884
FEDERAL· REPORTER.
Whether the coasting vessels are, by the invalidity of the discrimination as to them; brought under the operation of section 2466, is a question not necessary-. to determine. It may be said that the discrimination indicates the intent of the legislature that such vessels should be exempt from half pilotage; but it maybe also said that it is to be presumed that the legislature only intended the discrimination in case it could be lawfully made. We should hesitate to attribute to it a designed disregard of the federal statute. But as said above, the question is not before us for deciSion. The case is essentially different from Spraigue v. Thomp8on, 118 U. S. 90, 6 Sup. Ct. Rep. 988. There it was sought to charge a coasting vessel which was excepted from pilot charges by the Code of Georgia; here it is sought to except from such charges a vessel engaged in foreign commerce because of an exemption by the Code of California in favor of certain coasting vessels,-an exemption contained in an independent section. I am .of opinion that the decision of the district court was correot. It is therefore affirmed. c
in lull force.
THE FLUSHING. THE NIAGARA. CoLLINS tI. THE FLUSHING
and another.
(Clircuit Oourt, 8. D.New York. July 19,1887.) OoLLuIOw-LtGHTS Awn SIGNALS-COSTS.
The canal-boat C., while in tow of the tug N. on a short hawser, was Injured bl a collision with the ferry-boat F., off Eighth strellt, New York, at near 6 0 clock P. M. The N. with her tow was decendilig the East'river, which was quite full of ice, extending from the Brooklyn shore beyond the middle of the river, on an ebb-tide Her course lay as far off the New York shore 88 was cony-enient, having regard to the ice. Between Eighth and Ninth streets the tqg and tow met a flotilla of two tugs and two car-flats, bound up the river. The N. had the regulation lights set and burning, and pursuant to sig. nal, ,the tug. and tow and flotilla passed starboard to starboard. As they passed. the N. was at le8st400 feet off the Ninth-street pier. The ferry-boat F., starting from the slip at t:leventh street. had stopped to allow the flotilla to pasS,·andnow exchanged signals with the N. to pass on her course across the bow of the F. The F.'s pilot did not see the N,'s lights indicating she had a tow; and, as soon as the flotilla passed, the F. started ahead, and collided with the canal-boat C. Held, the collision was caused solely by the fault of the F .. Held, alBo, as the cirpumstances probably justifled the libelant in joining theN. u a co-respondent with the F., that he was entitled to the costs of the district court against the F., and the N. was entitled to the costa of the clrcuitcourt against theF.
Jowia.h Hyland, for the Niagara. NatMn B,ijur, for appellee. i
The libelant's canal-bQat Curtis, while in tow ofthe Iteam-tug Niagll-ra, was injured bya collision with the steam
THE FLUSHIN'G.
335
Flushing on the third day of February, 1885, about 6 o'clock in the afternoon. This libel is filed against both the tug and the ferry-boat to recover the damages sustained by such collision. The district court dismissed the libel as against the Flushing, and condemned the Niagara for the whole damage. The Niagara and the libelant have appealed. The proofs establish the following facts: On the day in question the Niagarlll!eft Sixty-third street, East river, New York city, with the Curtis in tow, bound for Jersey City. The tide was ebb, and running about four miles an hour. The East river was quite full of ice, extending from the Brooklyn shore beyond the middle of the river, but the New York shore was comparatively free. The tug attached the canalboat to her stern by a short hawser, so that the bow of the canal-boat was within about seven feet of the stern of the tug. The tug proceeded down the river I keeping as well off from the New York shore as she conveniently could, to avoid the ice, and arrived off about Sixteenth street when 13he saWR flotilla consisting of two steam-tugs and two car-flats, lashed side oy side, coming up the East river off the pier near the foot ()f At that time the tug had aU her regulation lights set and burning. Her pilot gave a signal of two blasts of the whistle to theflotilla <loming tip the river, which was answered by two blasts of the whistle on the part ofthe flotilla; by which the vessels indicated that they would pass each other starboard to starboard. The tug met the flotilla at a point between'thepiera at the foot of Eighth and Ninth streets; the port side of the flotilla being something over 100 feet off the end of the Ninthstreet pier, and the tug Niagara being about 200 feet off the starboard side of the flotilla. The flotilla Was about 100 feet wide, and, when the tug passed, thelatte;r was at least 400 feet away from the end of the pier. Just as the tug met the flotilla to pass it, the ferryboat Flushing, which had started from her pier at the foot of Seventh -street, and had stopped waiting for the flotilla to pass across her bow, 'gave a siglial to the Niagara: of two blasts of the whistle, which was immediately answered by two blasts of the whistle of the Niagara; the vessels thereby agreeing that the Niagara should proceed on her course, and tlcross the bow of the Flushing. Thereupon the Niagara put her wheel gradually to starboard. The pilot of the Flushing did not see the lights -of the Niagara indicating that she had a boat in tow, and, as soon as the flotilla had passed the bow of the Flushing, started ahead, intending to pass under the stern of the Niagara. The flotilla had obstructed his 1)bservationof the canal-boat; and assuming that there was no boat in tow of the Niagara, and probably being somewhat impatient at the delay caused his boat by the. flotilla, he proceeded ahead under the stern -of the flotilla until he discovered the canal-boat. He then reversed his .engine, but it was too late to avoid collision, and the Flushing struck the canal-boat with violence on the starboard side a little aft of mid:ships; the bow of the Flushing breaking in 23 timbers of the canal.:.boat. The theory on the partofthe Flushing is that, 'while she was waiting for the flotilla going up the river to pass across her bow, her bow was j>rojecting a slight distance out of the mouth of the slip, and she contin-
336
REPORTER.
ned lying ill this position until the Niagara brought her tow into collision with the bow of the Flushing; that the Niagara had no lights set; that the canal-hoat was towed with a long hawser of more than 100 feet; and that the Niagllra, instead. of keeping down the river at a safe distance after exchanging signals with the Flushing,continued to draw nearer to the New York shore as she approached, but, before reaching the boat, starboarded her wheel, and by this movement swung the canalboat in and upon the {erroy-boat. The district judge found, what the proofs clearly shmv, that the tug had .her lights properly set andburningj but he was of the opinion that the collision took place at the end:.ofthe Seventh-street pier, substantially according to the theory of the Flushing, and he therefore held the tug in fault, and exonerated the Flushing. !tis established beyond controversy that the tow was on a hawser which brought her bow within abou,t seven feet of the tUg's stern; ,and it is established by disinterested witnesses of intelligence, who 'had excellent opportunities for observa,tion,-among them, the two pilots of passed the flotilla the steam-tugs of the flotilla,-th.at when the oft'the end of the Ninth-stre\lt ,pier she was 400 feet away from the end out into the 84 feet further than of that piell.: .That pier the Seventh-street pier, and the two piers are 440 feet distant from each other. !tis incredible that the NiaglLra, after exchanging signals with the Flushing, should have taken a courSe that would bring her tow nearly 500 feet to the starboard in going' down. the river a distance of 440 feet. ! iEspecially is this so in view of t:h Jact that the piers below Seventh street extend further into the river than the Seventh-street pier, and the Niagara would. thus be running against the pier at the foot of Fifth street. If the collision took place at a point between the Eighth and Ninth street piers, about 600 feet away from the end of the Eighth-street pier, it can be accounted for upon a rational and probable theory. It is highly improbable that if the collision had. occurred in the manner claimed on the part of the Flushing, such violent injuries would have been inflicted upon the canal-boat. Although the witnesses for the Flushing outnumber those for the Niagara, those of them who are not employes of the claimant are persons whose testimony carries very little conviction. The Niagara was without fault.which contributed to the collision. Although her course was nearer to the New York shore than would ordinarily be permissible, the condition of the ice in the river was a sufficient justification. The decree of 'the district court is reversed, and a decree ordered dismissing the libel as against the Niagara, and condemning the Flushing .for the libelant's damages. The oircumstances of the cause probably justified the libelant in joining the Niagara as a co-respondent. with the .Flushing. The libelant is entitled to costs of the district court against ·the Flushing, and the Niagara is entitled to the costs of this court against lheFlushing. The Dentz, 29 Fed. Rep.. 525.
WESTERN UNION TEL. CO. WESTERN UNION TEL. CO. V.
'11.
BROWN.
337
BROWN and others.
(Circuit Oourt, E. D. Missouri, E. D. October 8,1887.) 1. REMOVAL OF CAUSES-SINGLE CONTROVERSY.
Where, in an action on a bond against several defendants, one of them being the principal obligor. and, the others his sureties. the only relief sought is a moJtey judgment against all tJ:e defendants. there is, for the purpose of removal, but a single controversy III the case. In caseifirivolving but a single controversy, where the jurisdiction of the court depends only upon the citizenship of the parties. the right of removalis governed solely by the second clause of the second section of the act of congress of Marc'h 3. 1887, and can be exercised only by non-resident defend· ants. · ,
_
'2.
SAME-CITIZENSHIP.
8. S.um--'-WHO MAY EXERCISE RIGHT OF. The third clause of the second section of the act of congress of March 3, 1887, relating to removal of causes, like the second clause of the sec>ond of the act, of March 3, 1875. governs that class of cases only where , there are two or more controversies involved in thesaJIle suit. one of which is wholly between citizens of different states; and under the act of 1887 the right of removal in the cases mentioned is llmitedto one or more of the defe,ndants actually interested in such separable controversy, and does not extend to' the plaintiffs therein. '.
On Motion to Remand. On the eleventh day of May, 1887, plaintiff filed suit in the circuit court, city of St. Louis, Missouri, against Edgar H. Brown as principal, and the several other defendants as sureties, on a penal bond conditioned for the proper performance by said Brown of his ,duties as manager of the St. Louis office of the plaintiff company; alleging breaches of said bond, and praying judgment for $10,000, the penalty of the bond. The suit was returnable to the June term of said state court. The sheriff's return showed personal servIce on defendants Wells, Milford, and Eaton, and that the other defendants were not found in the city of St. Louis. At the return-term of the writ, and within the time prescribed by law for the defendants to plead, the three defendants who had been served filed their petition for removal of the cause to the United .states circuit court for the Eastern division of the Eastern judicial dis1rict of Missouri; in which petition they alleged "that the plaintiff is, and at the institution of this suit was, a citizen of the state of New York, and that these defendants then were and now are citizens of the state of Missouri, and residents of the Eastern division ,of the Eastern judicial district of Missouri; that the matter in dispute in said suit, exclusive of interest and costs, exceeds the sum of $2,000; that the matter in dispute Of in controversy is wholly between citizens of different states, and can be fully determined as between them; that these defendants are actually interested in such controversy." The petition concluded with the tender of a bond, arid a prayer for an order of removal to the United States circuit court. Bond was filed, as provided by law, and the order of removal granted. On the first day of the next term of the United Stales court, September 19, 1887, the transcript of the cause was filed. On Septemv.32F.no.6-22