Зображення сторінки

nautical skill of a high order. It was a difficult task at best and no one was justified in heedlessly and unnecessarily adding to its dangers.

What is the law applicable to this situation? The Revised Statutes of New York provide that:

"Whenever any steam-boat shall be going in the same direction with another steam-boat ahead of it, it shall not be lawful to navigate the first mentioned boat so as to approach or pass the other boat so being ahead within the distance of twenty yards; and it shall not be lawful so to navigate the steam-boat so being ahead, as unnecessarily to bring it within twenty yards of the steam-boat following it." Rev. St. N. Y. (8th Ed.) p. 2246, $ 7.

In a note following rule 8 for the government of pilots, approved October 8, 1891, and rule 6, approved February 14, 1895, it is provided that:

“The foregoing rules are to be complied with in all cases except when steamers are navigating in a crowded channel, or in the vicinity of wharves; under such circumstances steamers must be run and managed with great caution," etc.

Rule 25 of the act of February 8, 1895, provides that: "In all channels less than 500 feet in width no steam vessel shall pass another going in the same direction," etc. 28 Stat. 645, 649.

The latter act is, of course, inapplicable to an event occurring in 1893.

Assuming that a vessel in the situation of the Owego can be considered the "steamboat ahead” it would seem that at the present time the action of the Chicago is condemned by both state and federal statutes. The federal law forbids passing at all in a channel 230 feet wide and the state law forbids passing within 60 feet. But these rules are mentioned not so much to prove their applicability to the present case as to show the care taken by the lawmakers to safeguard navigation by preventing the crowding of vessels in narrow waterways. In The Saratoga's Case, 1 Fed. 730, the court held the steamer liable for attempting to pass a tow in circum. scribed water when, had she waited a few moments, she could have passed in safety, the court observing:

"It was her duty to wait till they reached a point in the river where they could have safely passed."

To the same effect is The Boston, Olc. 407, Fed. Cas. No. 1,672. After holding that the boat first under way should not be interfered with and that the second boat should use the utmost prudence and precaution the court says (page 413):

“The attempt, then, to take the lead, was manifestly hazardous; and as it was made deliberately by the Boston, and not two minutes could have been lost to her had she waited till all danger was passed, she is justly responsible for the damages occasioned by her precipitancy and want of circumspection."

It is the duty of a vessel when navigating a crowded harbor to proceed with the utmost caution. "Ordinary care, under such circumstances, will not excuse a steamer for a wrong done.” Culbertson v. Shaw, 18 How. 584; The Alleghany, 9 Wall. 522.

The rule deducible from these authorities, and others which might be cited, is that in the narrow waters of a harbor which is apt to be erowded with vessels and where navigation is perplexed and complicated by wharves, drawbridges and craft of all descriptions move ing and stationary, a steamer must proceed with the greatest care and foresight. How did the Chicago proceed? Her bows had been sprung from the dock about 15 feet and when the Babcock and Owego were just abreast of her, the stern of the latter having lapped the Chicago about 100 feet, the master of the Chicago signaled the engineer to go ahead strong and the vessel ran several hundred feet, her propeller revolving as rapidly as possible and making considerable commotion in the water. She did not keep close to the wharf, but headed at first for the port, or westerly, draw of the Michigan street bridge, and at the time of the sheer was certainly within 50 feet of the center of the river. When the bow of the Owego came about abreast with the stern of the Chicago the sheer commenced, the bow of the Owego swinging towards the Chicago's stern until the two vessels actually came together. The Owego's stern swung towards the canal-boat and continued to do so until it struck her as described. The Chicago proceeded on her way, but in going through the easterly draw she first bumped against the fenders around the central pier and then against the Nyack, which was moored just below the bridge at the easterly dock. The inference from the testimony is very plain that the master of the Chicago was for some reason in great haste to leave the dock and reach the lake in advance of the Owego. He says, "I was ahead and thought I would stay there. * * * I omitted no order which would have the effect of keeping me ahead.” The suction produced by the natural displacement of a moving vessel was, in this instance, greatly increased by the rapidly revolving wheel of the Chicago. As the wheel was making as many revolutions as possible, while the Chicago was proceeding a distance of 400 or 500 feet, it follows that the suction caused by the wheel must have been powerful. The Chicago attained a speed of about three miles an hour; it is probable, therefore, that the suction caused directly by the wheel decreased in proportion as the suction caused by the progress through the water increased. Whichever predominated at the time of the sheer there can be no doubt that suction was present and that the Chicago caused it.

The learned counsel for the Chicago argues with great force and ability that the Chicago could not have caused the sheer for the reason, inter alia, that she was in every way smaller than the Owego and her displacement was consequently much less. For these reasons it is urged that, if there were suction at all, its tendency would be to draw the smaller to the larger vessel and not vice versa. This would probably be true if they were passing in the ordinary way, but it must be remembered that it was the Owego's bow that sheered and that this was opposed to the Chicago's stern. The draught of the Chicago's stern was 13°/2 feet, the draught of the Owego's bow was 8 feet, 3 inches, or 5 feet, 3 inches less than the Chicago. At the point where the suction must have operated the Chicago was, then, the more difficult of the two to move from her coutse. The Owego's bow, being pointed, would produce little

commotion that suction has recen A.

suction when compared with the relatively round stern of the Chicago supplemented by the volume of water thrown back from her propeller blades. That the bow of a vessel drawing 61/2 feet less than her stern should, in a narrow channel, be deflected towards the stern of a vessel making the commotion that was made by the Chicago is not at all surprising. The effect of suction has recently been considered in the cases of The Alexander Folsom, 3 C. C. A. 165, 52 Fed. 403, and The City of Cleveland, 56 Fed. 729. In the latter case the court makes an observation on the subject which is applicable to the facts of the case in hand. The court says that:

"The suction of two vessels passing each other is not very powerful. It is too short to have any particular effect upon the action of the two vessels, unless one is much larger than the other; whereas, if they are going in the same direction, and passing near each other it has a very powerful effect to deflect the weaker vessel from her course."

Although the Owego is much larger than the Chicago it is thought that her bow was “weaker” than the Chicago's stern in offering resistance to the force of suction. The Chicago knew that the Owego, an immense propeller, larger than many ocean steamers, with two tugs, the procession being 550 feet in length, was coming down the middle of the river. She knew, or ought to have known, that they were destined for the port draw at Michigan street. She knew that the bridge made the river at that point almost a cul-de-sac and that any collision with the piling in going through the draws was likely to create confusion especially if two vessels were attempting to make the draws at the same time. What excuse has the Chicago offered for thrusting herself into this dangerous channel at the very time when an immense vessel comparatively helpless was passing? The Owego was in motion, she could not stop, she had the right of way. Had the Chicago waited two minutes the Owego would have passed by, in four minutes more she would have cleared the draw. Prudence would seem to suggest, where absolute safety can be secured by so trifling an inconvenience as a delay of two minutes, that it is negligence to incur unnecessary risk. But, assuming that the Chicago was not required to wait, surely it was her duty to proceed with extraordinary caution. She should not have gone ahead "wide open” for several hundred feet; she should not have gone so far to port and she should not have attempted to pass, or even to keep up with, the Owego. The sheer followed al. most immediately after the Chicago's appearance upon the scene. The rapid working of her wheel in such close proximity to the Owego's bow was sufficient to produce the sheer, and, as no other cause can be discovered, the court is constrained to hold the Chicago liable. Either this must be done or the court must say that the accident was the result of an inscrutable fault. There is no alternative. The court has been unable to find any precedent for the latter conclusion where the testimony and the presumption drawn there. from all point in one direction as unerringly as in the case at bar.

It follows that the libelants are entitled to a decree against the Chicago with costs and a reference to compute the amount due. As against the Owego, the Babcock and the Davis the libels are dismissed without costs.

In re KELLY.

(Circuit Court, E. D. Wisconsin. December 27, 1895.)


The purchase of lands in a state by the general government, with legislative consent, does not, ipso facto, confer upon the general government exclusive jurisdiction, unless the purchase is for a fort or for some other purpose distinctly named in article 1, § 8, of the constitution; and in order that exclusive jurisdiction may be acquired over land taken for any other purpose, the act providing therefor and calling for the consent must unequivocally declare that exclusive jurisdiction is intended and necessary, or such necessity must be manifest from the purpose of the act. Accordingly, held, that the acts of congress establishing the National Home for Disabled Volunteer Soldiers, and creating a corporation authorized to take and hold lands for the purposes of such homes, containing no declaration of the necessity of exclusive jurisdiction in the general government over such lands, do not vest such exclusive jurisdiction in the United States, upon the consent of the state being given

to the acquisition of such lands. 2. SAME.

held, further, that a cession to the general government, in the act giving the consent of the state to the purchase of such land, of “jurisdiction," does not confer exclusive jurisdiction, the purpose of the act not requiring it, but such jurisdiction only, concurrent with that of the

state, as congress may find necessary for the objects of the cession. 3. SAME-CRIMINAL LAWS.

Held, further, that, upon lands so ceded for the purpose of a home for disabled volunteers, the criminal laws of the United States, which apply only to places within their exclusive jurisdiction, are not operative. Application for Writ of Elabeas Corpus.

The petitioner, Thomas Kelly, stands committed for trial upon mittimus, issued by the commissioner of this court. upon the charge that, on October 29, 1895, he assaulted, with a dangerous weapon, one Patrick Coghlan, with intent to kill and murder, at Northwestern Branch National Home for Disabled Volunteer Soldiers, "a place ceded to, and then and there being within the exclusive jurisdiction of, the United States," and in said district, in violation of section 5391, Rev. St. U. S. The place of the alleged offense is within the boundaries of Milwaukee county, in the state of Wisconsin, and is the locality referred to and described in chapter 275 of the Private and Local Laws of Wisconsin for 1867, entitled "An act ceding jurisdiction to the United States over certain lands in Milwaukee county, state of Wisconsin, and to exempt said lands from taxation,” which provides as follows:

“Section 1. That jurisdiction over the snveral tracts of land hereinafter mentioned, be and hereby is ceded to the United States of America, to wit: All those certain tracts of land in sections twenty-six (26) and thirty-five (35) purchased by the United States of America for the purpose of locating a National Asylum for Disabled Volunteer Soldiers,' said several tracts of land lying and being situate in townships seven (7) north, of range twentyone (21) east, in the town of Wauwatosa, in the county of Milwaukee and state of Wisconsin, and including all other tracts or parcels of land which shall be hereafter acquired or purchased by the United States for the purpose aforesaid; and all such lands and other property connected with said asylum are hereby exempted from taxation for any state or local purpose whatever; provided, that civil or criminal process issued from courts in the state of Wisconsin may be served within the territory hereby ceded."

The record upon this hearing tends to show serious assault by the petitioner, an inmate of this national home for disabled volunteer soldiers, upon another inmate, and within the buildings erected and maintained for the home. This institution is one established under the provisions of an act


of congress, approved March 21, 1866 (chapter 21, 14 Stat. 10), entitled “An act to incorporate a national military and naval asylum for the relief of the totally disabled officers and men of the volunteer forces of the United States," and of acts amendatory thereof, including one of 1873 (chapter 51, 17 Stat. 417), which substituted the term "home" for "asylum." These acts established a corporation under the name of the “National Home for Disabled Volunteer Soldiers," constituted of a board of managers, which included the president, secretary of war, chief justice, and nine other members, elected by congress. Among the powers conferred they have perpetual succession; may take, hold, and convey real and personal property; "may make by-laws, rules, and regulations, not inconsistent with law, for carrying on the business and government of the home, and attix penalties thereto." Rev. St. 88 4825, 4826. They are empowered to appoint a governor and other officers for such home, procure sites, and erect buildings. Certain fines and stoppages of pay against officers and soldiers are appropriated, and the board are authorized to receive donations for the benetit of the home. All inmates are "subject to the rules and articles of war, and in the same manner as if they were in the army." Rev. St. $$ 4829 835. The grounds in question occupied by this Northwestern Branch were purchased by, and the title taken to, the corporation, under the authority of the acts of congress referred to. Therefore, title is not, at least nominally, vested in the United States, but the means for the purchase and for the erection of the buildings were furnished by congressional appropriations, and support and maintenance has come mainly, if not wholly, from the same source,

Rublee A. Cole, for petitioner.
J. H. M. Wigman and F. P. Van Valkenburgh, for respondent.

SEAMAN, District Judge (after stating the facts as above). The courts of the United States are peculiarly of limited jurisdiction in criminal cases. Common-law crimes, as such, against the general government do not exist, and the judicial power can be exercised only over offenses which are declared and “made punishable by the constitution, laws, or treaties of the United States," resorting to the common law, when necessary, "for the definition of terms by which offenses are designated.” Pettibone v. U. S., 148 U. S. 197, 203, 13 Sup. Ct. 542. This view of the absence of a common-law jurisdiction, and that the cognizance of the federal courts respecting crimes was confined to acts which were made criminal by the legislative au. thority of the Union, was pronounced by the supreme court in the early case of U. S. v. Hudson, 7 Cranch, 32, and the doctrine has been constantly maintained by that court, although frequently assailed there and questioned by text writers. In that case it is fur. ther asserted that the same authority must "declare the court that shall have jurisdiction of the offense.” The crime with which the petitioner is charged is not specifically designated in any act of congress, but it is alleged as in violation of section 5391, Rev. St. U, S., which reads as follows:

“Sec. 5391. If any offense be committed in any place which has been or may hereafter be, ceded to and under the jurisdiction of the United States, which offense is not prohibited, or the punishment thereof is not specially provided for, by any law of the United States, such offense shall be liable to, and receive, the same punishment as the laws of the state in which such place is situated, now in force, provide for the like offense when committed within the jurisdiction of such state; and no subsequent repeal of any such state law shall affect any prosecution for such offense in any court of the United States."

« НазадПродовжити »