HARDY 11. THE ltAll!:IGH.
out's wheel was put to starboard, thereby throwing her to port, so that she was brought across the Myrtle's bows. I conclude from the proof that there was not to exceed a point's difference in the course of the "Vessels, and that they were approaching each other nearly end on; and that the plain duty of those in charge of the Lookout was to have ported their wheel, which they did not do, but, on the contrary, starboarded their wheel; and that the collision was brought about by their neglect of their duty and violation of the sailing rules in that regard. But I am also fully satisfied that, if the Lookout had held her course, instead of going to port, there would have been no collision, so that it seems to me of very little consequence whether the vessels were meeting on converging lines, or end on, as the Lookout was at fault in either dilemma. It also appears from the proof that, atter the light of the Myrtle had been seen on board the Lookout, her captain allowed his wheelsman to go below to get lunch, while the lookout was sent aft to take the wheel, and, as the full watch oonsisted of only the captain and two men, this left the captain to perform the double duty of officer of the deck and lookout, which, with another vessel approaching, and in close proximity, was in itself an act of negligence, as it left his vessel practically without a lookout. The Ottawa, 3 Wall. 268; The Hypodame, 6 Wall. 216. Had there been a vigilant and competent lookout on libelant's 'vessel, <lharged with no other duty, His probable that the captain would have been kept constantly advised' of the situation· of the Myrtle as the vessels neared each other, ahd the collision averted. While embarrassed by the double duty he had assumed, the captain of the Lookout committed the fatal error of going to port when he should have gone to starboard. The original libel is dismissed, and a decree must be entered on the crosslibel, finding the Lookout at fault, and decreeing damages in favor of cross-libelan ta.
HARDY 11. THE RALEIGH AND THE NIAGARA.
(Circuit Court, S. D. New York.
Tows AT ANCHOR-SIGNALS. . . The tug N., with a tow, anchored in mid-stream in the Hudson rive\' On account of fog, about 2 o'clock in the morning. The tow of canal-boats stretChed'llbaft the tug about 800 or 1,000 feet in the channel. The N. sounded the requiredfog-signal.s, but no others were sounded, though the E., another tug,which was the N.'s helper, was stationed about the middle of the tow. Shortly after coming to anchor, Ii steamer coming down the river ran into and bank one of the canllol"boats. HeW that the N., as principal. was in fault in not requiring fog-signals to be .sounded 011 the E., her helper, which would have enabled passing vessels to locate'the tow.
The steamer was likewis\l in fault, as she was stelloming from four to five knots. which ,was an excessive speed in the fog in question, through which vesilels could not be seen lit a greater distance than 50 feet. . . , The canal-boat which wassunk,being the outside boat of the first tier Ilf, .the flotilla, was likewise in fault for not sounding any signals,' onder the statute which prescribes that "canal-boats which shall be anchored or moored in * *. it the it rlyer fog-hqrn,;or I / ,. , '.' signal. n . . any,. ,it . . , . . < . '., . ,it it * . .. ... :,". " ,.,.l
. . ;
SAME-CANAL-BOAT AT ANCHOR-SIGNALS.
,lIn AdPlb'alty. Mr. H1Jla;nd" for libelant. Edw(.tra,L. Owen, for the Niagara. E. P. Wheeler, for the Raleigh. ,
WALLACE, J. The libelant's canal-boat J. E. Heaton was sunk by a collision with the steam-hoat Raleigh, which took place in the Hudson river, a little below Inglewood dock,after sunrise, and about half past 5 o'clock in the morning of May 8, 1889. The canal-boat was at the time the port vessel of the first tier of a flotilla of which had been brought in tow of the steam-boat Niagara from Albany, bOUlld for New York city. The flotilla was composed of six tiers of canal-bollts. Owing toa dense fog, the Niagara brought her tows to anchor at about 2 o'clock A. M., near the imid-nhannelof the river, and kept them there until the collision,took place. At the time of the collision the tide was running slightly flood in the middle.of the river, and the Niagara was headed down the river southerly, and somewhat easterly, and her tows were behind her, stretching in a northerly Or north-westerly line up the river. The first' tier of tOWS.W8S ttbout 250 feet distant from the Niagara on a h8wset,and the other tows were connected with the first by hawser. The tug Easton, which was under the control of the Niagara, and was her helper on, the -voyage, was stationed' on the port flide of the fourth tier of tows. ,The Raleigh had left Inglewood dock to proceed down the river to New York. As the tide in:shore running lo\ little ebb, soehadmaoe,her landing by "going below and rounding up to the dock. "Uponleaving,the dock she 'started in a south-easterly direction, the south as she crossen the riyer, until she headed down the river, when she ,took a south-westerly course, to , reach the westerly side of the channel. While on this latter course, and when going at a speed of four or five knots an hour, she struck the libelant's canal-boat on the latter-'s port side. ,The fog was so dense at the time that vessels could not see one another further than about 50 feet away. The proper fog-signal'! weremaintained on board the Niagara during the time she and'h'eHYotilIli lay tttanchor, put no fog-signals were given on board the tugE!1StoJ;l, or on, the libelant's c:anal-boat, or on any of the canal-boats of'the flotilla, nor were any ordered to be given on the tug ortows by the Niagara. The Raleigh maintained proper fog-signals on during all her movEHnent.B. She also reversed her engines as sOOll as she discovered the ('anal-boat. The libelant went down with his an unconseious state, and in consequence of his health was permanently impaired. The disfor the for the loss of his boat, cargo, and personal effects, together with $5,000 for his ofthel'1teamers to pay half of the decree,and such' part 'of tlie other's half as· might ,not be collected. , The owners of llP:pealed. ,1he district jud'ge the'Niagarainfaultbecause no fog-signals giveil,by the Easton·. He held the Raleigh in fault for oohtInuing'herna:vigati6n from Inglewood dock in so' dense'a fogin a.
, HARDY V. THE RALEIGH:.
river where otliervesselswere'liable tobeencouatered, and iUso because her speed was excessive under the circumstances oUhe case. i, " It is not necessary to discuss the question whether the Raleigh was justified in leaving her dock, and attempting to proceed on her trip, in the dense fog that prevailed. In the present case, that questioninvolves merely an abstract proposition. It is enough to establish her liability that she was proceeding a speed under which she could not, by any degree of promptitude and skill, avoid a collision by reversing hex engines within the distance at which she could discover approaching or stationery vessels. The rule is that such speed only is lawful or moderate speed in a fog as 'will permit a steamer seasonably and effectually to avoids collision by slacking speed, or by stopping and reversing, within the distance at which another vessel can be seen. If thiS rule is a severe one, and practically requires a steam-ship to come to a stop, and remain ,stopped , when navigating a river having an extensive oommerce, odn a crowded harbor, it is too well established to he disregarded.! ' , Inasmuch as the Niagara was a principal, and the Easton washer servant, the former is chargeable with faultjas the Raleigh and herself and the libelant and herself,' if proper fog-signals were not given on board the Eastom In respect to the the Niagara is:also chargeable with fault, if 'such fog-signals W6re"Oot maintained on board the tows, as reasonable care demanded, in view of the particular location' and of the flotilla. ' The'·tows,. being without motive powerof their own, 'were -under the control of the Niagara in respect t o . the ,place selected for anchorage, and the manner in· which they should be deployedancl arranged while lying at! anchor in mid-river;: arid any failure of the Niagara to observe proper care on her own pa'rt iIi these particulars-would be a breach of duty to other vessels/navigating.the river, as!well as to the tows ithemselves. " Having a flotilla stretching out 800 or ·1,000 feet behind lier in the navigable channel, comrri.on;pru. dence required the Niagara to adopt needful measures to signify that state of things to approaching vessels, because such vessels, ,hearing, fogsignals. on board the Niagara, would look for danger at theloaation of the signals, and deem themselves safe in crossing the river to the. east;... ward or the westward, on a course much nearer to her than 800orl;000 feet. If the Niagara was unable to supply the tows with the bells or fog-horns necessary to be used in order to properly warn other:vesselllof the situation of the flotilla, she could at least have required the Easton to station herself where the fog-signals from that vessel would be serviceable, and to maintain the signals. Stationed where the Easton was, from 600 to 800 feet behind the Niagara, her location would !seem to have been a judicious one; but it cannot be affirmed that signals ,maintainedollboard hf'l' would not have assisted the Raleigh in diElcovering danger and avoiding it while on her course across the river.. Ill-espeot. ive of thig consideration, the statute required the EastQn;.as ,astea:m·.tes,. sel, not under way, and in a fog, to sound a bell at o£ notml;)re For her default in not 'obeying thdrule; the Niagara is responsible as her principal and master. ,";)
.. ,', ; '....' j)
:".li i' t'
Theremaining question is whether the libelant was not in fault for the collision as well as both the steam-boats. The statute prescribes that"Canal-boats '" '" '" anchored or moored in or near the channel or fairway of any bay, harbor, or river, and not in any port, shall sound a foghorn, or equivalent sigol\l, '" '" '" at intervals of not more than two minutes." The terms of this statute are not restricted-to canal-boats when they are independent vessels, but are broad enough to apply to canal-boats under all circumstances when anchored in a fog, and to include a canal-boat of a tow-boat. when she is lying among a flotilla in a fog, under It may well be that an inside boat in a flbtilla should not be considered as within the spirit orthe statute, and should therefore be treated as not within its meaning, because no practical benefit would result from her signals. However this may be, there seems to be no reason why the statute should not be read as requiring the outside boats of such a flotilla to observe the signals. Surely a multiplication of danger signals to indicate the presence ofastationery object, or a collection of anchored boats, covering a large' expanse of water in a fog, could do no harm. The present case illustrates how it might be useful. If one canal-boat in each· of the six tiers here had kept sounding a fog-horn at intervals of two minutes while they were at anchor, .who can doubt that the chorus of signals would have told the Raleigh, even before she left the dock, certainly before she took her westerly course across the river,of the enceof an anchored flotilla, and warned her of the necessity of extra caution. .The language of the statute is explicit and unequivocal. There is no room for interpretation, and it covers the case of a canalboat in the situation of the libelant's boat. It may impose a duty towards other vessels upon the towing vessel having control of a flotilla under circumEltances like the present to maintain proper signals on her tows. However this may be, the statute is addressed directly· to the tows themselves when they fall within the described class, and the duty of obeying it is therefore primarily upon the owner of the tow. Those who navigate canal-boats and the other craft described by the statute are as much bound as are any other class of vessel-owners to provide their vessels with all appliances which by law they are required to use when the. contingencies of navigation arise. The libelant cannot escape the imputation of fault by ascribing to the Niagara the duty of providing a his boat. The contract of towage between the two vessels implied that each would perform her part in completing the towage service; that proper skill and diligence would be used on board each; that each would be provided with· the necessary appliances by law required; and that neither vessel by her own neglect would increase any risk of the other which might be incidental to the voyage. This is nota case in which it is obvious that the fault committed by either the Raleigh,the Niagara, or the libelant was one so remote as to be inconsequential. .it decree lS ordered for the libelant for one-half the recovery allowed by the distdct court, and in other respects as. decreed by the district court. The decree will award to the appellants the costs of this court.
RAND LUMBER CO. v. HOLTZCLAW.
CARSON & RAND LUMBER Co.
(Oircuit Oourt, 1(. D. Missouri., E. D. January 13, 1891.)
REMOVAL OJ' CAUSES-APPLIOATION-AMENDMENT.
Where an application to remove a cause to a federal court, on the ground of local prejudice, has been denied, a motion. made several months later, to amend the petition IlO as to set up another ground for the removal, Is too late, and will be refused.
At Law. On motion to remand. This is a motion to remand the cause to the state court. Plaintiff brought suit in the circuit court of Macon county, Mo., on February 8, 1889, (the same being returnable to the April term, 1889,) for the sum of $1,822.99. April 10, 1889, the defendant filed his answer, and interposed a counter-claim for something over $3,000. April 12, 1889, plaintiff filed' a' motion to strike out part of defendant's answer, which motion was overruled April 20, 1889. Thereafter, on May 25, 1889, plaintiff filed a reply to the answer, and on the eame day lodged in the clerk's office of the Macon county circuit court a petition for removal of the cause to the United States circuit court for the northern division of the eastern 'judicial distrirt of Missouri, under the local prejudice and influence clause ofthe act of congress of March 3, 1887. Vide 24 St. U. S. 553. Subsequently the petition for removal was presented to this court, and an order of removal demanded. Such order was finally denied on September 30, For the action taken on such application in this court, see 39 Fed. Rep. 578, 885. On September 27, 1889, the cause was ordered to be continued to the next term by the Macon county circuit court, but on October 1, 1889, that order was set aside, and three days thereafter, Octobet 4, 1889, the plaintiff filed what is termed an "amendment to the original petition for removal." Such amended petition alleged the existence of "a separable controversy between Holtzclaw and the Carson & Rand Lumber Co. ," in which the lumber company was clefendant. The amended petition was accompanied with a bond for removal in the ordinary form. The state court dOtS not appear to have taken any action whatever on the amended application for removal. On the 13th of November, 1889, the lumber company lodged a transcript of the record of the state court in this court, and on December 2, 1889, defendant filed a motion to remand. For some reason unknown to the court the motion to remand has not heretoJore been submitted. Sears, Guthrie, and J. O. Davis, for plaintiff. B. R. Dysart and Berry & ThO'mpson, for defendant. THAYER, J., (after stating facts as above.) In any view that may be taken of the facts as above stated, the motion to remand must be sustained. Having failed in the effort to remove the cause on the ground of prejudice and local influence, it seems that an attempt was made to V.44F. no.11-50