FEDERAL RJl:PQRTER,
vol. 48.
sufficient time to,do ·so,.; Jl'he absence of sailing lights could only have'misled the tug as to the direction in which the schooner was moving;apd., ,on the hypOthesis that the lookout and pilot of the tug were thus D;listaken, the tug's shows that she failed to do what was necessary effectually to keep out of the way. I take the case as it actually was,-that of a steamer and sail-vessel such dirootions as to involve risk or collision. In that proceeding case the law J,"equires ,the sail-vessel to keep her course, (rule 23,) and the steamer to keep out of the way ,Qf the sail-vessel, (rule 20.) It il!! not.denied---it is provec:l,..-that· the schooner complied with rule 23. She did keep her course. The steam,er, on the other hand, did not keep contrary, ran into and sank the schoonerj out of the way, but, and that in open sea, after the schooner had been seen for from one and a half to two minutes,,..-seen when at a distance of from 500 to 900 ; The testimony of the pilot is that he could turn. his boat 8:wund in the sPilce of 100yardsj thatln this case he could have cleared the schooner in apout a hundred yards; indeed, that he could have,cleared the·schooner ill three points of the compass,-that is to say, in 3-32 of a complete circuit of 100 yards diameter. If, then, they saw the schooner one and a half to two minutes, or from 500 to 900 yards pff, and yet tan into her, how can I be expected to hold otherwise than that the tug was in fault. and must be held for the damages resulting from this collision? I will so decree.
THE THINGVAu'A.
,I'll. re '.
,,' of
THINGVALLA.. " -
-
Second Otrcmit.
,
"
December 14, 1891,)
i. ..' 2.
On an issue ajl to whether a before a colllsion, showed a white light at her mast-head, the positive testimony of witnesses that the light was proper1y burnin!l" there immediately before and after the collision is Dot outweighed by testimony of witnesses on the other vessel that they did not see the light, nor by the '.' , ,suggestion that *e light was so hung as to renderit liable to be obscured by the , foretop-mast stay-sail. , , · , i',
On tbe qU'estroti as to the proper placing of the mast·head light of a steam-ship, ·her,f1.rst offi(ler, ",ben "How far off Qanyour lights be seen at nightl" answered, "You can see about 8 miles off,-the head-light; that mast i820 feet high." Held, that the part of the answer relating to the height of ' the mast was not responsive, and, being the only evidence relied on for tbe pUqlose, was insufficient to show that thEl light was not placed at a height above the deck of 46 feet, the width of the'beam. ' The ste):UD.-ship 'l'lIingvalla. when in mid-ocean, discovered the white light and both side lights of an approaching steam-ship. the Geiser, so situated as to indicate to the naVigator of the Thingvalla ·that the· two vessels would meet end on, ,
OF
MAST-HuD LIGHT-EviDENOE.
" ,
II.
SAIIlE-STEAM-8mpS' MEETING.
0"
THE THIN CiVALLA..
765
nearly so. The Thinj5-!alla altered her course to starboardtn order to keep out of 'he way, and continued to swing to starboard, although the red light of the Geiser ,that she was swinging in the samedireotion, until, although disappeared, 'he engines of both were reversed, they came into collision. Held, whether the two vessels were meeting end on, or on crossing courses, in either case the ohange of course of the Geiser was in violation of rules 16 and 28, requiring her to port, if meethig end on, and to hold her course if on crossing courses; and that. as the nav· igator oftbe Thingv'alla did not know but that the Geiser would change her course so as til conform rules, she wunot in fault for not changing her courae to port 88 soon a8 he SBW the mistaken maneuver of the Geiaer. Fed. 831, afllrmed.
Appeal from the District Court of the UnitedStates for the Eastem Dis. York.' , triet of Petitioll by the Dampskibsselskabet Thingvalla'(Thingvalla SteamShip Company) for limitation of liability for loss caused by collision of the steam-ship Thingvalla with the steam-ship Geisl'lr. Certain insurance companies and others interested in the cargoes lost, caused themselves tci be entered as respondents to the petition, and, from a decree tn favqr of the, petitioner, appeal. Affirmed. SidrieJl Ohubb, for appellants. E. B ·.. Om.vers and J. Parker Kirlin, for appellant Hilda Lind. Harringtoo Putnam, for appellee. Before WALLACE lUld LACOMBE, Circuit Judges. LACOMBE, Circuit Judge. The petitioner, 8 Danish corporation, was the owner' of tW9 steam-ships, the Geiser and Thingvalla, which collided onthe highseas, not far from Sable island, on August 14, 1888. The Geiser sank almost immediately in deep water, the steamer and hElrQargQ,beil)g totally lost,. The Thingvalla's bow was smashed in, but, by cal;eful management, she was navigated, stern first, into HalifaJ!:, N, petitioner's interest in the Thingvalla and her pending was duly appraised at $64,680.66, has been depositedi'n the for the eastern district of New Y9rk. Thepetitio;ner, claiming. the collision occurred through no negligence of those in .'l'hingvaUa, prayed to be 'decreed free from responsibiloccasioned by the collision. Several insurity for tl,le1oss or ance' compa,riies, and' others, interested in the cargoes laden the ap.peared and joined, issue with the allegations of the petition, contend,ing that the cql1ision was caused by the fault of the Thingvalla. c,ourt held the Thingvalla free from fault, and that the peThe titioner to the benefit of the limitation of liability, provided for in the act of 3,1851, and its amendments. Appeal was taken to the circtlitcourt, which affirmed the decree of the district court, and certain of respondents appealed to this court. 42 Fed. Rep. 331. ·The about 4:30 A. M. It was dark, the weather being 'clotid,y,with l;1 Httlerain, but there was no fog, nor sucb degree of haziiiess,as would prevent vessels from seeing each other's lights at a easily to maneuver 80 as to avoid one As to sufficient The the naviglltion of both steamers there' is no particular Geiser'#a$ diitward bound, on a courSe of R; l S. lllagneticj the ThingI
FEDEHALREPoRTER,
of" r S., a littlEl more,.. magThe Thingvalla.clll'tied some'()fher sails,··including.thejib and the foretop-mast stay:':s'ail. Her lights andburliing. The nayigating officer of . the Thingvalla,-her first officer,. J ens. Petersen,---seeipg the Geiser's head-light,':ll-pdt idler, her two side lights·. bearing on his'portbow, to the engme-room to "stand by." As the naVIgatIng officer of the Geiser-her first officer, Brown-went down with his ship, we are with· out, positive informationJtS to whatlie:htshe saw and navigated to. Her lookout, who was also' 'drowned, reported a light on her'port bow. 'Her third officer, J. DuusJ'etersen, who wJtS on the bridge \yi'th Brown, the navigator, says it b'ore'abollta quarter of a point on the port bow. His glance at it was butmQmetitary, as be at once stooped dovvnto open the valve to let more steam ii:1to the steering took the light to be avessel's side light, but could not be qertain whetheritwas green or red. When he rose, after manipulatingtbe valve, hesawitwJ1s a steamer, and saw both side lights about right abead. As soon as the lookout reported the lights, ,Browuand thi,rd pfficer walked to the port side of the bridge, looked at ahel the, former immediately gave the order, "hard a-starboard. ", The ThingvaHa soon lost the red, light of the other steamer, and, realizing tbat there was risk of collision, her navisignaled to the engines, "stop, full speed ordered the helm hard a-port. Realizing the :risk of collision, the navigator of the Geiser also ordered her engines, "full astern." The wheeis of both steamers ke'pt at port and starbqar'd, respectively; without change, both vessels SWinging to the northwa:rd. and corning into collision, the Thingvalla striking the Geiser on her starboard side, just abaft' the main. The respondents insist·· that a primary. cause of the collision was the i'rnproperposition of the Thingvalla's white lightithat it did not show 'properly. Two of the Geiser's watch on deck at survivedthe disaster. One of them, a boy, was 1\ot in the employ of the petitioner at the time of the trial, and was not called. The other was her third officer, who, as stated above, 100ked.Rt the reported tightso hastily that he was unable to say whether it was red or green, and "does not re:member to have seen her top light." A passenger who first Saw the Thingvalla after the collision, having backed out, was about 1,500 feet aft, saw only her red and green was. then dayi:>reak. It is argued that, because the lookout of the Geiser reported "a light," and not "a steamer," he could not have seen the white light. And the same is urged as to her first officer, who was a: competent navigator, and whose orders can be accounted for only on the theory that he did not know it was a steamEl;r 'to which lle was maneuvering. But the master of the Geiser saw light when he was called on deck, just before the collision, saw .it again when she was backing away, and again when he was swimming. The second officer of the Geiser also saw it, as llboard the Thingvalla,
THE THINGVA.LLA..
767
after the collision. And the evidence from the Thingvalla shows that the white light waa there and properly burning. It hung on the. top-mast stay. The captain saw the reflection on the foretop-gallant stay, and her first officer testified to the same effect. There is no evidence to show that the light was so hung relatively to the foretop-mast stay-sailthlltit was liable to be obscured thereby, and a meresuggespossibly be the fact is not sufficieqt foundation for tion thatsucll ajudgmenfthat there. was a failure to show a mast-head light, through of the Thingvalla. As the learned district judge remarks: "It JIligh" also be suggestelithat some sudden daah of rain obscured the testimony as to the presence of the Ught is not toPe by mere inferences, where the single witness, who a. to seeJhe white light before the coUision, is unable to say the light he.did soo was green or red, and the extent ·of .is not remember to have seen.the white qo oc<;asion to lQokfor it," whenhe:l>tood up after as. then saw the steamer itself. It is C()ntended thlltthe white light was improperly placed, in that it :WR!!I pot 20feet above the <Jeck, when it sho:uld have been upwards of iwhich is her. beam. Thl3 first officer of the 'fhillgvalla was asked: "Question. How far off can your lights be seen at. night? Answer. You' can see about eight miles off,-the that mast is Other than this there is no evidence in the case as to. elevl11;i9D apove the hull.,. The latter part of the answer was irrespon. qpestion, and onJybyinference applies to the light. It was sive tq not fastened to the foremaat, npreven to thejib stay,which leads to the foremast-head, but to the foretop-mast stay, and how high up on that stay it was fastened nowhere appears. We do not think there is sufficient evidence to warrant a finding that the light was set lower than the rules required. Nor can the Thingvalla be held in fault for porting. Her navigator saw a white light and both side lights, indicating an approaching steamer, so situated as to have her (the Thingvalla) ahead. He saw those lights, as he judged, about half a point on the port bow, a position from which (as the side lights overlap a half point) the three lights of the Thingvalla would be visible to the approaching steamer, indicating to her that the Thingvallahad her (the Geiser) ahead. As the situation appeared to him, the steamers were meeting end 011, or nearly so, and article 15 required him to alter his course to starboard. The respondent's counsel has argued most elaborately and ingeniously that the navigator of the Thingvalla was mistaken as to the situation j that the vessels were in fact on crossing courses, the Thingvalla having the Geiser on her starboard bow. If that were so, article 16 required the Thingvalla to keep out of the way, and allowed her to do so by altering her course to starboard, if that would accomplish the object, the Geiser holding her course. If the situation was as respondents claim, the Thingvalla was not in fault for porting. But it is further contended
FEDERAL .' REP6RT'ER,
that the Thingvallo':should have stopped her swing to starboard, and of'th(H1eiser's swung to port, as soon"as she saw ,by the red light, that she llwinging to'starboard, and thai there was risk of collision. There is little to add to the comments of the learned 'district judge ,on this contention. Looking at the situation after the evenl,it may be apparent that-such a change of course would have avolded·.the collision; butithe'Thingvalla's navigation must bejudged 'PY tbe knowlWHetHer they were edge sbe had,: or' ought to bave bad; at the meeting, as her naviga.tor believes, or ctossing, as the 'respondents colitend, .thedisappearapce· 'Of her red light sbowed tbat; the Geise,r. was changing her course in violation of the rules, wbich iIi"the olie case requited ber to port,and in the other to hold her course.' Whether or nbt"she would real1zethtit fact, andaIter her helm accordingly, the navigatol'of the Thingvalla could not know. An attempt 'on his bwn part to'abandonthe course, which the rttles enjoined upon him' in the one case, and permitted 'him in the other,might, so far as be'ik!new; tend to produce the very mishap it was intended to avoid, bycrlloperating with a belated effort on. the part of the Geiser to return -to 'her true course, and he cannot, therefore, be held in fault for n'ot taking the chance. He did what the ruleS' required of him, when, seeingthe'm'istaken ma':." neuver of the Geiser, he stopped and reversed. ThertHs nothing in the suggestion of improper speed !lr insufficient to avoid lookout. The vessels sighted eachothei ilt collision without any difficulty, had there not been improper navigatior offthe Geiser after The decree is affirmed, 'with: costs of this appealto the petitioner against the appellants.
-:1
SOUTHWESTERN TELEGRAPH
&:
TELEPHONE CO.
tI.
ROBINSON.
769
(SOUTHWESTERN 'l'ELEGRAPH & TELEPHONE CO.
v. ROBINSON. '
(Cwcuit Court of Appeals, li'iJ'th OIircuit. November 27, 1891.)
L
.
ApPEAL-JURISDIOTION. OF COURT BELOW-REOORD-REMOVAL OF CAUSES.
s.' SAME....Rml:OvAL OF
When a caUse has be.en removed from a state to a federal circuit court, and thence carded to .the circuit court of appeals, the jurisdiction of the circuit court must appE\ar affirmatively upon the record, otherwise the judgment will be reversed, with directions to remand to the state court. An averment of rElsidence is not equivalent to an aVerment of citizenship under the removal of causes acts; and, where the cause is of a character which is only removable hecause of diversity of citiZenship, an averment· showing diversity of residence only is insuffioient to sustain the jurisdiotion of. the federal oircuit oourt· CAUSES-DIVERSE CITIZENSlIlP-"RESIDBNOE."
... BAM.E-REVERSAL-JuluSDIOTION-COSTS.
. When a oause is brought from the cirouit oourt to the cirouit court of appeals :by the defendant, who removed it from a state court, and is there reversed, because' the record fails to show jUrisdiction in the oircuit court, the defendant should be taxed witb the oosts.
Error 'to the Circuit Court for the Northflrn metrict of Texas. ReVersed. . John W. Wray, for plaintiff in error. M. L. Orawford, for defendant in error. Before PARDEE, Circuit Judge, and LOCKE and BRUCE, District Judges. PARDEE, J. The record shows a suit brought in the district court of Cooke county, state against the Southwelltern Telegraph & Telephone Company to recover damages suffered by the plaintiff through the negligence of the defendant. The suit was afterwards removed by order of the state court to the United States circuit court for the northern district of Texas. Upon what grounds the removal was made pear. one, however, in which the jurisdiction of the circuit court must depend upon the citizenship of the parties. The petition filed in the state court commences as follows: . "Yourpelitioner. J. B. Robinson, a resident of Cooke county, Tex., complaining of tbe South westei'n Telegraph & Telephone Company, a private corporation, incorporated under the laws of the state of New York, but doing iQ. the state of Texas, baving a legal office at GaillesviHe,CpQke county, respectfully rep,resents, etc. Beyond this in the record there is no averment or showing as to citizenship 6f the parties. The jurisdiction of the circuit courts must pear affirmatively in the record. insurance 00. v. Rhoads, 119 U. S. 237,7 Sup. Ct. Rep. 193; Timmons v. Land Co., 139 U. S. 378, 11 Sup. Ct. Rep. 585. "Where the jurisdiction of the circuit court does not appear in the record, the appellate court will, on its own motion, notice the defect, and make disposition of the case accordingly." Railway 00. v. Swan,. 111 U. S. 379, 4 Sup. Ct. Rep. 510; Everhart v. Huntsville Oollege, 120 U. S. 223,7 Sup. Ct. Rep. 555. "It is well settled that an averment of residence is not the equivalent of an averment of citizenship in the courts of the United States." See Menard v. Goggan, 121 U. S. 253, 7 Sup. Ct. Rep. 873, and cases there cited. "Whel1ftsuit v,48F.no.l0-49 It
