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libelants might be substituted to her rights, under the circumstances. This substituted the libelants would stand as the insurance companies do, suing on the Queen's rights. They cannot in my judgment occupy a higher position. While the libelants and insurance companies are thus similarly placed they disagree as respects both the law and the facts; the former contending that the Queen was not only blamable for the collision, but that the decree in New York concludes her in this respect; while the latter contends that she was blameless, and is not affected by the decree, conceding that if this is not so no recovery. can be had here. The insurance companies agree with the respondent that contribution between joint tort feasors cannot be enforced in this proceeding. The libelants and the insurance companies unite however in claiming that the Argus was in fault and responsible therefor to the Queen. This question is of course vital to both of them. It is not sufficient, however, to show that she might have been held guilty of fault by the Alexandria if that vessel had been injured by the collision or by any other vessel with which she might have collided at the time. It must appear that she was guilty of fault of which the Queen could complain; and in my judg.. ment she was not. If she committed fault the Queen alone is responsible for it. She was under the latter's control and subject to her orders alone when the collision occurred. She was in the Queen's service under charter and subject to the command of her governing officer and pilot, who were in charge, having absolute authority over her movements. It would be unprofitable to discuss the evidence respecting this fact. The letter from the Argus' owners proposing terms of charter, considered in connection with the testimony of Mr. Branard, Mr. Laughlin, Capt. Tingle, Mr. Pride, Jr., Mr. Mulvany and others, leaves no doubt in my mind on this subject. To visit the consequences of a mistake in her movements, under the circumstances, on her owners, in favor of the Queen or any one claiming through her, would be unjust, as well as unprecedented. It is unimportant that the court in New York believed the Argus to have been in fault. She was not represented there, and her case was not heard. The belief expressed related simply to her acts, leaving the question of responsibility for them (as between her and the Queen) untouched; and this latter is the subject here involved. Nor is it deemed important that the answer to the libel did not originally state this defense. It is not difficult to see a sufficient excuse for the omission. The libel does not in terms, nor by fair implication, base the right to sue on an alleged lien of the Queen against the Argus; and it is very probable that such a foundation for the right was not in mind when the libel was filed; for as before stated the right was mainly, if not exclusively, rested on a distinctly different ground at final hearing. In the view thus presented it would be no answer to say that the Queen is responsible for the Argus' fault. As soon as the insurance companies intervened, claiming through the Queen, this defense was interposed; and when it was seen, on final hearing that
the libel might also possibly rest on the Queen's lien (if she had one) the respondents asked for and obtained leave to amend in this respect, with privilege to the libelants to take further testimony and be further heard on the subject.
As the conclusion reached is fatal to both the libelants and the insurance companies it is unnecessary to consider other questions discussed.
The libel must be dismissed, and the costs be borne by the libelants and insurance companies equally.
In the suit brought by the insurance companies against the owners of the Argus in personam for the same cause of action, a decree must be entered dismissing the libel with costs.
THE FLORA B. v. THE HARRISBURG.
(District Court, E. D. Pennsylvania. February 4, 1896.) COLLISION on RIVER-SLOOP WITH STEAMER-FAILURE TO RUN OUT TACK.
A sloop which failed to run out her tack, but went about near mid-channel, without making a careful observation of the river to see if she could safely do so, held solely in fault for collision with a steamer whose bows she then attempted to cross; it appearing that the steamer promptly reversed, which was the only thing she could do after the sloop's intention became apparent. The alleged presence of certain mud scows in the path of the sloop held no excuse for not running out her tack, it appearing that she might easily have avoided them.
This was a libel in rem against the steamer Harrisburg to recover damages suffered by the sloop Flora B. in consequence of a collision with the steamer.
S. Morris Waln, for the Flora B.
BUTLER, District Judge. The testimony is conflicting and irreconcilable. A careful examination of it, however, has satisfied me that the sloop was in fault. Without running out her eastward tack she came about westward, not very far from mid channel, with: out having ascertained whether it was safe to do so. There was no proper excuse for her failure to continue eastward. She could have readily gone around the mud scows alleged to have been in her way, even if they were where she locates them. I doubt whether they were there; the disinterested witnesses who were on the wharf, saw the sloop turn, and realized the danger involved, did not see the SCOWS. But I do not regard the question whether they were there as important; if they were, there was no difficulty in getting by them. Before turning where she did it was her duty to take a careful ob
servation of the river below and westward; which I am satisfied she
Coming about under the circumstances, and then attempting to cross the steamer's bows, was careless if not reckless. She evidently proceeded with the notion, which is not uncommon in such vessels, that the steamer was bound to “keep off” under all cir. cumstances. After turning and seeing the steamer she should have changed her course immediately instead of attempting to cross her bows. She could readily have done so and passed astern lower down. I believe her lookout was negligent, but think she saw the steamer after turning, in time to avoid difficulty, but kept her course thinking the steamer could by some maneuver get out of her way, and was bound to do so.
Was the steamer also in fault? Having found the sloop guilty of fault that led directly to the collision, the steamer should not be condemned without clear proof that she was also similarly guilty. As the sloop ran eastward the steamer turned westward, to go under her stern, which was proper; and if the sloop had continued her course the accident could not have happened. When it became evident that the sloop intended to cross her bows, having turned westward, it was too late to avoid the collision by an attempt to turn the steamer eastward. I have no doubt of this; nor have I any doubt that the sloop's intention to cross her bows was discovered as soon as possible. Under the circumstances the only thing the steamer could properly do was to reverse her engines, and thus endeavor to diminish the impending blow. This I think she did. Her witnesses testify positively that she did. The fact that she forced the sloop some distance up stream does not contradict them; they are mistaken in supposing she had about stopped when the collision occurred. To stop such a vessel, even with the engines reversed, re quires a greater distance than she had to run to meet the sloop.
A decree may be prepared for dismissal of the libel with costs.
DOHERR V. THE ETONA.
(Circuit Court of Appeals, Second Circuit January 8, 1896.)
The findings and conclusions in The Etona, 64 Fed. 880, in regard to
degligence of the ship, approved. 4 SAME-LIABILITY FOR ACTS OF PILOT.
When the cargo of a vessel is damaged in consequence of the negllgence of a pilot in a foreign port, the bill of lading providing that claims for damage shall be settled by the law of England, without resort to the courts of any other country, the owner of such cargo cannot recover, here, in any event; for, if the ship could ordinarily be held liable for
such negligence, either the stipulation in the bill of lading is valid, and prevents recovery, or it is invalid, and, the law of the United States goyerning, the third section of the Harter act protects the ship.
Appeal from the Circuit Court of the United States for the Southern District of New York.
This is an appeal from a decree of the district court, Southern district of New York (64 Fed. 880), dismissing a libel for damages to a cargo of hides shipped at Buenos Ayres in the lower hold, No. 2 hatch, above which was stowed, in the 'tween decks, a quantity of Pernambuco sugar. • Harrington Putnam, for appellant.
J. Parker Kirlin, for appellee.
· PER CURIAM. We concur with the district judge in the finding that there was no negligence in the stowage of the hides or of the sugar; that the efficient cause of the damage was the stranding on going adrift, which was wholly unexpected, and could not have been anticipated, and was a sea peril, within the exception of the bill of lading. We further concur in the finding that the going adrift was not by reason of any negligence of the ship, but because the local pilot assigned her a position somewhat outside of the ordinary anchorage ground, and where the bottom was bad for holding. The conclusions of the district judge upon these findings are correct. Either the negligence of the local pilot is negligence for which the ship is not ordinarily responsible, or, if the ship could ordinarily be held for the consequences of such pilot's negligence, then either the stipulation in the bill of lading adopting the law of England is valid, and prevents recovery, or it is invalid, and our own law, in the absence of any reference to the law of Brazil, remains as the only law of the case; in which event the third section of the Harter act protects the ship against libelant's claim, since there has been no negligence, fault, or failure in loading or stowage.
The decree of the district court is affirmed, with costs.
NATIONAL ACC. SOC. v. SPIRO.
REMOVAL OF CAUSES-APPEARANCE-EFFECT OF PETITION TO REMOVE.
An action was commenced against a New York corporation, in a Tennessee state court, by service on one M., “as agent and adjuster" for such corporation. The defendant filed its petition for the removal of the cause to the federal court, without in any way limiting the effect of its appearance in so doing, and afterwards filed a plea in abatement on the ground that M. was not its agent. Held, that the question whether the defendant, by filing its petition for removal, unaccompanied by a plea in abatement, and without restricting the purpose of its appearance, waived the objection to the jurisdiction of the court for want of service, should be certified to the supreme court.
In Error to the Circuit Court of the United States for the Eastern District of Tennessee.
Cooper & Davis (McBurney & McBurney, of counsel), for plaintiff in error.
Ingersoll & Peyton, for defendant in error.
Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.
endant in the state of Teface
PER CURIAM. This is an action upon a policy of accident insurance, begun in the circuit court of the state of Tennessee for the county of Knox, by the defendant in error, widow of Herman Spiro, the assured. The plaintiff in error is a corporation organized under the laws of the state of New York, with its principal office in the state of New York. The writ of summons was served upon one H. D. McBurney, “as agent and adjuster” for the said corporation.
The plaintiff in error seasonably filed its petition for a removal of said suit to the circuit court of the United States, upon the ground that the controversy involved a sum in excess of $2,000, and was wholly between citizens of different states. This petition did not specify or restrict the purpose of the defendant's appearance in the state court to the sole purpose of obtaining a removal of the cause into the federal court, and no plea to the jurisdiction of the court had been theretoforė filed by it. After the removal had been perfected, the plaintiff in error filed a plea in abatement, properly veri. fied, in these words:
"The defendant for plea says: The original writ in this cause was not served on the defendant or any of its agents, but that it was served April 17, 1894, on H. D. McBurney, who was not at the time of said service of said writ, nor has the said McBurney been, an agent of the said defendant on him an agent of the defendant at any time either before or since said service on him; and that there was no agent of the defendant of any kind or character in Knox county, Tennessee, on the said 17th day of April, 1894, nor has there been any such agent of the defendant in said county at any time since that date. The defendant further says that no legal process has been served upon it in this cause; therefore it is not bound to appear."