mE RALEIGH.

, TaEN:IAGARA. HARDY V.TuE RALEIGH and THE NIAGARA.
(Df.sPrlct

Oourt, S. D. Ne:w York. February

1800.)

t.'COtt;t8JON-".11'uG AND 'Tow AT ANCHOR IN Foo-WANT OY1'ROPERBIGIULll. '11le; N" witl\ a fleet of Qanal-boats in tow, extending from 4.QO to 800 feet astern, came !!onc,hor in a dense togin the Hudson, river. The N. was assisted by a helper, the :m., which was under the N.'s orders, and had proper means for signaling ina fog. , haC! ,npt,. Held, that,it ,was the duty oUhe,N; to have ordel'ed the E. along-side the tow, to give fog signals, and because of her failure to do so she was liable for the sinking of a boat in her tow by collisionJ.Wlth a moving vesileL ' ,
1::&b....,Foo-,+FAULttN,n'lGAoriON-EXCESittVll SPEED.,:',! ',','

,

, 1-

(8: SA,II&-LIBEL FOR PERSONA:L -, " .',. , Whe..e libelant was nearly ,drowned b¥ reason of a coUfsion between two vessels, ., ,aJid sustained serious inJurieS, held; thaI; lle should recover 10,000; ,
,I, '-.

11;:ill faulty fW a vessel to continue he.r ofoveJ'l1ve dense fog, on;' COlll'!'e miles an 'hour, unnecessarily,in the HUdson river, iii a ,'where other vessels are liable to be encountered. :', -" ,

:

",

'i

In.Admiralty. ActioIl f<?rpersohal injuries. ZabriskW, ' Let.ow &: Haldane, for ;, OWim, Gray & Sturges,forTheNiagara;

I

'.",

t -

. J. On tne'morningof:Mat,8, i889, 'the canal-boat, Heaton, being .the port; boat on the hawser 'of afll3etof boats attached by a hawser to the the fliiei' was 'lying at anchor in about the middle ,of the Hqdson, rivet, "between Englewood dock arid Inwood, wall run into by tne'steam'fteight'boatlWeigh, ina very dense fog. 'The Heaton' and hEir: CAtgo were Bunk; and the libelant, being carried boat,wlirriear1y drowned., Though he sustained and moreorless per:bodily fnju'ries. ' '_" " " ',' , ,,- .; ·, , Thecbntradictions and difficulties presented by the testimony; furnany particulars; are fora cause of MU9h consideration ll?WeVer"satis,fies faults,-;"dne on th,e wluc\l must result III a dIVISIOU of thl3, l1amages; 'so th:ri.tit is illinecessary W'dWell 'upOn 'the other p-erplexitiesonhe' The Niagara came to anchor between 1 and 2 o'clock A. M. 'jldcOrint of the density of the fog; and, though afterwards it lightened up for a while, the fog at the time of the collision was so dense that the Heaton could not be seen until the Raleigh was within 50 feet of her,-too late to avoid collision. Assuming that the Niagara was ringing her fog bell every two minutes, as many of her witnesses assert, although as many on the part of the Raleigh testify that no bell was heard until just after

on

lReported by Edward G. Benedict, Esq., of the New York bar.

528

J'EDEBAL REPORTER,

vol. 41.

the collision, still that was not a sufficient or reasonable protection, in so dense a· fog, for a fleet of boats in tow extending from 400 to 800 feet astem of the Niagara. It has been repeatedly held to be obligatory to give some signal from the tow itself, when so far remc)Ved from the tug, in a dense fog, as notice of its position. The Pe8htigo, 25 Fed. Rep. 488; The Oity ofAlexandria, 31. Fed. Rep. 427. In the present case the Niagara had a helper, the tug Easton, along-side the tow, under the orders was no difficulty in passing all needful orders of the Niagara; and to the E.aston. The canal-boats had not proper means of signaling, the Easton.had; and it was the duty of the Niagara, not of the canal-boats, to see thatallsignals needful for the full protection of the tow should be Had the Easton given such siggiven. 'TheOonMCtic'ut,103U. S. nalsfromalong·side the tow,they might, perhaps, have been heard, and the ' , The Raleigh is to blame for continuing her navigation unnecessarily in ·dense. a fog, other vessels were liable to be encountered. She should have stopped at the Englewood dock, if not before. Her own witnesses do notclaim that at 10 or 15 minutes after 5 o'clock, when she .4ock, then ,half hour after sunrise, theycouid see over left 50 yards. There was no constraint or urgency that required the Raleigh to keep on. Her courseW,ok her at first nearly across the river, and she was thereby very likely to run afoul of any craft anchored in the stream. If she was entitled to proceed at all, I am satisfied, also, that her speed was excessive, under the circumstances, and much more than her witnesses admit. The collision must have been two-thirds of a mile dockj and their own estimate of the time of collisfrom the. ion after .ea.ving the dock, vii., 'seven to nine minutes, would make her speed l\bQut five miles per hour. It was probably more than that. There pad bflen fog for several hours; yet, in coming from Haverstraw, which 8h,e lef(about 3 o'clock, she was not o,rer a half Itour behind her usual time at Englew60d, though cOllling in fog, and mostly against a flood-tide..' , The libelaqt's iIlJuries are serious. From a strong and healthy man, he has become,through this collision, apparently a confirmed invalid, and must lead a life of more or less infirmity and suffering. There are IIDme elementsiri the case, however; and, upon the whole evi,Qence, I think $5,000 foJ.' his personal injuries will be a suitable award. A reference maybe taken to compute the other damages; for which, and fqr the above allowance for injuries, both steamers must be held liable t costs. .

lULLS t1. N£WlI:LL.

629

MILLs

fl. NEWELL.

(O£rcuU OOUf't, D. Minnesota. March 10, 1890.)

L

REMOVAL Ol!' CAUSES-MOTION TO REMAND-FILING RECORD.

a.

Though the law of congress relating to the removal of causes provides that the removing party shall file a bond to enter the case in the circuit court on the first day of the nextseSBion, and that, the record being so entered. the cause shall proceed as if begun in the circuit oourt, the other party may file a transcript of the record at an earlier day, and have the case remanded, if it appears upon the face of the record that it was not one authorized to be removed.

ElA.¥E,"""l;l.IGHT TO RJ!lMOVIC-J:l.ESIDBNT DEFENDANT.

The removal act of 1888 does not provide for the remoVal of a cause to the federal courts by a defendant sued in the courts of the state of which he is a resident.

On Motion to Remand to State Court. PUree NickeU, for plaintiff. Ftannery Oook, for defendant.
NELSON, J. ThiEl suit was brought in the district court of the county of Hennepin, in this state; and on the 24th day of December, 1889, counsel for the defendant filed a petition in the state court, signed by the defendant, for··the removal of the case to the circuit court of the United States in this district. The plaintiff is a citizen of the state of Rhode Island,and the defendant is a citizen of the stll.te of Minnesota. The ground of removal is that the controversy in said suit is wholly between citizens of different states, and that the defendant is interested in the controversy. The proper bond was presented to the state court with the petition, and an order for removal was made on December 24th by the judge of the state court. ' The law of congress directs that a condition of the bond should be that the defendant should enter in such circuit court of the United States, on the first day of its then next session, a copy of the record in such suit, etc., and it shall then be the duty of the state court to prooeed no further in the suit, and, "the said copy of the record being entered, as aforesaid, in said circuit court of the United States, the Cliuse shall then proceed in the sa.me manner as if it had been originally commenced in said circuit court." The act of congress of 1888, amending the removal act of 1887, contains the following clause,-the only one applicable to the present case: I. Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are gi ven jurisdiction by the preceding section, and which are now pending. or which may hereafter be brought, in any state court, may be removed into the circuit court of the United States, for the .proper district, by the defendant or defendants therein being non-residents of that state. ,l . The preceding section, alluded to, gives the circuit courts of the United States concurrent jurisdiction with the courts of the several states,originalcognizance of all suits of a civil nature, at common law or in equity, wheD the matter in dispute exceeds, exclusive of interest and coSts, the ,v.41F.no.l0-34