THE MARIA & ELIZABETH.
(District Court, D. New Jersey. May 4, 1881.)
1. COLLISION-RULES 16, 17, AND 23 CONSTRUED-R.1I:V.
ST. f 4233.
In Admiralty. Libel in rem. R. P. Wortendyke, for libellant. Flavel McGee, for claiulltnt. NIXON, D. J. This is a libel in 1'em, the libellant claiming damages for injuries and losses sustained by a collision with the vessel of the respondent on the seventeenth day of March, 1880, off Absecom light, on the coast of New Jersey. The facts seem to be as follows:
The respondent's schooner, the Maria & Elizabeth, left her dock at Hoboken, New Jersey, during the forenoon of the seventeenth of March, for the western branch of Elizabeth river, in the state of Virginia. Her llrew consisted of six persons, besides the captain, Joseph Headley, who was also part owner. She had no quarter-deck, was of the burden of about 203 tons, and was laden with empty barrels, which were stowed some eight or nine feet above the deck. At about midnight of the same evening, when nine miles off of Absecom light, her watch was changed. The only persons left on deck were Job H. Ridgway, the mate in command, William Pace, (colored,) the lookout, and Henry Risley, at the wheel. The wind was blowing a moderate breeze from the north, veering occasionally a little to the west, and the night was clear and starlight. The Maria & Elizabeth was running a south-westerly course, with the wind, and having her sails set and on her larboard side. On the afternoon of the same day the Achorn, the schooner of the libellant, of about 87 tons burden, left the mouth of M.aurice river, New Jersey, loaded with glass sand, and bound for Brooklyn, New York. Her crew was Frederick Hess, captain, John Peterson, mate, Frank Smith, before the mast, and George Fox, the steward. The captain was at the helm until about midnight, when he surrendered the steering of the vessel to the mate and went forward. She was then heading north-easterly, with her sheets trimmed close to the wind and her sails on her starboard side. Captain Hess says that a few minutes before 1 o'clock he discovered a schooner ahead, (which proved to be the Maria & Elizabeth,) apparently sailing a south-west course before the wind. Both parties agree that the two vessels were approaching each other nearly head on j that shortly before the collision the helm of the Maria & Elizabeth was put hard a-port; that she struck the Achorn on the starboard side, just forward of the main chains, near the center of the hull; and that in a short time-some of the
witnesses testifying within 10 minutes and others after an hour-she went down to the bottom, carrying with her one of her crew (Frank Smith) who had returned to the sinking vessel for the purpose'of detaching her from the lIfaria & Elizabeth.
It is perfectly clear that the collision was the result of
faulty navigation. There was no severe stress of weather which affords any reasonable excuse for its occu,rrence. It can only be accounted for on the ground that one party or the other, or both, violated rules of navigation which have been so long established for the safety of the sea, and many of which have become a part of the laws of the United States by express enactment of the legislature. The proctor for the libellant claims that the case is one where the vessels were approaching each other,-the Maria & Elizabeth sailing with the wind free, and the Achorn close-hauled,-and that the rule of the sea in all such cases is that the ship sailing free must get out of the way of the one close-hauled. This has doubtless been the law for many years, and has now been incorporated in the sailing rules of navigation adopted by congress for the prevention of collis. ions. It appears as the exception of the seventeenth rule, (see Rev. St. § 4233.) Handaysyde v. Wilson, 3 Car. & P. 528; 1 Par. Ship. & Ad. 195; 1'he Clement, 2 Curt. 363; St. John v. Payne, 10 How. 557; The Ossio, 8 Ben. 518; The Rebecca, 1 Blatchf. & H. 347. In this last case Judge Betts says:
" A cardinal rule of navigation, recognized by eminent authorities, is that' a vessel running free, and approaching another going in an opposite direction in the wind, must give way to the latter, or bear the consequences of a collison, unless such collision be clearly produced by the misfeasance of the vessel that is close-hauled."
The same learned judge subsequently (The Brig Emily, Olcott, 138) said:
"The rule of law is explicit that a vessel running with the wind free must take the risk of avoiding another sailing in the wind, when the two meet in opposite courses, if the free vessel has the opportunity and means, if properly used, of so doing. Indeed, the usage for the vessel to hold her course, and for the one sailing free to give way in such case, has become a rule of law which imposes the losses and damage occasioned by
TBlD., .llABIA. &
its non.observance' Uplm, the vessel which disobeys the. rule, unless It be clearly proved that h!lr misconduct no way contributed to the ' ., injury."
See also The}3lo68om" ld. 188; 4rgu8, ld. 804:. Bpt the proctor for the respondent invokes the benefit of sailing rule 16, (Rev. St. § 4;288,) and insists that the te$t.h mony shows that two vessels were meeting end on, or neath; end on, involving the risk of collision, and that the helm of should have been ported, so that each might pass on the port side of the other. The Maria & Elizabeth, acting undertbis rule, put her helm hard a-port, and all her witnesses aUegethat the damage arose from the Achorn holding her course, rather than porting her helm as reqllired. When two of these rules thus come -in conflict, it is the duty of the C"ourt, as far as possible, to reconcile them, or so to interpret them that both shall stand. That can only be Clone in the present case by making sailing rule 16 apply to the meeting of two vessel$ where one is not free and the othe;r not close-hauled. By both porting their helms under such circumst.ances each would pass on the larboard side of the 'But the seventeenth rule provides "that wheIl two sail vessels are crossing so as to involve risk of collision, then, if they have the wind on different sides, the vessel with the wind on the port side shall keep out of the way of the vessel on the starboard side." If the rule stopped there, the blame of the collision in the present case would fall upon the Achorn, which had the wind on her port side; but the rule continues, "except in the case in which the vessel with the wind on the port side is close-hauled and the other vessel free, in which case the latter vessel shall keep out of the way." The "latter vessel" here was the Maria & Elizabeth; and if she must keep out of the way, then the Achorn, by the twenty.third rule, was required to keep her course. It was strongly contended at the hearing, by the proctor for the respondent, that the Achorn must have starboarded her helm and brought the injury on herself. If the evidence sustained such contention, the decision of the supreme court in
I'EDERAL REPORTER. '
The NicholaB, 7 Wall. 657, would determinetb'is case, the libel must be dismissed. But the positive testimony is to the effect that the Achorn kept her course. It wa's only an inference that she changed, because the witnesses were unable to account for her position 'at the time of the collision upon any other hypothesis. But there is one undisputed fact in the evidence which seems of significance here. Captain Hess says that the Achorn was struck about midships, in her starboard side, and that her main-mast gave way and fell over on the Maria & Elizabeth.' If this be so, then either the mast fell against· the wind, which is not probable, or the wind was on the port side, and the Achorn was continuing her north-easterly course when the vessels came in contact. After a consideration of the whole case, I think'the weight of the testimony places the blame and responsibility of the collision upon the Maria & Elizabeth. Sailing free, she ought to have kept out of the way. Some testimony was taken as to the value of the vessel and freight lost, but it was not of such a satisfactory character as to enable me to act intelligently without a reference. The case must go to the clerk, as commissioner, to ascertain and report the damages;
FIRST PRESBYT'N BOOIETY,ETO., 'I). GOODRICH TRANS. CO.
FIRST PRESBYT:ERUN SOCIEty OF GREE,N BAY anda.nother· v. GOODRICH TRANSPORTATION Co.
(OirlJ'll,it.OO'Urt, E. D ·. Wi,comin.
REMOVAL-AoT' 01' MAROH
3, 18'75, § 2, CLAUSE 2; . Insured ptoperty was destroyed by II. fire alleged to have sioned by the negligence of the. The insurance covered and was paid by the inS!1rer only part of the value of the to the owner. The owner of the property, who. was a of Wis· consin, and the insurance company, which waIf a citizen of New York, joined in an actioll""begun in. the state court to recover the tdtal lOBS. The defendant was .11. citizen of Wisconsin, and attempted to remove the cause to the federal court. Held, that the case did'not involve a controversy which, within' the meaning of the second, of section 2 of the removal act of 1875, was wholly between of different states, and which could be fully deterlllmed as between them without the presence of the plaintiff, who was a citizen of the same state with the defendant i and therefore that the case was not removable under that act.
Motion to Remand. Cameron, Losey et Bunn, for motion. Finches, Lynde et Miller, contra. DYER, D. J. This is an action brought to recover damages for the loss of a church edifice and parsonage, belonging to the plaintiff society, by a fire alleged to have been negligently set by the defendant company's steamer Oconto while she was navigating Fox river at Green Bay. The plaintiff insurance company was an insurer of the property, and has since paid the loss to the extent of the insurance, which was $5,000, and to the extent of such payment has become subrogated to the. rights of the society. The entire loss is alleged to haye exceeded the amount of the insurance in the sum of abont $4,400, and the plaintiffs join to recover the total loss. The action was commenced in the state court, and removed to this conrt nnder the removal act of 1875, at the instance of the defendant. The plaintiffs move to l'emand, and this is the motion now to be determined. The plaintiff society and the defendant company are corporations within this state. The plaintiff insurance company is a corporation of the state v.7,no.3-17