'624
(FEDERAL REPORTER,
vol. 38.
MCCREERY t1. THE JESSIE RUSSELL.
(tJiairict Court, "
n. New Jer861/.
April 9, 1889.)
CoLLISION-STEA.1\{· AND SAILING VESSEL.
Thl! lighter BarbaraiWas coming down the North river, her salls filled from the. starboard side, intending to as near the Battery as was safe, and into the East river. A tug and sloop were discovered pointing up the river and towards the New York shore. Just before the collisionthe sloop starboarded herhel1Jl togo a\;Jout, and struck .the tug, which, to .avoid damage, went ahe.ad at full speed, and struck the lighter in her starboard bow, sinking her. Tbe'lighterw9uldhave cleared the sloop. Held that, as all the lighter had to do was: to hold her course, the tug was liable for the collision.
In Admihulty. Libel for damages. Hyland Jc'Zabriskie, for libelant. ' John, 'GriJfi/Il" for respondent. , WALlis,"J, On the morning 'of 2, 1888, at about 9 o'c1ock,a Collision o<:icn'rredbetween the lighter Barbara and the tug Jessie RusselI; iti'the'North river, feet off pier 1. The lighter was' comingdown; 'the from" pier 42, b.ound for the foot of Eighty-Sixth street, East'riyer. The tide was slack, and the wind a good sailnorth-east. The sails of the lighter were filled fl'oI,n ing breeze fro1n the starboard side, her captain intending to go as near the Battery as safetyw61l1qpermit in passing round into the Eastriver. When off atug arid a sloop a little below pier 1, on a course pier 8 he pointing UP' to\yar<1sthe New York shore. ,Just before .the collision thE! tug,' in seeking for a tow. had gone. so near to the sloop that when the latter starbOll.rdedher helm to goaQout, her bowsprit scraped the starboard side of the tug which, to avoid further damage, started ahead at full speed, and had hardly cleared the sloop before she ran into thd'starboard' bow of the lighter stem on, and sank her in, a few n1inutes. : ,The positions of the vessels 8.£ter the collision show that the lighterwotild ha'ye cleared the sloop. The excuse made by the owner ·of the tug is that ifshe had not the lighter would have run down the sloop(,biit this unusual defense. if true, cannot justify the neglect of "he tug to keep away from the course of a sailing vessel, when by not doing so there wquld be danger of'collision. The proof is conclusive that thecdtirsEfonl1'e lighter was not' changed, and her captain says th,at, to his h:earil'ess to the pier just before the collision, it could not .. have been:itlteredwithout risk. The Sloop had. <ieclined. services of the tug, and, whatever might have been the imininence orihe danger to the sloop, it cannot extenuate the fault of the tug in causing the collision. The want of II special lookout stationed forward on the lighter could not have contributed to the accident, as the captain had an unobstructed view of the movements of the other vessels, and had noth. ing to do but to hold his course. Let a decree be entered for the libelant, with an order of reference to ascertain the damages.
WOTHERSPOON, V. MASSACHUSETTS BEN. ASS'N
625
WOTHERSPOON V. MASSACHUSETTS BEN.
Ass'N.
(Oircuit Oourt, N. D. New York. May 10, 1889.)
1.
]j'EDERAL COURTS-CIRCUIT COURTS-JURISDICTION.
Where every jurisdictional requirement of the act of 1875 is complied with, a suit in a district in one,state. for a cause not arising there, between a plaintiff residing in another state and a corporation of a third state, will not be dismissed because by the local statutes the state courts have no jurisdiction. A foreign insurance company is "found" in the state of the district of suit, where it has complied with the statute thereof, (Laws N. Y. 1884. c. 346,) providing companies may transact business In the state after having designated the superintendent of the insurance department as its lawful at,· torney on whom process may be served.
2.
SAME.
At Law. On motion to dismiss. .This action was commenced in August, 1885, to recover $10,000 upon two contracts of insurance issued by the defendant. The defendant appeared generally in the action, and on the 21st of October, 1885. its answer. The plaintiff is a citizen of New Jersey, the defendant is a Massachusetts corporation. Chapter 346, Laws N. Y. 1884, provides, in substance, that foreign insurance companies may transact business in this state after having designated the superintendent of the insurance de· partment as their lawful attorney upon whom process may beseryed. ,The defendant complied with the requirements of this act prior to the commencement of this suit. The defendant now moves to' dismiss on the ground that the court has no jurisdiction of the action for the reason that the jurisdiction of this court is concurrent with that of the Btate courts, and, as the action cannot be maintained in the latter, it cannot be maintained here. The proposition that the state courts have no jurisdiction is based upon a deqision of the court of appeals of New York in Robinson v. Navigation Co., 19 N. E. Rep. 625. In that case the court, construing section 1780 of the Code of Civil Procedure, holds that the courts of this state do not have jurisdiction of an action where the plain,tiff is a non-resident, the defendant a foreign corporation, and the caUB6 action did not arise within this state. Foster Thomson, for plaintiff. ·T. K. Hayward, for defendant. , COXE, J., (after stating the facts as above.) The plaintiff and defendant are citizens of different states. The amount in controversy exceeds $500. j'lnere can be no doubt that the defendant was "found" here. Ex parte lSioJwllenberger, 96 U. S. 369; Railroad Co. v. Harris, 12 Wall. 65; Gray i-' Mining 21 Fed,. Rep. 288; U. S. v. Telephone Co., 29 Fed. Rep. 17. ;}Wery requirement of H.le act of 1875, necessary to confer jurisdiction, is present. To disl;nissthe cauSe in such circumstances would he without .precedent. Whether or not tbe actIOn could have been brought in the . state courts is a matter of no moment. The United8tates courts do not look to state, legislation or1he decisions ohitaw tribunals for sources of v .38F.no.8-40
eo.,