THE FERRY-BOAT MONTANA.
could speak, is left in doubt by the testimony of a. witness from the steamer, who contradicts the libellant, and says that some 30 of the cattle in the second division went into the between-decks. But, aside from this statement of the libellant, there is sufficient evidence to compel the conclusion that the cattle in-the between-decks, when shipped, were not overheated or exhausted, and that the subsequent sickness and mortality during the first three days of ,the voyage can be attributed to no other cause than the detention of the cattle during Sunday in the between-decks, rendered unnecessarj!y hot and unhealthy by the fact that the steamer lay the pier and without wind-sails up. From this conclusion the liability of the steamer must follow, notwithstanding the provision in the contract that the vessel was not to be responsible for any mortality whatever; for it is settled that a carrier cannot by any form of agreement relieve himself from the consequences of his own negligence. A decree must therefore be entered in favor of the libellant, with an order of reference to ascertain the amount of the loss.
See 0-l'tnsby v. U. P. R. 00. 4 FED. REP. 706.
FERRy-BOAT MONTANA ana R. S. CONOVER.
(District Oourt, E. D. New York. --,1881.)
IN NORTH RIVER AT NEW YORK-TUG AND Tow-NEGLIGENCE.-A tug was taking a hark from her herth along-side aferryslip in the Hudson river, at New York, and just as a ferry-boat that had come up was backing to avoid a sloop 1hen in her way, the tug commenced to haul on a hawser on the starboard quarter of the bark, thereby moving her astern, the ferry-boat stopped backing, and the two came in collision. The owners of the hark libelled both the ferryboat and the tug for the damages. Held, that the ferry-boat was not in fault by backing when she did, nor for stopping, as that diminished the damage that resulted from the collision; but that the tug was in fault for moving the hark astern at that time when another course was open for her to take.
Hill, Wing rJ Shoudy, for the libellants. Beebe, Wilcox rt Hobbs, for the ferry-boat. E. D. McCarthy, for the tug. BENEDIOT, D. J. I am of the opinion that the damage to the bark Kings County, sued for in this action, must, upon the evidence, be found to have been caused by the negligence of those navigating the tug R. S. Conover, which, at the time of the collision, was engaged in towing the bark. This negligence consisted in straightening up on the hawser attached to the bark's starboard bow when the situation of the .tug was such that the power so applied to the bark, in her then position, and at that state of the tide, caused the bark to move astern and into the side of the ferry-boat then under her stern. The character of the blow shows that the ferry-boat was substantially still in the water, and that the bark was, by the, action of the tug, backed against the ferry-boat. The ferry-boat was not in fault for stopping and reversing as she did. Such action was necessary to avoid a sloop, and she was entitled to suppose that the bark would remain where she was, or at least would not back. Nor was the ferry-boat in fault for not continuing to back. When the ferry-boat stopped backing, the bark was upon her; if she had continued backing she would not have escaped the bark, and, by stopping her engine, she diminished the damages. If the bark had been moved ahead by the tug, instead of astern, or if she had been turned without going astern, there would not have been any collision. It was entirely possible for the tug so to tow the bark as to prevent her from going astern and across the river, and her failure to do this caused the damage in question. The libel as against the ferry-boat is, therefore, dismissed, and the libellant awarded a decree against the tug for the damage in question, with a reference to ascertain the amount.
CURTIN V. DECKER.
CURTIN 17. DEOKEB.
(Circuit Uourt, E. D. WiBconBin. January, 1881.)
1.· REMOVAL-WHEN REQUISITE MuST ExIsT. A cause maybe removed under the act of 1876 if the required citizenship exists at the time the petition for removal was filed.
The petition for removal, made by the complainant, alleged that at the date of the petition she was a citizen of the state of Illinois, and that the defendant was a citizen of the state of Wisconsin. The defendant moved to remand, on the ground that the petition for· removal did not show that the parties were citizens of different states at the time the action was commenced in the state courts. Beld, that the motion to remand must be overru,led.-fEo.
In Equity. Motion to Remand. Murphey If Goodwin, for complainant. A. G. Weissert, for defendant. DYER, D. J. This is a case removed from the state court. The petition for removal was made by the complainant, and alleges that at the date of the petition she was a citizen of the state of Illinois, and that the defendant"was a citizen of the state of Wisconsin. The defendant now moves to remand the case on the ground that the petition for removal does not show that the parties were citizens of. different states at the time the action was commenced in the state court. The removal of the case to this court was under the act of March 3, 1875, (18 U. 8. St. at Large, 470, 471.) The question involved is, therefore, whether the right to remove a case, under that act, from the state court to the federal court, is dependent upon the citizenship of the parties at the time the action was commenced in the state court. In the case of Rawle v. Phelps, 9 Cent. L. Jour. 46, the learned district judge of the eastern district of Michigan, in a carefully-considered opinion, held that to authorize a. removal to the federal court, under the act of 1875, the requisite citizenship must have existed at the time the suit was commenced in the state court. The question, it is understood, has not been decided by the supreme court. It was alluded to in the opinv.5,no.5-25