Ul the setlVioos ,were not suoh as .command (salivage'c3mpensatioh, highlymeritoriOlls, and should be comlttlCbrdiI1gly. !TheViola was,,; large and valuable vessel and Wljg:lCafl1ingavaluable cargo. She.Was:not designed for towing, nor a.dapted ta th£lservice. In lying by the lightship and going out of her ,coutee" so in the storm, and afterwards taking her in tow under the cii'cums'titnces,she incurred Serious responsibility-some risk to herself, her dargo and crew, as well as the possibility of endangering her insurance. These things should all be considered in determining the amount duef(}r ber Shebehavedwelhtnd generously and should be The services were extraordinary, and there is no rule by which their value can be measured with exactness. While services they partake somewhat of the nature ofsuch services. They were voluntarily and ungrudgingly rendered, under cirtJutnstances that made them.-trery valuable to the government and should be uhgmdgingiy paid for. In view orall the considerations involved, I thirilt'the.libelant should' have$2,500j and this sum is accordingly awarded. ':A decree may be,entered fur this amount with costs.
LAVJi::a';l'Y et al. v. Tim
" 1. COLLISION-:;Y'ESSBLS
CHALMETTE. June 28, 1899.}
(D«86rl.ct 'QOw1,' So D. NfI/J}Yo'l'k.
, A boBt Wliiclr is allowed to llwing against a steamer at rest takes all the risks of the steamer'S! construction, and of. any to herself oausedby such contact.
.....Am.EGED INJURY,II'BOlll-WEIGHT OF EVIDENCE.
l WJl:,&:R'yEB-IlIIPINGING BOAT TAKES RISK OF CoNSTRUCTION.
2 ·. SAlI;ll:-PJ\OPELLER.
Where a lighter swuIig unaer the stern. of a steamship laying at a wharf, and received injIiries from which she sank; and theweight of evidence indicated that the Injuries. were not by blow from the sr.eamer's pr:<>peller, but probably by the the l,ghter against the yoke of the rudder, it was heTAl that the lighter ,oouldJitlt redover. .', ' :
In"'Admiralty. Libel for injury caused by steamer's propeller. missed. ,Hyland & Zabriskie, for libelants· . Tweed R. D. Benedict, for claimants.
", BBOWN, District Judge; 'The libel charges that between 3 and 4 .o'clock" in the 'of December 26, 1891, while the libelant's . lighter Alfred Collins walJbeing moved stern .first towards the· bulkhead ;,from alongside the steamer· Chalmette, which lay on,· the ,southerly side ·iOtpiSt 25, ,North river,thesteamer'8 propeller was' suddenly set in motion and came. ili C01'l.taOt: with the. starboardqulll"ter ot1tbd lighter i ; break'irlgsome'planksand':C8Usipg;her,afterw$rdsitQ,s,in.k.The<libel was filed to recover the damages.
: THE CHALMETTE.
The evidence shows an oval-shaped wound aJittle beneath the line from four to seven l1istant from the stern· post of the tending across the third, f<;lUrth, and. fifth plank streaks from the top. to Seven and a half inches wide, one or two The:planks were from of whi(}h were cracked and broken. The marks of the wound consisted of two somewhat sharp and narrow surface cuts, and beyond them three very rough and ragged abrasions, or. scourings beneath the grain, varying froID, five to six inches broad, and running. somewhat diagonally aqross the plank streaks. . ' , The lighter had come alongside the Chalmette with 8 ·cargo of iron, which she had expected to deliver to the steamer; but as it could not he taken aboard, the lighter, after several hours, wal'! ordered away. The steamer sailed at quartet; beforeS, and from 1 0'clock;,till4 she had been, as usul'll, working her propeller. occasionally, sometim,es forwards, s,ome.tillles backwards., .' The master of the lighter testifies that proceed,her near the ing W haul llis lighter astern for the purpose bulkheadb,ehi;nd, the steamer, he .looked to see, whether the propeUer was in motion, .aud that it was not in motionwhenhe began to,haul'the lighter asternj but that it started up as the lighter came under 'the quarter of the steamer, the wind and tide setting the wards the bulkhead. " .. ' . It is that when the got under the steamer's quarter, the propeller was, in motion. The. witnesses for the steamer that motion when the lighter started; that a suitableanl1 the propellet; was astern, and that as soon as the lighter was seen proper ,watch was to be coming 'under her quarter, the engine was stopped; and that the lighter hung fOfll, cPllsiderable time across the stern oOhe steamer; and it is that the wQunds shown, and the dan;Jage done, were not caused, andcouid not have been caused, by contact with the, propeller, but only by contact with the iron roke of the rudder, a projection about 2() inches in length by S or 6 inches across on the top, used Jor fastening chains to the rudder in case of accident to the steam gear. for steerThe libelants contend thatthe damage Wlll'! done by the propeller alone. There is considerable conflict in the evidence; and as the damage was done beneath the water line, and no' one saw just what did it, the question whether it was done by the propeller, or by the yoke of the rudder, must be determined by inference from the circumstantial evidence and the probabilities of the case, since direct observation was not possible. Upon the best consideration I have been able to give the case, my judgment is that the wounds were not probably caused by the propeller bladell; but by the yoke of the rudder, which at the time was held firmly fast. The two sharp and thin surface cuts just beyond the three broad and ragged abrasions above referred to, could not have been caused by the blades of the propeller, since the shape and the direction of the rotations of the blade edges were not such as could produce straight thin cuts like those shown, and in the direction shown, in the plank produced upon the trial. They might have been produced by the surging of the
lighternpand down, against the corners of the yoke, through thewaves in the'$,lip, and the yoke is of a breadth corresponding- with the three \'lr'oll.d'Jabrasions. The extreme 'roughness of these abrasions also, and theragged'andbroomyends of the grain of the wood still left at the sidesofthese three abrasions, could not have been made, it seems to me, by object in rapid motion, like the blades ora propeller; but only by a comph.t,litively slow motion such as the surging of bonts, and the rubbing aga.inst'stlCh a projection:would produce. In other cases before me by propellers, the appearance Of 'thew-ound has been wHolly different, (seeThe El Dorado; 27 Fed. Rep. 762, and The Oity Reg., 1886, there cited; affirmed on appeal i) "an;d': Qf Mr. Reedls very strong to the effect that qavebMn produced byapropeller; and that tne C(1l1stru'ctlbn'qfthe and of the stern of the lighter, as illustrated'bjitn1pde1s;were stich that they could not pos1>ibly have come in contllctat Ifpointfrom'4 tOT feet only from the and not 'feet; ,and tha.t a greater diBta,nce would be necessary in order"tb'Jlrdduce':abrasioD$ upon several planks of the lighter such as this'wOlthd e:ibibited. ,. ' The have not"beenable to meet these rio,t1siderations by any directevidence; the nature of the case they coilld hot,.' It is to be regretted tbattne determination onhe cause of the wound could not be made upon til ore direct and decisive evidence than the inferences above rntmtioned,', 'r :aut the burdellof proof being upon the libelant to show in the defendant in order to recover, this must be established, by' ,8 .reasonab1epreponderance of evidence., In the present case, thisd()eS'n6t seeIn to ine to be established, but the contrary. As respec,ts tl1eyoke on the rudder, the lighter took all the risks of the, steamer's constructionir' allowing her to swing in under the steamer's stern, instead of keeping her off by additional lines; and the risk of any 'contacts with her which' '\yere thereby caused. The British Empire, 24 The WiUieand The Ltudgate HiU, 29 Fed. Rep. 153. The libel is'dismissedj but, under the circumstances of doubt, without costs.
V. CITY OF SUMAS.
CLOUD'll. CITY OF SUMAS.
COf,rC'U«t Court, D. Wush1lngtrm, N. D. September 7, 1892.)
FBDERAL COURTs-JURISDICTlON-ACTION BY ASSIGNEE.
The statutory rule that an assignee of a chose in action cannot sue thereon in the federa,l courts, unless a suit would have been cognizable therein if no assignment had beenmacle, applies to an assignee, by indorsement. of a city warrant.
At Law. Action by J. A. Cloud against the city of Sumas on city warrants, of which plaintiff was assignee. Defendant demurred, on the ground that the United States court has no jurisdictiol1. Sustained. Smith ItitteU, for plaintiff. (Jhambftr8 Lambftrt, for defendant. District Judge. The complaint in case alleges the town of Sumas, a municipal corporation of this 'state, made and issued certain warrants payable to the order of a firm doing business in said tow.n undllr the name of the" First Bank of Sumas;" that the said firm thereaJter "duly sold, indorsed, and transferred said warrants to plaintiff," who is a citizen of the state of New York. There is no allegation as tothecitizensbipof the persons composing said firm; presumably" therefore, they are citizens of the state in which the firm was located'. .. The first section of the statute defining the jurisdiction of UniteCl States circuit courts is in two parts. The first, in a long involved sentence, prescribes what is essential in a case to bring it within the jurisdiction of a circuit court of the United States; and the second part of the section is another long involved sentence, which 8pecifies a variety of different circumstances which may create exceptions, and prevent jurisdiction from attaching. In this case there isa controversy between citizens of different states, and the amount involved exceeds the sum of $2,000; therefore it belongs to one of the classes of cases described in the first part of said 'section, and is within the jurisdiction of this coprt, .unless it also belongs to one of the classes of excepted cases described in the second part of said section. The defendant has filed a demurrer denying the jurisdiction of the court, and claims that the case falls within the exceptions, because it is brought by an assignee upon a chose in action, and an action in this court could not he maintained upon it, if tl;J.ere had been no assignment. The plaintiff insists that the fact of the warrant sued on having been made and issued by a corporation saves the case from falling within the exception. It is my opinion that, as the warrants are not made payable to bearer, and as the plaintiff alleges a transfer of the property in the same to him by written indorsement thereon, and not by mere delivery, only that portion of the clause which is applicable to suits by an assignee, upon a chose in action, not payable to bearer, need be considered. For the purposes qftbiscase, the clause in question should be read thus:
upon foreign bills of exchange; to recover' the contents of "aoy promi ssory
"Nofsbah any circuit or district court have
of any suit except