whether upon the evidence the Niagara was such a participant in the navigation as to be chargeable with half the damages. See The Doris Eckhoff, 32 Fed. Rep. 555; The Carrier Dove, Brown. & L. 113; The Viobe, 13 Prob. Div. 55. THE MYSTIC. FINCH V. THE LIGHTER MYSTIC. (District Court, S. D. New York. December 15, 1890.) COLLISION-PERSONAL INJURIES-MUTUAL FAULT-PART DAMAGES. While the canal-boat on which the libelant lived lay moored in the slip, the bowsprit of the lighter M. approached the cabin, threatening collision. The libelant ran out to remove her child out of harm's way, and, having done so, put her hand against the end of the bowsprit, to fend it off. Her wrist was caught between the bowsprit and the cabin window frame, and was broken. Held, that the libelant, though chargeable with contributory negligence, could recover part of her damages, in accordance with the decision of the supreme court in the case of The Max Morris, 11 Sup. Ct. Rep. 29. In Admiralty. Hyland & Zabriskie, for libelant. BROWN, J. The libel states that, while the barge Yonkers, upon which the libelant lived, lay moored along-side the wharf, on the lower side of the slip, between piers 28 and 29, East river, bow in, the lighter Mystic, in going out of the slip, ran her bowsprit into the stern cabin of the Yonkers, and struck and broke the libelant's arm, for which recovery of damages is sought. The answer alleges that while the lighter was stuck fast between two other canal-boats, in endeavoring to get out of the slip, the Yonkers drifted down upon the bowsprit of the Mystic. The weight of proof and of probability is inconsistent with the alleged drifting down of the Yonkers upon the Mystic. All the evidence indicates that the movement of the bow of the lighter was a very gentle movement, and I have no doubt, taking all the evidence together, that it was some swing of the bow of the lighter towards the Yonkers, while her stern was moving in between the other boats, and while the lighter's men were endeavoring to make more room for her, that brought about the collision. While the lighter is therefore responsible, the damages would evidently have been but slight had not the plaintiff herself most improperly and foolishly endeavored to fend off the bowsprit by putting her hand against the end of it as it approached the cabin; the result of which was that her hand was caught between the end of the bowsprit and the frame of the cabin window, and the outer bone of her wrist broken. A few seconds previously she had seen the bowsprit approaching, as she sat in the cabin, and she ran out to rescue her child from danger, who was playing on the deck. The child was placed out of harm's way before the libelant put her hand on the end of the bowsprit to ward it off; so that this act does not have the justification of any necessity in order to rescue the child. Nor was it such an act as persons of ordinary prudence under such circumstances would have committed. Collins v. Davidson, 19 Fed. Rep. 86. It was really the thoughtless, instinctive act of a person seeking to avert a trifling damage, without thinking of the ineffectiveness of the attempt, or its manifest danger to herself. The libelant is therefore chargeable with contributory negligence. In accordance with the recent decision of the supreme court in the case of The Max Morris, 11 Sup. Ct. Rep. 29, affirming the judgment of this court, (24 Fed. Rep. 860,) the libelant, though not entitled to full damages, may yet be allowed some compensation for her actual pecuniary loss. She was incapacitated from her usual work for about three months, during which time she was obliged to procure assistance in her family duties, at the expense of board and wages. I charge to herself her pain and suffering and inconvenience, and allow her a decree for $125. This amount, though small, is much more, it must be remembered, than the ordinary damage from the collision with the Yonkers would have been. THE NAUTIQUE.1 THE RELIANCE. JOSEPH EDWARD DREDGING Co. v. THE NAUTIQUE. (District Court, E. D. New York. December 26, 1890.) COLLISION-STEAM-VESSELS-CHANNEL-WAY-LOOKOUT. A dredge, employed in deepening the channel of New York bay, on arrival at her dredging ground found her pumps out of order. While repairing them, she made a circuit, and, returning, swung into the channel under the bows of the steam-ship N., which was going to sea. The dredge had no lookout, and the man at the wheel did not see the N. until she was upon him. The place where the collision occurred was buoyed as a place being dredged, and signals were flying on the dredge to show her character. At the time of the collision, an incoming steamer was passing the N., and the attention of the latter's officers was given to her. Held, that both vessels were in fault in keeping insufficient lookout. In Admiralty. Cross-suits for damage by collision. Sullivan & Cromwell and Carpenter & Mosher, for the Reliance. Butler, Stillman & Hubbard, for the Nautique. BENEDICT, J. These actions arise out of a collision that occurred in broad daylight in the lower bay of New York, near buoy No 101, between the steam-ship Nautique and the dredging steamer Reliance, on 1Reported by Edward G. Benedict, Esq., of the New York bar. the 16th day of January, 1888. The Reliance was engaged in dredging out a cut on the east side of the main ship channel, and on the morning in question had proceeded to the cut, to begin work. Upon arrival there, she found her pumps out of order, and, while putting them in order, she made a circle around, with the object of coming back to her place in the cut as soon as the difficulty in the pumps was removed. Before she arrived back at her position, upon the completion of her turn, she was struck a glancing blow upon her starboard side by the steamer Nautique, then proceeding to sea, and at the time in the act of passing the steam-ship Umbria, which was coming up upon the western side of the channel. The contention of the Reliance is that she made her circle within the boundaries of the channel, and within the portion marked off by buoys as the place where she was at work, and it was the duty of the Nautique to avoid her. The weight of the evidence upon this point, however, is that, in making her turn, the Reliance passed out of the channel to eastward a considerable distance, and then rounded to upon a starboard helm, to regain her position in the cut. She passed from the shoalwater to the east of the channel out into the channel, directly ahead of the Nautique, then engaged in passing the Umbria, where there was none too much room for that purpose. Considering the situation of the Umbria, the Nautique, and the Reliance, it was, in my opinion, a fault on the part of the Reliance to swing herself into the channel under the bows of the Nautique, as she did. The reason she did this undoubtedly was because she had no lookout. Her master was below, repairing the pumps, and the man at the wheel did not see the Nautique until she was upon him. I hold, therefore, the dredge guilty of fault conducing to the collision in omitting to keep a proper lookout. I also hold the Nautique in fault for omitting to keep a proper lookout. The place where she was navigating at the time of the collision was buoyed, as a place being dredged, and the Reliance had signals showing that she was a dredging-boat. Had proper lookout been kept on the Nautique, the Reliance would have been observed to be swinging into the channel in time to have avoided collision by slightly porting on the part of the Nautique, or by stopping a little sooner than she did. The reason she omitted these precautions was because her attention was directed to the Umbria, and she therefore omitted to watch, as she ought to have done, the movements of the Reliance. Both vessels being found guilty of fault, the damages will be apportioned. UNITED STATES v. DIXON. (District Court, N. D. California. December 11, 1890.) FEDERAL COURTS-WASHINGTON DISTRICT Court-GRAND JURY. Act Cong. April 5, 1890, entitled "An act to provide for the time and place to hold terms of the United States courts in the state of Washington, " provides that "the state of Washington shall constitute one judicial district" uniformly refers to the court as the "district court for the district of Washington," and, though "for the purpose of holding terms by the district court," the district is divided into four specified "divisions," known as "Northern," "Southern," "Eastern," and "Western," the provisions respecting the times and places of holding court refer in terms "to civil suits not of a local character," and no mention is made of criminal offenses." Held, that under Const. U. S. Amend. 6, providing that in all criminal prosecutions the accused shall be tried by a jury of the "state and district wherein the crime shall have been committed," an indictment purporting to have been found "by the grand jurors of the United States of America for the northern division of the district of Washington, sworn * * *to inquire of all offenses # * * committed within the northern division of the district of Washington, "was void, as the state constitutes but one district, and the jury must be drawn from and have power to inquire into offenses in the whole thereof. At Law. Charles A. Garter, U. S. Atty. William Hoff Cook, for defendant. HOFFMAN, J., (orally.) The defendant having been committed by the commissioner to answer for an offense triable in the district of Washington, application is now made for the usual order of removal to the district where his offense is justiceable. The only evidence tending to show his guilt was a certified copy of an indictment found against him. It purports to have been found "by the grand jurors of the United States of America for the northern division of the district of Washington, sworn and charged to inquire of all offenses against the laws of the United States, committed within the northern division of the district of Washington." It was evidently considered by the pleader that grand jurors should be summoned in and for the body of each of the divisions of the district of Washington which are mentioned in the act of April 5, 1890, and that their inquiries into offenses against the laws of the United States should be limited to offenses committed within the division of the district from which they are summoned. This method of procedure was evidently supposed to be authorized, if not required, by the third section of the act of April 5, 1890. That act is entitled "An act to provide for the time and place to hold terms of the United States courts in the state of Washington." The third section provides "that for the purpose of holding terms by the district court said district shall be divided into four divisions, to be known as the 'Eastern,' 'Southern,' 'Northern,' and 'Western' divisions." It then proceeds to designate the counties of the state which shall constitute each division. On recurring to the other provisions of the act, it will be seen that the intention of congress was to "The western division is called the "Western District," evidently a misprint or clerical error. v.44F.no.6-26 constitute one district. The first section provides that "the state of Washington shall constitute one judicial district." The sixth section. provides that the terms of the district court "for the district of Washington" shall be held at four different places mentioned in the section, and specifies the times of holding those terms. One clerk is appointed for the district court "for the district of Washington," and for the circuit court for the same district. But in order to carry out the provisions respecting the times and places of holding those courts in the "divisions" mentioned in the act each clerk is required to appoint a deputy, who shall reside in the division of the district in which such clerk shall not himself reside, each of whom shall, in the absence of the clerk, exercise all the powers, and perform all the duties, of the clerk within the divis ion for which he shall be appointed. The phrase "District Court for the Northern Division of the State of Washington" nowhere occurs in the act. The court is uniformly named a "District Court for the District of Washington," and the person appointed clerk for the district of Washington acts in the subdivisions of the district by deputy. The terms of the court are described as the terms of the district court, not for the northern or other division of the district of Washington, but for the district of the state of Washington. The provisions of section 4, respecting the places and times of holding court, refer, in the language of the section, "to civil suits not of a local character." No mention is made of criminal offenses. It might seem that the averment in the indictment that the grand jury has been called and summoned for the northern division of the district of Washington may be considered a technical or verbal error; but this view I consider wholly untenable. From the organization of the government, the United States were divided into judicial districts, for each of which a district judge was appointed, and circuits were established comprising several districts in which circuit courts were held in and for each district composing the circuit. The sixth amendment to the constitution provides "that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” It has been shown that the state of Washington, by the terms of the act, constitutes but one judicial district. The right of the accused to be tried by a jury of that district would seem to be incontrovertible, nor can we suppose that congress intended to pass a law restricting that right, and thus in violation of the constitution. The object of the section relied on is apparent. It was merely to regulate the times and places for holding the district court for the district of Washington for the trial of civil cases, but in criminal prosecutions a jury must be drawn from the whole district, and not from any division of it. The limitation of the power of the grand jury to inquire only into offenses committed within the division of the district for which they are called would seem wholly without authority, nor would it be practicable. In all cases where crimes have been committed on board of American vessels, on the high seas, it could not be alleged that the crime was committed within the district or any |
