24 F. 703 -

1'HE WESTEBNLAND.

708

THE THE

WESTERNLAND.

VALENTINE.

C. H.

(District Oourt, S. D. New York. July g, 1885.)
COLLISION - HARBOR REGULATIONS OBVIOUS DANGER. IMPROPER ANCHORAGE RUNNING INTO

Where the schooner C. H. V. anchored nearer the Jersey City shore than the harbor regulations permitted, and in a situation that involvcd clear and obvious danger of collision upon the backing out of the steamer W.in the strong ebbtide, and the schooner, being notified in time and requested to drop astern, neglected to do so, though she might have done so without difficulty, and the steamer thereupon backed out, and a collision ensued, held, that both were in fault, and the'damage and costs were divided; the schooner, for not astern after seasonable notice; the steamer, for running out into an obvious danger, instead of first. procuring the harbor master to enforce the regulations, or offering to assist the schooner astern.

In Admiralty. JaB. K. Hill, Wing rt Shoudy, for libelant Curtis and the schooner C. H. Valentine. Biddle &; Ward, for Randle and the steam-ship Westernland. BROWN, J. The above are cross-libels brought in behalf of the respective owners of the schooner Valentine, and of the Belgian steamship Westernland, to recover the damages sustained by each, arising from a collision which occurred in the North river in the afternoon of December 13.1884, about opposite Morris street, Jersey City, some '200 yards from the shore. The schooner was at anchor, and the steam-ship, in backing out with the aid of tugs in the ebb-tide, was carried down against the schooner, so that the bows of the latter struck the port quarter of the steamer, doing some injury to both. My conclusions of fact are as follows: 1. The schooner was at anchor at considerably less than the required distance of 300 yards from the Jersey shore; probably less than 200 yards. 2. The tide was strong ebb j there had been a freshet in the river, and the current ran down all day. 3. The mate of the schooner, who was on board, received several timely warnings of the necessity of dropping down the stream, in or· del' to make room for the steamer to come out at her appointed time. There was no difficulty in the schooner's dropping far enough astern to be out of danger, had the mate been disposed to do so. Measures for this purpose were not taken until some time after the steamer hadstarted, and the collision was seen to be impending. The schooner had plenty of spare cable; and had attention been given to the steamer, even when she started, there was still time to have dropped astern, out of the way of danger. The schooner must therefore be held liable for anchoring inside of the prohibited limits, and in a place of danger;

704

FEPERAL REPORTER.

and after repeated notice of the necessity of moving, for having neglected the means of doing so that were at her command, and persistently remaining in the way of the Westernland. 4. It was not customary for thl'l steamer to come out upon the ebb· tide. The difficulty of holding her up against the strong ebb wag well known, and the danger of collision with the schooner was perceived and understood by all who were engaged in taking the steamer out. In this situation it was not enough for the steamer merely to give notice to the schooner, as she certainly did, in ample time. Although the schooner was negligent, and in an improper place, the steamer had no right either to run her down recklessly, or to move out in a way that, as was perceived beforehand, was almoElt certain to result in collision. I do not doubt that in the act of backing out, and in the working of the tugs, all was done by the steamer that was practicable to be done to keep her up; but she was not justified in starting until her way was free from obvious probable danger. She should first have proffered aid to move the schooner, and if that were not accepted, she should have applied to the harbor master to enforce the regulations. The paramount duty of vessels to avoid collisions by all reasonable and practicable means must be inflexibly enforced. I must therefore hold the steamer also in fault. The result is that the damages must be divided, and a reference ordered to compute the amounts if the same are not agreed upon. There being cross-libels, and both held in fault, the costs will be also divided.

LIEBMAN 11. CITY AND COUNTY OF SAl( FRANCISCO.

.705

LIEBMAN 'V. CITY AND COUNTY OF SAN FRANCISCO.

(Circuit Uourt. D. California. August 24, 1885.)
1.

STATUTES OF STATE-CONSTHUCl'ION BY STATE COUHTS, now FOLLOWED BY lfEDEHAL COUHTS.

In construing state statutes the United States courts will follow the construction adopted by the stale courts, unless it with or impairs the efficiency of some priuciple of the United States coustitution, an act of congress, or a rule of commercial or generalla w.
TION OF PIWPERTY IN BoNDS.

2. MUNICIPAL BONDS-SAN l!'UANCISCo-MON'l'GOMEUY AVENUE OPENING-PETI-

The petition of property owners was essential to tbe validity of the proceedings to open Montgomery avenue, in San Ihancisco, under the act of April 1, 1872; and to maintain an action on the bonds issued, the sufficiency of the petition must be affirmatively shown, as it cannut be conclusively presumed from the recitals in the bonds. . S.
SAME-BoNDS ISSUED BY CORPOUATION COMPOSED OF CITY OFFICERS ACTING UNDER SPECIAL S'rATUTE-LIABlLITY OF MUNlCIPAJ,ITY.

The city and county of San Francisco is nOL bound by recitals contained in the Montgomery avenue bonds issued hy the board of public works under the act of April 1, 1872, such board of public works being a distinct corporation composed of officers of the city, acting independently of it, under the provisions of a special statute. 4.
SAME HIGHT OF PAUTY LIABLE ON BOND TO HE,mnm BEFORE JUDGMENT.

A party liahle on a bond is entitled to bis day in court, in person, or hy bis representative, before a hinding judgment., determining the validity of the bond as against him or bis property, can be rendered.
SAME-MONTGOMERY AVENUE BONDS No'r CITY OR COUNTY BONDS.

5.

The Montgomery avenue honds are not honds of the city or count.yof San Francisco, and the city and county caunot be su",d tlwt"eon.

At Law. D. M. Delmns, A. L. Rhodes, and J. P. rloge, for plaintiff. Garber, Thornton d; Bishop, for defendant. Before FIELD, circuit justice, and SAWYER, circuit judge. FIELD, Justice. This is an action against the city and conntyof San Fmncisco to compel the payment of 20 coupons for interest, each amounting to $30, attached to certain instruments designated in the pleadings as "Montgomery Avenue Bonds." The plaintiff prays for judgment; that the coupons are valid obligations of the city and county; that there is due by it, upon each of them, the sum of $30, with interest from the date of its maturity at the rate of 7 per cent. per annum; that the city and county pay the amount thus adjudged due from the special tax to be annually levied, assessed, and collected for that purpose, pursuant to the act of the legislature of April 1, 1872 ; and that the plaintiff recover against it for the costs of this action. The validity of the bonds to which the coupons are attached, and, of course, the validity of the coupons also, depends upon that act, and the compliance in their issue with its requirements. The object of the act was to open and establish a public street in the city and county of San Francisco, to be called Montgomery avenue, and to take private lands therefor. It described a strip of land by metes and bounds, v.24F,no.13-45