THE POTTSVILLE. THE JAMES
(District (Jourt, D. Massachusetts. August 7, 1885.)
COLLISIOX-VINEYARD SOUND-STEAMER AND SCHOONER-FOG-TORCH-MuTUAL I!'AULT-DAMAGES.
On examination of the evidence, held, that thesleam-ship Pottsville was negligent in running at full speed in a dense fog in such a thoroughfare for vessels as Vineyard sound, and in failing to stop and reverse when the fog-horn of the schooner James H. Moore was first heard, and that the schooner was also negligent in not exhibiting a torch, and that the damages should be divided.
NELSON, J. This collision occurred in Vineyard sound, three miles west of West Chop, on the evening of the seventeenth of August, The wind was moderate from W. S. W., with thick fog. The schooner James H. Moore was on a voyage from Perth Amboy to Boston with a cargo of coal. She was under mainsail, foresail, and jib, with the wind directly aft. She was making from five to six knots. The Pottsville, a large sea-going steam-ship, was on a voyage from Salem to Philadelphia, light. Her course after passing West Chop was parallel with and nearly opposite to that of the Moore. She was going at full speed, from nine to ten knots. When the two vessels were from one-ninth to one-eighth of a mile apart, the fog-horn of the schooner was heard by the lookout on the steamer, and reported to the pilot; and was also heard in the pilot-house. The sound seemed to those on the steamer to come from over the port bow. By the master's order, the wheel of the steamer was put hard to port, to pass the schooner on the port aide. The speed of the steamer was also reduced ' to one bell. Almost immediately afterwards, within a very short interval of time, the schooner's lights were seen by the steamer's lookout through the fog and reported. The steamer's engine was then put full speed astern, but too late to avoid the collision. She struck the schooner on her starboard side, a few feet abaft the forerigging, cutting her down to the water's edge, and sinking her almost instantly. The crew escaped in the boat, and were taken on board the steamer. The lookout of the steamer was killed by the falling of the foretop-mast, pulled down by the rigging of the schooner. The error of the Pottsville was twofold. Driving the steamer at full speed in a dense fog, in such a thoroughfare for vessels as Vineyard sound, was a violation of the twenty-first sailing rule, which requires steam-vessels to go at moderate speed in a fog. Second, the failure to stop and reverse when the fog-horn was first heard, violated ;he same rule, which requires a steam-vessel, when approaching an-
J. G. Dodge c/; Sons, for the James H. Moore. R. Stone, for the Pottsville.
other vessel so as to involve risk of collision, if necessary, to stop
and reverse. The immediate cause of the collision was evidently the mistake of the lookout and master of the Pottsville, who, deceived by the sound of the fog-horn, apparently heard on the port bow, supposed the approaching vessel was coming on the port side, when, in fact, she was directly ahead, or on the starboard bow. The difficulty of distinguishing in a fog the exact direction from which sound proceeds, is well known to navigators, and this fact should have been taken into account by the master of the Pottsville. This he failed to do, and consequently his.port wheel drove the steamer directly upon the schooner. The exact position of the approaching vessel could not be known, and hence there was risk of collision. In such a situation it was not sufficient merely to slacken speed. He should have stopped and reversed. If he had done this, the collision would, in all probability, have been avoided, or, at least, the damage would have been greatly diminished. The charges against the Moore are that she changed her course, and did not show a torch. I do not think the first charge is proved; but it is admitted that no torch was shown. Her reply is that there was not time to show a torch, and that it would have done no good. There certainly was not time after the Pottsville's lights were first selm, but counting from when her fog-whistle was heard from over the starboard bow, which was several minutes before the lights came in sight, there was plenty of time. It is quite possible that a torch shown on deck would have been seen sooner than the schooner's lights. In that case the Pottsville's engines would have been reversed sooner, and at least the force of the blow and the consequent damage would have been diminished. I think this case must be governed by Judge LOWELL'S decision in The Hercules, 17 FED. REP. 606. There must be a decree for the libelants in each case, the damages to be divided.
ENDY V. COMMERCIAL ErnE INS. CO.
ENDY V. COMMERCIAL FIRE INS. Co. OF NEW YORK.
(Cz'rcuit Oourt, D. Oalifornia.
August 17, 1885.)
REMOVAL OF CAUSE-DIVERSITY OF CITIZENSHIP MUST EXIST WHEN.
A sllit cannot be removed from a state court to anal ional court on the ground of citizensllip, nnrler the act of 1875, unless the reqnisite citizenship of the parties existed both when the suit was commenced and at the lime of filing the petition for removal. Gibson v. Bruce, 108 U. 8. 562, S. C. 2 Sup. Ct. Hep. 873, and Houston rf: l' C. Ry. Co. v. 8hij'ley, III U. S. 360, S. C. 4 Sup. Ct. Rep. 472, :vllowed.
SAME-AMENDMENT OF PETITION.
JicN,!ughton v. South Pac. U. R. 00.19 FED. REP. 883, followed as to right to amend petition in circuit COllrt to show diversity of citizenship, and held, that whl,re the state court has refused to order the removal of a cause on de1ective petition, an amendment is not a matter of right, and will not be permitted.
On Motion to Amend Petition. Crittenden Thornton, for the motion. Eagon If Armstrong, contra. SAWYER, J". A suit cannot be removed from a state court toa national court on the ground of citizenship, under the act of 1875, unless the requisite citizenship of the parties existed both when the suit was commenced and at the time of filing the petition for removal. Gibson v. Bruce, 108 U. S. 562; S. C. 2 Sup. Ct. Rep. 873; Houston d: T. C. fly. Co. v. Shirley, III U. S. 360; S. C. 4: Sup. Ct. Rep. 472. The record in this case does not show the proper citizenship of plaintiff at the time of the commencement of the suit, and the state court therefore properly refused to make an order removing the cause. Plaintiff asks leave to amend his petition in this court in such manner as to show the proper citizenship of the parties to gi ve jurisdiction. In McNaughton v. South Pac. C. R. Co. 19 FED. REP. 883, doubt was expressed as to the authority of the court to allow such an amendment, notwithstanding the ruling to the contrary in some circuits, and the incon venience of the practice pointed out. But, conceding the authority, it was held that such an amendment is not a matter of right, but a matter resting in the sound discretion of the court, and ought not to be permitted. This court is still satisfied with that ruling, and will adhere to it until overruled by higher authority. As shown in the case cited, great embarrassments might result from such an amendment, as, after an amendment in the United States circuit court, the records of both courts would show jurisdiction. The supreme court has settled the point that the state court is not required to let go its hold upon a case till a proper cause for removal is shown by its record. This being so, upon an amendment in the circuit court both courts might regularly proceed to render final judgments that might be different, or even be opposed, and there be no error disclosed by the record of either court upon which the judgment could be reversed. The amendment of the petition is denied, and the cause remanded, witb costs. v.24F,no.12-42