LA CHAMPAGNE.
299
claim any further payment to B.'s cargo. If the cargo losses had been $5,000 each, each would be paid in full. If A. and her cargo were each damaged $10,000, while B. and her cargo sustained no damage, A.'s cargo loss might be required to be paid in full by B. before equalizing the losses between the two vessels alone, if such payment could be lawfully offset by B. against A.'s loss of $10,000. But as A. is' in no way responsible for any part of her own cargo loss, I do not see how such payment by B. could be availed of as an offset against A.'s claim for half her dam· age; and since B.'s aggregate liability should not be increased under the act of 1893, the mode indicated in the case of The North Star, supra, must, I think, be followed in all such cases. The present case is, in principle, like the last illustration. The loss of the libelant's vessel, including freight and personal effects, was about $5,930, and that of her cargo about '1,300; the damage to the Viola about $260, and to her cargo, nothing. The libelant's vessel and cargo were a total loss. The Viola has been sold, and her proceeds, in the registry of the court, less the marshal's expenses, amount to about $3,440. Upon the adjustment of the costs and marshal's fees, virtually paid by the defendant, a balance of $111.74 against the libelant reduces his claim on his vessel's 00count with interest to about $2,723, against the Viola to equalize the loss between the two vessels. As no part of the cargo loss can be offset against the libelant, the cargo must bear one-half of that loss itself, and the defendants pay the other half, which will make up the aIDount which the defendants would previously have been called on to pay. After paying those-amounts, the surplus of the proceeds of sale will be about $70, which will, therefore, belong to the defendant. Decree accordingly. LA CHAMPAGNE. SEWALL et al. v. LA CHAMPAGNE.
(Circuit Court of Appeals, Second Circuit.
February 27, 1894.)
No.58. 1. COLLISICN-LIGHTS-EvTDENCE. Testimony of the officers and lookouts of a steamer that no green light was seen on a schooner until just before collision, and that the light was afterwards examined and found to be dim and insufficient. hellJ to overbalance the evidence of the schooner's witnesses that the light was properly set, sufficient, and burning brightly. 43 Fed. 444, affirmed. 2. SAME-SCHOONER MISTAKEN FOR PILOT BOAT-SPEED.
A steamship approaching New York harbor saw a torch burned ahead or a little on her port bow, slightly above which appeared, at intervals, a white light like the masthead light of a. pilot boat. Supposing It to be such, the steamer burned a torch as a signal for a' pilot, and thereafter another torch was burned on the stranger, which was taken for an assent. Being misled as to distance by the small space between the torch lind the supposed masthead light, the steamer, after changing her course a point to starboard, continued at 13lh knots, until she came suddenly' upon the stranger, which proved to be a schooner with an Insuffi-
:WQ
FEDERJ\J.. RE.POB'milR,
vol. 60.
green light, collisIon ensqed. 1IfJld., not . 'in'fault for mistaklng'the schooner tor a pilotboilt, Or fpr maintaining her speed under the belief that the latter would maneuver to bring to !onher,1.ee side. ,43 Fed. 444" reversed; , \.:" .,': ' " ' , ,<
App¢a.lc fWm the District Court of the .United States for the ;District of New York. , . , The", ""re cross appeals from a decree of the district court, southern gistri(lt of New York, made on February 14, 1893, awarding one-half the damages sustained by their schooner through a with the steamship La Champagne, which occurred about a.. m., February 25, 1890, on the Atlantic ocean, 25 miles to the southward. of Shinnecock light. Both vessels susthe district judge held them both in fault. 43 Fe.d·. 444. ,Jonoa &1Govin(Edward K. Jones, of counsel), for appellants. Sturges {F. D. Sturges and E. L. Owen, of counsel), , . . ' for ,appellee;, . l\.LLACE, LACOMBE, and SHIPMAN, Circuit Judges. Circuit Judge. The schooner was bound from Darien, Me.; the steamer, into the port of New York, from .. ,.4,\.c<:ording to the libelants' contention, the schooner was saiW!g u;q.qer reefed Slitils on a course about N. N. E. by her compass, makip.grfr9m three to, four knots an hour. The. weather had' been foggy, the time of the collision had partially cleared, so that objects' could be seen at a considerable distance. It was watch, he was on deck, with a man at the wheel and another on lookout. The masthead light of the steamer was discovered four or five miles distant, bearing, as the libel says, "off the schooner's starboard bow," and subsequently the steamer's red light came into view about two miles distant; and bearing abaft the schooner's starboard beam. The'mate watched the red light for a while, and, believing the schooner was not seen, burned a torch to the leeward of the mainsail. Subsequently, by directions of the captain; he burned a second torch, and, while it was burning, the captain came on deck. After this second torch, as the schooner's witnesses testify, the steamer burned one. When about a mile and aquarrerof'f, both colored lights of the steamer appeared, heading directly for the schooner. The· steamer's hull shortly appeared, headillg towards the sch()oner, whereupon a gun was fired on the The steamer then ported her helm,. shutting out her green light,' and;' coming on with little, if any, diminution of speed, struck the schooner f()["Ward of her fore rigging on the starboard side. Thedistrfct court held the schooner in fault for having an "insufficient gree:n, .)ight." The witnesses for the schooner testified that both proPerly set, Bufficient, and burning brightly. All the officers and lookouts from the steamer testified that no green light was seen on the schooner While the vessels were approaching, except that the steamer's captain thought at one time that he could make one out. The witnesses also testify that
.
301
immediately after the collision i;4e green light was examined, and found to be burning so dimly that it could hardly be seen. We do not find in the case anything which 'will warrant our disregarding . the conclusion of the district judge upon that disputed question of fact, especially as an examination of the evidence has failed to convince us that the steamer approached the schooner astern of the range of her lights. "All agree," says the district judge, "that the steamer was fil'St seen forward of abeam. The pleadings say, 4[0ff] the starboard bow.' With that simple fact, and with the steamer's speed of 13i knots, an-d a course such as to expose her red light only, I find it impossible for the steamer to have got two points astern of the schooner's beam, so as to be out of the range of the schooner's green light, as the witnesses of the latter testify she was." To this argument we find no satisfactory answer in the pleadings or the proof. The libel makes no suggestion that the steamer's masthead light, when first seen, was abeam, and the testimony from the schooner to that effect has all the appearance of an afterthought. The decision of the district judge holding the Belle Higgins in fault for having an insufficient green light is therefore sustained. The evidence from the steamer shows that she was going at a speed of 13! knots, her full speed being 17!, on a course S. 59 W. magnetic. Competent and efficient officers were on her bridge, competent and attentive seamen on the lookont. The first seen of the schooner was a torch light, either ahead or a little on the port bow. It was inferred that it was that of a pilot boat, and, as La Champagne was in search of a pilot, she burned a torch herself on her port side to indicate that· she wished to take one. All the witnesses from the steamer who gave evidence as to the burning of her torch, save one, testify that it was burned prior to the schooner"s second torch. The master and mate of the schooner testify that the steamer's torch was not burned until after the schooner had burned two; but the wheelsman on the schooner corroborates the statement of those on the steamer that her torch was burned after the schooner's first, and before her second, one. The district judge has expressed no opinion as to the order in which these torches were burned. The weight of evidence seems to us strongly to support the contention of the steamer, and, in the absence of any expression of opinion upon that point by the judge, who saw the witnesses, we have reached the conclusion that, subsequently to the burning of the steamer's torch, one was burned by the schooner. With the exception of the captain, who, very shortly before collision, thought he saw a green light, and asked the second captain, a man of excellent eyesight, if he saw it, all the witnesses from the steamer testify that they saw no colored lights {In the schooner before collision. The officers of La Champagne, moreover, testify that they saw a white light, not visible continuously, but which "disappeared from time to time, exactly like the lights on pilot boats which are hidden by masts and by the sails, the same as if a vessel were heaved by a swell or a wave." They further testify that, when the torches were burned on the schooner,
3Q2
REPORTER,
put a little them, upon,sul1posmg It to be u.:e,masthead light of apUot boat on station t they infefred that the it was a long wa! off. The "course on fil"St sIghting was changed one pomt to starboard"and, having signaled with their torch for a pilot, and received" as supposed, an assent by the second torch burned on thescl:!.QPller, the cOIJ::WlRndant telegraphed "Attention" to the endireetioD.stoprepare the ladder and the lantern to taketbe'pj1ot on boara <LaChampagne continued on her changed At the same spee,iJ,until, the explosion of the gun on the disclosed hel' "ails, and, that she was "cutting off the course perpeI;l.dlclilarly." Thereupon her course was changed hard to starboard, :englnes reversed, and put full speed astern. Neveftheless, the in collision. TtteAilstrict judgeqel(i :the steamer in fault because (1) she mistooli: llchooner for a pUot boat, and (2) did riot sooner reduce hel' speed, " ,'. ' The,:e was tfPm, some of, the witnesses called by the at or prior t9the collision they saw a lighted' lantern on the 'schooner's aftel' house. Another of them (who on boarothe schooner with the steamer's captain) saw a lantern, there ,collision, and was instructed to put it out, when the, schooner was abandoned. of admitted that ,there was a lighted ,The lantel,'D,oI;l.board,oup rljlaiQ. it was in the aU room until, after collisian" it bro:Ught qu,t. to read the steamer's name by. Whethel' 01' not there was such {jdight on the after house while the vessels 'were approaching eaclJ,other is an issue the ·district judge does not expl'ess any opinion llP9q.. He does hold that "there was no light on thatcolildpossiblypresent the appearance of the white masthead light,required of pilot boats by the,rules of navigation." The weight of evidence seems to indicate that there was a lanwm. on the afterhpuse. . Certainly, unless. the testimony of the stellllier's, otUcers i;s t(>,. be wholly disc:redited (and the district judge did not discredit them), they saw something luminous on or about the schooner, '. other tha,n t4e torches or the invisible green light. The district judge reached the conclusion that, Whatever it was which was t4u:s visible to them, it "cannot be deemed to have been justifiably confounded with a pilot's masthead ligh!." In this part of the case weare dealing, not with a fault of the schooner, but with the question the of the had sufficient grounds for their mistaken belief as to the character of the schooner. There is nothing to indicate that they have deliberately fabricated the statement that they saw an intermittent white light. .The, district judge cre-;ijted their evidence generally. That they is practically conceded. were competent and n.llt they. were watchful 'aIld vigilant, scrutinizing the approaching vessel is hardly disputed... That they believed what they saw to be. the mastheadlighp,()fa .p,¥ot 'boat on station is abulldantly establtshed. Not only do to such belief, but their ent,ire' con<lH-ct in making' a pilot apoard. con-
was
303
firms ·such testimony.
When several competent mariners, who, in thecoul'lSe of a long experience in ocean navigation, have become accustomed to see probably hundreds of masthead lights on pilot boats, in all conditions of wind and weather, reach concurrently the conclusion that a light which they see and carefully observe is such a light, a court is 'l'eluctant to substitute its judgment, upon appearances it' has not seen, for theirs. Moreover, we must assume that the mistake which the officers of the steamer made as to the character of the schooner would have been corrected before the former had advanced beyond the safety limit between the two, had the schooner displayed a sufficient green light to be observed by those who were watching her. Thus the schooner's fault induced the continued belief that she was a pilot boat, even if, as hei' Witnesses say, the lighted lantern was in the oil room. But, aJS stated above, We think the weight of testimony is that it was On the after house. The burning of a torch by the schooner after the steamer had burned one naturally confirmed the belief as to her character, such signal being the recognized one agreeing to send a pilot aboard in compliance with the steamer's request. It would not be expected that an overtaken vessel, whose first torch had evidently been observed, since the steamer herself had signaled, would'immediately burn another. We are of opinion, therefore, that the error of judgment by the officers of the steamer touching the character of the schooner was not a fault for which respondent should be held liable. This conclusion practically disposes of the other fault attributed to the steamer, viz. that she did not check her headway sooner. She did stop and reverse at full speed, immediately upon discovering, by the illumination which accompanied the firing of the schooner's gun, that the latter was not maneuvering to come alongside and put a pilot aboa.rd, but was crossing the steamer's course from port to starboard. But it is claimed that she sh{)uld have slackened speed sooner, even though she supposed the schooner was a pilot boat which had assented to her request to send aboard. The officers of the steamer who saw the intermittent white light say that it appeared such a short diiltance above even the second torch that, supposing it to be at the masthead, they inferred the schooner was a long distance off. They changed direction a point to starboard in order to put the schooner a little more on the port hand, and thus make it more easy for the pilot to come up to the steamer. knots, postponing They continued on at the reduced speed of further maneuvers till the vessels should be nearer to each other, and supposing they were approaching a vessel which had a common purpose with themselves, viz. to approach near enough to the proper side of the steamer to send a pilot aboard in a small boat. Before condemning the steamer for thus keeping on, when the circumstances justified' a belief that the other vessel was not a sailing vessel, bound, under the rules, to keep her course in presence of a steamer, but was one which had agreed to co-operate in maneuvers appropriate to accomplish the common purpose, the court should be satisfied that the failure to diminish .speed was a maneuver dan·
304.
FEDERAL REPORTER,
. eren had been reallY what she , this. 'Yft,lU'e .not satisft'ed., . Because she collided with a schooner requireg. by the rule to hold her coul'f;le.it. by no DJ:eans follows that she would have collided with a pilot boat not ISO.' requil'Eld by rule, and which had agreed to a maneuver that did not. cOAtemplate her crQssing the steamer's course. ',In this connection the direction of the wind is a material circumstance to. be considered. The district j,udgema,kes no finding as to its direction. , wind, as [$e schooneT] claims, being light from the S. only statement on that subject in the opinion. Two from the deck of the schooner testified before the answer of the ,steamer had indicated, its theory of the collision. One of "Ulese, ,the steward, "coulgn't tell the direction of the wind;" the other, the helmsman, testified that he "couldJ:l,'t tell "Ule direction, but,t4at it was on the, port side and more aft," "on the quarter," and. ,that .the6Chooner's sheets Were. not off. The mate of the schoqPer,who testi&ed()n the trial, was not asked as to the direcwho' also testified on the trial, had tion, o(Jhe wind. left the.4E1ck at4.a, m.· which time, as he said, the wind had beeni".optheas't, foggy and thickt put was then "hauling away," and a stroJilg, .northwester. He was not. asked as to the of on the mate's report. of the appl'oacp.ingsteamer, he again came on deck. The captain of the steamerj. however, wind at W. N. W., insisting that his !-,ecollection is perfectly clear. that he had the wind continuously, evellJlftel,' he had changed his coume one point to starboard,on the st,arboard hand. ,The seconq· captain says that beforet4e change of COUrse the "wind came from about four points from the starboardha,nd." The other witnesses on both sides were notques" tioned On this point, which seemsnot to have been especially con· such evidence as there is we have tested on the trial. reached the conclusion that the port side of the steamer was her lee side. .i\.s it is the custom of pilots to come aboard on the lee side, and as the schooJ:l,er was alreall.y on the lee side, it was to be anticipateq.that, if 'she were a pilot boat, she. would run on, until a little on the lee bow, COme to. That she would keep on across the .bows .of the steamer was not to be anticipated. Under all the circumstances ot this case, we do not think the Elteamer is chargeable with fault for not sooner reducing speed. 'The case is materially, different from The City of Washington, 6 Ben. 146, Fed. Cas. No. Id., 11Blatchf. 487, Fed. Cas. No. 2,771. We are not satisfied· that by coming to port, instead of to starboard, when the explosion. of the gun disclosed the character and course of the schooner, the collision would, as libelants claim, have been avoided. The . of the district court is therefore reversed, with ((,'Sts of appeal, and cause remanded to that court with directions tv dismiss the libel, witbcoats.
.or
RUBY
GOLD MIN. CO.,t7.BUNTER.
805
RUBY CANYON GOLD MIN. CO. et al v. HUNTER et at. ELDER et aI. v. WHITE et a!. (Circult Court. W. D. South Dakota. REMOVAL OF CAUSES-TIME OF REMOVAL.
March 1, 1894.)
AJ case is not removable under the act of March 3, 1887, § 3, after the time fixed by the state statute or the rules of the state court for the de· fendant to answer or plead, even though the time has been extended by stipulation and by order of court.
These were two suits brought in a court of South Dakota, one by the Ruby Canyon Gold Mining Company et al. against David Hunter et al., and the other by William S. Elder, as administrator, et al., against TPomas White et al. The defendants removed the snits into this court, and a motion is now made to remand them. Martin & Mason, for complainants. Edwin Van Cise, for defendants. SANBORN, Circuit Judge. Motions to remand these cases are made because, While the petitions and bonds fo,r removal were filed ina state court within the time fixed by stipulations of the parties and orders of the court extending the time beyond that fixed by statute for the defendants to answer (as the parties and the court might lawfully do under the statutes of South Dakota), they were not filed within the 30 days within which the defendants were required by those statutes to answer or plead to the complaints in the absence of such stipulations or orders. Compo St. S. D. §§ 4908, 4939. The provision of section 3 of the act of March 3, 1887, as cor· rected by the act of August 13, 1888 (25 Stat. 433, Supp. Rev. St. p. 613, § 3), which requires the petition for removal to be filed in the state court "at the time, or. any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff," is imperative, and requires the petition to be filed within the time fixed by the statute (where the stat· ute fixes it), or within the time fixed by the rule of court (where the rule of court fixes it), and not within any time that a defendant may obtain by stipulation with the plaintiff, or by order of court This construction secures uniformity in the practice, prevents delays, and I think is in accord with the evident intention of congress. It was not within any time that a defendant might procure to be given him by the court or his opponent, but within the time fixed by the statute, that congress intended the petition should be filed. Spangler v. Railroad Co., 42 Fed. 305; Velie v. Indemnity Co., 40 Fed. 545; Austin v. Gagan, 39 Fed. 626; Dixon v. Telegraph Co., 38 Fed. 377; Hurd v. Gete, Id. 537; Delbanco v. Singletary, 40 Fed. 177; Rock Island Nat. Bank v. J. S. Keator Lumber Co., 52 Fed. 897; Railroad Co. v. Daughtry, 138 U. S. 298, 303, 11 Sup. Ct. 306. The petitions for removal in this c.ase were not filed before the dev.60F.no.3-20
