasions arise, and not unfreqtumtly, when :his divexse duties make,it impossible for him to see what a lookout; having no other duties,would see. Tugs which, like this,dispense with a '8.eparate ,lookout, must take the risk of being 'held in fault when such emergencies ariee. A lookout attending to his duties wbul!lhave ,<leived in time that the Ripple could not go between the Merritt' and the Wt:eck. On both these,grounds the Ripple must be held iri"fault, and llo decree given for the libelants, with costs, with an order of reference to compute the damages. .
Slle perceived the hawserin time to sheer to the westward, and cleared the
it,shaped her course so as to go between the Merritt and. ttl.e wrixlk.
MEYER, tI. HERRERA.
OlrCW£t Court, W. D. Texas, San Antonw DWiBWn. December 81, 1889.)
Where the citizenship of the parties appears in the petition, defect of jurisdiction on that ground may be rai,sed by demurrer, in the absence of a general appearance.
SAllIE-SUITS AGAINST ALIENS.
Under Act Congo Aug. 13 1888, (25 St. at Large. 434,) which confers on the federal courts jurisdiction of suits between citizens of different states. or between citizens of a and foreign states. citizens, or subjects, but provides that no suit against any person shall be brought "in any other distIict than that whereof he is an inhabitant; but, where the jurisdiction is fQunded only on the fact that the action is be.tween citizens of different states, suit shall be Drought only in the district of the residence of the plaintifI or the defendant, It-the circuit court has no jurisdiction 01 an action by citizens of the district ag-ainst an alien temporarily in the district.
On Demurrer to Jurisdiction. Tarleton Keller, for plaintiffs. 08car Bergstrom, for defendant.
MAXEY, J. This is a suit instituted by the plaintiffs, who are citizens of Texas and residents of this district, against the defendant, a resident and citizen of the republic of Mexico, to recover damages in excei!8 of $2,000, for 'breach of contract. A demurrer is interposed to the petition, on the ground that the court has no jurisdiction over the perSOIl of the defimdant. The preliminary question, that the objection should be raised by plea in abatement, will be first disposed of. As pertinent to that issue, the petition alleges: "Said Albert Meyer is a resident citizen of the county of Bexar, and the said Charles W. Barnard is a resident citizen of the county of Uvalde, and state of Texas, and both within the jurisdiction of this court; and the said Julian F. Herrera is a resident and citizen of the repu blic of Mexico, but at present, of his own volition, and voluntarily, within the territorial jurisdiction of'this court, in the said connty of Bexar."
When the necessary facts appear upon the face of the petition, as in this the defect of jurisdiction, if any existing, may, in the absence of a general appearance, be reached by demurrer interposed specially for that purpose. Halstead v. Manning, 34 Fed. Rep. 565. And so it is held by the supreme court "The case is not one where a plea in abatement was required, to raise the question of citizenship. Here the citizenship of the parties is averred in the bill of complaint, and the consequent defect in the jurisdiction of the court is apparent; and a defect of this character, thus disclosed, may be reached on demurrer, or taken advantage of without demurrer, on motion, at any stage of the proceedings. A plea in abatement is required only when the citizenship averred is such as to support the jurisdiction of the court, and the def.. ndant desires to controvert the averment." Ooal. 00. v. Blatchford, 11 Wall. 177, 178. Whether the defendant is suable, over his protest, in this district, depends u,pon the con!'ltruction to be given the act of August 13,1&88·. v,41F.no.2--l>