THE ALASKA.
527
sie E. from the drifting of the latter. Upon view, under old rule 17, itwaa the duty ofthe ChessieE., as the vessel to windward, to keep out'ofthe way of the NonPareille, which was to leeward. Under the new international regulations, adopted by this conntry, March 30, 1885, which I am inclined to think should be held applicable to navigation below the Narrows, as being within the "coast waters" rather than in the "harbor" of New York, the sal11e duty would devolve upon the Chessie E., under article 24, as the maneuver required by the ordinary practice of seamen under the circumstances of the case. If, in the above view, it was the primary duty of the Chessie E. to keep out of the way, that fact would not excuse the Non Pareille for persisting in her course at the last moment. I am satisfied from the evidence that a few moments before this collision, each of these COl,lld have avoided it by a slight maneuver, which each J.:efused to make, on account of her supposed right of way. But, as I hl;tvesaid, there is no absolute right of way at the peril oHmmediate collision. The rules of navigation are administered and enforced, not with reference to the supposed rights of the vessel or ,her owners alone, hut also withrefE\rence to the danger to the lives and property ofinJ;lopersons. The law therefore requires that e,ach in the presence cent of immediate danger shall do what it can to avoid collision. I find, that each of these yachts persisted in her course when a slight maneuver, easily made by either, might have avoided it, and that the damages,and costs must ,therefore be divided.
THE ALASKA. 1
,WRIGHT, 'II. THE ALASKA..
THE Bnoox:t,YN
MORR18ANIA. FERRY
&
NEW
YORK
Co. v.
THE MORRISANIA.
(DiBfrict (Jourt, E.D; New York. COLLISION-SUDDEN SHEER.
December 81,1887.)
,,
As the steam-boat IttWlLs' going up the East river, near the New York shore; behind the steam,boatS., she suddenly sheered to starboard in an attempt to p,as,s ,the S," and, ther,eb,YCOllI,'ded with steam-boat A., which was coming down the river on a course outside the S. The A., following the sheer, starboarded in an 'attempt to let the M. break her sheer arid recover . her course, whieh the latter attempted, but ineffectually. Held, tha.t such a sheer, underlluch circumstancell, was a fault, Causi)lgthe collision; that the starboardln'gof the A. was not a fault, and that the M. was solely liable for the collision. .
In Admiralty.
Libel for damages.
1 Reported by Edward G. Benedict, Esq., of the New York bar. Affirmed. See 35 Fed. Rep, 555.
528
FEDERAL REPORTER.
Two snits -to recover damages sustained in consequence of a collision, brought by Moses G. Wright et al. against the steamcship Alaska, and by the Brooklyn & New York Ferry Company against the steam-boat Morrisania. The first cause was brought in the Southern, and the second cause in the Eastern, district of:New York. Wilcox, Adams &: Macklin, for the Alaska. McMahon &: Handley, for the Momsania. BENEDICT, J. . The issue in these cases a simple one. It is this: Did theMorrisania, as she came up to the stern of the Superior, also bound up the East river ahead of her, sheer over towards the Brooklyn shore, under a port helm, and thereby bring herself in the way of the Alaska, then coming down the river, outside the course of the Superior, or did the Morrisania hold her course, and the Alaska bear down upon her while on that course and run into her under the stern of the Superior? Upon this issue, the clear weight of evidence is with the Alaska. The sheer charged on the Morrisania is proved by convincing evidence. I entertain no doubt that the Morrisania, when she saw that she could not pass in:side of the Superior, owing to the vessels there, determined to pass ·the Superior on the outside,and to do this sheered sharply under a port helm, whereby she wasbr<?ught directly in the way of the Alaska,coming down outside of the Superior. ' Such a sheer, under such circum'stances, was a fault, and the fault: that caused the collision. ,I find no fault in the navigation of the Alaska. She was' going down the river, where she had the right to go. When the Morrisania sheered out, the Alaska was on a course that would have carried her down outside of the Morrisania at a safe distance. The Morrisania's sheer was seen as soon as it was begun, and the Alaska at once starboarded. By so doing she gave the Morrisania all the c4ance possible to break her sheer, and pass on the New York side of her. This was attempted by the Morrisania, but there was not sufficient time" and a severe collision ensued. It is said that if the pilot of the Alaska had possessed enough presence of mind to port his helm an instant before the collision, he would have swung the Alaska's stern enough, to have enabled the Morrisania to pass without touching. Perhaps so; but the failure to adopt a measure of that character at the last moment, in the hope of avoiding a danger brought upon him by the previous fault of the Morrisania, was no fault. ;'rh.j) S9le cause of the collision was the previou's fault on the part of the Morrisania in suddenly sheering out from under the stern of the Superi,or,;, and across the course of the Alaska. In the case first above mentioned, there must, therefore, be a decree :dismissing the libel with costs; and in the second case above mentioned 'therl'lffiust bea decree in Javor of the libelant,with an order of reference to ascertain the damages. '
HAROLD V. mON SILVER MIN. CO.
529
HAROLD'll. IRON SILVER MIN.
Co.
(Oircuit Court, D. Oolorado. January 4, 1888.) REMOVAL OF CAUSES-DISTRICT WHERE SUIT MAY BE BROUGHT-ACT OF MARCH
3, 1887. Ap. action wae brought in a state court of Colorado, in which the plaintiff was an alien, and the defendant a New York corporation. On application to docket the cause in the United States circuit court for the district of Colorado, held that, under the act of 1887, (24 St. 552,) which provides that a suit between citizens of diJi'erent states shall be brought only in district where either the plaintiff or defendant resides, the case was not transferable.
Application to Docket Case. . The plaintiff, Mary Harold,. brought suit in the. district court of Colorado for Lake county against the Iron Silver Mining Company for damages. Defendant made application to said court to remove the cause to the United states circuit court, which was denied. Defendant then applied to the United States circuit court for leave to docket said cause. Charles D. May, for plaintiff. , Frank W. Owens, for defendant. HALLETT, J. Plaintiff brought suit in the district court of I.A1ke county for damages resulting from the death of her son through defendant's negligence, while the son was at work in defendant's mine. The suit is founded on lit statute of the Alleging that it is a New Yorkeorporatib'n, and that plaintlffis a citizen of Great Britain, residing in Ireland,:defendant applied in apt time· to the district court to remove the in(o this court, arid the petition was denied. Defendant now asks to docket the case in this court, and to proceed with it here as properly within: thejurisdiction of this court. The question is whether a suit between an alien, residing abroad, and a citizen of New York, may be removed from a court of the state into this court on petition of defendant. In Mining 00. v. Markell, ante, 386, it was held that under the act of 1887, (24 St. 552,) a suit between citizens of different states may be brought only in the district where the plaintiff' resides, or where the defendant resides. The same limitation appears to be applicable to a suit between an alien and a citizen of a state. As neither the plaintiff nor defendant is a citizen or resident of the state of Colorado, this court has not jurisdiction of the case. Tbe petition to remove was properly denied in the district court of the state, and the application to docket the cause in tbis court must be denied. The circuit judge concurs. v.38F.no.8-34
