think, sufficient to charge the ferryboat in attemptipg: to enter her slip instead of outside unhave ,bElen withdrawn. Until the ferryboat ba,(,.l.approl,l.ched within 100 feet or the slip, she had no reason to supthere material obstruction to her entrance. Coming a,rl:u,mg, the west, s4leof GO,\l:ernor's island, the ferryboat had seen the;lights, of the tug rmlQving in the ali p, had sounded an alarm signal, and. :sIQwedwhen at a considerable distance; and then the tug was observl/d! tp back out of tlle way. The position and height of the bows of the',tug were such as t.o hide the much lower lights of the canal boats in of the pier until the was within 100 feet of the slip; and ,even ,had those lights ,been visible and seen before, their position would not have been such as to show clearly intbe nighttime that the cano.! "boats were encroaching upon the entrance to the slip. The tug herselfr'w4S able to go further back at any moment., When the canal were seen, ,I ,am satisfied that a worse collision would have hapPelYl9, had the ferryboat reversed. Under the circumstances I think she,qid was wisest and safest; namely, to go on under a jingle bell to make, tll,estraightest l)0ssible entrance into the slip. ;Eyen· the canal ,boats been seen earlier. projecting some 30 feet aero!¥! the slip,.butleaving about 112 feet space for the ferl'y1)OOt'sentrance, Iam.not prepared to hold that the ferryboat would bA \:w.,",lJld ,to waH outside until the ,canal boats should be withdrawn. In S\wl:!. caSEls. where a. reasonable space is lelt, and where the danger frortl,,(mUision is only &uch comparatively small injuries as may arise from the sagging of boats against each other in the entrance of slips, it might,l think, well bEl that boats which unlawfully obstruct the aHtbe ri&ks of the sagging arising from variable currents, thp, entering uses reasonable skill; and that where is still left, the ferryboat should not be held chargeable witil fault for attempting to enter at alL See The Expre88, lU. S. App. 109,49 Fed. Rep. 764. Without passing, however, "pon thn latter point, 1 am satisfied that the libel should be dism41sed .1iIpon tbe grouuds previously stated, with costs.
RAn.ROAD OF NEW JERSEY 11.
, ,,(DtBtrwt Oo'Wtt. S. D.Ner» York.' April 25, 1892.)
"A'steiilii,. tu.k'*as g,O ingqp 'tb'e North river wltb a car" float alongslde. A ferryboat o ,started. 'trdm New York: to .Communipaw,the llourses of the ves,els,thus being cross'Wl!lQ witlflt4e ferryboat 0ll thestarbQlIrd hand of the tug. ,The ferry'boat·tiloWed Ja!JOut otte'third of 'the Way aeros.s tbe river to allow a raft to pass, She then I!tarted up, and a balf minute aftergllve onewblstle to ,the tug, when the
" latter w8s1501l Qr 600 Jeet below her in the river. The tug gave no sIgnal, and tbe fioa'tshortly afterwards struck the ferryboat. both in fault;-the tug, (1) for not going to tbe right, (2)' fbI' not signaling ber direction 'to the' ferryboat, (3) for not l'llVer,8illg ina situatlQn that involved. risk!>f collision.; the ferryboat, for not giving the ,signal ip.dicating her intention topasll ahead of the tow until it WaS too late to be of aliv use. ' , "
2. SAME,....TI],rELT SiGlqALB-INSPECTOR'S RULES.
"The gi'1"ing of timely signals, in obedience. to the inspector's rules, is among thll cumulative' means provided by: law for avoiding collisions, is necessary in harbor naVigation, and the failure to observe this rule Is ODIl of the most prolific caUSIlS of disastllr. " " ' .
In Admiralty. Libel for collision. Carpmter & Mosher, for libelant. Wilcoxj Adamtl & Green, for claimants. BROWN, District Judge. Before light on the morning of January 28, 1891, as the ferryboat Elizabeth was making one of her regular trips from Liberty street, New York, to Communipaw ferry, Jersey City, she was run into in about mid river by a car float going up river in tow on the starboard side of the steam tug T. B. Van Houten, and received damages to her wheelhouse and machinery, to recover which the above libelwaB" filed. The. tide was ebb; the weather clear, but da.rk, and good for seeing lights. The Van Houtenhad come around the Battery and was bound for the Pavonia ferry, Jersey City, and was heading about N. N. W. The ferryboat, after getting about a third of the way across from the New York shore: had been obliged to stopher engines to allow a steam tug with a raft of logs, in all about 300 to 400 feet long, to pass down ahead of her with the tide. The ferryboat did not, however, wholly lose her headway; and as soon as the raft was clear, she started her engines ahead, her courseheingdirected nearly straight across the river, but a. little upwards. The Van Houten was then probably about 100 or 150 yards further out in the river than the, Elizabeth. Soon after starting up, probably about a haIfa minute after, the Elizabeth gave one whistle, and heard a whistle from the Van Houten, which, as several witn'esses testify, was understood as a reply. The pilot of the Van Houtimtestines that he heard no whistle from the and gave none to her; but that he gave an answer of one whistle about the same time to a signal of one whistle that was received from a.nother tug, the Beach, which was going down river to the westward of both. The pilot of the Elizabeth and other witnesses testify that when the Elizabeth started up after the raft had cleared, the Van Houten wRs:a quarter of a mile below him. Several witnesses for the Van Houten, including the pilot, make theVan Houten at that time only from 500 to 600 feet below; and such I think is the weight of the testimony and of the circumstantial evidence. I have no doubt that the primary fault in this collision was the Van Houten's. She had the ferryboat on her starboard hand; she saw and recognized i.the Elizabeth at an abundant distance, and knew that the checking o'fher speed for the ralt was but temporary, and tbatthe Elizabeth had the right of way. When she started up on clearing the raft;
that, was plainly visiblei had a proper lookout been maintained. Yet aCCOl'dingtothe pilot's own story, he continued on across her course without giving her any signal whatsoever, and without reversing until the Beach's whistle was heard, a half minute after the ferryboat had started up, when it was too late to be of any use. He thus violated three of the express T\11es; namely, (1) in not going to the right in that situation; (2) not sigmiling the Elizabeth to indicate the direction he intended to take; (3) in not reversing in time in a situation that involved evident risk of collision. I think the ferryboat is also in fault for not giving ae timely signal to the Van Houten. The two boats were on crossing courses, lind risk of collision was plain, if both kept on. The time when the raft cleared and the ferryboat started up, was the extreme limit at which she could be eXJJ\11le4Jor delaying her signal. When she gave her signal about half a it Wlil.S ·too late. The Van Houten, being incumbered; could Qot then go astern; and' she reversed at once, but could not nvoidcellision. It is probable that this signal was given at the same time the aignal of the Beach was given, as only onesiglial was heard by the.Yan,1Houten, and the Elizabeth did not hear the signal of the Beach. In my judgment the ferryboat's signal should have been given before the ,:faft hadpasse.d; for the ferry boat had way on; the Van Houten was see.n to be much nearer than half a mile, and was in fact less than one-eighth of a mile di!:ltaint; and the fact that the way of the Elizabeth had been .checked by the raft when she was so near the Van Houten, made it specially appropl'iate that her purpose togo ahead of the latter shOUld be: signaled to ,the Van Houten as required by the inspector's rules, sillpe without anysjgnal the latter might possibly suppose the feqy'boat would wait till the Van Houten had passed. The Van Houten indeed'had no right to count upon it; and it was, therefore, no legal eXCU/;'le to her fOTomitting the proper signal on her own part, or for not proceeding as the rules required. It is true, also that the Elizabeth had aright to expect that the Van Houtenwould keep out of her way; .but that was no excuse for the Elizabeih.in omitting to give a timely signal in obedience to the inspector's rplEls indicative of her intent to increase her speed and go ahead. The ru!es.,as to signals being by law (Rev. S1. § 4412) have· the same force as the statutory rules when not incontlict with the latter. The B·. B. Saunders, 23 Blatchf. 378, 387, 25 Fed. Rep. 727; The Dentz, 29 Fed. Rep.. 528 ; U. S. v. Miller, ,26 Fed. Rep. 97. They are among the cumulative means provided by law for avoiding collision. Their usefulness and, absolute necessity in harbor navigation are attested by daily and the failure to observe them in time is one of the most prolific causes of disaster to property and life. Had a timely signaL bl;len given by the ferryboat, ns late even as when she started' up, there .ill nQ,rel,\son to suppose the Van Houten would not have heard it and go:g.e astern accordingly. .For these reasons the damages and costs. must be, divided j and the libelant is entitled to recover for only one half its"loes,
STATE t1. SULJ.IVAN
(CHrcuU Court, W. D. NO'I'th. Carolina. April 20, 1899.)
t REVovn OJ' CAUSES-PROSECUTION OJ' REVENUE OrrICER-DEPUTY CLBRx-RBT. ST. S643. The removal of a prosecution against a United States revenue officerfrom a state to a federal court is effected, and complete jurisdiction acquired. immediately upon the· tiling of a proper petition tberefor in tbe clerk's office of tbe federal court; and the subsequent issuance of a writ of certiorari or habeas corpus cum causa is but the useiof auxiliary process and tbe performance of a ministerial duty. Wben, therefore, such petitIOn is filed during vacation, and in tbe absence of the clerk, the proper writ may be issued by his deputy, and it need not show upon its face that the clerk has beld the petition to be sufficient. L TO STATE COURT. 'rhe statute provides in such case that when suit is commenced in the state court by'summons or other process, except capias, the clerk shall issue a writ· of certiorart, but tbat when it is commenced by capias, or any otber similar form of proceeding, "by which an arrest is ordered," the clerk shall issue a writ of habeas corpus cum: causa. Held, that the statute must be liberally construed as part of the revenue system, and that a writ of certiorari was therefore properly i88ued when the officer had been released on bail, and had made no application for the . writ of habeas corpus cum causa.
In such a writ of certiorari addressed to the marsbal of the district, instead of to the state court, commanding the marshal to make kuown to the clerk of the state court the removal of the cause, and that such court is required to send a . transcript of the record to the circuit court, ill a sufficient compliance with the statute. . Where a State court proceeds with a prosecution against a United States marshal after he has effected a removal to a federal court, he does not lose his right of trial in the latter court by defending in the former.
BAKE-WAIVER-DEFENSE IN STATE CoURT·
At Law. A motion to proceed with the trial of this case, removed from the state court, the state court having declined to recognize the right of removal, and tried the case. Benjamin F. Long, for plaintiff. R. Z. Linnl'!!/ and M. S. Mott, for defendants.
DICK, District Many state and federal courts of the highest authority have heard argument and carefully considered questions of law arising under section 643 of the Revised Statutes of the United States,!
'Rev.8t. 5643: "When any civil suit or criminal prosecution is commenced in any court of a state against any ofllcer appointed under or acting by authority of any revenue law of the United States, now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his ofllce or of any.suoh law, or on account of any right, title, or authority claimed by such ofllcer or· other person under any such law, or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue law, or is commenced against any ofllcer of the United States, or other person, on account of any act done under the provisions of title 26, 'the elective franchise,' or on account of any right, title, or authority claimed by such ofllcer or other person under any of the said provisions, the said suit or proseoution may, at any time befolte the trial or final hearing thereof, be removed for trial into the circuit court next to be holden in tbe district where the same is pending, upon the petition of such defendant to said circuit oonrt, and in the following manner: Said petition shall set forth the nature of the suit or prosecution, and be verified by affidavit; and, together with a certificate signed by an attorney or counselor at law of some cou,rt of record of the stllte where such suit or prosecution is commenced, or of the United States, stating that, as counsel for the petitioner, he has examined the proceedings aiaiDst him, and carefully