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had been taken for the service, as well as from the large one, and in season to show his presence. I do not consider the claim for pilotage against any vessel entering one of the larger ports of our country, made under the same circumstances, speaking from a small dingy-boat, with no distinguishing marks or signals, would be entitled to any consideration, and the argument that the master should have presumed it was a pilot because it was not probable that any other small boat would be out there at that time of the night cannot be accepted. I do not consider the libelant used the ordinary customary signals in time to make his presence. and character known to the respondent; and the testimony is positive. that the hail was not heard on board, and there was therefore no legal and sufficient speaking to justify judgment. The libel is therefore dismissed.
WELDT V. THE HOWDEN.
(District Court, S. D. California. September 11, 1889.)
A vessel lying under the protection of Point Fermin, which is a well-defined headland on the northerly side of the bay of San Pedro, will be held to be within that bay in the absence of any legally defined limits thereof. 2. SAME.
Where it appears that such bay and the port of Wilmington have always been locally regarded as identical, and that congress, by legislation, has recognized San Pedro as a port, and changed its name to that of the port of Wilmington, and referred to the bay as the bay of Wilmington, such bay will be held a port, within Pol. Code Cal. § 2436, providing for compensation to pilots at "ports," irrespective of its merits as a harbor.
In Admiralty. Libel to recover half pilotage.
Mortimer & Harris, for respondent.
Ross, J. At the times stated in the pleadings, the libelant was a duly licensed pilot "for the port of Wilmington and bay of San Pedro," and, as such, spoke the British bark Howden, bound for San Pedro, and tendered his services as pilot. His services being declined by the master of the bark, libelant commenced the present proceeding, claiming to be entitled to half the usual rate of pilotage by virtue of section 2436 of the Political Code of California, which provides, among other things, that pilots for all of the ports of this state other than San Francisco, Mare island, Benicia, and Humboldt bay, are entitled to receive for piloting every vessel into or out of port the sum of eight dollars per foot draught, and that, when the person commanding any vessel refuses to take a pilot, the pilot first offering his services is entitled to half pilotage. That the state has the right to impose half pilotage on foreign vessels entering the ports of the state, and declining the services of a pilot, was
decided by Judge HOFFMAN in Alameda v. Neal, 31 Fed. Rep. 366, and his ruling was affirmed on appeal by Mr. Justice FIELD, 32 Fed. Rep. 331. In the present case that right is conceded by the respondent, but the defense is made-First, that the Howden was not bound for and did not enter the port of Wilmington or the bay of San Pedro; and, second, that if she did enter the bay, that that bay is not a port within the meaning of the pilot laws; that the only port at that point on the coast is the port of Wilmington, and that the port of Wilmington and the bay of San Pedro are not one and the same, but on the contrary, that they are two totally distinct geographical places.
The case shows that the limits of the bay of San Pedro have never been defined by any competent authority; nor is the line that separates the bay from the ocean attempted to be delineated upon the United States coast survey chart. Indeed, it may not be an easy matter to define it for the reason that while upon the northerly side of the bay there is a well-defined headland, called "Point Fermin," there is none to the southward within such a distance as that it may be reasonably said to have any connection with the bay of San Pedro. In the absence of any legally defined limits to the bay, I think it fair to hold that all vessels that lie under the protection of Point Fermin are within the bay of San Pedro; and that the Howden was in that position I think appears from the evidence.
The bay of San Pedro and the port of Wilmington, it seems from the evidence, have always been locally known and regarded as one and the same. Originally, all vessels coming into those waters discharged their cargo at San Pedro, and from there the freight was sent by wagon to Los Angeles. San Pedro was, and is, a little settlement or town on the bay of that name. In 1852, Gen. Phineas Banning was conducting the principal business there, and as he was located on the government reservation at that place he was required to move off. Somewhere about the latter part of 1853 he removed his business from San Pedro and established it at Wilmington, which is situated on an inlet a few miles further inland. Not only have the bay of San Pedro and the port of Wilmington been locally regarded as one port or harbor, but that they are and have been so regarded by congress is clearly shown from the following legislation: By an act approved September 28, 1850, the town of San Pedro was constituted a port of delivery in the collection district of San Diego. 9 U.S. St. 508. By an act approved August 3, 1854, the collection district of San Pedro was created, and San Pedro was made the port of entry for said district. 10 U. S. St. 345. By an act approved June 2, 1862, the collection district of San Pedro was abolished, and the same was attached to the district of San Francisco. 12 U. S. St. 411. By section 2582 of the Revised Statutes, the state of California was divided into two collection districts, the first being the district of San Diego, in which San Diego was made the sole port of entry, and San Pedro and Santa Barbara ports of delivery. By an act approved June 6, 1874, the name of the port of San Pedro was changed to that of Wilmington. 18 U. S. St. 61. By an act approved June 10, 1880, the
privilege of immediate transportation was extended to various named ports; among others, to that of Wilmington. 21 U. S. St. 174. And by an act approved June 16, 1882, the collection district of Wilmington was created, in which Wilmington, on the bay of Wilmington, was made the sole port of entry. 22 U. S. St. 105. By the legislation referred to not only did congress recognize the fact that there was a port at San Pedro, but by changing the name of the port of San Pedro to that of Wilmington and by referring to the bay of San Pedro as the bay of Wilmington, it gave unmistakable evidence that it regarded the one as iden tical with the other. Whether or not the port is a good and safe harbor does not affect the question. It is a place for which many vessels are bound, and at which it is usual for them to load and unload; and it is the place for which the Howden was bound, and at which she discharged her cargo.
In my opinion the libelant is entitled to half the usual rate of pilotage, as provided by section 2436 of the Political Code of California; and accordingly a decree will be signed for libelant, with costs.
WHEATON v. CHINA MUT. Ins. Co.
(District Court, S. D. New York. April 3, 1889.)
1. MARINE INSURANCE-LIABILITY for General AVERAGE.
The schooner F., loaded with cargo on a voyage from Baltimore to Stoning. ton, having stranded, was rescued by salvors, and repaired at Philadelphia, where the losses were adjusted. On advice of the owners of the cargo, the insurers, though refusing to accept abandonment, assented to its conveyance to Providence, there being no sale for it at S., paying the extra price for additional carriage, and superintending the sale in the owners' interest. The insurers alleged that the signature to the general average bond by their special agent was unauthorized. Held, that they were liable to the owners of the F., and that it was immaterial under the stipulation, except as to costs, whether the bond was taken to be that of the insurers or the owners of the cargo.
2. SAME BASIS OF CONTRIBUTION.
As the voyage was completed at Providence, the sale of the cargo there, less the additional expenses, was rightly taken as a basis for contributing value.
BROWN, J. The schooner Fessenden, on a voyage from Baltimore to Stonington, Conn., with a cargo of coal, stranded through perils of the seas. She was rescued by salvors, and a general average adjustment thereafter made whereby there was found due from the cargo the net sum of $639.90. The respondents were insurers of the cargo, and though they refused to accept an abandonment tendered by the cargo-owner, they
superintended the management of the cargo for his interest. The adjustment was made at Philadelphia, and the vessel was repaired there. The coal being damaged, and the owner reporting that there was no market at Stonington for damaged coal, by his advice, in which the underwriters concurred, the cargo was taken to Providence, R. I., where the voyage was completed, instead of at Stonington. The insurers paid the extra price of five cents per ton for the additional carriage. The average bond was signed in the name of the respondents by a special agent of the company at Philadelphia, without its authority, as the respondents contend, and by a misinterpretation of the written instructions which had been forwarded to him by their general agents at New York. Under the stipulation between the parties it becomes immaterial, except as to the costs of the action, whether the bond is to be taken as the bond of the respondents or the bond of the owner, whom the respondents insured. In either event, whatever sum is found due for general average must, without dispute, be ultimately paid by the respondents; and the respondents and their agents have throughout taken upon themselves the care of the cargo-owner's interests. Under these circumstances the valuation of the vessel for the purpose of general average must be taken as provided in the bond; for the instrument is the bond either of the insurers or of the insured; and in either case, under the stipulation, that is controlling.
I am satisfied that the average adjusters rightly adopted the price obtained for the coal at Providence, less the charges and expenses. The voyage not being abandoned, but being completed by the ship, the price at the place of destination is the basis to be taken for the contributing value. By reason of the want of any proper market at Stonington, the original destination, the port of Providence was agreed on as the substituted destination, and there the voyage was completed, and the cargo delivered to the owner, and sold. The price obtained there, less the charges and extra expense of going to that port, properly becomes the basis of the contribution by the cargo. The evidence does not establish any agreement prior to the execution of the bond that the value of the cargo was to be taken at a less sum. The other objections to the adjustment are not sustained by the evidence. The adjustment is therefore upheld. But considering the doubt that exists as to the technical signature of the bond, and the probably contrary understanding of the somewhat ambiguous terms in which the instructions to the special agent were conveyed, I think, under the stipulations of the parties, the judgment should be for the libelants for $639.90, the amount claimed, with interest, but without costs.
AMES et al. v. CHICAGO, S. F. & C. Ry. Co. et al. WITTEN v. SAME. WAKEFIELD v. SAME.
(Circuit Court, E. D. Missouri, N. D. September 30, 1889.)
1. REMOVAL OF CAUSES SEPARABLE CONTROVERSY - RAILROAD COMPANIES MECHANICS' LIENS.
Rev. St. Mo. 1879, § 3206, which gives contractors and material-men a lier on a railroad for work and labor done and for materials furnished, provides that in suits by a subcontractor to enforce a lien it shall be optional with him to make or not to make the contractor a party defendant. When the contractor is made a party, the statute contemplates a personal judgment against him as in ordinary cases, with a conditional clause that, if sufficient property of his is not found, the residue be made out of the property charged. When he is not made a party, there is only a special finding of the amount due, and a judgment that it be made out of the property charged. Held, that when the contractors are made parties there are not two separate causes of action, and hence the controversy between the plaintiff and the railroad company is not a separable one within the meaning of the act of 1887, § 2, cl. 3.
The fact that in order to obtain a lien against the property of the company the plaintiff is required to show that he filed a notice of his lien in the proper county in the proper time, in addition to showing that he is entitled to a judgment against the contractor, does not make the controversies separable. 8. SAME.
Nor is it important that the contractor has not been served with summons, and has not appeared, as the right of removal must be tested solely by the case made by the complaint.
Rev. St. U. S. § 737, authorizing the court to proceed to the trial of the suit between the parties properly before it, when there are several defendants, and one or more of them are neither inhabitants of nor found within the district, and do not voluntarily appear, does not relate to the removal of causes.
On Motions to Remand.
Miller, Leman & Chase and Berry & Thompson, for plaintiffs.
THAYER, J. These cases are alike, and present the same question for determination. They were removed to this court from the circuit court of Macon county, Mo., under the third clause of the second section of the judiciary act of March 3, 1887, and in this court motions to remand have been filed. The plaintiffs in the respective cases brought suits in the circuit court of Macon county, Mo., against the Chicago, Santa Fe & California Railway Company, and several other foreign corporations, and also against Williams, McRitchie, Nichol & Williams, to enforce a mechanic's or contractor's lien against the property of the railway company situated in the state of Missouri. Williams, McRitchie, Nichol & Williams were original contractors with the railway company for building certain sections of its road in Missouri. The plaintiffs in these suits were respectively subcontractors with Williams, McRitchie, Nichol & Williams for doing portions of the work undertaken by the latter firm. The plaintiffs in the several suits are residents and citizens of the state of Missouri; all of the defendants, including the railway company, are v.39F.no.16-56