THE 'POMONA.

815

in the other testimony indicating that ,th,eir'evide1l.Ce in that respect is incredible. The America held on the course which would take hedrom the fourth situation, where she was, to the right of the other, as required by inspectors I 'rule II. She slowed while awaiting an answer to her single whistle, and reversed when the chauge of lights and, two-whistle signals of the Talisman indicated that the latter was about to disregard the rules, and navigate so as to involve risk of collision. The America therefore fulfilled her whole duty, unless she was also bound, as the,district judge found, to starboard her wheel as soon as the Tali,sman indithat cated an intention to cross her bows. It has been repeatedly there is no such thing as right oJ way to run collisions, of the situation after the event no doubt shows and a careful that, had the America changed her course by starboarding, the collision might have been avoided. 'In determining, however, whether or not it was faulty navigation' ,not to make such change, the Bituation must be from the point of view of the individual w1W is first called upon to decide the question. ' Rules prescribing courses are enacted for of avoiding collision, and are framed on the itheory thata scrupulous .adherence to them will reJ;lder such a mishap impossible. Before a navigator departs from a, rule directing' him, t,o hold a particu,Jar course, the existing situation should afford reasonable assurance that such a change will prevent an accident otherwise imminent, and will not itself tend to produce the very mishap it was intended to avoid by cooperating,witha belated effort on the part of the other vessel to return to her true course, or to reverse,-an effort induced perhaps by the very ,danger-signal he has given. Tried by this test, I do not think the facts in this caSe warrant a finding that the America was in fault for not shifting her helm to starboard at the moment the lights and whistles of the Talisman indicated an intent to cross her bows. The Talisman is there, fore solely in fault. Decree accordingly, with costs.

THE

LOUISIANA

POMONA. 11.

& T. R. & S. S. Co.

THE

POMONA

AND

HER

CARGO.

(District CO'Urt, D. Soutl& Carolina.

OF AWARD. , ' "

March 2, 1889.)

'

Where a rescue Is made by a steam-ship, and there Is no danger or risk or ttouble to the crew, and $2,000 are awarded as salvage, inclilding the charge for a tug, the owners should be awarded four-tifths of ·. ' And the master having undertaken the service on his own responsibility. and having been commended for it, is entitled to $200. The remainder should be divided am9ng the other officers and employes.-the steam-ship having no passengers,-in proportion to their wages.

In Admiralty.

On distribution of an award for salvage.

816

FEDERAL REPORTER;

vol. 37.

Barker, Gilliland &- FitzsimonB, for libelant. T. M. Mordecai, for claimant.
SIMONTON, J. By decree filed 29th January,.1889, libelants were al. lowed as salvage $2,000, including the charge of the tug for towing the Pomona over the bar into the harbor of Charleston. The PO'llWna, ante, 444. The only remaining question is as to the distribution of this sum among the salvors. The crew of the steam-ship New York have intervened, setting up their claim for part of the award. Under the rule once prevailing in admiralty, the owners of the salving vessel could not receive more than onecthird of the award, (The Blail'eau, 2 Cranch, 240; The Henry Ewbank, 1 Surnn. 426; The Cora, 2 Wash. C. C. 80;) unless there were unusual circumstances of peril to the salving vessel, (The Henry Ewbank.) In The Island City,l Black, 129, it seemed to be admitted that where thesalvin'gvessel was a steamer, and so capable ofrendering tlge most efficient aid, her proportion should be greater; and this is recognized in The Raikes, 1 Hagg. Adm. 246; The Earl Grey, 3 Hagg. Adm. 363; The Beulah, 1 W. Rob. 477; The William Penn, 2 Hughes, 2 Hughes, 99, decided by Judge BRYAN, late 144. In The a. W. judge of this referee, before his court was organized, in 1866, the question was considered, and the proportion of the salving vessela steam-ship-inthe award was raised to three-fifths. In The Leipsic, 5 Fed. Rep. 108,Judge CHOATE, of New York, had this question before him. ' The circumstances of that case were almost the same as' in the case of The Poinona:A disabled because of a broken shaft, dependent upon her sails; which were uninjured, was rescued by a passing steamer; there being no, present imminent danger to the salving vessel or her crew, the essential feature of the service being its prompt and effi.-· cient action. Judge CHOATE allowed the salving steamer three-fifths of the award. He adopted the same rule in The Adirondack, 5 Fed. Rep. 215. In the present case there was no danger, or risk, or extra trouble to the crew. The service was by the ship entirely. The loss of time was hers only. I will increase the proportion, and make it four-fifths. The next question is as to the apportionment among the officers and crew. New York, upon his own responsibility, undertook the The master of service. He has been cotilmended .for it. Following the cases, espeI cially the two of Judge CHOATE and The Henry Ewbank, supra, let the , master of the New Yark have $200. Let the remainder of the one-fifth be divided among the other officers and the persons employed upon the steam-ship :!"Tew York, (s:b,e had no passengers) ili the proportion of the ,. wages received by them; the counsel fees of this suit to libelant's proctor to be charged on the fund.

BELDING v. GAINES. BELDING
(Clirouit (lourt, E.

'IJ. GAINES

817

et

aLl

n. A.'1'kanaaa.

March 1, 1887.)

COURTS-FEDERAL COURTS-CITIZENSHIP-COLLUSlVE JOINDER-P ABTITION.

Complainant, a citizen of Texas, the heir of B., sued his co-heirs, citizens of Arkansas, claiming from the first defendant, who had obtained the legal title to the ancestor's property, a one-fourth interest, and from the other two defendants, partition. The last two defendants filed a cross-bill, claiming separate ownerships of one-fourth interest, and also partition. Held that, although the interests of the last two defendants and that of complainant were the.same as against defendant who claimed the legal title, their interests were not so identical in other respects as to require their being joined as complainants; and a plea in abatement to the jurisdiction on the ground that they were Collusively made defendants to give the federal court jurisdiction, should be overruled.

In Equity. On plea in abatement to the jurisdiction. U. M. &- G· .8. Rose, for plaintiff. Jf. W. for defendants. Before BREWER and CALDWELL, JJ. BREWER, J.Thecomplainant is a citizen of Texas, the defendants ali citizens of Arkansas; prima facie, therefore, this court has jurisdiction. 'But these facts appear, and upon them a plea in abatement to the jurisdiction has been filed. One Belding died, having the equitable title to a :tract Of land in Arkansas, and leaving four heirs. One of them, a defendant herein, obtained the legal title. The complainant is one of the as against such defendant a one-fourth heirs, and files this bill interest in the property, and as against all the defendants- the other heirs being made defEmdants-partition. Such other heirs file a cross· bill, claiming their separa.te ownerships of one-fourth interest, and also asking partition. It is insisted that the interests of these two defendants are the same as those of the complainant, and that they are collusively joined as defendants for the purpose of giving this courtjuriildiction; that the court should ignore the action of the pleader, rearrange the 8tatUS of the parties litigant, and place such last-named defendants on the side of the complainant; and, so placing them, there would be a suit between citizens of this state, of which this court could not take jurisdiction. I think thiB is a mistake. It may be true that the complainant and the two defendants are alike interested in divesting the other defendant of whatever light and protection he may claim from holding the legal title, but there their identity of interest ceases. Each seeks to recover for himself, and not for the three jointly, his one-fourth share of the property. Partition implies a setting apart to each owner his hitherto undivided interest, and. each owner has a separate interest in establishing the fact and extent of his title, and in securing his separate share of the estate. Take an ordinal'y law action. There must be a unity of interest, not merely in the subject-matter of the action, but also in the relief sought.
1 Publir.ation

4elayedby failure to obtain copy of opinion at time of its delivery.

v.37F.no.15-52