THE TBAN8ll'D· NO. "
T.M. Gill, Cor clabnant. H. Delesdern.jer, for libelant.
PARDEE, J.The Case presented to this court, gtowing out of the collision of the tug Nicholls and the libelant's lugger, presents onl)' questions of fact-The correct decision of these questions of fact depends upon the credibility to be given the witnesses on both sides. The important fact in the case is whether the libelant's lugger unnecessarily and improperl)' changed its course when in front of the defendant tug. After a careful and painstaking examination of the whole case, comparing and weighing the evidence given, I am unable to reach an opinion contraty to the findings of the district judge, and therefore affirm the decree given by the district court. Iricases involving only facts, and upon conflictiilg evidence and the credithe proof of these facts bilityofwitnesses, where there is no preponderance of evidence, nor additional evidence offered on appeal, the circuit courts in admiralty do not bn appeal disturb the decrees ofthedistrict court. For both reason and authority, seeThe TluJrnas Melville, 37 Fed. Rep. 271, 36 Fed. Rep. 708; The Saratoga, 40 Fed. Rep. 509. The following decree will be entered in this ease: This cause came on to be heard upon the transcript of-appeal, and was argued. On consideration whereof it is ordered, adjudged, and decreed thatthe libelant; H. Duncan,' do have and recover from' JaineS Sweeney, owner of' the tug-boat Gov· Francis T. Nicholls, claimant iIi this cause, and from Charles.4.. Miltenberger, surety of said Sweeney on the bond of release in 8olido, the sum of $150 damages, with 5 percent. interest from judicial demaxid; to-wit, from March 9 1889, until paid; and all costs of the district'aIidcircuit cOurts.
·THE .TRANSFER No. 4. 1
& N. Y. FERRY Co.
'11. THE TRANSFER
Court, E. D. NewYor1c. December 8, 1890.)
CBOSSING-PUTY TOE:OLD COUBSE.
. ''Where a tug, haVing' the right of way over a ferry-boat on a crossing course, whistltld to indicate that she would cross the bow of the ferry-boat, ,but immediately changed her wheel to swing away from the ferry-boat, and continued SWinging until the vessels collided, it was heW that the collision waa the fault of the tug in not holding her course.
In Admiralty. Suit for damage by collision. Wilcox, & Macklin, for libelant. Page & Taft and R. D. Benedid, for claimant.
by Edward G. Benedict, Esq., of the New York bu.
FEpE;RALRJJ:l:'ORTER,. vol. 44.
BENEDICT, J. This action is brought by the Brooklyn & New York Ferry Company, owners of the ferry-boat Alaska, to recover damages for injuries done to that ferry-boat by the tug Transfer No.4, on the 10th of August, 1889. Tbecollision occurred about 10:40 P. M. The night was clear moonlight, nnd the tide was strong ebb. The ferry-boat moved out from her bridge on the New York side blowing a long whistle as she moved. As soon as she reached the mouth of her sUp, the Transfer No. 4 was disclosed moving up the river with a ca.r-float on her starboard side. The ferry-boat blew two whistles, and kept her 'speed under a starboard helm. The tug put her helm a-port and reversed her engines. The result was that the tug. came in contact with the starboard side of the ferrY-Qoat 30 or 40 feet from her stern, doing the damage sued for. The testimony of the pilot of the tug makes a clear case of fault on the part of the tug. The vessels were on crossing courses involving risk of collision, and the ferry-boat had the tug upon her own starboard side. Under these circumstances,according to the contention of the tug, it was the du,ty of the ferry-boat to avoid the tug. But if this be so, it was also the duty of the tug to hold her course and permit the ferry-boat to choose whether to go astern or ah,ead of the tug. Instead of doing this tug undertook to dictate to the ferry-boat. Her pilot. testifies that "\Yhenhe saw the ferry-boat coming out he blew one whistle because, as ,s,ays, "I wanted to go ahead of him,. I wanted him to stop," and in\lliaQtly his helm; and although he received a signal of two whist)el! from the ferry-poatin reply to his one, he answered with a second signal of one whistle and kept porting, so that at the collision both vess61s were heading towards Brooklyn. This evidence from the tug makes a case of fault on the part of the tug. I cannot find fault in the navigation of the ferry-boat. She, according to the contention of the tug, had the right to elect whether to go ahead of or astern of the tug. She determined to pass ahead of the tug, and the fact that the blow was made within 30 or 40 feet of her stern shows that if the tug had not changed her course the ferry-boat would have passed ahead of her in safety. The pilot of the Jerry-boat says that he determined to go ahead of the tug, because he knew that any other course would result in collision, .·nd. I am npt able. t() find upon the evidence that his conclusion was wrong. It is not, therefore, a case of choosing the most dangerous of two courses, but rather of choosing the least dangerous course, and one which, as the result proved, would have averted collision if the tug had not altered her course in the manner above stated. There must be a decree for·libelant.
CuRNOW v. PH<ENIX INS. CO.
(Circuit Court, D. South Uarolina. December 11, 1890.)
RBMOVAL OF CAUSES-MoTION TO REMAND.
Where a cause has been removed from a state to a federal court upon defendant's petitioll, alleging diverse citizenship, plaintiff's petition to remand, denying the allegation of diverse citizenship, will be treated as a traverse of the petition to remove, and the motion to remand will be decided upon the trial of the issue thus made.
At LaW. Motion to remand. J. N. Nathans, for plaintiff. J. P. K. Bryan, for defendant. SIMONTON, J. This action was commenced in the state court. It has been removed into this court upon the petition of the defendant solely upon the allegation of diverse citizenship. The plaintiff thereupon filed in this court her petition, in which she denies diverse citizenship, and alleges that she is a citizen of the state of Connecticut, under whose laws the defimdant was incorporated. She now moves to remand the cause to the state court. The defendant excepts to this mode of proceeding, and insists that the motion to remand admits the facts set out in the petition for removal. Counsel relies on the cases of Buttner v. Miller, 1 Woods, 620, and Texas v. Railroad Co., 3 Woods, 308; that the only mode of obtaining the relief sought is by plea in abatement, (Coal Co. v. Blatchford, 11 Wall. 178,) or a tra\'erse of the allegation of citizenship. Whatever may be the result of a motion to remand unsupported by petition or affidavit, the present is not that case. The plaintiff has filed her petition, denying the statement of the defendant as to the citizenship of the parties, and, alleging that both the plaintiff and defendant are citizens of the same state, bases her motion on these facts. She challepges the jurisdiction of this court, and gives the ground for the exception. Under these circumstances it is the duty of the court to examine into the question. King Bridge Co. v. Otoe Co., 120 U. S. 225, 7 Sup. Ct. Rep. 552; Morris v. Gilmer, 129 U. S. 316, 9 Sup. Ct. Rep. 289; 18 U. S. St. at Large, 472; Nashua &- L. R. Corp. v. BosUYn &- L. R, Corp., 136 U. S. 373, 10 Sup. Ct. Rep. 1004. The issue is made up from contradictory statements made by the parties. Let the petition to remand be filed, and be treated as a traverse of the petition to remove, and let a day be set for the trial of the issue made. V .44F.no.5-20