THE ACTIVE. THE OCEAN WAVE. (District Court, S. D. New York. October 25, 1884.) COLLISION-TUG AND TOW-RUNNING NEAR TO PIERS BETWEEN OTHER VESSELS. The tug A., with the barge O. W. in tow on a hawser, came down the East river against the tide about 200 feet from shore, and ran between two schooners, which were about 100 feet apart, the outer schooner being also about 100 feet farther up the river. The barge, after rounding past a projecting pier farther up streami, was obliged to port her helm to clear the upper schooner, and she was afterwards unable to stop her sheer in time to avoid running into the lower schooner. Held, upon the facts, that the tug was in fault for navigating so near the piers, and also for needlessly attempting to pass between the two schooners, and should pay the whole damage. In Admiralty. Benedict, Taft & Benedict, for libelant. Alexander & Ash, for the Active. Edgar Swain and J. A. Hyland, for the Ocean Wave. BROWN, J. The steam-tug Active, having the barge Ocean Wave in tow upon a hawser of about 20 fathoms, in coming down the East river against the flood-tide, instead of proceeding near the middle of the stream, as required by law, was going near the New York shore for the purpose of availing herself of the slack water. Thus her course lay between two schooners, the J. W. Huston and the libelant's schooner, the Wm. Blakeley. The wind was north-west, and both schooners were engaged in heaving by windlass towards the New York shore, the Blakeley being about 100 feet nearer the shore than the Huston. The tug passed about midway between them, but the barge, in coming around the Twenty-sixth street pier, which was considerably longer than the one below, found it necessary to port her helm in order to avoid coming in contact with the bowsprit of the Huston. Before her sheer could be fully broken, though her helm was immediately starboarded on clearing the Huston, she ran upon the starboard quarter of the Blakeley, which was only about 100 feet below the Huston. Having the whole middle part of the river clear, where she was bound by law to go, I must hold the tug in fault for proceeding as she did near the shore, and undertaking to thread the gauntlet of other vessels there lying in her way. She had no right to impose this hazard upon the tow. The available space between the two schooners is not estimated to be above 100 feet, and the fact that one was below the other, and that both were below the projection of the Twenty-sixth street pier, added to the difficulties of navigation imposed upon the barge. The primary fault being clearly in the tug in selecting such a channel, instead of pursuing her proper course in the middle of the river, only clear proof of neglect or of very unskill ful handling on the part of the barge could justly charge the latter with contributing to the collision. The evidence on this point against the barge is by no means clear or satisfactory. The time and space available for her maneuvering were both small, and almost approach the situation recognized as a situation in extremis, in which even erroneous handling at the moment is not deemed a fault, when the situation is brought about by the wrong of another. But it is not even clear from the testimony that the barge omitted anything she might have done, or did anything she ought not to have done, in first avoiding the Huston, though she afterwards came in contact with the Blakeley. I must therefore charge the whole loss upon the Active, and allow a decree against her, with costs; while as to the Ocean Wave the libel should be dismissed, with costs. THE OCEAN EXPRESS. (District Court, S. D. New York. November 3, 1884.) 1. PILOTAGE-LIBEL FOR FEES-DUTY OF PILOT. Upon a claim of fees for pilotage against a vessel which had left before the pilot arrived, held, that it was the duty of the pilot to be on hand at high water, and that, in his absence at that time, the vessel was justified in departing without him, and the libel was therefore dismissed. 2. ADMIRALTY PRACTICE-COSTS. Costs disallowed where the libel is dismissed upon grounds not pleaded. In Admiralty. Beebe, Wilcox & Hobbs, for libelant. Jas. K. Hill, Wing & Shoudy, for claimants. BROWN, J. I think it was the duty of the pilot, the libelant, to be on hand at high water on the morning of February 15th, when the Ocean Express was to be piloted to sea. His own testimony, aside from his statement of the hour of the time to sail,-8 o'clock,-tends to confirm this view, which is sustained by the evidence of the captain and the draught of the vessel. The libelant's testimony would seem to indicate that he considerably mistook the hour of high water, which was, in fact, a little before six. The vessel, with her deep draught and in Newtown creek, was not bound to wait for him, and upon this ground I think the libel must be dismissed. But as this particular defense was not set up in the answer, the dismissal must be without costs. POPE and others v. CHENEY and others. (Circuit Court, S. D. Iowa, C. D. October Term, 1884.) REMOVAL OF CAUSE-FAILURE TO FILE TRANSCRIPT-SECOND REMOVAL. If a party exercises his right to remove a case into a federal court, and, by filing the requisite petition and bond, deprives the state court of jurisdiction, and confers it upon the federal court, and through his own fault he fails to file the transcript in the United States court, and, after a delay of a year, procures the redocketing of the cause in the state court, and fully recognizes the jurisdiction of that court, he cannot be allowed to remove the cause again to the federal court on another ground than that first alleged, when his delay is not excused, and it is not shown that such ground did not exist at the time of the first removal. Law. Motion to remand. Wright, Cummins & Wright, for plaintiffs. E. J. Goode, for defendants. SHIRAS, J. This cause was removed from the circuit court for Polk county, Iowa, and is now before this court upon a motion to remand, filed by the defendant Cheney and intervenor Porter. The record shows that the action was commenced on the third of November, 1881, and that on the fourteenth day of October, 1882, the plaintiffs filed a petition for the removal of the case to the United States court, on the ground that plaintiffs were citizens of the state of Illinois, and the defendants citizens of Iowa, the amount in controversy being in excess of $500. On the twenty-fifth day of October, 1882, the state court approved the bond and ordered the transfer of the case to this court. The plaintiffs failed to file a transcript in this court under this petition and order, and on the thirtieth day of October, 1883, the case was redocketed in the state court on the motion of plaintiffs, and placed upon the trial calender, and several motions touching the pleadings were submitted to and passed upon by the state court. On the twenty-ninth of September, 1884, the plaintiffs filed a petition, affidavit, and bond for the removal of the cause into this court, on the ground of local prejudice, and, the state court approving the bond, thereupon the plaintiffs filed the proper transcript in this court on the twenty-first of October, 1884. The defendant and intervenor now. move to remand the case to the state court upon the ground that by failing to perfect the removal of the case under the first application, and after the lapse of a year, causing the case to be redocketed in the state court, and having fully submitted the case to the jurisdiction of the state court, plaintiffs have waived or lost their right of removal to this court. In the case of St. Paul & C. Ry. Co. v. McLean, 108 U. S. 212, S. C. 2 Sup. Ct. Rep. 498, it appeared that the defendant had removed the cause from the state to the federal court, but failed to file a transcript in the United States court on the first day of the term, it being filed on the third day. The United States circuit court, on mov.22F,no.3-12 tion, remanded the case, and thereupon the defendant promptly filed a second petition for removal, upon the same grounds that were set forth in the original petition, and at once filed the transcript in the United States court. The cause was again remanded, and the supreme court held that "when the circuit court first remanded the cause, the order to that effect not being superseded, the state court was reinvested with jurisdiction which could not be defeated by another removal upon the same grounds and by the same party. A different construction of the statute, as may be readily seen, might work injurious delays in the preparation and trial of causes." In the case at bar the second removal is sought by the same party, but not wholly upon the same grounds. The right of removal of a cause from a state to a federal court is a mode of enforcing the right of citizens of different states to submit causes between them to the decision of a court of the United States. The statutes regulating this right of removal define the circumstances under which the right may be exercised; yet the ultimate object of the several provisions is the same, to-wit, the enabling litigants who are citizens of different states to submit the controversies pending between them to the decision of the federal tribunals. When a citizen of Illinois, for instance, is sued by a citizen of Iowa, in one of the courts of Iowa, for an amount in excess of $500, the cause is one within the jurisdiction of the United States courts, and under the existing statute it may be removed into the federal court of the proper district. The right of removal conferred by the act of congress is intended to enable the party entitled thereto to remove the cause into the federal court, and if the party exercises the right, and, by filing the requisite petition and bond, deprives the state court of jurisdiction and confers it upon the federal court, then the litigant has enjoyed the benefit of the right of removal, and if, through his own fault, he fails to file the transcript in the United States court, and after the delay of a year he then procures the redocketing of the cause in the state court, and fully recognizes the jurisdiction of that court, should he be again permitted to remove the case into the federal court? The case of St. Paul & C. Ry. Co. v. McLean, supra, declares that the same party cannot remove the case upon the same grounds, the reason assigned for the ruling being that a different construction of the statute might work injurious delays in the preparation and trial of causes. Does not the same reason apply, even though the second removal may be asked for upon a different ground? So far as appears in this case, when the plaintiffs herein first petitioned for a removal, they could have made the application and obtained the removal under either section of the statute. It is not shown that there has been any change of circumstances, or in the facts connected with the case, or that the local prejudice or influence now complained of did not exist when the first removal was petitioned for. The plaintiffs had the right to remove the case. They did in fact remove it, and deprived the state court of jurisdiction for a full year. They then caused the case to be redocketed in the state court, and then, in about a year after this was done, they again petitioned for a removal of the case, assigning as a reason the existence of local prejudice. No reason is given for this delay; nor is it shown that the local prejudice complained of has arisen or come to their knowledge since the redocketing of the case in the state court. It is apparent, if it be held that the right of removal exists absolutely, under such circumstances, that parties will be enabled to use the right of removal which is conferred simply to enable parties to transfer cases into the federal courts for trial, as a means of delay' and protracting litigation to the manifest injury of the other parties in interest. Under such circumstances, we think the federal court should refuse to entertain jurisdiction of the case. Motion to remand is sustained. OLYPHANT v. ST. LOUIS ORE & STEEL Co. and others.1 (Circuit Court, E. D. Missouri. November 8, 1884.) 1. MORTGAGOR AND MORTGAGEE-PAYMENT OF EXPENSES PRIOR TO APPOINTMENT OF RECEIVER. A court has power, in a suit for the foreclosure of a mortgage upon the property of a corporation, to order its receiver to pay employes of the company in full for services rendered within six months before his appointment. 2. SAME-COSTS OF LITIGATION. It is not the duty of a receiver appointed in a foreclosure suit to repay costs incurred by the plaintiff in the litigation, while such litigation remains pending. In Equity. Foreclosure suit. Exceptions to master's report concerning certain claims allowed by the receiver of the St. Louis Ore & Steel Co. The third exception referred to in the opinion of the court relates to the following item: "August 1, 1884. Paid voucher, ac. O. L. Garrison, secretary, $250,"-which represented salary due Mr. Garrison, formerly secretary of said company and now secretary of its receiver. It is objected to because it includes services rendered to the company for a short period of time immediately preceding the appointment of the receiver. The claim was allowed pursuant to the order appointing a provisional receiver, dated July 21, 1884, providing "that the receiver may proceed to pay all just claims and accounts for labor, supplies, professional services, salaries of officers, and employes for said steel and ore company that have been earned or have matured within six months before the making of this order." The other exceptions relate to the deposit of $250 with the * * 1 Reported by Benj. F. Rex, Esq., of the St. Louis bar. |