48 F. 175 -

THE PARTHIAN·

175

.::'BE .PARTmAN.

THE

FLORENCE.

(Dt8tr£ct Court, D. MassachmettB. Beptemooll 29, 1891.)
CoLLISJOl'f-B'l'EAM AND

SAIL-FoG-BORNS. . As the steamer Parthiah wallproceedillg northward 50 miles oft Sandy Hook, in a thick fog. she heard prolonged blasts resembling those of a steam-whistle on her port bow. and, supposing them to be D;l,aile by a vessel under,steam, slowed down 1'0 half spef\d, ,and gave two blast!' on herl'l'histle, as a signal that slle would direct her 'cour.etoport and p8llllJ:On the starboard side. Receiving 'two short blasts in 1'e.· she her helmhlU"d to starboard, and as she was .falling off repeatedller signllol, winch was answered byasingle blast. She thereupon threw her wheel hard: to port, and reversed her enginp.& fuH speei astern,but short,ly afterwards }Vit\l a sailiog vessel. The sOU;l1-ds by the latter were ?reduced,byaD instruwel;lt blown by steam from aboUer caItied in the hold. HeW, that the use of such an instrument, instead of the .nsualatmosphedo. horn. rendered the ,salling solely in fault.

In AdtpkaIty·. Libelhy' the 0'Wtlersof the

Florence qamages for, IIi ·. ,Libel E. P.Carver, for the ' , '. ' L. T.' D.abney and F.. for the Parthian.
,

I"

'

.

,.

J. This,collision QCQuItred on the16thof July; 189Q, at 8 p'clock in the morning, fog. The place 'of waS 55 niiles S. E,by E. fromSl1ndyJ::];'Ook. The steamei! Parthian"Q$ wall of her usual trips frpm-Philll,to, _ llCQoOQer was.b9\lJld on J" Irmn Bangor to Philadelphia, with a cargo of T1)e,willd wa,sJight.froD;l the llorth-west. As the Parthian was proceeding on her course to the northward, enveloped in the fog, the men in charge heard on the port bow prolonged blasts, repeated at frequent intervals and coming nearer, resembling blasts made by a steam-whistle, which they took to be the fog-signals of a vessel under steam. The steamer was thereupon slowed down to half speed, and two short blastB were made with her whistle, as a signal that she wonld direct her course to port, and pass the approaching vessel on her starboard side. Receiving in reply two short blasts, and deeming this to be an acceptance of the proposal indicated by her signal, that the vessels should poss starboard to starboard, her wheel was put hard to starboard. As she was falling off to port under her starboard wheel her signal was repeated. and receiving back a single blast only, her wheel was thrown over hard to port, and her engines stopped and reversed full speed astern; but before she could be stopped the schooner Florence appeared out of the fog crossing the Parthian's bows from starboard to port. Nothing more could be done to prevent a collie:ion, and she struck the Florence on her port side just aft of her main rigging. The sounds which the men on the Parthian had mistaken for the fog-signals of a steamer proved to have come from
NELaON,

176

FEDERAL REPORTER,

vol. 48.

the Florence, and were made by a huge copper horn blown by steam supplied from a steam-boiler on board. She had no atmospheric horn on board, but carried instead this instrument blown by steam, to be used for signaling in a fog. The evidence is olear that the sound produced by it closely resembled that of some varieties of whistles used on steamvessels, and wus so similar as to be extremely likely to deceive and mistead those hearing it at a distance, especially in a fog. The men on the Parthian were completely deceived, and none of them, from master to plU:lsengers, had the least. suspicion that· the sounds heard on the port bO,wwere not the fog-signal ora steamer. There can be no doubt that the course pursued by the Parthian was the and proper one under the qircumstances, if the Florence had been a vessel under steam instead of a sailing vessel. Nor can there be anydoobt .on tpese facts tPl\.t ,the disa!iter happened solely through the fault of those in charge of the Flolence in making fog-signals by means of an instrument not sanctioned by the sailing rules. It was plainly her to give notice of her presence in the fog by a horn blown by ii.tmospheric pressure, and bot by blasts froni an instrument dosely raaembIirig a steam-whistle.'; Her hom was substantiallylt steam-whistle, such as belongs to a vessel, under steam, and which a vessel under sail has no right to sound' hi a fog. The' men in charge of the Parthian were not to blame for maneuvers based upon the theory that the approaching vessel was a steamer, and Bsthey fell into this error through 'the fault of those' in charge] of the Florence, their excuse is complete. In the cross-libel of the owners of the Parthian against the Florence, an inierloClltory decree is to be· entered for the libelants, and the libel of the owners 'of the Florence against the Parthian is to be dismissed with costs. Ordered accordingly..

CONN. fl. CHICAGO, B.

&;

Q. R. CO.

177

CoNN

et 01.

11. CHICAGO,

B. & Q. R. Co.

(Owcuit Oourt, S. D. Iowa, W. D. November 18, 1891.)
L

RBMOVAL 011' CAUSES-.A$SIGNMBNT OJ!' CLAIM-CITIZENSHIP-ExOESSIVE FREIGHT ClIARQE&7-CHOSES IN AOTION.

A oIaltn against a railroad company for overcharges in freight is not a "chose in within the meaning of the provision of the removal act of ISB8 that the circllit shall not have cognizance of a suit on "any promissory note or other choslHn action" in favor of an assignee, unless such a suit might have been main· tainlld.f no assignment been made; and an assignee of such claims may sue a non-resident company thereon, without regard to the .citizenship of his assignofll.
OJ!' RAILROAD CORPORATIONS-CONSOLIDATION-CONVEYANOB OJ!" ,

2.

When a non-resident railroad cprpQration purchases and receives convE!yanQ6ll of aU the roads in the state owned by a domestic corporation,'the fact that it. establishes Agencies in the ..tate, and operates the roads under the laws thereof,does not ma1l;e it a domestic corporation, so as to take awayits right to remove to a tedera! court an action brought against it' in the state court by a citizen of the state. FU4!gerl(l.ldv. Bail.wa1l 00.; 45 Fed. Rep. 812, distingUished. .
.<

At'Law. Action by J. W. Conn against the Ohicago, Burlington & Quincy Railroad Company for overcharges in freight, the claims having to him by the original owners. On plea in abatement to the jurisdiction and the evidence thereon. Plea overruled. AlamonOlark'and Clark Varnum, for plaintiffs. Smith" McPherson, for defendant. Before SPIIllAS and WOOLSON, JJ.
, SIi'IRAS,J. This action was brought originally in the district court of Mille' county, Iowa, and wae thence removed to this court OpOll the appHclltion of the defendant corporation, on the ground of diverse citizenship,it being averred in the petition for removal thatlhe plaintiffs, when the·suit was brought, and ever since, were, and have continued to be, citizens of Nebraska, and the defendant was and is a corporation created under the laws of the state of Illinois. The petition in the action contains a larKe number of counts, each one being based upon an alleged overcharge for freiKht shipped over the defendant's line of railroad by a number of individuals or firms, whose claims 1'01' damages for such alleged overcharges have all been assigned and transferred to the plaintiffs. The first question arising upon the record is whether, under the statute now in force, an action based upon assigned claims of this kind can be removed from a state to the federal court, regardless of the citizenship of the&:ssignors of the claims, or whether it is necessary, to sustain the jurisdiction, that it appear on the faceof the record the'! the assignors of the claims, as well as the assignees, are, and were when the suit was brought,citizens of a state or states other than that of the defendant. The proviso in the amendatory act of August 13, 1888, is that the Utiited States cirouit court shall not"Have cognizance of any suit, except upon foreign bUls of eXchange. to recover the contents of any promissory note or other chose in action in favor of anyasllignee. or of anyatibs6quent holder. if such instrument be payable v,48F.no.3-12