There can be no doubt that the authorities cited by defendants' counsel are controlling in settlement of the questions they treat; but they are not applicable to the case at bar.

In the first place it is far from clear that the jurisdiction expressly conferred by the Act of March 3, 1887, where the United States is plaintiff or petitioner is limited in any sense by the amount in controversy. If we turn to the Act of March 3, 1875, of which this Act is an amendment, we will find that the limitation as to amount precedes the clauses conferring jurisdiction over the special subjects therein defined in the following order:

It recites first that the circuit court shall have jurisdiction of all suits of a civil nature at common law or in equity "where the matter in dispute exceeds, exclusive of costs, the sum or value of $500;" then follow specifications of the subject matters, to wit: federal questions "or" Government suits "or" citizenship "or" land grants "or" suits of aliens.

It appears, then, that in the Act of 1875 the grammatical structure of the section required that the limitation as to amount should apply to each class of suits specified.

But the structure of the section as amended by the Act of March 3, 1887, is very different. This Act recites that the circuit court shall have jurisdiction of all suits of a civil nature at common law or in equity "where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and arising under the Constitution," etc., "or" "in which the United States are plaintiffs or petitioners," "or" "in which there shall be a controversy between citizens of different States in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid," "or" land grants, "or" suits of aliens where the matter in dispute exceeds, etc. By repeating the limitation clause as to amount after each class save one, and omitting it after the clause conferring jurisdiction over government suits, Congress evidently intended to remove the doubt which might have been evoked by the language of the Act of 1875, and to make it plain that the Government could sue in the circuit court without regard to the amount in controversy. The same reasoning would inevitably induce the conclusion that the limitation as to amount does not apply to land grant suits were it not for another provision in a different section of the Act in regard to land grant suits, which it is unnecessary to discuss here. See Speer, Removal of Causes, § 21.

Again, if we look to the Judiciary Act of 1789 as codified in section 629, Revised Statutes, we find that ample provision was made for suits by the Government. Thus it was provided that where the United States is plaint iff or petitioner, the circuit court shall have jurisdiction of all suits at common law without regard to amount, and of all suits in equity

And besides these provisions, there is a separate and independent clause granting jurisdiction, without regard to amount, of all suits at law or in equity arising under the Revenue Laws, excepting suits for penalties and forfeiture, and excepting admiralty causes, and of all causes of action arising under the Internal Revenue Laws or under the Postal Laws. Subsection 4, § 629, Rev. Stat.

As the law then existed, there can be no doubt that the Government could have maintained a suit, either at common law or in equity, arising under the Revenue, Internal Revenue or Postal Laws, without regard to amount, under the express provisions of subdivision 4, and wholly independent of the jurisdiction granted or limitation as to amount contained in subdivisions 2 and 3 of section 629, Revised Statutes.

Therefore, whether the provision in the Act of March 3, 1887, giving jurisdiction of all suits of a civil nature at common law or in equity in which the United States is plaintiff or petitioner, enlarges the jurisdiction by removing the limitation as to amount in equity causes, to wit: $500; or whether the provision raised the limitation as to amount to $2,000, both in common law and in equity suits brought by the Government-in either case the provision embraced only the subject matter contained in subdivisions 2 and 3 of section 629, Revised Statutes, viz.: suits at law or in equity in which the United States is plaintiff or petitioner. It could not, therefore, be held to repeal by implication the jurisdiction over the special subject matter provided for by subdivision 4 of the same section, to wit: postal suits, etc. Hess v. Reynolds, 113 U. S. 73 [28 L. ed. 927]; Venable v. Richards, 105 U. S. 636 [26 L. ed. 1196].

Again; when we look to the provisions of the Constitution, the Judiciary Act of 1789, the subsequent amendatory statutes, the Acts organizing the court of claims and many other statutes bearing upon the question, we find a settled policy on the part of the United States to have its controversies determined in its own courts, a policy founded upon sound and substantial reasons, vital to its governmental powers. The right once attached becomes a prerogative of the Government, and an Act of Congress will not be construed to surrender such right "except by special and particular words.' Jones v. U. S. 1 Ct. Cl. 383.

It was insisted in the argument for defendants that the district court is, by section 563, Revised Statutes, given jurisdiction of all suits at common law brought by the United States, and of all causes of action arising under the Postal Laws, without regard to the amount in controversy; and that Congress may well be presumed to have intended by the Act of March 3, 1887, to relieve the circuit court of such cases. It is undoubtedly true, if it be conceded that the right of the Government to sue must be expressly conferred, and that the Act of March 3, 1887, raised the jurisdictional limit as to amount in all government suits in the circuit court to $2,000, that there would be a very large class of suits in equity over which neither the circuit nor the district courts would have juris

Could it have been the intention of Congress to repeal the pre-existing laws upon this subject by implication, and force the government to relinquish all rights or sue in the state courts in so large a class of cases, or in any case? This court can never concede such a proposition. Congress will not be presumed to have intended to deprive the Government of such a right unless the intention is expressed in plain and unequivocal words.

The rule in regard to the repeal of a statute by implication does not have the same application to the Government as to an individual.

"Where an Act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the King shall be bound by such Act though not particularly named therein. But where a statute is general and thereby any prerogative, right, title or interest is devested or taken from the King, in such case he shall not be bound unless the statute is made, by express words, to extend to him." Bacon, Abridgment, title, Prerogative, E-5; U. S. v. Knight, 39 U. S. 14 Pet. 301 [10 L. ed. 465]; Fink v. O'Neil, 106 U. S. 272 [27 L. ed. 196]; Green v. U. S. 76 U. S. 9 Wall. 655 [19 L. ed. 806]; U. S. v. Herron, 87 U. S. 20 Wall. 251 [22 L. ed. 275]; Dollar Sav. Bank v. U. S. 86 U. S. 19 Wall. 228 [22 L. ed. 80].

The principle involved in these propositions

to government suits would devest the public of rights and violate a principle of public policy, and would make provisions contrary to the policy which the Government has indicated by many Acts of previous legislation-in such case the statute ought not to be construed to impair the settled prerogatives of the Government. U. 8. v. Knight, supra.

It follows, therefore, if there is any doubt as to whether the limitation as to amount in the Act of March 3, 1887, was intended to apply to suits brought by the Government, it ought to be construed not to apply.

Indeed, it has been held that without any Act of Congress for the purpose, wherever the United States has rights which ought to be preserved, and for which an individual under similar circumstances could maintain an ordinary civil action, the United States may maintain its rights by such a suit brought in its own name at least in some court. U. S. v. Barker, 1 Paine, C. C. 156.

And this court is of the opinion that when the Government has definitely acquired the right to sue in any of its courts exercising general judicial power, this right will be held permanent in its character and be maintained, subject only to such express and distinct limitations as Congress may thereafter impose.

Such right is not affected by implication, save in those general statutes regulating procedure which do not devest the public of any right and do not violate any principle of public policy. The demurrer is overruled.

THE IMPERIAL and THE S. G. REED ; The Albina Ferry Co., Libelant.

(....Sawy..... Fed. Rep.....)

from her anchorage in the Wallamet River to a dock in East Portland, under the direction and control of the pilot in charge of the ship, is not liable for injury caused by a collision of such vessel with another; in such case the tug and tow are but one vessel and that one is the tow.

* Head notes by DEADY, J.

the Wallamet River by the ferry boat of the

tow.

The tug and its tow are treated as one vessel, a steam vessel, within the rule of keeping out of the way of sail vessels, under the rules of navigation, the sail vessel to keep her course. Desty, Ship & Adm. § 379, citing: The J. H. Gautier, 5 Ben. 469; 11 Am. L. Reg. N. S. 769; 5 Am. L. T. 87; The Ivanhoe, 7 Ben. 213; The Nabob, 1 Brown, Adm. 115; The America, 2 Ben. 475.

So, as to the duty of keeping or changing course, sailing vessels in tow of steam tugs are to be considered as steam vessels. The Pennsylvania, 3 Ben. 215.

Where the officers and crew of the tow, as well as those of the tug, participate in the navigation of the vessels, and a collision with another vessel ensues, the tug alone or the tow alone, or both Jointly, are liable, according to their negligence, or want of skill. The Maria Martin,179 U. S. 12 Wall, 44 (20 L. ed. 254); Sproul v. Hemmingway, 14 Pick. 1;

The Syracuse, 79 U. S. 12 Wall. 167 (20 L. ed. 382); The Frank Moffat, 2 Flipp, 291; The Doris Eckhoff, 32 Fed. Rep. 555.

The responsibility is determined by inquiring which vessel was the principal and which the servant. The Doris Eckhoff, supra; The Alabama, 1 Ben. 476; The Sampson, 3 Wall. Jr. 14.

That both may be held liable, see

The R. B. Forbes, 1 Sprague, 328, 1 Cliff, 331; The Coleman and Foster. 1 Brown, Adm, 456, 459; Sproul v. Hemmingway, 14 Pick. 1.

The tow is bound to prevent a collision if she can. The Morton, 1 Brown, Adm. 140; Heckscher v. McCrea, 24 Wend. 304; Taylor v. Read, 4 Paige, 561; Emerson v. Howland, 1 Mason, 45; Miller v. Mariner's Church, 7 Maine, 51.

If the tow has full control of her own movements she will be liable for damage inflicted by her collision with another vessel. The Express, Olcott, 281; Alexander v. Greene, 7 Hill, 533; The Merrimac, 2

Albina Ferry Company, when held up within 11% feet of the surface of the water, at eighteen feet

from the end of the boat and 150 feet from the

shore, in water over thirty feet in depth, in the vicinity of the approach of sea-going vessels, to the Irving Dock in East Portland, is a material obstruction to navigation and unlawful, unless sanctioned by the Legislature.

SUIT

(March 28, 1889.)

UIT to recover damages alleged to have
been caused by a collision. Dismissed.
The facts fully appear in the opinion.
Mr. P. L. Willis, for libelant:

The Veto No. 2 being at rest in her slip at the time of the collision and The Imperial being in motion the latter is presumably liable for the collision and the damages caused thereby. Wetmore v. The Granite State, 70 U. S. (3 Wall.) 310.

The tug and tow being lashed together and propelled by the steam power of the tug were, in law, one vessel, and that a steamer.

The Civilta, 103 U. S. 699.

A

Whatever obstruction this cable offered to navigation was such an obstruction as is incident to commerce and was not unlawful. vessel anchored in a harbor may be an obstruction, yet, under proper conditions, not an unlawful one. "What is an unlawful obstruction must always depend upon the circumstances of the particular case.'

"

The Vancouver, 2 Sawy. 387; Ladd v. Foster, 31 Fed. Rep. 834.

Mr. Cyrus A. Dolph, for the claimants of The S. G. Reed:

The Reed was employed by the pilot of The Imperial for the purpose of towing that vessel, and was, at the time of the collision with the ferryboat, entirely in the control of and in the service of the ship, so that no officer, agent or employé of either said steamboat, or the claimant, the Oregon Railway & Navigation Company, had any authority or control over her in any manner; and the remedy of libelant, if any it has, is to be sought against the ship and not against the steamboat employed to tow her.

See Sturgis v. Boyer, 65 U. S. (24 How.) 124; Smith v. The Creole, 2 Wall. Jr. 512; The Sampson, 3 Wall. Jr. 14; The Maria Martin, 79 U. S. (12 Wall.) 44.

In The Civilta and The Restless, 103 U. S. 699, in which both tug and ship was held liable and the damages apportioned between them,

Sawy. 593; Sproul v. Hemmingway, 14 Pick. 1: The Carolus, 2 Curt. 69; The Duke of Sussex, 1 W. Rob. 270; The Hope, 2 W. Rob. 8.

The tug will not be responsible for damages done by her tow except it be proved that the injury was owing to want of care or skill on the part of the tug. The Express, Olcott, 258.

That the tug will be held liable was held inThe James Gray v. The John Fraser, 62 U. S. 21 How. 184 (16 L. ed. 106); The Rescue, 2 Sprague, 16; The Hector, 4 Blatchf. 199; The Express, 1 Blatchf. 365; The Frank Moffat, 2 Flipp. 291; Griffin v. The Mariel, 32 Fed. Rep. 103; The Galileo, 28 Fed. Rep. 469, 24 Blatchf. 111; Hunt v. The Mischief, 32 Fed. Rep. 304. The rule in Sturgis v. Boyer, supra, that the tug is alone responsible for damages upon a collision between her tow and other vessels, is applicable only when the tow is wholly under the charge and con

the pilot or master of the tug managed the navigation of the tug.

Mr. Edward N. Deady for the claimants of The Imperial.

Deady, J., delivered the following opinion: This suit is brought by the libelant, the Albina Ferry Company, to recover damages in the sum of $500, alleged to have been caused by a collision of the ship Imperial, while being towed by the steamboat S. G. Reed, with the ferryboat Veto No. 2.

The facts appear to be as follows:

Between 1 and 2 o'clock in the afternoon of September 14, 1888, Albert Betts, a Wallamet River pilot, was employed to dock The Imperial at the Irving dock, in East Portland, and for that purpose obtained from the claimant, the Oregon Railway & Navigation Company, the use of the steamboat S. G. Reed and crew.

The Imperial was lying at anchor in the river some distance below Montgomery dock, in Albina, and to the west side of the river. Her length is 198 feet and her beam thirty-eight feet. She had just arrived from Wilmington, California, in ballast, and was fifteen feet out of water and thirteen feet in.

At the time of the collision The Veto No. 2 was being run by the libelant, a corporation formed under the laws of Oregon, under a license, as a ferryboat, between her slip or landing on the east side of the Wallamet, ín Albina, just south of river lot 19, and her landing on the west side of the same, on lots 26 and 27, in the Couch Addition to Portland—the width of the river between such landings being about 1,200 feet.

North of the ferry slip the river front is occupied for about 1,000 feet by the Allen & Lewis warehouse and the Montgomery dock. About 100 feet south of the ferry slip is Shaver's wharf, and Irving's dock is about 350 feet south of the same. In the space between the ferry slip and Shaver's wharf, is a small floating wood wharf or pontoon, with a waiting house on it.

The ferry boat is run on a steel wire cable three and a half inches in circumference and fastened to the shore at either end. The cable is supported by and passes over a sheave or block held in a banger eighteen inches above the water, which is fastened to the under side of the guard on the upper side and at each end of the boat, about eighteen feet from the end of the same.

trol of the tug. The City of Alexandria, 31 Fed. Rep. 427.

Obstruction to navigation.

If a person wrongfully obstructs a navigable stream, he is liable for the consequences. Phila. etc. R. Co. v. Phila. & H. de G. S. T. Co. 64 U. S. 23 How. 209 (16 L. ed. 433).

A vessel may obstruct a channel by extending a warp entirely across it, and she must lower the warp on the approach of another vessel, and give notice of the space in which the vessel may pass. Potter v. Pettis, 2 R. I. 483; McCord v. The Tiber, 6 Biss. 409; The Vancouver, 2 Sawy. 387.

'Any substance sunk in the bottom of a navigable river, so as to create danger, should have a buoy placed over it to give warning to passing vessels; a verbal communication is not sufficient notice. Harmond v. Pearson, 1 Campb. 515.

The Reed made fast to The Imperial on her starboard side, and the two vessels, propelled by the wheel of the former, and navigated as one, under the charge of Pilot Betts, started up stream, heading eastward for the lower end of Montgomery dock.

The wind was blowing from the east, according to the report of the signal office, at the rate of six miles an hour; and to avoid being blown over to the west side, the pilot purposed to keep the vessel under the lee of the docks on the east side.

When the vessel was within 100 feet of the dock line, at the lower end of the Montgomery dock, she was straightened up the river and the engine on The Reed stopped, to lessen the headway; but the vessel commencing to drift to the west, and at about 300 feet from the ferry slip the engine was "started up" again. At about 100 feet therefrom, it was stopped again, and the vessel moved along in the direction of Irv ing's dock at not exceeding two miles an hour. At this time the ferry boat was at her east landing, under the charge of a collector and engineer who had seen The Imperial coming up the river, some 600 or 700 feet away, and thought, as they say, that she was going to stop below them, because she was so close in to the docks. There were some vehicles and passengers on the boat apparently bound west. The collector and engineer were on shore examining the condition of the cable and the pon toon on which the boat made its landing.

As The Imperial came in front of the slip the engineer saw her, and being, as he says, alarmed at her proximity to the ferryboat, he jumped on board, ran into the engine room, and commenced to work her ashore into the slip, which the collector says he did.

And here arises the disputed question in the

case.

It is alleged by the libelant, that The Imperial ran on and against the apron of the ferryboat and pushed it around and up stream until the cable broke, when it gave way in the direction of the shore and allowed the ship to pass on to the dock.

On the other hand, the claimants insist that The Imperial did not strike the ferryboat at all and was not nearer to her than twenty feet, but that in passing along at that distance or more in front of her, the keel of The Imperial caught the cable of the ferryboat and pulled the latter around until the cable parted or pulled loose from its fastenings on the bank.

John Lund who was called by the libelant, and was also shingling on the same house, says the ship was fifteen or twenty feet from the boat-she struck the cable and turned the boat around.

Arthur Bell, who was on Shaver's wharf at the time, says the ship did not touch the ferryboat, and that she was between twenty and thirty feet away from her.

Albert Betts, the pilot in charge of The Imperial, says the ship was twenty or thirty feet away from the ferryboat-and that as the latter came abreast of the ship's forerigging, he saw the ferry boat commence to move away, when he knew that the ship's keel had caught the cable. He immediately gave orders to back the engine, but before the ship could be stopped something parted or gave away, the boat righted and the ship passed on.

On this testimony it must be found that the ship did not collide with the boat, and that she passed outside of her at least twenty feet. There is scarcely any room for doubt on the subject. Peterson appears to have been very much alarmed for his own safety, and must be mistaken.

Several independent circumstances in the case also point to the same conclusion.

For instance, the apron of the boat does not appear to have sustained any appreciable injury. One of the witnesses for the libelant says it was twisted some. The hanger of the outer end of the boat through which the cable passed was torn out of the guard. Now, if the apron had been caught between The Imperial on the lower side and the cable on the upper, it would have been seriously injured if not destroyed.

And if The Imperial had so come in contact with the apron and thereby pushed the boat against the cable, it is not possible that the hanger by which the latter was supported could have been pulled out. But if The Imperial caught the cable on its keel, twenty feet distant from the boat, and thereby dragged the latter around and up stream, it is easily seen that the hanger might have been pulled out or given away, as it did.

The actual damage sustained by the occurrence is not very great. The injury of the boat is estimated by the manager of the libelant at $100; to the pontoon $25; and to the cable $200. A carpenter who examined the boat in December says that the repairs to it then "in sight" would not cost to exceed $40. The cable was parted near the end and by fastening it lower down on the bank, as has been done, it is as serviceable as ever.