PILOT. THE ANSGAR. (Circuit Court of Appeals, Third Circuit. June 16, 1903.) Nos. 4, 5. 1. COLLISION-STEAMSHIP AND PILOT BOAT-MANEUVERS FOR TRANSFER OF While it is the rule that on the exchange of signals for a pilot between a steamship and a pilot boat it is the duty of both vessels to co-operate in maneuvers required for the transfer of the pilot without unnecessary risk, and of the steamer to stop her headway in due season and to the extent necessary to such safe transfer, a pilot boat is not justified in assuming in the night that the steamer has fully stopped at any particular point, and where acting on such assumption in turning she unnecessarily takes a course across the bows of the steamer and strikes her, she is in fault for the collision; and the steamer is not in fault because, having stopped her engines in due time, she was still under a slight headway at the time of collision. Appeal from the District Court of the United States for the Eastern District of Pennsylvania. For opinion below, see 115 Fed. 440. Frederick M. Brown, for appellant. Horace L. Cheyney, for appellee. Before ACHESON and DALLAS, Circuit Judges, and BUFFINGTON, District Judge. DALLAS, Circuit Judge. A collision occurred between the steamship Ansgar and the steam pilot boat Philadelphia, near the Delaware breakwater, upon August 21, 1901, soon after 2 o'clock in the morning. Both vessels were damaged. The District Court sustained the libel which was filed on behalf of the Philadelphia, and thereupon awarded substantial damages and costs. The crosslibel on behalf of the Ansgar was dismissed. Both decrees were based upon the finding that "the Ansgar was solely at fault, her fault consisting in not stopping her way in time, so that the pilot might be put aboard with safety and convenience." The material facts may be briefly stated. Upon the interchange of signals communicating the proposal of the Philadelphia to furnish a pilot, and the desire of the Ansgar to receive one, the two vessels proceeded towards each other for the purpose of enabling the pilot to be transferred in a small boat. The Ansgar's engines had been stopped when she was at least a quarter of a mile from the Philadelphia, but she was still slowly moving when the Philadelphia, which had then attained a position upon the starboard side of the Ansgar, and at a sufficient distance from her, undertook to approach her in a circular course, not, as we believe, with the intention of crossing the Ansgar's bow, but of placing herself alongside of and parallel to the Ansgar, and then lowering a small boat for conveyance of the pilot. This maneuver would have been a safe and proper one if it had been adhered to and pursued without deviation. But it was not. Instead of continuing to move in a half circle, the Phil adelphia diverged from that course to one which rendered the collision inevitable. She struck the Ansgar on her starboard bow about 12 feet abaft her stem. It is said that "the wheel of the pilot boat was steadied to enable her to get close enough to the steamship to ascertain whether the draught of the latter was such that she required a first or second class pilot," and it may be conceded that this would have been a good reason for doing what was done, if it could have been done with safety; but that it could not be was demonstrated by the result, for, as we have said, the collision was directly and inevitably caused by it. But it is nevertheless contended that the Philadelphia was not at fault, because, as is argued, "it was impossible for her master to see, in the nighttime, whether the headway of the Ansgar was actually stopped; but, supposing that the Ansgar had complied with the duty imposed in that respect, the wheel of the pilot boat was steadied as before stated." This contention assumes that it was the duty of the Ansgar to have been actually stopped when the Philadelphia supposed her to be; but, in our opinion, this assumption is unwarranted. The judgment in The City of Washington, 92 U. S. 31, 23 L. Ed. 600, does not support it. It was there said that, upon signals having been exchanged, it is proper that a pilot boat and a steamship should both proceed for the reciprocal purpose of meeting, in order that the request for a pilot may be complied with; and it is, no doubt, to be assumed that the steamer, when she bears down towards the pilot boat, will slow her speed. but that she must be stopped at any particular point at which the pilot boat may see fit to assume that she is standing still has never been decided. "Proper co-operation between the vessels necessarily implies a duty on the part of the steamer to make the necessary maneuvers to afford a lee for the yawl to reach the place where the pilot is to be received, and to stop her headway in due season, and to the extent necessary to permit the pilot boat to select a suitable place for launching her yawl, and for the yawl to come alongside and transfer the pilot without unnecessary risk." That this duty was discharged by the Ansgar seems to us to be perfectly clear, and there remained nothing for her to do but "to permit the pilot boat to select and execute her own maneuvers." The Alaska (C. C.) 33 Fed. 107-111. She did "select a suitable place," and did enter upon a maneuver which might have been successfully executed, but by departing from it she occasioned the disaster which ensued, and this departure was not justified by her unfounded supposition that the Ansgar had been stopped. Had the Philadelphia been lying, either properly or improperly, directly in the path of the Ansgar, a question calling for careful consideration of the decision in The City of Washington, supra, would have been presented, but to the very different circumstances of this case that decision has no application. The Columbia (D. C.) 27 Fed. 704; The Alaska (C. C.) 33 Fed. 107. The decrees in these cases are reversed, and the record in each of them will be remanded to the District Court, with direction to enter a decree dismissing the libel of John P. Virdin, part owner of the steam pilot boat Philadelphia, with costs, and for further proceedings upon the cross-libel of Oscar Ellefsen, master of the Nor wegian steamship Ansgar, in accordance with this opinion and with the practice in admiralty. And it is further adjudged that the costs on appeal shall be paid by the appellee. INTERNATIONAL NAV. CO. v. LINDSTROM. (Circuit Court of Appeals, Second Circuit. May 23, 1903.) No. 175. 1. COURTS-JURISDICTION-ACTION UNDER LAWS OF OTHER STATES. When, by the statute law of a state, a right of action has become fixed, or a legal liability incurred, that liability may be enforced, and the right of action pursued, in any court having jurisdiction over the subject-matter and the parties. 2. MARITIME TORTS-LAW GOVERNING-STATE STATUTE. A state statute which creates a liability or authorizes a recovery for the consequences of a tortious act operates as efficiently upon a vessel of the state when on the high seas as when physically within the state, the vessel being deemed a part of the territory of the state to which it belongs. 3. SAME-CITIZENSHIP OF OWNER. A steamship owned by a corporation of New Jersey is a vessel of that state, and subject to its laws, notwithstanding its registry in New York. 4. WRONGFUL DEATH-STATUTORY ACTION FOR DAMAGES-LIMITATION. Under the New Jersey statute giving a right of action for wrongful death, provided the action is brought within 12 months, such limitation is of the essence of the remedy, and is controlling in any court in which the action may be brought. In Error to the Circuit Court of the United States for the Eastern District of New York. For opinion below, see 117 Fed. 170. Henry G. Ward, for plaintiff in error. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges. WALLACE, Circuit Judge. This is a writ of error by the defendant in the court below to review a judgment for the plaintiff entered. upon the verdict of a jury. The plaintiff's intestate took passage upon the steamship St. Paul, which left the port of New York bound for Southampton May 16, 1900, and on the 21st day of that month was washed overboard by a high sea and drowned. The St. Paul was owned by the defendant, a corporation of the state of New Jersey, but was registered at the port of New York. The administrator of the deceased brought the action upon the theory that her death was caused by the negligence of the defendant in allowing her to be on the deck of the vessel without protecting the deck with netting, or warning her of the danger. The assignments of error present the question whether the trial judge erred in not directing a verdict for the defendant on the whole case because the plaintiff was not entitled to recover. Inasmuch as at common law the cause of action for a tortious personal injury does not survive the death of the person injured, there can be no recovery in such a case in the absence of statutory liability, and, as statutes have no extraterritorial operation, there can be no recovery unless the statutory liability arose within the territorial sovereignty of the state whose statute authorizes the recovery; but upon considerations of comity such statutes are enforced by the courts of other states, and, when by the statute law of a state a right of action has become fixed, or a legal liability incurred, that liability may be enforced, and the right of action pursued, in any court having competent jurisdiction over the subject-matter and the parties. Upon this principle it was held in Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439, that an action could be maintained in a federal court sitting in New York by the administrator of a deceased person who died in New Jersey from injuries received in that state by the negligence of the defendant, because by a statute of New Jersey a recovery was given to the administrator upon such a cause of action. The territorial sovereignty of a state extends to a vessel of the state when it is upon the high seas, the vessel being deemed a part of the territory of the state to which it belongs; and it follows that a state statute which creates a liability or authorizes a recovery for the consequences of a tortious act operates as efficiently upon a vessel of the state when the vessel is beyond its boundaries as it does when it is physically within the state. The inquiry in the present case, therefore, is whether a recovery was authorized by the statute of the state whose territorial sovereignty embraced the steamship. The action was brought upon the theory that the steamship was a vessel of New York, and seems to have been decided at the trial upon that theory. The complaint alleged that the death of the intestate and the negligence occurred upon a vessel of that state, and that the plaintiff was entitled to recover by virtue of the statute of New York in such case made and provided. Upon the trial the plaintiff was granted leave to amend the complaint by alleging that a statute of New Jersey provides that the administrator may recover for the benefit of the next of kin "in practically the same manner as the statute of New York," but leave was not granted to amend by alleging that the steamship was a vessel of New Jersey. The complaint was not formally amended, and the trial judge treated the case as founded on the statute of New York. It is plain that the New York statute did not reach the case, because, inasmuch as the steamship belonged to a citizen of New Jersey, it was a vessel of that state, notwithstanding its registry in New York. The Plymouth Rock, 13 Blatchf. 505, Fed. Cas. No. 11,237; The Havana, 64 Fed. 496, 12 C. C. A. 361; Scudder v. Calais Steamboat Co., 1 Cliff. 370, Fed. Cas. No. 12,565; United States v. Brune, 2 Wall. Jr. 264, Fed. Cas. No. 14,677; Sharp v. United Ins. Co., 14 Johns. 201. It follows that the ruling of the trial judge was erroneous, unless he should have taken judicial notice of the New Jersey statute, and unless under that statute the plaintiff was entitled to maintain the action. By the New Jersey statute it is essential to a recovery in such an action that the action be commenced within 12 calendar months after the death of the injured person. It is because of this provision, perhaps, that the complaint was not amended. As the court below should have taken judicial notice of this statute, it has been relied on in this court to sustain his ruling; and, of course, if the decision was right, it is not important that it was reached upon a wrong consideration. If the statute had been called to the attention of the trial judge otherwise than by the statement that it was practically the same as the New York statute, he would doubtless have noticed (what appears by the record) that the action was commenced June 26, 1901. The discussion at the bar as to whether the statute of New Jersey gives a right of action to an administrator in a case where, although the wrongful act is committed within the state, the death took place outside the state, does not require comment further than to observe that this is wholly a question of statutory construction, upon which the federal courts would follow the decisions of the highest courts of New Jersey; and it does not seem to have been considered by the New Jersey courts. As the statute creates a new liability with a right to its enforcement, provided an action is brought within 12 months, the time is made of the essence of the right, and a federal court sitting in New York must treat it as such, and not as an ordinary statute of limitations. The Harrisburg, 119 U. S. 214, 7 Sup. Ct. 140, 30 L. Ed. 358; Bank v. Francklyn, 120 U. S. 747, 756, 7 Sup. Ct. 757, 30 L. Ed. 825; Whitman v. Citizens' Bank, 110 Fed. 503, 49 C. C. A. 122. There was no evidence upon the trial tending to contradict the recital in the record showing that the action was not commenced within 12 months, and consequently the New Jersey statute affords no support for the ruling of the trial judge. The judgment is reversed. HILLS BROS. CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. May 23, 1903.) No. 139. 1. CUSTOMS DUTIES-CLASSIFICATION-HALVED LEMONS IN BRINE. Halved lemons in brine are "fruits in brine," within paragraph 559 In the free list of the tariff act of 1897, Act July 24, 1897, c. 11, Schedules G, N, 30 Stat. 172, 198 [U. S. Comp. St. 1901, pp. 1651, 1683], and not dutiable as lemon peel preserved, under paragraph 267, notwithstanding the brine renders the pulp inedible, and the only value is in the peel. Appeal from the Circuit Court of the United States for the Southern District of New York. For opinion below, see 113 Fed. 857. Albert Comstock, for appellant. D. Frank Lloyd, for appellee. Before WALLACE and LACOMBE, Circuit Judges. WALLACE, Circuit Judge. The importations in controversy are halved lemons in brine, the lemons having been cut in two and im |