TUliJ CIAMPA EMIiJIA.
hereafter to purchase ,all his supplies of them l because they owned one sixty-fourth interest in that vessel. This vessel was unfortUnately wrecked on its next voyage,. and became a total loss.. It can hardly be supposed that the master of the Dow, 'a totally disinterested wit· ness, would deliberately make such a statement, under oath, so defi· nite and particular in all its parts, if it were false. No motive can be assigned for such gross perjury on his part as this would be, if the statement were wholly untrue; and yet, if true, it· gMs very far to corroborate the statement of the master of the Phillips. BesideB tllis, the master of the Phillips is corroborated by another witness, Capt. Brown, who was temporarily in command of the Phillips, and who, while so in command, as he testifies, had a conversation with one of the libelants. in which it was expressly admitted by the libelants, or one of them, that there had been a purchase of the one sixty-fourtb. part interest in the Dow by them. The improbability of the statement of the libelants that they advanced $150 without security to a comparative stranger, a master of a vessel then lying at New York in another district, to payoff alleged liens, without in any wise protecting themselves, seems to me to be very much greater than the statement made by the master of the Phillips touching this sale of the intereBt in the Dow, corroborated, as it is, to a certain extent, by the two other witnesses. Possibly there may be some explanation which would harmonize these statements so contradictory of each other. I have been unable, however, to find it, and I am compelled by the weight of the evidence to hold that the libelants have failed to sustain their claim of $150 as a proper lien against the Phillips, and it is therefore disallowed. Let there be the usual decree.
THE ClAMPA EMILIA. THE CIAMPA EMILIA v. SOMERSet al. (Circuit Court of Appeals. Third Circuit. COLLISION-TuGS AND TOWS-VESSELS AT ANCHOR.
December 1,
189._
A dredge anchored in the Delaware river. on a clear nip;ht. with lights properly burning. was struck by a ship in tow of a tug on a hawser. Held. on the weight of the evidence, that the collision was not due. as alleged, to a sudden change of course by the tug from the east to the west side of the dredge. but was caused solely by the fault of the ship in failing to follow the tug's course. which. from a point more than a mile away, was directed and steadily maintained to the westward of the dredge. 46 Fed. Rep. followed.
In Admiralty. Libel by Frank C. Somers, owner of the steam dredge Arizona, against the ship Ciampa Emilia, (Francisco S. Ciampa, claimant,) for damages for a collision. The dredge was struck by the ship while the latter was in tow of the tug F. W. Vosburgh on a hawser. In answer to a petition by the claimant, the owners of the tug appeared as defendants, and the contest was between the two as to which was in fault. The owner of the ship libeled the tug in the district court 'for the eastern district of .New York to recover damages sustained by the ship in the same collision,
156
I'EDERAL REPOR'tER,
vol. 53.
and the tngwas there held liable, (41 Fed. Rep. 57,) which decision on appeal to the circuit court of appeals for the second circ1rlt. . 'See 1 U. S. App. 143, 1 O. O. A. 508, 50 Fed. Rep. 239. In present case, nowever, the district court found that the ship alone was in 'in that she failed to follow the course of the tug. 46 Fed. Rep. 866. .Affirmed. ' Oharles O. Burlingham, (Wing, Shoudy & Putnam, on the brief,) for appellant. Josiah A. Hyland, (Hyland & Zabriskie, on the brief,) for ['espondents, appellees. Henry R. Edmunds, for Frank C. Somers, libelant, appellee. Before AOHESON andD.ALLAS, Oircuit Judges, and BUFFINGTON, District Judge. AOHESQN, Circuit Judge. This suit was brought by the owner of the steam dredge Arizona against the ship Ciampa Emilia to recover damages sustained by the dredge by reason of having been run afoul of and into by the said ship on the night of November 2, 1888, between thehonrs of 9 and 10 o'clock. The place of collision was Mifflin bar,futhe Delaware river, a few miles below Philadelphia. The Arizona, with proper lights set and burning, was anchored about mid-chalnnel, with, 'head upstream. The width of the dredge Was 34. feet.: :'On either 'side there was a clear water space at least 250 feet .'wide, in Which deeply laden vessels could safely navigate. At the time of the collision the ship was in tow of the steam tug F. W. Vosburgh,on a hawser about 250 feet long, bound for Philadelphia. The tide was flood, the night was clear, and lights were easily visible. The dredge was struck on the lower easterly corner by the bow of the ship. The libel charged that the collision was caused solely by faUlt of ilie ship, and the incompetency, negligence, and careless management of those aboard of and in charge who had abundant and timely warning of the presence oftha dredge, and could and should have avoided her. The owner of the ship Ciampa Emilia petitioned the court to bring in the owners of the tug Vosburgh as codefendants, alleging that the collision was caused by reason of the fault of those in charge of and navigating the tug; and subsequently the owners of the tug appeared in the cause, and filed an answer. The question of fact. involved in this appeal is well presented in the following quotatioIis from the said petition of the owner of the Ciampa Emilia and the answer of the owners of the tug. The petition alleges: "Those on board of the ship first sighted the lights of the vessel, which proved to be the stea,m dredge Arizona, a little on the ship's port bow, distant upward of a,mile. There was ample .room for the tug to pass the dredge on either side. She dit:ected her course so 8S to pass to the eastward of the Arizona aud another dredge anchored just above the Arizona. and'would have towed the ship by the dredges in safety had she kept the course which she was then on. Instead of doing so, the Vosburgh, when very neu the dredge Arizona, took a rank sheer tc> port, and undertook to pass to the westward of the dredge. The ship instantly put her wheel hard Mtarboard, and weritotf to port several points. She was.
THE CIAMPA EMILIA.
157
however. so close to the dredge at the time that she fetched up on one of the lines by which the was anchored. This stopped her swing to port. and made her swing a little to starboard. The tug was then to the westward of the dredge, and the towing line ran across the dredge's deck. The tug kept on, and brought the ship into violent collision with the dredge, the ship striking the lower easterly corner of the dredge with the bluff of her port bow. 1I
The answer avers: "'That before said tug reached said dredge, and at a distance of about two miles away, the pilot in charge of said tug sighted the lights of said dredge, and thereupon shaped his course to go to the westward of said dredge, on which side there was sufficient and ample room for said to pass by said dredge with said ship in tow with safety; that when said tug Vosburgh had shaped her course to pass to the westward of said dredge she was fully one mile below and to the southward of said dredge; that therefrom said tug proceeded on such course without deviation. and arrived opposite said dredge, and to the westward thereof about sixty or seventy yards; that when said had arrived about opposite said dredge, and off about sixty or seventy yards to the westward of said dredge, and on a course to pass clear of said dredge with her said tow, the said ship Ciampa Emilia took a sudden and rank sheer to the eastward, and took a course which brougbt the port bow of said ship into collision with the lower east corner of said dredge; and that by reason of said sheer said hawser between the tug and said ship was parted before said collision. II
The learned district judge in the court below found the facts to be substantially as alleged in the above-quoted paragraph from the answer of the owners of the Vosburgh, and that the tug was blameless; that-the collision could not have occurred had the Ciampa Emilia been properly steered to follow the tug; but that she was not so steered; and that when the tug had reached a position opposite to and about 150 feet westwardly from the dredge, the ship, by reason. of her: dElparture from the course of the tug, and wholly by the fault and negligence of those on board of her and engaged in her navigation, 'was brought into collision with the dredge. We have',examined the proofs with great care, and the more so because in:the case of Ciampa v. The F. W. Vosburgh, 41 Fed. Rep. 57, a suit in the district court of the United Sates for the eastern district of New York, growing out of this collision, negligence on the part of the Vosburgh was found, and there was a decree against the tug, and that decree has been affirmed by the cir· cuit court of appeals for the second circuit. The F. W. Vosburgh, 1 U. S. App. 143, 1 C. C. A. 508, 50 Fed. Rep. 239. We here meet that conflict of statement between those who were on board the ship Ciampa Emilia and those who were in charge of the tug Vosburgh which is so common in this class of cases. These two sets of witnesses respectively speak with equal positiveness in favor of their own vessel.' But there are some collateral circumstances, which, we think, greatly break the force of the testimony of those who were, on the ship. In the first place, none of those witnesses, save the lookout, was in a favorable position to see objects ahead, or to note accurately the movements of the Vosburgh. Then, if the lookout saw the dredge, he did not report its presence, and, in fact, the man at the wheel was in utter ignorance that any dredge was there until after the collision. Again, the mal!lter of the ship was altogether ignorant with respect to the navigation of the Delaware river, and so were all his crew. It is, too, disclosed that none of them understood the
FEDERAL;REPORWR.
AnswllriYes;tql4him to look out for steamboat. ,lsaid·· She is going to change b'erequrse.' After his signal, I said.' Watch but. and follow him.' Q. How did yt>u 'come to"dothat? A. Why. because the' captain of the ship ..,.. These people tlbfiTknow.tbe the steamboats. "They don't know them, andtbeydqll't speak Englisb; -rrb'at Is the reason Illtohl' I him. There was no pilot aboard, oratiybodya]se. to tel! him. Q. You <told'xhim because you saw they WElle Dot dblng what thilY, ought to do; is that it?· A.Yes, sir.' By the you say then? ,A. To follow the lltellomboat. Q. What an· swer did you'g'iveto this He asked me the question, if 1 thought it was best tO'do wl1at they done; ItndI told him.. Yes,' were was no pilot aboard. That is he asked of me.' By Mr. Hyland: Q.' You saw that they nnderstand'the' ltignals f A. Yes'; '1111'; 'Q,' And you saw'thatthe ship was not fol· lOWing then put theirwbeel:to starboard? A. So as to follow the tug'. Q. Because they were not doIng'it? A. That is what I mean to. say.-;:tqgi'Ve the for them to the tug, "
w¢re Rizzaro1Jti;, who had ConlEHI,boardthe.ship to 'ti1,ld solicit·· Fizzarotti's' spontaneous interference with the navigation of 'the ship, and his declared i'easons for so doing, are so significant that we quote from his cross-examination: 'Youf'stf!.ted>that yolt /tMesome orders'to'th' wheelsmair, did you?
v,'e,t¥(NlWWY: beforl;l
True, on' his re-examination, Fizzarotti says that· when he spoke to the man at the wheel the ship was follOWing the tng, but it is hard to believe th:atihl:dnterfered: unless, there waa some lli'gent occasion for his so doing. Turning now to the Vosbmgh, we find thl1t there were on board of her two experiencedpilot.EJ, who were perfectJ,y' familiar with the and accustomed, to navigate it",namely, Long, who was engaged :for this trip, and Cahill, who wasabso the master and a part owner of the tug. . They 'were both in 'the pilot' house" when the collision. OOC'11lred, and had been there some considerable time befdre. Theyh8ld previous ,knowledge that, the dredge was, at Miftlin bar,and:tliey'sighted het lights when two JIiiles"away. Their narratives' are cleat" and circumstantial They both state that at a point not less than' one mile below ·the Arizoha the course of the Vosburgh was shaped to pass to the westward ofthi!l dredge, and was not thereafter' changed or varied; that, pursuing that course, the tug was in the act of passing' from 150 to 200 feet to the westward of the dredge, ,and was about 'abreast thereof, when the ship Ciampa Emilia SUddenly sheered off to the eastward, going the whole length of the hawser;' and striking with her bow the stern of the dredge at the starboard corner. There was a third witness of the collision on the tug, ntl.mely, John A; :Martin, a licensed harbor pilot, who on this occasion, :Was acting inilie capacity of a deck hand on the Vosburgh. He was on the deck of the tug when the collisIon happened. His testimony :fully confirms 'that of Long and Oahill. Thatthese three eyewitnesses of the 'disaster could be mistaken is incredible, and, if theiraceount of the matter is rejected, it must be on the ground that they have willfully falsified; and,indeed,the latter is the argument here pressed upon us. In dealing with the .appellant's theory that;the catastrophe was brought about from the 'attempt of the tug to pass from the east to
159
tJ:!,e west of the dredgewheIl,SOIlear that the the tug fetched up up0I;l one oftha lines by ",hich the was anchored, ,arises ,the question, why should. the pilots on the there Vosburgh AAVE;l made such a movElIWilnt? The allegation involves a great No reason sudden. change in the course of the 'tu,g from the e,astward to the,westward ()f the dredge.appears, ,is ,even suggested. ,. On the other hand, there, is ' gooQ groundfQ,r the hypothesis, that the wheelsman on the ship mistook ,thelightB" on ,the dredge for the Vosburgh. . much positive eyillence favorable to the Vosburgh, wlrlch (,lQ;m.esfrom disinterested persons, the ship's side of thl;lfAAe rests exclusivelY upon the testimony, of those. who were ' , " abOaJ,'Q,9f, her. , the steamboat, CanoniClli!l ,wasdescellding the river, and, opposite the ,dredge, .aAd from 200 to 300 feet to the when eastward lJi,ereof, interchanged signals with .the Vosburgh, then Canoni(:us blew two whistles, which about 01).6, I!1ile protpptilY answered by the Vosburgh. The captain and pilot of the Qltnonicus both testify: that upon the giving of the signals the Voshurgh imn;lediately shut out; that the Vessels red ¥Let and passed each other a quarWr of a mile or ,more below the dredge; that 'the VosbtIrgh was then on their starboard side, distant about 500 ,feet, and wason a course which woUld take her to the westward of the dredge; and each of these witnesses states that after the boats thus passed he looked back, and saw that the tug kept on her course to the westward of the dredge. Again, the tugboat M. W. Hunt had taken Fizzarotti down to meet the Ciampa Emilia, and after he boarded her the Hunt accom· panied the ship upstream, keeping on her port side, but not attached. Dasey, the 'master, and Tees, the cook and deck hand of the Hnnt, were in her pilot house. Their testimony throughout corroborates the witnesses who were on the Vosburgh. Dasey and Tees were eyewitnesses of the collision, and their account of the occurrence tallies with tha;tof the VosbUrgh's pilots. But it appears that soon after the collision an ex paroo affidavit in theinrerest of the ship was procured from Dasey, in which it is stated that the Vosburgh made a rank sheer to port. Being confronted with this affidavit on his cross-examination, Dasey declared that he was misunderstood in that particUlar by the person who took down his statement, and there the matter was allowed to rest. Now, undoubtedly, this affidavit tends to discredit Dasey, and his testimony is to be most carefUlly scrutinized and cautiously received. Nevertheless, under all the circumstances, and in view of the other independent evidence, we are not prepared to say that it is not to be taken into consideration at all. So far as we can see, the man has no interest whatever in this controversy. But, at any rate, this affidavit does not affect Tees, and we are not able to discover in the undisputed facts anything tending to discredit him. But this record contains the testimony of two other persons who saw the collision from standpoints favorable to correct observation,
160
FEDERAL REPORTER.
natue1j,:&fu.iUon",the 'dredge. Arizona,and"t!tid· son; me tl'redgeBaltic,' which was a little,to the the easteitn; side':br-'the on a line with 'tMW'e$tei'll 'side of the ,collision went aft 9n hii ,He .the Vosburgh WM th\:\h !/ioff abreast 1 westward," ahdhe noticed that'the sliip was 'fast approaebmgdthe" dredge. Thereupon he hallooed to those aboard of her, ,wayed a lantel'n, to warn off the ship" £(e"eays: "She as though 'she was going'to' ron into us, 'whicb she did!' "I could see that she'was coming head on." He states' ,tlili.t the' ship struck the dredge with' snch force that she broke all the lines by Which the dredge was anchore'd except the starboard quarter litle, a.trd that she caught in that line' "after she struck us," and that she"so by reason of the dredge being the force of the collision. ,Hudson that he turned 'the ,lightEj',()f the V9sburg4 when he her to be first a mile below the. ArizQna, and that, 'she then hauled to the westward, showingbotll of her side but afterwards she pl\-uledfurther to the and ,shut out from him her red light; and that "she kept t{)theiOeJJtward ojthedredge all the time." W.hen he. first saw the ship ,she was showing her red ligh:t, aJ;ld moving eastward, while the VQsqQJ.'gh was mov4J.g ,westward; and he says: "The tugboat kept coIW,.ng, to and iilie (the ship) to the eastward; and after a bit she haUled. up and. showed both of her lights, and this time it, .was right over the top ;of the dredgeiliftt I saw them." "The ship ,hawed up, an.d I could. see the lights over the dredge; and into dredge she come. She weren't following the tugboat at ,all." It is) plain thltt the statements of these two watchmen are quite at :y/tl'iance with the allegations of the owner of the ship containeq' in, his petition. , After. most. patien;t; study of the. whole case, our conviction is that the weight Qf the with the Vosburgh. decree of the court beJow is 'rherefore
PEOPLE'S BANK t1. AETNA INS.· CO.
161
FEO£LE'S BANK OF GRJiJENYILLE v. AETNA INS. CO.. , ,
.
(Circuit Court, D. SOlj.ijl Carolina. 1.
December· 7, 1892.)
REMOVAL OF CAUSES-PETITION-TIME 01' FILING-STATE PRACTICE-PLEADING.
Under Code Civil Proc.S. C. §§ 164,195,405, and by rule 14 of the state circuit court, a defendant must demur or answer a complaint within 20 days after the service thereof, unless, such time has been extended by an order of court or judge, or by an agreement of plaintiff, reduced to the form of an order by consent entered, or by a writ1Iig signed by plaintiff' or his attorneY; and a petition and bond for removal to a federal court are in time if filed within the time thus extended. '
2.
Where the bond filed with a petition for the removal of a cause to a federal court is executed by two responsible persons, and the condition .' thereof is complied with, the statute requiring that "a bond, with good and su1ficient surety," m'.1st be made and, tiled by the party ,desiring removal is substantially fulfilled, although such bond is not slgned by the party seeking removal.
SAME-BoND--SUFfICIENCY..
At Law. Action by the People's Bank of Greenville, S. C., against the Aetna Insurance Company, on a money demand. The cause was removed from the state court of common pleas, and is now heard on motion to remand. Denied. G. G. Wells, for the motion. J. H. Heyward, opposed. SIMONTON, District Judge. This is a motion to remand. The action began in the court of common pleas for Greenville S.C., by summons and complaint, on a money demand. The sum· mons and complaint were served on the defendant on September 17, 1892. On the 4th day of October, 1892, 18 days ·after service, the plaintiff's attorney agreed with the defendant's attorney, in writing, signed by them, to extend the time to answer until 23d of October. On the 20th of October the defendant entered a general demurrer to the complaint, and on the same day the petition for removal, with bond, was filed in the state court The motion to remand is upon the ground that the petition for removal was not filed "before the defendant was required by the laws of the state, or the rule of the state court, to answer the complaint of the plaintiff." The question, then, is, within what time is thE;l defendant required by the laws of the state of South or by the rule of the state court, to answer a complaint? The answer to this question cannot be found in decisions of courts sitting in other states. The act of congress prescribes but one rule, the laws of the state in Which the suit is brought, or the rule of the state court. We must find the solution of the question in the laws and the rule of the court of South Carolina. We can find it nowhere else. The Code of Procedure of South Carolina (section 164) provides: ."'J;he only pleading on the part of the defendant Is either a demurrer or an 8:b.Swer. It must be served within twenty days after the service of a copy ot the cOnlplaint."
v.53F.no.2-11