WaS,llcross the Jenks' course, until the Jenks came The Jenks is also chargeable with the same fault,iQ that she did not back at all, as she D.lighand should hll.vedone when, the signals were h,eardoff Forty-Ninth --'treet. She was then going at of five ()l' six kpots, at least, prob,ably 7 knots, through the water, lind at collision she w8slUoving through the wat.ar at the rate of atIeast two knots. In a fog 80 dense that vessels cannot be seen more than 1.50 feet ,d,istant, with fog-whistles sounding' so .near, it was the duty of both tQ(lome to a stand"still in the water as soon as possible, U:ltil their respectiveposHloos were discovered. The Britannic, 39 Fed. Rep. 395,,399, and cases thf're cited. As each in this respect is chargeable with the same fault, the damages and costs are apportioned. A deoree, with an Qrder 'of reference to coml'ute the damages, maybe prepared accordingly.
THE BOWAB» B. PEtKo
EN08'rROM 11. TaE '1l0WARD B. PEcJt.
CoLLJ8JON-VE88I1:L AT ANCHOR-FAILURB '1'0 SHOW TORCH.,'
. a ve886J, at all<;hor in the can see th,Il' Jighte of an approaching vessel, tbare is'no 8uppose that her own lights, pl'Operly set and burning brigh1llY.',cannot 'beaeen;and hence her failure to display a torch before the approacqf/lg vesSEll with her 18 not such a fault aswUl entitle the colliplng vesse1,confessedly In fault, to a division of. the damages.
The the 4nchored vessel, .whlch was lyinlf in a tide-way. to put her helm hard over the appeared imminent. lS not such a fault as to call for a diVision oHtie' damages, where it is \lot shown that to result from in the have carried her olear of the colsuch liding
In Admiralty· ()rilibel for collision. J. lA'f/,gdm libelant. Samuel fark, fol.' ,claimant. J. is a libel in 're7l';t the Howard, B. ?e.ck torec;over daIllages ,to the by a collision in HamptoJlJlolil,ds 00 Marcil, 26, 1891. The tha schooner filed Swedishbark.S.torckeri Roads, on its way: on 1891 Ilnchored in about in place collision curred., Qn' she wasanChQ/.'ed witha 8tarboard anchoralld M;, For four oa)'8,vf'!ssels bouod"nQrt,inyard had en;' and OIl ,2!>tp, thf:Jre an impending erlystorffi.; 'f!;te'll'lilld w8.#l E.::N.J!4"ipl1[)wing ,Th9 eveningwalJ (lloudy"with passing by withoutrain or fog, until
'ERE HOWARD B·..PECK.
By:that evening, quite a large number of vessels,chow many ,did not appear, bad come into Hampton Roads to.avoid the coming lltorm. A number of vessels were anchored near the Storcken.· The three-masted schooner Howard R Peck, on her way from 'Georgia to New London, came also into the RoadlJ on that evening seeking refuge. She carried three fore and aft sails, three jibs, and a fore stay-sail, all of which were set when she was ing up the bay.. took in her spanker about one and one-third miles from FortreSB Monroe. Her lights were properly set and burning. The tide was about, half flood, with·,aprooable velocity of three miles per hour,. and flowing in' a west.sollth-westerlydirection.As she reached the 'Water battery. two large steamers met there, and showed their searchlightS just abead of the Peck. The effect of these electric lights was to temporarily blind the captain of the Peck as to objects beyond the glare .()f'the lights. When the search-light went down, he saw a vessel, close by,' on his .port bow. The: steamers again showed their search·lights, and, showed enough were many lights there. In the -language of the captain ofilie Peck, llthere were quantities Of stuffindthe waytbere,'-vessels :or.·something As'. 'soon.' 8S the vessel 'Was'on'hiB port bow was'passed,.the captain.of the Peak starboaTdIKl his wheel, so as to cross thechanhelo ."He did not diminish the· sPeed (If -his v5sel, which 'ha:d. wind and with her. :In a few minuli38 the reported a light on the Peck's -starboard bow, and immedia.tely after another light .close to the ·first. . The Peck starboarded .her wheel, arid ·fQrthwith struck the bark in the after part .of her fore-rigging, cilrried:away her jilrboOID:\·and did other ,damage, caused her to drag her anchor, passed acrosa .her bow,-scraped aloog her starboard aide, and. anchored astern. After the collision the Peck's captain found that "the: Jplace was; full of vessels."; The collision took place at 7:45 ·. M:. The Storcken had a proper anchor light, properly set and brigbtlY:PU.l'liling. She was riding at anchor, heading E. N. E. The carpenter was on deck, keeping the anchor watch; the rest of the crew were below. The captain was on deck. He saw the Peck's red and green lights about two points on the Storcken's port bow, and thought that she was about half a mile away. Immediately after the two lights were sighted he saw that the red light was shut in. He looked at the Peck for two or three minutes, and saw that she was about to collide with his vesseL He called the hands to come on deck, but by the time they came the collision had occurred. The Storckcn was dragging her anchor; he let go the port anchor, and paid out 45 fathoms of chain. At tbe turn of the tide he tried to take in chain, but did not accomplish much, and fouled with the four-masted schooner Carrie Bronson, sustaining additional damage. The Storcken was not anchored in a dangerous place. It was rather unusual to be so near the middle of the channel, but that part of the channel, on that day and evening, was full of vessels, which had sought refuge from the coming storm. Divers grounds of negligence on tbe part of the Howard B. Peck were claimed by the libelant, but it is not necessary to examine them, be-
9 o'clock. Lights conldbe seen
causeth,e. claimantconcedeathat she was inrault for going so fast, and that she should have reduood her speed when she found that it was dangerousto go ahead, and turned to.gO'RCroSS the ohannel. Conceding negligence on the part of the Peck, her couneel invoked the aid of the principle of law that "errors committed by one of two vessels approaching each other from opposite directions do not excuse the other from adopting every proper precaution required by the special circumstances of the case to prevent collision," (The Swnnyside, 91 U.S. 208;) and insisted that it was the duty of the Storoken to show a torch, to payout chain, or shift helm, in order to avoid the coming collision, and therefore that the damages should be divided. The Storcken could see the lights on board the approaching schooner, and had no reason to suppose that ;her own lights were invisible or that there was occasion for a torch. The hands were promptly summoned to payout chain, but the injury happened before they could get on deck, and whether the collision could have been avoided by shifting the helm, after the captain became convinced that the approaching vessel was not apparently intending to change her course, ;is not certain. If the helm had been shifted from amidships to hard either way, it would have changed the position of the -St;orcken 50 feet, and she would have swung in an arc of So circle of :whjch anchor would: ha"6 been the center and the chain the radius. -Whether she could have thereby avoided the Peck, which was rapidly coming down nearly at right angles with her, nobody can tell. Perhaps -she could, but a court is not called upon to divide the damages between an anchored vessel, which is acting in acoordance with the rules, and is 'surprised by the approach of a vessel in motion, which is confessedly in .fault, upon the surmise'that, if the anchored vessel. had shifted its helm, it might have escaped the collision. Let there be a decree for the libelant, with costs, and for 8 reference to a commissioner in regard to the amount of damages, and a dismissal of the croBs-libel.
BOBLE. t1. MASSACHUSETTS BEN. ASS'N.
NOBLE 11. MASSACHUSETTS BEN. ASS'N.
COwcuit Court. N. D. New YO!1£. November 20,1891.)
REMOVAL OP CAUSES-PETITION AND BOND-WImEE TO BB F):LED.
The petition and bond for the removal of a cause must be filed in the clerk's office of tbe 9Ounty.in which the venue is laid, and, if filed in another county where the . court is then sitting, it does not effect a removal, though approved by the presidin,;r
BAMB-Al'PROVAL B:r :STATE COURT.
In view of, the fact that section 8 of the removal act the state court to accept a sufficient petition and bond when filed, and that sectiqn 7 empowers the court to which the cause is removable to issue a writ of ce'rt£orari the state court to return the record to it, a removal may be effeoted by simply filing the petition and bond, without presentingit to a judge of the state court, or in open .<l9um'tor approval., ' " ' '
John $., PdU,nd, for plaintiff. J. K. ll.ayw(jrd, for defeqdant.
L8:w.,on moti9n to remandtoJhe state colU'f;.
J. This is a motion by the. plaintiff to,remand this action to the from which it The suit was brought in the :supremeCO\lrt of the staW. of. New York, Niagara county beingspecified in the coroplaintas the place oetriaI. Before the expiration of the to plead Qr.answer to the complaint, the defendant presented a petition, aC(joml,pan,i>E!d by a bond· p:roperly conditioned and with good and sufficient the supreme court then in session in the county of Erie, and the Justice presiding indorsed his acceptance upon the petition and, bond. Thereupon the defendant filed the petition and bond. with the clerk of the county of Erie. It is conceded by the plll.intiff that the petition and bond were properly presented at the term of .the court in session in Erie county; but the plaintiff insists that they should have been filed with the clerk .0£ the county of Niagara; and the motion proceeds solely upon the ground that, because thtlY have not been filed with .the clerk of the county of Niagara. the action has not been properly removed. 'fhe clerks of the several counties of this state are clerks of the supreme ·court within their respective counties; and the clerk ofthe county of Niagara is the custodian of 'the records in all suits in the supreme court the venUe of which is laid in that. county. Section 3 of .the act of March 3, 1875, as amended ,:t>ythe act of March 3, 1887, provides that "whenever any party entitled to remove any suit * * * may desire to remove such suit from the state court to the circuit court of the United States, he may make and file a petition in such suit in such state court, * * * and shall make and file therewith a bond, with good and sufficient surety," and "it shall then be the duty of said state court to accept said petition and bond, and proceed no further in such suit." The statute requires the bond tp be conditio.ned for the entering by the removing party in such circuit. court, on the first day of its the.n next session, of a Copy of the. ,record in such suit. Section 7 provides that if the derk of v,48F.no.5-22