THE HALSEY.

255

It is also apparent from the testimony of the chief officer and the pilot of the Frisia that they sawall the time that the tug was on a course crossing the bow of the Frisia, and was intending to cross her bow, and that they thought the Frisia could do no harm by keeping on. Under these circumstances, the duty of the Frisia, under rule 21 of section 4238 of the Revised Statutes, to at least slacken her speed much sooner than she did. was plain. If she had done so, she would have gone astern of the bark. As the district court ordered a reference as to damages only as against the tug, and the claimant of the Frisia was no party to the proceedings on that reference, there must be a new reference as to damages in . this court, to be conducted on notice to all three of the parties.

THE HALSEy.l

(Otrcuit Oourt, E. D. Pennsylvania. April 22,1886.)

1.

COLLISION-DAMAGES.

2.

A vessel rightfully occupying a position in a dock. to which she has been assigned by the superintendent, is not responsible for damages !luffered by another vessel which retained her position after she was bound to change it, and could have done so with safety. That this change of position must have been effected at night is no excuse. because mere inconvenience does not con· stitute a sufficient reason for assuming an avoidable risk. Port regulations, when made by a competent tribunal, such as the port-wardens of the port of Philadelphia, are binding upon all parties; and when their observance is practicable, and does not involve any serious or unusual temporary danger, obedience to them is imperative.

PORT REGULATIONS.

In Admiralty. A. L. Wilson and John G. Johnson, for libelant. Ourtis Tilton and Henry Flanders, for respondent· .McKENNAN, J. The injury complained of by tl1e libelant resulted from the jamming or sqneezing of the barge Halsey by the schooner Jno. A. Hall in the dock at piers Nos. 1 and 2, Port Richmond. Three vessels were in the dock: the two named, and the Mellon. The Halsey was in the dock for the purpose of loading, and this was completed late in the afternoon of the day. The Juo. A. Hall was seeking a berth in which to load, and was directed by the pier master to move in between the Halsey and the Mellon. This she was unable to do before the tide rose, but about 9: 30 in the evening she was able to move to the position assigned. There was then sufficient water in the dock for the three vessels to lie abreast. and this would continue to be the case until high tide was reached, which was soma
1 Reported

by C. B. Taylor, Esq., of the Philadelphia bar.

256

FZDERAL

hours after the Hall took her place. When the tide fell, there was danger of crowding on account of the diminished width of the water. Of this danger the master of the barge was warned, and had been previously ordered by the superintendent of the wharf to haul astern of the schooner. After the Halsey was fully loaded, and until the tide ebbed, it was practicable for her to move astern of the Hall, and thus avoid all danger of crowding. and might have been moved at the rear end of the wharf, or across the end of it, without appreciable danger to her from passing vessels. By the regulations of the port-wardens of the port of Philadelphia it is made the duty of vessels not taking in or discharging cargo along.side of a wharf to make a way for and permit any vessel that wants to load or unload cargo to come inside next to the wharf, and the superintendent of the wharf to assign to vessels their proper places in the dock. By these regulations the duties and rights of the parties are clearly defined, and they were established by a tribunal upon which expressly authority was conferred by law to enact them. They were therefore binding upon the parties. The learned judge of the district court did not hold to the contrary. He asserts, what is certainly true, that these regulations are to have 'a reasonable construction and application. If their observance was practicable, and did not involve any serious or unusual temporary danger, the duty of the libelant to obey them was imperative. Nothing short of satisfactory proof of these conditions will excuse an omission to perform this duty. But I do not find such proof in this case. On the contrary, it seems to me to preponderate in favor of the hypothesis that the Halsey could have been moved, during the flood-tide, to a position astern of the Hall, and that she could have been there moored without exposing her to any serious danger. That this service must be performed late at night will not excuse her, because mere inconvenience does not constitute a sufficient reason for voluntarily assuming an avoidable risk, of whose dangerous character she was distinctly warned and fully aware. While, therefore, the Jno. A. Hall was rightfully in a position to which she had been assigned. and the Halsey wrongfully retained hers, when she might safely and was bomid to change it, she cannot justly impose the consequences of her own delinquency upon the respondent. The libel is therefore dismissed, with costs.

LEONARD V. CITY OF SHREVEPORT.

257

LEONARD V. CITY OF SHREVEPORT.

(Oircuit Oourt,

1.

w: n. Louisiana.

August, 1886.)

COURTS-UNITED STATES COURTS-JURISDICTION.

A circuit court of the United States. since the passage of the act of 1875, has original jurisdiction ov'er all cases where a United States law, whether constitutional or congressional. is involved.

2.

SAME-FEDERAL QUESTION-STATE CONSTITUTION-PROVISION PRACTICALLY IMPAIRING A CONTRACT.

A provision of a state constitution limiting the rate of taxation to a figure so low as to necessitate the breach of a contract for the payment of money, previously made by the taxing power, may be contested in a federal court as involving a question under the constitution of the United States.

Plea to Jurisdiction. A. H. Leonard, for plaintiff. E. H. Randolph, for the City.
BOARMAN, J. All the parties to this suit are citizens of Louisiana. The question raised by the plea to the jurisdiction presents this inquiry, do the allegations in the petition show that a federal question will have to be passed on, by way of claim or defense, before an exigible judgment can be given by the court trying the suit'! The rule governing the jurisdictional power of the circuit court to hear or try Itll federal questions, concurrently with the state courts, is fixed by !'epeated decisions of the supreme court. As to the rule, it bas been aaid: "If a part of a case turns on a federal law, the circuit court has jurisdiction," (Osborn v. Bank of U. S., 9 Wheat. 738;) and that "cases arising under the law of the United States are such as grow out of the legislation of congress, whether they constitute the right or privilege or claim or protection or defense of the party, in whole or in part, by whom they are asserted." Railroad 00. v. Mississippi, 102 U. S. 135. The rule governing jurisdiction is the same whether the constitution or laws of the United States be involved. In Starin v. New York, 115 U. S. 2i>7, S. C. 6 Sup. Ct. Rep. 31, Chief Justice WAITE, in considering whether the pleadings then before him showed a federal question, said:

"The character of a case is determined by the questions involved. II< ... II< If, from the questions, it appE'ars that some title, right, privilege, or immunity, on which recovery depends, will be defeated by one construction of the constitution, or a law of the United States, or sustained by the opposite construction, the case will be one' arising under the constitution or laws of the United States,' within the meaning of that term as used in the act of 1875: otherwise not."

From this it appears that if some title, right, privilege, claim, or immunity is shown by the allegations to be in the plaintiff, which cannot be made complete and effective, in law or in equity, unless the should consider and pass upon a provision of the federal con·
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