702
nnERAL REPORTER,
vol. 40.
and uqder suoh circumstances. I- do not find any vouoher showing payment ,by,the libelant to Baxter &.Ohapnian, beyond tbeproceeds of the Queen: herself. The record of the salvage suit in New·Jersey, by inoreasing the inconsistencies in the evidence,and by its failure to show that the Brainerds ever agreed to incur any individual liability to Baxter & Chapman for raising tbeQueen, confirms my disbelief of any such modification of the written contract.lIn the absence of more convincing proof, the written contract should stand. Tbe testimony as to alleged modification should be regarded as nothing more than the imperfect recollection of the witnesses of what may have been said in the course of the negotiations, but which was superseded by the written agreement as finally concluded late in the afternoon of September 11th. There are certain other expenses which the libelant incurred and paid after the Queen was raised, in order to ascertain whether she was worth repairing. Though 1 have some doubt as to the necessity ofsome of them, I allow, including interest to date, $1,418.50. The damages will be: (I) Value of 'Queen and outfit, with interest from September 6. 1886, to.date. · (2) Subsequept expenSeI and interest. · ·.· · $47.700 00 1,418 50
.
·
'49.11850
The other exceptions are overruled.
THE WYANOKB.· THE RUTH DARLING.
BUCK
et al· .".
THE WYANOD.
(Dtstrioti Court, 8. D. New York. November 9, 18139.)
t.
COLLISION-Faa-DUTY Oll' STBAM1Ill\ TO REVBRSE.
A steamer; navigating in a dense fog, at night. on the open sea, at the rate of from seven to ten knots per hour, being two-thirds herfull speed, heard voices nearly the proximity of another vesseL Hetd, that it was her duty to re. ahead, verse, as well as, stoP1 her engines, and not to alter her helm without reversing, un· til the locatiOn and airection of the other vessel was ascertained with certainty. Heta, al.Bo, that she was in fault for rinlring up full speed again after OJlce stopping, without reasonable assurance that the ({anger was past. VESSEL-MeCHANICAL FOG-HORN.
A sailing vesB8llB bound to have, and llse in a fog, mechanical means for sound. ing her fog-horn. Six knots III inlmoderate speed for a salling veBBel, under nearlyfull sail, in a dense fog, at night. .
SAME-SPEED Oll' SAILING VESSEL.
SAME-8PEEl) Oll'. STEAMEl\.
Seven knots, in a dense fog, at night, is immoderate speed for a &teamer whose full speed lB only ten or eleven knots.
In Admiralty. Carter, Rollina Biddle
Action for damages by collisjon. Ledyard, for libelants. Ward, for claimants.
'Reported by Edward G. Benedict, Esq., of the New York bar.
THE WYANOKE.
703
BROwN, J. The above libel was filed to recover for the loss of the schooner Ruth and her cargo in a collision with tbe side-wheel steamerWyanoke, off Cape May, in a fog, at about 2:15 A. M. of March 28, 1889. The steamer's stem struck the schooner on the starboard side a little forward of the main rigging, a hole in her side, from which the schooner speedily sank. Her captain and two men were on deck at the time. The lookout only was saved. The other two were lost. Two men who were below also escaped. Until a few minutes before the collision the steamer, bound from New York, was making a course of S. S. W.. The schooner, bound from the West Indies to New Haven, having the wind to the southward and a little variable, wassailing wing and wing, making a course from N. to N. by E., and crossing the course of the steamer, therefore, by an angle of about one or two, points. About 15 minutes before the collision the vessels ran into a bank of fog, so dense that other vessels or lights could be seen only a short distance. The lookout of. the schooner testifies tbat the first thing he heard was the sound of a whistle; that soon after he first saw the steamer's mast-bead light; the next instant a green ligbt, "a little bit on his starboard bow,just enough to say on her starboard bow;" that between hearing the whistle and seeing the light" there was just time enough to blow one blast of the hom," and "when the lights were first seen the vessels were about half a ship's length away;" that he had heard no previous wbistle; that he sung out, "Hard a-port," but the captain ordered, "Hard a-starboard;" that he had previously given six· or seven signals on the horn of three blasts each, from one to two minutes apart, as near as he could guess; that the hom had no bellows or mechanical appliances for blowing, and had some holes near the mouth piece stopped up with soap. The steamer, before running into the fog, was under full speed of about ten or eleven knots. Soon after entering the fog, she commenced giving fog signals, and was put under one bell, which, according to the engineer's testimony, would give nearly two-tbirds the number of revolutions that full speed gives. That would make her speed at the rate of about seven knots. The master, coming into the pilot-house, ordered full speed. Very soon voices were heard, which he thought were on the port bow, but which the lookout located ahead or about ahead. The master thereupon stopped, the engine. Listening for thfl voices, and not hearing them, he says he supposed they had gone by, and again gave the order, "full speed," and ported. Almost immediately after, as he says, he saw the schooner's green light on his port bow, and then rang four bells and a jingle bell to stop .and back strong. No fog hom from the schooner was heard. The master heard voices twice, at an interval, as he judges, of some ten seconds. He estimated the time between hearing the voices first and the collision at two minutes, and between hearing the voices the second time and ordering the wheel to port at about half a minute. Considering the fact that, though voices were heard, the horn was blown everyone or two minutes, and was not heard, it is hardly probable that the interval between hearing the voices first and the collision· was as much as two minutes. It was natural that the steamer's lights should be seen sooner than the schooner's. The. fact that the collision
104
FEDERAL REPORTER, vol. 40.
was nearly at right angles shows that the combined changes of the' two vessels amounted to from four to six points. From the testimony on both sides it is probable that each of the vessels contributed about equally to this change. The testimony of the lookout of the schooner is explicit that the steamer's lights were first seen a little on his starboard bow. There is no reason to discredit this testimony, as it is reconcilable and consistent with the steamer's testimony, if the schooner be located at first a little to the of the line of the steamer's course, and if the schooner's green light was first seen on the steamer some time afterwards, (as the testimony in fact shows,) and after the steamer,' by porting, had brought the schooner's light a little on her port bow. That view, and no other, so far as I can perceive, reconciles the testimony of the two vessels; and such, I think, must be held to be the facts. The captain estimates his speed at the time of the collision at two knots. It is probable that the vessels were not more than a quarter of a mile apart when the steamer's lights were first Eleen, and that the interval between that and the collision was not over a minute. If the situation was as stated above, it follows that there would have been no collision had the ve.ssels kept their courses, and neither changed until the heading of the other was known. Upon the above facts, therefore, both vessels must be held to blame for non-observance of the rules of navigationj-the schooner, for having no mechanical means for sounding her fog-hom, (The Love Bird, L. R. 6 Prob. Div. 80,) and for going at the immoderate speed of six knots, having nearly all her canvas set, and being therefore at nearly full speed, (as the wind then was,) in a dense fogj the steamer, for going at too great speed, -nearly seven knotsj-for ringing up "full speed" very soon after voices had been heard nearly ahead, without any reasonable assurance that the danger was pastj for not' reversing, as well as stopping, her engines, when voices were heard nearly ahead, (which must have been known to be very near.) until the location and direction of the other vessel were ascertained with certaintyj and for changing her helm, by porting. under such circumstances, without at the same time reversing, as required by article 18 of the rules of navigation. I can hardly imagine. circumstances in which reasonable prudence would more urgently demand a reversal of the engines, in order that the vessel might be brought to a stand-still as soon as possible, than where a vessel's speed is two-thirds her full speed. and voices are heard, nearly ahead, in a dense fog, before the other vessel or her lights can be seen. The uncertainties as to the source of sounds in a fog equally demand that no change of course should be made, under such circumstances, unless accompanied by reversing. The Lepanto, 21 Fed. Rep. 651,659, and cases citedj The Pottsville, 24 Fed. Rep. 655; The Frankland, L. R. 4 P. C. 529; The Dordogne, L. R. 10 Prob. Div.6, 9j The Britannic, 39 Fed. Rep. 395, 399. See The Vindomora, L. R.14 Prob. Div. 172. Had the legal rules in either of the above respects been observed, it is not probable that the 'Collision would have occurred. Each fault was therefore material, and the damages must accordingly be divided. If not agreed on, a reference may be taken to a commissioner.
J'IBST NAT. BANK tI. FOREST.
700
FIRST NAT. BANK V. FOREST.
(Cfh'cuit Court, N. D. Iowa, E. D. December 26,1889.) FEDERAL COURTB-JURIBDICTION-ACTJON BY NATIONAL BANK.
Act. Congo Aug. 13, 1888, §4, provides that national banks shall, "for the purpose of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respecti....ely located." and that the circuit and district courts of the United States shall not have in such cases "jurisdiction other than such as they would have in cases between individual citizens of the same state." Held, that the federal courts have jurisdiction of an action between a national bank located in one state and a citizen of another state.
Motion to Suppress Summons and Dismiss for Want of Jurisdiction. Action by First National Bank of Grand Haven, Mich., against John Forest. Chas. A. Olark, for plaintiff. Boies, Husted Boies and Henderson, Hurd, Daniels Kiesel, for defendant. . SHmAs, J. In support of the motion to dismiss this cause for want of jurisdiction, it is contended that, under the provisions of section 4 of the act of congress approved August 13, 1888, courts of the United States cannot take jurisdiction of suits in which a national bank is a party. It cannot be questioned that the language of the last clause of the section is susceptible of the construction claimed for it by defendant, yet, if thIs is the meaning of the latter clause, it wholly destroys the force of the first clause of the sp.ction, which declares that national banking associations shall, "for the purpose of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located." .If the intent had been, as is claimed, to.deprive the United States courts of jurisdiction of suits by or against national banks, it would have been easy to have so declared. Instead of so doing, it is enacted by the first clause that, for the purposfl of suing and being sued, the banks shall be deemed to be citizens of the states in which they are respectively located; thus clothing them with the rights, in matters of suits, possessed by individual citizens of the state of their location. And then follows the second clause, which declares that the circuit and district courts of the United States shall not have, in such cases, "jurisdiction other than such as they would have in cases between individual citizens of the same state." If this is to be c<?nstrued as is plaimed by defendant, it, in effect, nullifies the clear meaning of the first clause, for in that it is declared that the banks shall stand on a parity with individual citizens, and it is the right of the individual citizen to sue a citizen of another state in the United States court. If the last clause had not been added to section 4 of the act of 1888, is it not entirely clear that, by the provisions of the first clause, national banks would, in the matter of suits, have had just the rights, no more and no less, of an individual citizen of the state in which it was located, which would have included the right to sue a 6itizen of another v.40F.no.13-45