The Steamer Hansa. York side, to the coal docks at Jersey City, and was moving at not more than half the speed of the Hansa. As the tide was ebb she headed, as she neared the west shore, a little up the river. It was broad daylight, and there can be no doubt that the Hansa could have discovered the Transporter early enough to have taken decisive measures to clear her, unless she was in some way embarrassed in her movements. The vessels were crossing under circumstances which bring them directly within the rule laid down in the fourteenth article of the statute for preventing collisions, which provides that "if two ships, under steam, are crossing each other, so as to involve risk of collision, the ship which has the other on her starboard side shall keep out of the way of the other." The Hansa had the Transporter on her starboard side, from a point a long distance below where the collision took place, and at which it was clearly her duty to have discovered her, whether she did in fact or not, and to have gone to starboard of her, unless prevented by circumstances over which she had no control. This was her duty, imperatively fixed by statute. The burden of proof is on her to show that she was prevented from conforming to the rule by circumstances beyond her control. The only important excuse which she offers is, that the river was full of vessels at anchor, which rendered her navigation difficult. On this point the evidence is conflicting as to the number and location of the anchored vessels in that section of the river passed over by the Hansa, between the time she actually discovered the Transporter and the moment of collision. The witnesses for the libellants testify, that the great bulk of the anchored fleet lay along within three hundred yards of the Jersey shore, while the river to the eastward was comparatively clear. The witnesses for the Hausa, who testify on this point, insist that the anchored vessels extended across the river to Castle Garden. Captain Von Santen says he could not have ported his helm (as The Steamer Hansa. he would have had to do to have gone to starboard, and astern of the Transporter), because he should have run foul of other vessels, and that vessels were at anchor clear across the river to Castle Garden. This may be true after he entered the anchored fleet, though I am inclined to the opinion, upon the whole evidence, that the vessels at anchor were much more numerous near the Jersey shore, along the route which the Hansa took, than in the middle of the river and to eastward. But the difficulty in this part of the defence is, that the proof fails to show that the Hansa entered among this dense fleet, before she reached the point where she might and ought to have discovered the Transporter. She is seeking to exonerate herself from the charge of having violated a fixed and well-known rule of navigation. She does not pretend that she was baffled or misled by varying movements of the Transporter. Her witnesses say that the latter held her course. The Hansa was bound, therefore, to keep out of the way of the Transporter, and her only mode of doing so was to have gone to starboard, and astern of her. To effectually excuse her for not doing so, she must show that at no time after she was first near enough to have discovered the Transporter could she have ported, and thus have avoided all chance of collision. As already remarked on this point, the proof is unsatisfactory, and her defence fails. The lookout on the Hansa failed to do his duty. He did not report the Transporter when he discovered her, on the ground, as he alleges, that he supposed the captain and pilot then saw her. This, of itself, was great negligence on his part. Nothing, under such circumstances, should be left to conjecture. He should have reported the steamer at once, and it is possible that his failure to do so may have prevented the Hansa from changing her course, as she otherwise would, or, at least, might have done. Platt, Receiver, &c., v. Beach. Let a decree be entered for the libellants, with an order of reference to compute the damages. For libellant, W. J. Haskett. For claimants, W. Q. Morton. Eastern District of New York. MARCH, 1868. FREDERICK A. PLATT, RECEIVER OF THE FARMERS' AND CITIZENS' NATIONAL BANK OF BROOKLYN, v. OREN M. BEACH. BANKING ACT.-RECEIVER.-UNITED STATES OFFICER.-JURISDICTION. A receiver of a national bank, appointed under the thirty-first section of the National Banking Act (13 Stats. at Large, p. 99), is an officer of the United States. This court, therefore, has jurisdiction of an action at common law, brought by such receiver (Act of March 3d, 1815, sec. 4), to collect a claim which was due to the bank at the time of his appointment. This was a suit brought by the plaintiff to recover a sum of money, alleged by the plaintiff to have been due from the defendant to the bank, of which the plaintiff was appointed receiver by the Comptroller of the Treasury, with the concurrence of the Secretary of the Treasury, under the provisions of the thirty-first section of the National Banking Act (13 Stats. at Large, p. 99, sec. 31). The defendant demurred to the complaint, assigning as the grounds of his demurrer First. That this court had no jurisdiction of the subject of the action. Platt, Receiver, &c., v. Beach. Second. That the plaintiff had not the legal capacity to sue. Third. That the complaint did not state facts sufficient to constitute a cause of action. R. H. Huntley, in support of the demurrer, argued as follows: The first section of the National Banking Act establishes a separate bureau in the Treasury Department, which bureau is "charged with the execution of this and all other laws that may be passed by Congress, respecting the issue and regulation of a national currency secured by United States bonds." The chief officer of this bureau is the Comptroller of the Currency, and he is under the general direction of the Secretary of the Treasury. He shall be appointed by the President, and shall have a competent deputy appointed by the Secretary. He shall, from time to time, employ the necessary clerks to discharge such duties as he shall direct, which clerks shall be appointed and classified by the Secretary of the Treasury, in the manner now provided by law. Section thirty-one provides that, in a certain case, "the Comptroller may, with the concurrence of the Secretary of the Treasury, appoint a receiver to wind up the business of such association, as provided in this act." Section fifty provides that, in certain other contingencies, the Comptroller may appoint a receiver, whose duties are clearly defined, and, among them, are these: "He shall collect all debts, dues, and claims belonging to such association, and, upon the order of a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts," &c. Section fifty-six provides that "all suits and proceedings arising out of the provisions of this Act, in which the United States, or its officers or agents, shall be parties," shall be conducted by the district attorneys of the Platt, Receiver, &c., v. Beach. several districts under the direction and supervision of the Solicitor of the Treasury." It will readily be seen that none of these provisions authorize the plaintiff to bring this action, or this court to entertain it. The inferior courts of the United States (Circuit and District Courts) have no jurisdiction, except such as Congress, by constitutional laws, has conferred upon them (Hubbard v. Northern R. R. Co., 3 Blatch. 84; ex parte Cabrera, 1 Wash. C. Ct. 232; Shute v. Davis, 1 Pet. C. Ct. 431; Livingston v. Jefferson, 1 Brock. 203; Turner v. Bank of North America, 4 Dall. 8). But it is claimed that the Act of March 3d, 1815 (3 Stat. at Large, 245), section four, confers this jurisdiction. That section is as follows: "The District Court of the United States shall have cognizance, concurrent with the courts and magistrates of the several States and the Circuit Courts of the United States, of all suits at common law, when the United States, or any officer thereof, under the authority of any act of Congress, shall sue, although the debt, claim, or other matter in dispute, shall not amount to one hundred dollars." Therefore, the defendant's counsel submits these two propositions : First. The receiver is not an officer of the United States; and, Second. Even if he were such officer, no act of Congress has authorized him to sue. First. This receiver is not an officer of the United States. 1. He fills no office. That is not an office which is not established by law or usage, but which is occasional or transitory, depending upon fluctuations and exigencies. An office must be fixed and established. The duties exercised by the incumbent may be occasional and transitory, but the office must be one always open, and ready for performance when such occasions arise-the VOL. II.-20 |