the exercise of proper skill and care could not have been anticipated. The evidence in this case establishes, I think, beyond any real controversy, that the masters of all the barges anchored in this locality had due notice of the approaching storm, and all of them, in anticipation of its effect upon their vessels, except the Nanticoke put both starboard and port anchors overboard. Although the storm attained to gale force, none of the barges, except the Nanticoke, changed position or dragged, and, while it is true her position was somewhat more exposed than the others, the effect of this was negligible, and the real cause of the collision was the reliance by her master on one anchor until she had begun to drift, when the assistance of the second anchor was rendered far less effective. I think it was the duty of the Nanticoke to have anticipated the trouble that ensued and to have avoided it by putting out both anchors when the storm began, and that it was fault on her part to have delayed putting over her second anchor until the other anchor had lost its hold and force, and she was drifting down on the Sea King. As the evidence fails to show any fault on the part of the Sea King causing or contributing to the collision, it follows that, as between the two, the Nanticoke should be held solely at fault; and this makes necessary the consideration of the liability, if any, of the tug, either in the anchoring of the barge, or in failing to come to her aid.

[4] The master of the tug had notice of the approaching. storm. He knew that it was dangerous to proceed on the voyage to Norfolk, and his act in not attempting it was entirely proper and is not the subject of any criticism. Whether he should have anchored the Nanticoke and the other barges in his tow in the open roadstead off Jamestown Island, or whether he should have endeavored to find a more secure place nearer Newport, was the occasion of considerable evidence on both sides. I am disposed to accept the reasoning of the captain of the Neptune on this subject, and I believe, under the circumstances, the place selected by him was in all respects as safe a place as was available. No negligence, therefore, may be imputed to the tug in placing the Nanticoke at her original anchorage. A much more serious question arises, however, as to the duty of the tug after this was accomplished, and particularly in view of the knowledge of her master of the approaching storm and of the prediction of the weather bureau that it would assume the proportions of a "whole gale." The evidence discloses that, after he anchored the barges, including the Nanticoke, he sought shelter in the in

ner harbor at Newport, and there he remained until ordered by his owners to New York. There was no danger to his vessel in returning to the barge. The Neptune is a seagoing tug, and could either have remained with the barges or returned to them without the slightest risk, even at the height of the storm. When it was observed by those on the Sea King that the Nanticoke was dragging and would soon be down upon them, they sounded distress signals, and the master of the Nanticoke, being without that means of attracting attention to his situation, hoisted distress sig.. nals at his mast. In spite of all of this, the Nanticoke was allowed to drift down slowly on the Sea King and to lay alongside, with the resulting damage to both vessels inevitable in a heavy sea and a strong wind, and it was not until the storm had wholly abated, some 36 hours after the anchoring, if I recall the evidence correctly, that assistance came. I cannot excuse or condone this disregard of its duty by the tug and her owners. As was said in the case of Maryland Transp. Co. v. Dempsey (C. C. A. Fourth Circuit) 279 F. 94:

"The duty owed by a tug to its tow is well settled, and while a tug is not the insurer of its tow, nor has the duties of a common carrier imposed upon it, it is nevertheless charged with the exercise of reasonable and ordinary care, caution, and maritime skill in and about the service undertaken, and for omissions in this respect, liability follows."

Further on in the opinion in the same case Judge Waddill, speaking for the Circuit Court of Appeals, under circumstances not dissimilar to those existing in this case, says:

"Tugs owe a high degree of diligence to look after lives and property committed to their care, when, from force of circumstances, the tow is set adrift, or has to be cast off, or even temporarily abandoned. The obligation to stand by should be strictly observed, as long as it is reasonably safe and proper to do so. The duty of the tug to return at the earliest moment, and vigorously attempt to care for those in danger and distress, who cannot get away because of lack of motive power, is manifest, as well from the relation they occupy to the tug as from the plainest sense of humanity. Failure to do so constitutes negligence, and for losses resulting therefrom there is liability on the tug, especially where it appears that the loss and damage might have been avoided by the proper discharge of those plain obligations.”

See, also, Appeal of Cahill, 124 F. 63, 59 C. C. A. 519 (C. C. A. Second Circuit) in which the court said:

"Even if the circumstances had been suffi

cient to justify the master of the tug in cutting loose from the dredge in order to take off the men, they did not justify him in deserting her and her scows, and allowing them to be beached without any effort to save them. We are satisfied there was a reasonable chance

that they could have been saved if the tug had resumed charge of them. Their owner was entitled to the benefit of the chance, and as he has been deprived of it by the conduct of the has been deprived of it by the conduct of the tug, in disregard of her duty to use all reasonable efforts for the preservation of her tow, the tug must respond for the consequences, in the absence of clear proof that her efforts would have been ineffectual."

The conclusion I have come to is that, while the tug was justified in anchoring her tow, she owed the duty of care and foresight in seeing that no damage occurred which she could prevent in the exercise of that care which the law imposed upon her. She should have returned when the storm increased from a comparatively easy breeze to a strong gale. If she had returned, she could easily have prevented the mischief. Her failure to do so, and the act of her owners in sending her somewhere else, without explanation or excuse, and wholly without justification, created fault on her part for which she should be held responsible. At the same time, since, as I have already said, the resulting damages would not have occurred except for the negligence of the master of the Nanticoke in failing to put over his second anchor, it follows that the fault of the tug was not the sole and exclusive cause of the damage. I am not unmindful of the fact that the damage should be charged to the proximate cause, and that there can be, ordinarily, but one proximate cause; but that is not the case here. The negligence of both was continuing and contributory, and under such circumstances each should be held responsible.

rule, and in directing her course to port without receiving the assent of the other vessel.

United States, as owner of the steamship In Admiralty. Suit for collision by the Prometheus, against the steamship Maracaibo, and the Atlantic & Caribbean Steam Navigation Company, claimant, and cross-libel by the Atlantic & Carribbean Steam Navigation Company against the United States. Libel dismissed, and decree rendered for cross-libel

ant.

Emory R. Buckner, U. S. Atty., of New York City (Charles E. Wythe, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.

Haight, Smith, Griffin & Deming, of New York City (Clarence Smith, of New York City, and J. McKeon, Jr., of counsel), for libelant Atlantic & Caribbean Steam Nav. Co.

AUGUSTUS N. HAND, District Judge. The Prometheus was proceeding up the deep water range in the East River, New York harbor, to the Navy Yard. She saw the Maracaibo coming down, blew her two whistles, and, though at first receiving no answer went to port for the purpose of passing between the Maracaibo and the New York shore. This is all evident from the story of the government's own witnesses. Thereafter, according to the story of the Prometheus, the Maracaibo blew one whistle and then another signal whistle while working to starboard under a port helm. When a collision became imminent, the Maracaibo stopped and reversed, and the Prometheus put her port engine ahead and her starboard engine in reverse so as to swing her bow, if possible, away from the Maracaibo.

The Maracaibo's witnesses indicate that she blew her single whistles first, and that the Prometheus crossed this signal. However this may be, the Prometheus had no right except under special circumstances of the most unusual nature to insist upon a starboard to starboard passing when the vessels were approaching one another head on. The special circumstances relied upon by the libelant are the presence of a drill boat in the East River on the starboard hand of the Prometheus and two ferryboats crossing ahead, but there were 500 feet of water between the center of the deep-water range and the drill boat, and the ferries were out of the way before the two steamships had to pass one another. The Prometheus preferred to pass near the New York shore, probably on account of the ebb tide, but the tide involved no unusual conditions, and gave the Prometheus no right to insist

upon a special course of navigation. There was room enough next the drill boat for the Prometheus to pass safely on the starboard side of the range, and the ferries were not in the way. The Maracaibo backed for three minutes by her log before the collision, and she began to back as soon as it was apparent that the Prometheus had determined to disregard her whistles. Even if the Prometheus had a right to initiate the maneuver she attempted, she had no right to swing on her course to port as she did until she had an answer from the Maracaibo. The Johnson, 76 U. S. (9 Wall.) at page 155 (19 L. Ed. 610), The Gladiator, 203 F. 690, 121 C. C. A. 648.

Lieutenant Commander Lorain Anderson, U. S. N., who was the navigator of the Prometheus, in his testimony before the board of investigation, said:

"I first sighted the Maracaibo dead ahead over the center of the Hamilton Line ferryboat. The drill barge off Diamond Reef was then about 300 yards away, a little on our starboard bow. The Maracaibo was, I should judge, about 800 yards distant, having just shown up through the mist. It was impossible to go to starboard because of the dredge and the north-bound ferry. The captain sounded two blasts, which the Maracaibo did not answer. The Maracaibo held her course, and a few seconds after sounding the two blasts we directed our course to port. Had the Maracaibo held the course she was on when first sighted, which course was as closely as I could judge, although the low visibility did not allow of seeing the range marks, exactly on the deep-water range, she would have passed clear of us and all danger that I could see. About 45 seconds after we had sounded our two whistles to her the Maracaibo sounded one blast and simultaneously started turning to starboard, We then went full speed with full left rudder, going so close to the New York docks that it required a full reversal of rudder to clear them.

It is to be noted that the navigator of the Prometheus in no way intimates that the latter did not violate the ordinary rule. He attempts, I think, as did the captain of the Prometheus, to create a case of special circumstance out of a natural preference on the part of the Prometheus, because she was a larger vessel, to go nowhere near the drill boat, to avoid the force of the tide on her port bow which would tend to swing her toward the drill boat, and in general to obtain certain advantages. It may be conceded that the Pro

metheus was more difficult to handle than a smaller vessel in a channel that was none too wide, but I cannot find any evidence to show that she had not plenty of room to pass on the starboard side of the deep-water range.

There has been only one doubt in my mind, and that is whether the Maracaibo did enough to avoid the accident, and whether the damages should be divided upon that theory.

Captain Foley's testimony indicates that after the ferries had got out of the way and the clear water opened between the vessels, they were between 800 and 1,000 yards apart. At that time Foley says he said to his pilot: ""Blow two whistles,' and two whistles were blown." He also says that after the ship had begun to swing appreciably under this starboard helm, the Maracaibo blew one blast and was apparently already swinging to starboard.

"Q. That was the first blast you had heard from the Maracaibo? A. That was the first blast I had heard from the Maracaibo, and simultaneously with my turning it, the executive officer exclaimed, 'She has crossed your whistle.'"

According to this story, the Maracaibo blew just about as she saw that the Prometheus was "swinging appreciably" under her starboard helm.

When the Prometheus was insisting upon an indefensible course, and the Maracaibo proposed the correct course as soon as she saw that the Prometheus was swinging "appreciably" toward the New York shore, I think it would be a harsh rule that would hold the Maracaibo in any respect responsible for the accident. The Prometheus clearly proposed irregular mode of navigation and actually entered upon it without the acquiescence of the Maracaibo. The Maracaibo should not, in my opinion, be penalized, even if she might perhaps have acted more quickly, when the fault of the Prometheus is so clear.

Furthermore, if the master of the Prometheus regarded it as unsafe to pass near the derrick and the shoal water when there was a strong ebb tide, I see nothing to have prevented his stopping when he first saw the Maracaibo. He was then 300 yards below the dredge according to the testimony of his navigator, and apparently could have safely let the Maracaibo pass on his port side.

I find the Prometheus solely at fault, and direct that the libel be dismissed with costs, and an interlocutory decree pass upon the cross-libel with the usual reference.

BRUCKER v. GEORGIA CASUALTY CO.
RUSSELL v. ZURICH GENERAL ACCI-
DENT & LIABILITY INS. CO., Limited,
ZURICH, SWITZERLAND.

(District Court, E. D. Missouri. E. D.
March 24, 1926.)

Nos. 7426, 7418.

Removal of causes

5-"Garnishment" prodependent suit but supplemental, and is not removable (Rev. St. Mo. 1919, § 1846 et seq.). A "garnishment" proceeding under Rev. St. Mo. 1919, § 1846 et seq., as construed by the

ceeding under Missouri statute is not an in

Supreme Court of the state, is not an independ

ent suit but supplemental to the main action, as a means of obtaining satisfaction of the judgment therein, can only be heard in the court which rendered the judgment, and is not removable into a federal court.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Garnishment.]

At Law. Proceedings by John Brucker against the Georgia Casualty Company, garnishee, and by Thomas Russell, Jr., a minor, by Thomas Russell, his next friend, against the Zurich General Accident & Liability Insurance Company, Limited, Zurich, Switzerland, garnishee. On motions by plaintiffs to remand to state court. Sustained.

Joseph Goodman and James J. O'Donohoe, both of St. Louis, Mo., for plaintiff Brucker.

James J. O'Donohoe, Wilbur C. Schwartz, and N. Murray Edwards, all of St. Louis, Mo., for plaintiff Russell.

Holland, Rutledge & Lashly, of St. Louis, Mo., for defendant Georgia Casualty Co.

M. L. Lichtenstadt and Charles E. Morrow, both of St. Louis, Mo., for defendant Zurich General Accident & Liability Ins. Co.

DAVIS, District Judge. The following statement is applicable to each of the aboveentitled causes:

The plaintiff recovered a judgment for damages for personal injuries as a result of an automobile accident. Execution was issued, and the defendant insurance company summoned as garnishee, on the theory that it had issued a policy of liability insurance to the defendant in the damage suit, covering the automobile involved in the case.

The plaintiff has in one of the cases filed his denial of the garnishee's answer and alleges the issuance of the policy and asserts a liability thereunder. In the other case the denial has not been filed, but it is conceded that it will be of the same nature.

The garnishee caused the case to be re

moved to this court on the ground of diversity of citizenship as between the plaintiff and the garnishee. The issue now presented arises on plaintiff's motion to remand.

I. The garnishee views the case as an independent action, to all present intents and purposes, within the jurisdiction of this court. To so regard the case, it is necessary to realign the parties, making the defendants in the original action plaintiffs now, as was done in Baker v. Duwamish Mill Co. (C. C.) 149 F. 612, or to disregard them, and treat them as not being parties to the present action.

The plaintiff, on the other hand, takes the position that the garnishment action is merely supplemental to, and a continuance of, the original suit, which was not removable; hence the issue now arising does not make it removable.

II. A garnishment proceeding, provided by the statutes of Missouri, as construed by the courts of the state, is not an independent suit, but is supplemental to the main action and provides one of the means of securing a satisfaction of the judgment. This is the interpretation that the courts of Missouri have placed upon the statute. In Chicago Herald Co. v. Bryan, 195 Mo. 590, 92 S. W. 906, 6 Ann. Cas. 751, it is said that "garnishment under our laws is one of the modes pointed out by the statute by which the execution is executed and is not a new suit. It is an incident or an auxiliary of the judgment and a means of obtaining satisfaction of the same by reaching the defendant's credit or property. As the garnishee must make his answer in the court whence the execution issues, it alone has exclusive control over its process." In Diebold Safe & Lock Co. v. Dunnegan, 135 Mo. App. 135, 115 S. W. 1051, the court held that a change of venue was not allowable in a garnishment proceeding, and that the issue raised in such a proceeding must be heard in the court where the judgment was rendered. All of the Missouri cases seem to be to the same effect. The construction thus given the statutes is not to be ignored in this court.

That a garnishment proceeding is not an independent action but is auxiliary to the original suit may be seen from other considerations. In one of the cases at bar, for instance, the original suit is now pending on appeal in the Supreme Court of Missouri. If on appeal the judgment should be reversed, this fact would determine the issue in the garnishment case that is now in this court. There would be nothing left here to determine if it should be held that the judgment in the original case was without foundation.

This appeal in the main suit was taken

without the giving of a bond. Now that the case is pending in the Supreme Court, suppose a bond should be filed and supersedeas granted. How would we then proceed in this case? It is quite apparent that such a situation ought to stay the further progress of this garnishment proceeding.

The same conclusion must be reached when we consider the character of any judgment that the court might render in the garnishment case. If the issue should be determined in favor of the plaintiff and against the defendant, garnishee, the court would only be authorized to enter a judgment against the garnishee to the extent and in the amount of the judgment in the original case, provided it should be found that the garnishee had more money in its hands belonging to the judgment debtors than the amount of the debt. Section 1862, R. S. Mo. 1919. That situation could not arise in this case, but it might arise in a case of this nature.

Suppose we turn to the procedure in such cases. Section 1852, R. S. Mo. 1919, provides that,

"Whenever any property, effects, money or debts, belonging or owing to the defendant, shall be confessed, or found by the court or jury, to be in the hands of the garnishee, he may, at any time before final judgment, discharge himself, by paying or delivering the same, or so much thereof as the court shall order, to the sheriff, from all further liability on account of the property, money or debts so paid or delivered."

How would the garnishee avail itself of the privilege granted it under this statute, should the jurisdiction of the case be found in this court?

If it be said that the cases here are to be litigated, then observe the statute in contested Section 1865, R. S. 1919, provides

cases. that:

"If, upon such trial, it shall appear that property, effects or money of the defendant are found in the hands of the garnishee, the court or jury shall find what property or effects, and the value thereof, or what money are in his hands, and unless he discharge himself, as provided in section 1852, by paying over or delivering the same to the sheriff, or unless he shall, within such time as the court shall direct, as provided in section 1853, pay and deliver up such property, effects or money, or shall execute his bond for the payment or delivery thereof, then the court shall enter up judgment against the garnishee for the proper amount or value as found in money, and execution may issue forthwith to enforce such judgment."

14 F. (2d)—44

.

From a reading of this section it will be observed that a final judgment cannot be rendered against a garnishee after trial, until the garnishee has been given an opportunity to discharge himself by delivering the property found to be in his hands to the sheriff. In the event of his failure so to do, the judgment would be entered.

How is this procedure to be observed in this court?

These considerations, as well as others, indicate the dependency of the garnishment proceeding, upon the original action, and point to confusion and conflict if the cause is to be partly adjudicated in one court, and partly determined in another. Such a situation is not desirable, and, as we understand the matter, was not contemplated by the removal statute (section 28 of the Judicial Code [Comp. St. § 1010]).

III. The opinion of the Circuit Court in Baker v. Duwamish Mill Co., 149 F. 612, upon which the garnishee relies herein, evidently is to be accounted for by the character of the garnishment proceeding in the state of Washington. The courts of that state have said this about the action:

"A garnishment proceeding is neither more nor less than an action by the defend-. ant against the garnishee for the use of the plaintiff."

See State ex rel. v. Superior Court, 67 Wash. 321, 121 P. 460; State ex rel. v. Wyman, 40 Wash. 443, 82 P. 875, 2 L. R. A. (N. S.) 568, 111 Am. St. Rep. 915, 5 Ann. Cas. 775.

The right of a change of venue is also recognized. State ex rel. v. Superior Court, 40 Wash. 443, 82 P. 875, 2 L. R. A. (N. S.) 568, 111 Am. St. Rep. 915, 5 Ann. Cas. 775.

IV. It seems to us that the Supreme Court of the United States has determined this question in First Nat. Bank v. Turnbull, 16 Wall. 190, 21 L. Ed. 296, where it is said:

"Conceding it to be a suit, and not essentially a motion, we think it was merely auxiliary to the original action, a graft upon it, and not an independent and separate litigation. A judgment had been recovered in the original suit, final process was levied upon the property in question to satisfy it, the property was claimed by Turnbull & Co., and this proceeding, authorized, by the laws of Virginia, was resorted to to settle the question whether the property ought to be so applied. The contest could not have arisen but for the judgment and execution, and the satisfaction of the former would at once have extinguished the controversy between the parties. The proceeding was necessarily institut