HUMPHREYS V. CHARLES
,A heavily laden sonooner, while being towed to a wharf in a river at ebb-tide, ran aground in a position where, unles!! secured by a stern-line to the wharf be, loW, she would swing, on floating, into a steamer lying at the wharf above. There was some testimony to show that a promise was made by the steamer's master to Ill,ove hil\vessel wpen she floated. Held, as the master of the schooner knew that no watch'had been set on the steamer; and had set no watch onbis own vessel, or made any precautions to avoid a collision, but trusted entirely to some one waking up on the steamer at the proper time to get her. out of the way, he was negligent, andblsnegligence' was not excused by the indeflnite promise of the steamer's lllaBter., Vantin'e v. The Lake, 2 Wall. Jr. 52. ' ,
In Admiralty. , Libelin p61'Sonam by Joseph H. Humphreys, master and part owner oftheateamer Fannie H., against the Cbarles Warner Co., owners of the schooner Sandsnipe, for dam/l.ges for collision, Bradjorct<!c Vandegrift,forlibelant. BmJ. Nield8, for reEiPondents.
WALESi J. The libelant is the master and part owner of the small steam-boat Fannie H., which, on the 10th, of AugUst, 1888, was moored along-side of the city' :wharf On the Christiana river, a short distance west of the foot of Church-street, with herbQw pointing down the river. She was employed during the summer in carrying fruit and, vegetables from the vicinity of Salein.,N.J., to ,Wilmington, and had come in on .the morningofthe day na;med ,between 11 o'clock A. M. and 12)1. Late in the afternoon of the same day, .while was remaining in the position just described"tbe defendant's schOQner, .sundsnipe, loaded with 85 tons of sand, :was towed up the river by a tug, with the purpose of making fast at a wharf below the Fannie H. ,but, the tide being ebb, the schooner ran aground within a few: feet of the flteam-boat. The tug, Mteran unsu.ccessfuL effort to pull the schooner into deeper water, cast loose and \vent. off. Both. the and the s('hooner were now aground; the latter lyingwith her bow somewhat up the river, and at ,aniacuteang].!.'l.with the sttlrhoardsideof the former,! The schooner's out towards the channel. A bowline wasllunffr:om the schooner across the bow of the Fannie H., alld made fast.to,apost onthewhnrf below. The vessels were not more than 40 feet apart, and, from their relative positions, it was inevitable that when the schooner should float, on the next flood-tide, she would swing around, and run into the boat, unless some precautions were taken to prevent the collision. The libel alleges that the necessary precautions were not taken by those in charge of the schooner, whose duty it was to make them, and that the collision, whkh occurred on the rising of the tide, was in consequence of their neglect; and hence this suit by the libelant and other owners for the injury sustained by their boat J and for the loss of freight while she was undergoing repairs.
HUMFHREYS 'l1. CHARLES :WARNEB CO.
The sale defense is.'tbat the lib'elantpilomised tbat he would move the Fannie H. further up the' river as .soon as! sbe .floated, and allow' the schooner to swing in withtbetide, and take herplace,·and tbat; as the steam-boat was of lighter draft" and would .float sooner than the Sand.. snipe, the ebange could have 'been easily made, and withoutinconvenience to the libelant. The libelant denies: haVing made such promise, and on this point there is a serious conflict of testimony. The schooner drew about one foot more than the steam-boat, but there is no evidence to show that the latter was actually afloat beforetheformer. On this and on BOme other matters the testimony is silent or unreliable, arising from the fact that the depositions ,were not taken until nearly two years after the occurrences, to which they, relate.· Much' allowance must therefore be made :;fOf the defective recollection of, the witnesses,as well as fOf more or less of prejudice or bias on the/part of 'some of them. The steam-boat w.as.lying·at her 'cust9mary landing place, and where she had the tight,to,remain as lOng as she paid wharJage; and:·'t:lntiLshe had un. loaded. . The weight of the·' evidence isconclusiv6o:to ,the effect that 'a from the 'schooner and made .fast toi,the wharf below, would 'have made her secure, and have ptevented tb(hcollision. ,It is not'disputed that the libelant, ,when first requested. to imove his boat, positively 'refused. to do$o;! giving as one fenSQn for hdllliefus'al that his cargo was not ret unloaded'; 'and there is no: evidence of the offer of any inducement oroonsideration having been made to hlmbywhich he:waB led to chalige his mind. The· most satisfactory conclusion I have'· been oLthe testimony,is that there able to reach,after an captain, as to ,the was amisunderi!tandingon the 'part: oftbe intention of the libelant··· It,js quite probable,' as/.statedby one witness, that-the libelant did say tID at he would move on the flood-tide the next mOrning·vbut it does· notlfollow. from that expression that he meant to convey theidea: that ,he ,would move out M soon as his boat shol:lld witness, and who was thei go-between beafloato' of the capta.ins.of the .respective vessels, says that bis . understanding of whattbeJibelantpromised was that he would movein:the morning as soon as be; could unload. ,It ,was expected thatbotb vessels would be afloat 'ootween:halfpast 11· and 1 o'clock at midnight; 'and tbe.libelant, in disclaiming the alleged promise, says that he never proposed to sit upalbnight :andwatch, 'and Capt. Hickman M the schoonerllays,that he did not expect him, or anyone else, to do so, but supposed some' one would wake up at the proper time. It thus becomes difficult to discover upon what precaution Capt. Hickman relied to prevent an otherwise certain result. He admits that a stern-line would have prevented tbe collision, bllt says that he countermanded the order to put one out after the libelant had agreed to move as soon as the Fannie H. floated; while at the same time he knew. that no watch was set on the steam-boat or on bis own vessel, on the deck of which five men were asleep at the time of the collision. There was no harbor regulation requiring the steam-boat to have a watchman or a light during the night, and, in the absence of any such regulation, she was guilty of no negliI
gence. The Granite State, 3 Wall. 310; The Bridgeport, 14 Wall. 116. capt. Hickman says: "If there had been no promise, it [the collision] would have been our fault, but under this promise I do not think it was our fault." The theory of the defense places the responsibility for the collision on the libelant's promise, but I have.been unable to. gather from an examination of the testimony that theta was any such definite and specific promise, or undertaking, on the part of the libelant, that he would move his boat as soon as she floated, which relieved or exempted the schooner from taking all possible precautions and means to avoid the collision. The law strictly enjoins upon every vessel, on entering a port or harbor, the duty of exercising the utmost care and vigilance in keeping clear from other vessels which may be· moored at a wharf, or anchored outside of the channeljand a vessel which moors along-side of another at a wharf, or elsewhere, becomes responsible to the other for all injuries resulting from the proximity which hUJDan skill or precautioncould have guarded against. Vantine v. The Lake, 2 Wall. Jr. 52. With a stern-line and the use of the windlass the crew of the Sandsnipe, on the rising of the tide, could have heaved her into her berth below the Fannie H. with very little trouble. This course should have been adopted.. But Capt. Hickman, under a misapprehension of what had been said by the libelant, chose to take the risk of leaving the schooner in such a place and condition that she would be sure to run into and damage the steam-boat unless the latter should get out of the way, which she was not bound to do; and he cannot be excused for this neglect, amounting almost to recklessness, by saying that he trusted to some one waking up in the nick of time to prevent any harm being done. It was clearly his duty to have set a watch on his vessel, and to have managed her in.such manner as to avoid doing injury to any other craft. It is hardly conceivable that the libelant would have voluntarily sub.,. jected his frail boat to the peril of a collision with the heavily loaded Sandsnipe had he believed, or supposed, that he was under any obligation to move the steam-boat as soon as she floated. It is more probable that he trusted to the performance of an admitted duty by the schooner, and, had he known that the latter was not to be secured by a stern-line or other means, he would have put his own boat ina place of greater safety. Let It decree be entered for the libelant, with an order of reference to ascertain the damages.
UNITED .STATES V. KEXTUCKY .RIVEn, MILLS.
UNITED STATES 'D. KENTUCKY RIVER MILLS et
(Circuit Court, D. Kentuc7cy. January 19,1891.)
OmOUIT COURTs-JURISDICTIONAL AMOUNT-SUITS BY THE UNITED STATES.
Act Aug. 18, 1888, provides that the United States circuit courts shall have jurisdiction of civil suits, "where the matter in dispute exceeds, exclusive of interest and costs. the sum or value of 12,000, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which controversy the United States are plaintifrs or petitioners, or in which there shall be a controversy between the citizens of difrerent states, or .in:whioh the matter in dilipute exceeds, exclusive of intel'est and costs, the sum or value aforesaid, or a contl'oversy between the citizens of the same state claiming lands under grants of difrerent states, or a controversy between citizens of a state and, foreign states, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid." Held, that the limitation as to amount does not apply to suita in which the United States ali! plaintiffs or petitioners.
At Law. Gwrge W. Jolly, U. S. Atty. Thomas B. Hinea, for commissioners of sinking fund. D. W. Liruuey, for Kentucky River Mills.
BARR, J. The plaintiff has sued the defendant the Kentucky River Mills for the rent of land and water-power from the Kentucky riv,er, '!lsed by it, under the provisions of a lease made by the sinking fund commissioners of the state of Kentucky with said mill company, whioh lease is still a subsisting one under the terms of the act of cession made by the state of Kentucky to the United States. The amount sued for is less than' $2,000, exclusive of interest and cost, and the question is whether this court hll,S jurisdiction of the case; .. This depends upon the construction of the act approved August 13, 1888, amending the judiciaryact afMarch 3, 1875. A brief history of the legislation of congress previous to this act will perhaps aid in a proper construction of that act. The aet of 1789 gave the circuit courts jurisdiction in suits of a civil nature, at common law and in equity, and limited them to those where the matter in dispute exc:;eeded $500 in amount or value, even though the United States were the plaintiffs or petitioners. The circuit courts were given jurisdiction of all cases, in law or equity, arising under the revenue laws of the United States, without limit as to the amount in, :controversy, by the act of March 2, 1833. See 4 St. at Large, p. 632. And a similar jurisdiction was givell the circuit courts of cases under the postal laws by the act of March 2, 1845. And the jurisdiction of circuit courts was further extended by subsequent acts to embrace all cases arising under the internal revenue laws. Thus the law stood when the revision of the statutes was made, in 1873. The Revised Statutes conferred this jurisdiction on the circuit court in separate or enlarging it,.except that in suits at common law the jurisdiction was given without limit as to amQunt in disp\;lte, when, States were plaintiffs. The first section of the act of March 3,1875, enactedv.45F.no.5-18