,-i-11E
SAGUA
V. THE GRAcE.
461·
After tlie most patient study of the evidence, lam not convinced that the defendants were guilty of culpable negligence in any particular whatever. If it be conceded that the direct cause of the libelants' loss was the collision charged, still, under the proofs, it was, in my judgment, a case of inevitable accident, within the rule in admiralty. The Austria, 14 Fed. Rep. 298. The rule is thus declared by the supreme court, even in respect to a vessel moving under the control and guidance of a master, officers, and crew: "Inevitable accident is where a vessel is pursllillg a lawful avocation in a lawful manner, using the proper precautions against danger, and an accident occurs. The highest degree of caution that can be used is not required. It is enough that it is reaslmable Jluder the circumstances. sllch as is usual in similar' cases, and has been found by long experience to be sufficient to answer the end in view.-the safety of life and property." The Grace Girdler, 7 Wall. 196. 203.
The witnesses who condemn .the speak with, the wisdom that comes after the event. But the defendants are to be judged with to the extraordinary circumstances in which they found themselves. . They were called upon to act in an emergency, and hadtQ 1ace perils unexpected, and increasing to the end. The situation, was 'one' of surprises. Certainly, the choice of' ti'lJes to tie to was a matter' for' the exercise of mere good judgment, and a mistake here would not justly subject the defendan1;.s to a charge of carelessness. Bh>iJm v. French, 104 Pa. St. 604. Their own property was at stake, and they were moved by the'powerful stimulus of self-interest to do whatever was possible to save their fleet. It is not to be doubted, that to that',·eild they gave their very best endeavors. The defendants stood in no such particular relation to the libelants as imposed upon them any special obligation; and assuredly they were not bound to exercise more than' ordinary prudence, skill, and diligence. Shear & R. Neg. § 22. That they conformed, at least, to that standard of duty, I have no hesitation' in holding. Let a decree be drawn dismissing the libel, with costs. .
THE SAGUA 'V. THE GRACE AND
THE
RESCUE. 1
THE GRACE 'Ii. THE SAGUA AND THE BATTLER.
(District Oourt, E. D. Pennsylvania. :May 18, 1890.)
1. 2.
COLLISION-TUGS WITH Tows-LIABILITY OF TuGS.
Where tugs having tows in charge pass, and allow suftlcient room, if their tows follow them, to pass safely, they cannot be charged with fault if the tows, through bad steering, collide, although they could have allowed m,ore room. When a tow fails to follow her tug, and as a result a collision takes must respond in damages. " :i : Tows. .' ' '
she
:
I
ReI./0rted by O. Berkeley Taylor, Esq., of theJ>hil,adelpbie..bU.
42. , LibelJQp,OQlliElionby the brig SQ.gua against the schooner Grace and tug schooner Grace against brig Sagua and tug Battler. Ri<Jh,a,r.d C·. for the Sagua. Owrtis 'i'UtI:Yn,. and Henry R. Edmunda, for the Grace· .Alfred J. Warren Coulston, for the Rescue. John,F. Lewis, for the Battler·. BUTLER, J. As the Sagua, in charge of the Battler, was passing up the river Delaware to Philadelphia on December 22, 1887, nrar 9 o'clock in;, the evening,she encountered the Grace passing down, in charge of the Rescue, opposite Billingsport. The Sagua and Battler were well over towards 'the eastern ·side of the channel, and the Grayean4 &escue were. slightly further west. The night was clear with bright moon. The Sagua is 127 feet long, of 366 tons burden, 9*. feet draught, was in ballast, and towed by a hawser 60 to 70 fathoms, long: ,'The Grace is 145 feet long, of 516 tons burden, 15 feet draught" was loaded with iron, towed by a hawser 50 to 60 fathoms lorig., At'a distance of half a mile,and probably more, the Battler signaled the. approaching vessels to porh and immediately ported herself. The 'Rescue answered promptly, and ported also. The latter passed the Battler and Sagua at a distance of 70 to 90 feet. The Grace, instead of following her tug, turne<.l eastward after passing the }3attler, andra,n into the Sagua, striking the port side with her head a1lm 45 deg., forcing her aground, and .inflicting much injury. ·The $agua libeled the Grace and .Rescue, and was in turn. with the Battler; libeled by the prace. SUbsequently the Grace brought the Battler ip to answer the Sag;ua's claim also: It is thus seen that the several, vessels are charged, with fault. A large amount of testimony been taken, some part: of which is irrelevant, some part improbable and, incredible, and much that is contradictory and irreconcilable. To analyze and discuss it would be a wltste of time; and I will do little more,tnerefore, t11an state conclusions. As respects the Sagua, I find nothing to justify the charge against her. She was in proper trim, had,her lights burning, and followed her tug, bearing eastward. She may, however. be responsible for the conduct of her tug, possibly, if the latter was in fault. iri. fauIt? I find no reliable evidence that she was. Was the Her course, and position in the channel, were proper. ,She was, I believe, well over to the eastern side. 'At It safe distance she signaled the approaching vessels to port"ulld, receiving a favorable answer, ported,bearing as much eastward as was necessary and safe. The circumstances her tost?p,(ehec?uld safely do so with the Sagua otherprecautlOns agamst danger. No danger was apparent until· later, when no precautions were available. Rescuein fa?lt? Sheanswered and ported promptly when sigi1aled, and passed the Battler and Sagua at a safe distance. There is difference of opinion respecting the distance. The witnesses capahle of forming the most: reliable ,judgment are those from the Battler, the
THE SAGUA tl. THE cmAtlll:..
463
Sagua,; and Rescue. Those from aboard the Grace could know little aboutit. Their situation was not favorable to judging. If the Grace ' She might 'have had followed, no oollision would have: passed a little nearer, beoause of the situation of her hawser,but the difference would have been unimportant. The distance would have been sufficient to avoid danger. It is entirely clear, therefore, that the collision resulted from the Grabe's sheer eastward:, and from this alone. But for it there would have beenno collision. I see no room whatever for controversy on this subject. The Grace's answer virtually admits it, and the testimony leaves norooro for doubt. Instead of sheering to starboard when she received the signal, and following her tug,sheheld her course a little while, and then turned in the opposite obliquely across the channel, and ran into theSagua, striking her at an angle of nearly 45 deg. She asElerts in excusethatber sheer was 'onavoidable;that it resulted from the,: situation in which 'she was placed, without fault· of her OWl\. lfthis is true, she is not responsible. In such case her Is she .(the Grace) responsible,-+-wlls her sheer unavoidable? The case turns on theanawer to this question. The burden is on her to prove tbat it was unavoidable. Presumably the rudder would control her oourse; and. in the absence of proof to tbe contrary, ber sheer must be attributed to ,a starboard wheel. And besides, setting up the inability to control her course, as a defense, she must prove its existence. The alleged cause of this inability is the passage of the Battler near her track, and the COIDmotion produced by the latter's' screw. ,By this means, it is asserted, she 'lost control of her movements, and was forced over into the Battler's wake; and thus"without fault of her own, brought into collision with the Sagua. If this is true, I repeat,she is blameless,and theconsequencesmust rest on her tug for running' B'O, near. There was plenty of water westward, and the tug should have kept further away, if such consequences were to be apprehended. The tug must be held to knowledge of the danger, (if it existed,) and was bound to avoid it by keeping {,ur, ther off. ' Has the Grace proved her exeusatorY allegation? Many witnesses were-examined respecting it, and their testimony is irreconoilable. A statement and discussion of this testimony is unnecessary. It1s sufficient to say thatthe excuse is not proved. Indeed, I think the ciroumstances clearly disprove it. It is incredible that the commotion produced by tbe Battler, a small vessel, light and high in the water, ·could·have had such an affect 00 one of the Grace's size, especially against the in,fiuence of both her hawser and rudder. It would have been quite as likely to·affoot the Battler, jndeed much more so, because of ,het"smaller size and draught; and it is quite as likely that a similar effect would have been produced on the Sagua by the Rescue's passage of her; and yet neither of these vessels were disturbed. SUPPoEling the water to have forced the Grace over as alleged, it seems physically impossible that she should have been carried into the position assumed. The Battler had passed her some distance before she reached the Sagua, and as her
UDElU.L REPORTER,
vol. 42.
stein".with the rudder turned to starboard, would respond to the cur·rent much more readily than her head, she would have straightened upintha Battler's wake and met the Sagua head on. She could not have struck her in the side at an angle of 40 deg. The Sagua was It is not necessary to pursue the subfollowing in the Battler's ject further. The Grace's excuse for her sheer cannot be accepted. In my judgQlent, not only is the weight of the direct testimony against disprove her allegaher, but the .inferences from undisputed tion. Ihave,notoverlooked the fact that her wheelman and another was to port. I do not, however, of her crew, swear that place any faith in this testimony. It was their duty to so place the wheel, and if they failed I.would not expect them to admit it. Such men generally feel, an obligation to stand by their vessel when testifying; as well asunder other circ\:Jmstances, and where their interests are involved little reliance ,oon be placed upon what they say. I believe ·these men were slow to act, and tba.t no order was executed which produced visible change, until nearly abreast of the Battler; that when it was;executed, (or attempted,) and the wheel changed, it was turned the wrong way. By no. other hypothesis can her course be accounted for. It .cannot justly be urged that this mistake resulted from confusion arising from peril and fright, at the time when the change should have been made. . 'OJ1 fitst blush there is something impressive in the suggestion that the.< tugs should not have brought . their tows so near together as to render a collision possible; that with plenty of water westward the Rescue:s.lHlUld have passed at greater distance. But it must be seen, I thinli::,on reflection, lllat to be entitled to any weight. Had the collision:not.occurred, no one would,have considered the proximity unusual. ,The distance was sufficient for safety. A tug is not required to sheer so far off her course as to guard against possibility of danger from negligent management of her tow. The latter is expected to follow the former, and, if there is room to allow it to pass with safety while following, by the exercise of ordinary care, this is sufficient. It is idle to speculate about the, distance at' which the vessels would have passed if the Grace had followed the Rescue. As before said, it entirely clear that the disaster occurred solely because she did not. Her efforts to exDuseheJ'self by attributing. faults to others, are natural; but, when it is ·found that her own disregard of duty in turning eastward, fully accounts for the collision, the caseis at an end. . The Sagna is entitled· t.o a decree against the Grace for the damages inflicted. The li bels against the Rescue, the. Battler, and the Sagua must be dismissed. A decree may be prepared accordingly.
PURCELL
LAND
& MORTGAGE
CO.
465
PuRCELL
v.
BRITISH
LAND &:
MORTGAGE
Co., Limited.
(Oircuit Oourt, D. Kansas. May 16, 1890.) 1. REMOVAL OF CAUSES-CITIZENSHIP-FOREIGN CORPORATION DEFENDANT.
A corporation organized under the laws of a foreign country. and having its chief ofllce there, does not become a resident of a state of the United States by doing business and having an office therein. so 88 to defeat its right to remove a case against it from the state to the federal court, under the act of 1888, (25 St. U. S. 434,). § 2, providing that an action brought in a state court may be removed to the circuit court of the United States "by the defendant or defendants therein, beinl\" non-residents of that state. " '
2.
SAME""",,WAIVER.
'!:hecourt having jurisdiction of the subject-matter and the parties, the right of a defendant to object to being sued in a district of which he is not an inhabitant 1& personal to himself, and he may insist upon or waive that right 88 be chooses.
John E. He88in, W. P. Douthitt, and RanTcin Mason, for plaintiff. Johnson, Martin <to Keiler and T. S. Brown, for defendant. FOSTER, J. This case was removed to this court from the district court of Riley county, on the application of the defendant, on the ground that it is a foreign corporation and non-resident of the state; and the plaintiff, who is aeitizen of the state of Kansas, now moves for an order remanding the same to the state court. The ground on which the motion is made is that the defendant is a resident of this state, and, therefore, not entitled to remove the cause. The more formal manner of proceeding under a plea in abatement to the jurisdiction of the court is waived, and the mattersubmitterl onmotion and affidavits. The facts as to the organization and business of the defendant company are briefly these: It is a corporation organized under the laws of Great Britain and Ireland, with its head-quarters or chief office in London. It is now engaged in loaning .money on real and personal property, in Kansas, with its place of business and office at Manhattan, and under charge of Stewart J. Hogg, a subject of Great Britain. It has no other place of business in this country. The first section of the act of 1888 (25 St. U. S. 434) confers jurisdiction on this court, as follows:
Motion to Remand to State Court.
. "That tlle circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, ... ... ... in which there shall be ... ... ... a controversy between citizens of a state . and foreign states, citizens. or subjects. ... lie lie And no civil suit shall be brought before either of said courts [circuit or district] against any person, by :any original process or proceeding, in any other district than that whereof he is an inhabitant; but, where the jurisdiction is founded only on the fact that the action is bl;jtween citizens of different states, suits shall be brought only in the district of the residence of either the plaintiff or the defendant."
In section 2 the second clause of the removal act reads as follows: . "Any other suit ofa civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section,
v.42F.no.9-30