THE WAVERLY.
placed upon the testimony of witnesses froro the ferry-boat, who say that they saw the mast of the sunken steam-ship before the tug came· up to it. I am by no means certain that, in such Ii. dense fog as this was, failure to see such an objectasa mast sticking up in the water was negligence. But, however this may be, it is plain that, the tug's failure to see the mast did not cause the accident. Although the mast had not been seen,'the tug-boat had taken a course which would have carried her past the mast in safety, without touching it; and that course was a1tered,not'byany voluntary act of the tug, but by the action of the ferryboat upon the stern of the tug, against which it was impossible for the tug to 'cont;end. This itwas that caused the collision. There was no negligence on the part of the tug in going out to rescue the ferry-boat, notwithstanding the density ofthefog. '. It was her duty to attempt that. There was no' negligence on the part of the tug in towing the ferry-boat in' the'wlly she did; for, so far·as appears,tha.twas the only way 1:>.le,' under the circumstances, to tow the ferrY-boat. in. The sheer of tug; which was the immediate and 'sole cause of the accident, was not caused by the tug, but by a sheer in the disabled:ferry-boat, which thefeiTy.. boat could not prevent, and which the tug was unable to antic.. ipate or withstand, and for which she is not responsible;, No fault heing1found on the part of the tug, she cannot be held liable for the dam.. age$ resulting from her contact with the mast.
THE WAVERLY.· TaE ANGLIA· .HENDERSON
et ai.
'tI. THE: WAVERLY,
THE
WIN. AND
Tm;)
THE Goon,.,
ASSISTAN9E.
WU.JJAioloN
,,
et al.
'tI.
THE ANGLIA, THE A. C. OHElOJY' THE AND THE ASSISTANCE. .
(DiBtrictOou'l't,E. D. New York: Match 8,lil9o.)
,
L
Col,LJIJON ....BBTWBEN STEAM;-SHIP8- CROSSING 'CoUBSBS- Dll'J.'Y '01' VaSIBL HAVING RIGHT o:r,Wu. . . .' . . .' . " .'
When two 'steam-ships are on crossing courses, the'Velsel having the other on her portAand is not in fault for whl*lbt4ady, and il not-In,fault for slack, ening .her "!hen her are not anl1.the approaching vessel is seen fA> be aWlUgmg al though to cross h e r ' b o w . ·
acrosl mouth of tbeEast J:iver to Brooklyn. The steam-ship W., bound out of the East river, was on 'a courSe O1'OsSingth:atof the A., and had 'the latte!.' on her starboa'l'd halid.The W. had no lookout on board, ,anll the A. 411r,!pl\&ter; or pilot until a man'on a tug along-side cMled attention to one Whistling of t1re A:.'stugs. It was then too late to avoid the collision which ensued. Held, that the cause of the lision was the neg-Iect of the W. to keep a lookout. .. 1 Reported
'rh«!! steam-ship A. was beillg trwed by
ov PROPER
by Edward G. Benedict, Esq., of the New York bar.
FEDERA,r., REPORTER,
vol. 41.
In Admiralty·. , Oross-actions for damages by collision. "; Wing, Shoudy <!cPutnam, for the AngUa. Wheeler, Cortia <!c GodJcin, for the Waverly. R. D. Benedict, for,steam-tugs Cheney. and Goodwin. (.' Biddk <!c Ward," for steam-tug Assistance. "
aaes·
J.Considering that the collision out of wbich these actioIlB arose occurred in the day-time, between the steam-ship. Waverly, a loaded steam-ship bound to sea under her own steam, with a· pilot on board, and the steam"ship Anglia, a steam-ship without steam, and without cargo, at the time: showing the signal' of the Anchor Line,: and being by three tugs, one an each,qulnter the third on a hawser, from the/North river to the Anohor Line piers, justsouth of Wall8treet£erry, in the East river, (whichis a broad expanse of water,narroweq. at a single pointiby Diamond reef, to the width of some 800 ,feet;) and t1leevidencewarranting the conclusion that, if those on the Waverly had the Angliaas soon as she might have been seen, the Waverly would; have 'passed between the Anglin and the 'New York shore without the possibility of collision; and it appearing that there was no statidned lOokout Qn.board the Waverly, and that tpe; Anglia was not seen .bY the pilot or the, toaster on the:bridge until a man on, 1), tug alongside the Waverly called their attention to the whistling ofthe Anglia's tugs, at which time the Waverly was so near the Anglia that, although the engine of the Waverly was at once ordered to stop, and full speed astern, she struck the Anglia on her port side,-it must be held that the neglect of the Waverly to keep a look-out was the cause of the collision that e n s u e d . ' As to the Anglia, the charge that she was in fault for not starboarding cannot be sustained. The vessel's were on crossing courses; and, as the the her starb?ard side, by rules it the duty bf tliaiWaverly to"8.VOld the Angl,la, and the duty of the'AnglIa to keep her course, as shedid-. The other charge, that the Anglia was in for, pot. keeping 4er speed, must, in view of the fact tIfe whistlIng of her tugs had not been answered, be held no fault, especially as the Waverly was seen to be swinging towards Brooklyn. In the case of The Columbia, 25. F,fild. Rep. 844, the, circuit court, reversing the dedsion of this. court, held it to be the duty of a privileged vessel, seeing the b'ther veSsel' to be persistent in 'going on, and not responding to from and, if necessary, to'stop'llhd reverse. The rule applied in .the case/of The Columbia by the ciircuit court is applieable here, a!1dcompels a decisiqn in this case adverse to the claim of the Waverly that it was fault iothe Anglia's tugs to"stop and ,Let a decree be entered in thecase,ofWuliamson disIxiissing the libel, with costs; and; in the case of Henderson, let a decree with aJeference to ascertain damBENEDICT,
LANGDON t1. HILLSIDE COAL&: IROlt
co. CO·
·
LANGDON"_ HILLSIDE CoAL
&
IRON
(Oircuit Oourt, S. D. Ne;w YorR. . February 18, 1890.) L RBMOVAL OJ' CAUSES-JURIBDIOTI9NAL AMOUNT.
Where there is nothing in the pleadings by direot averment as to the amoul).t 01' value of the matter in dispute, and no faots from which it .can be ascertained that the sum or value islesB than $2,000, and the petition, for relIlOval from the state to the federal court alleges. that the matter in disI1\ltll exceeds the value of 12,000, which. allegation is not controverted by speoialplll3 nor by affidavit, a motion to remand to the state oourt, :for want of federal jurisdiction, must be denied. A stookholder of a corporation oannot obtain an injunction to restrain slander of the title of property belonging to the oorporation. OF TITLE.
So
CoRPORATIONS-RIGHTS Oil'
B. S. Harrrwn, for complainant. B. H.Bri8tow and Buchanan & Steele, for defendant. WALLACE, J. The motion to remand this suit to the state court, from whiqh it was removed upon the petition of the defendant, has 110 merit whatever. It proceeds upon the ground that the matter in dispute does not exceed the sum or value of $2,000, and consequently is. not cognizable by this court, when its jurisdiction is invoked merely cause olthe diversity Qfcitizenship of the parties. There is nothitlg in the pleadings by direct averment as to the amount or value of the ter in dispute, and no facts from which it can be ascertained that the sum or value is less than the required amount. The petition for maval alleges that the n1atter in dislJute exceeds, exclusive of inter,est and costs, the sum or value'Of $2,000; and this is not controverted either by a special plea by the complainant or by affidavit, and it stands unchallengedin' any way. The motion is denied. ON DEMURRER TO BIJ,L.
On Motion to Remand.
The defendant has demurred to a bill to restra.iri the defendant from the publication of defamatory statemeI1ts. I had supposed that the question ill the case was whether the ownero{ real estitte has 'a. remedy by injunction in a court of equity to restrliin a defendant from circulating s libel concerning the title of the property, or from s'threatened publication ofa slander of title to a third person who is in treaty with the owner for the purchase of the real estate. But I find it to be a case'in which a stockholder of'a corporation sues t-o restrain slander of the title of property belonging to the corporation. Suchan action cannot be maintained, either in equity or at law. In.' cidentally, the stockholder may be damnified. in consequence of the defamation,by the depreciation of the value of his shares; but so hew-ould be whenever the corporation sustains serious loss by the tort or breach of contract. of a third person. The complainant has no title to the 'real estate, the 'injury to whidhis the subject-matter of the action; that is in the corporation, and any redress must be sought by the corpbration. I The demurrer is sustained. v.41F.no.11-39 WALLACE,
J.