Opinion of the Court.

section 639 of the Revised Statutes, which, however, (like the act of 1789,) described the case to be removed as "a suit" between a citizen of the State in which it is brought and a citizen of another State, (instead of describing it, as in the act of 1867, as "a suit in which there is controversy between" such parties,) and was likewise held to require that all the necessary parties on one side of the suit should be citizens of different States from those on the other, and not to permit a removal because of a separable controversy between one of the defendants and the plaintiff. Myers v. Swann, 107 U. S. 546; American Bible Society v. Price, 110 U. S. 61; Cambria Iron Co. v. Ashburn, 118 U. S. 54; Hancock v. Holbrook, 119 U. S. 586; Young v. Parker, 132 U. S. 267, 270, 271.

The act of March 3, 1875, c. 137, § 2, authorized any suit in a state court "in which there shall be a controversy between citizens of different States" to be removed by "either party" into the Circuit Court of the United States; and added this clause: "and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit into the Circuit Court of the United States." 18 Stat. 470.

Under that statute, it has been uniformly held that, in order to justify a removal of the suit because of "a controversy which is wholly between citizens of different States," the whole subject matter of the suit must be capable of being finally determined between them, and complete relief afforded as to the separate cause of action, without the presence of other persons originally made parties to the suit; and that. when there was but one indivisible controversy between the plaintiffs and the defendants, as in the case of a suit for partition, the suit could not be removed by one of several plaintiffs or defendants. Blake v. McKim, 103 U. S. 336; Torrence v. Shedd, 144 U. S. 527; Bellaire v. Baltimore & Ohio Railroad, 146 U. S. 117; Wilson v. Oswego Township, 151 U. S. 56; Merchants' Cotton Press Co. v. Ins. Co. of North America, 151 U. S. 368.

Opinion of the Court.

The act of 1875 contained nothing concerning removal on the specific ground of prejudice or local influence, and did not repeal clause 3 of section 639 of the Revised Statutes. Bible Society v. Grove, 101 U. S. 610; Hess v. Reynolds, 113 U. S. 73; Baltimore & Ohio Railroad v. Bates, 119 U. S. 464.

The act of March 3, 1887, c. 373, corrected by the act of August 13, 1888, c. 866, was intended, as this court has often recognized, to contract the jurisdiction of the Circuit Courts of the United States, whether original over suits brought therein, or by removal from the state courts. It not only amends the act of 1875; but it allows to none but defendants the right to remove any case whatever, and, by new regulations of removals for prejudice or local influence, supersedes and repeals the earlier statutes upon this subject. 24 Stat. 553; 25 Stat. 434; Smith v. Lyon, 133 U. S. 315; Fisk v. Henarie, 142 U. S. 459; Tennessee v. Union & Planters' Bank, 152 U. S. 454.

This act, after other provisions which need not be stated, reënacts the last clause of section 2 of the act of 1875, above quoted, except that it omits the words "plaintiffs or." It then takes up the subject of the act of 1867, and enacts that in the case, defining it in the words of that act, "where a suit is now pending or may be hereafter brought, in any state court," a removal may be had, not, as under that act, by "such citizen of another State, whether he be plaintiff or defendant," but only by "any defendant being such citizen. of another State;" and not upon petition to the state court and the mere affidavit of the petitioner to his belief in prejudice or local influence, but upon petition to the Circuit Court of the United States and "when it shall be made to appear to said Circuit Court" that prejudice or local influence exists.

Whether this act permits one of two or more defendants to remove any case which he could not have removed under earlier statutes is a question upon which there have been conflicting decisions in the Circuit Courts, and upon which we are not now required to express a definitive opinion.

Beyond doubt, the existing act, like every act which pre

Opinion of the Court.

ceded it, does not authorize one defendant to remove a suit into the Circuit Court of the United States from a state court, upon the ground of prejudice or local influence between himself and other defendants. The whole object of allowing a defendant to remove a suit or controversy into the Circuit Court of the United States is to prevent the plaintiff from obtaining any advantage against him by reason of prejudice or local influence. Unless such prejudice or influence in favor of the plaintiff is alleged and proved, he cannot be prevented, under the clause of the existing statute upon this subject, from prosecuting his suit against all the defendants in the court in which he originally brought it.

The present case was a suit for partition, to which all the plaintiffs and all the defendants were indispensable parties. Torrence v. Shedd, 144 U. S. 527; De la Vega v. League, 64 Texas, 205; Stark v. Carroll, 66 Texas, 393. Each and all of the defendants contested the rights which the plaintiffs asserted; the defendant Brady was a citizen of the same State as some of the plaintiffs; and the only prejudice and local influence which he alleged as a ground of removal was between himself and other defendants. For this reason, independently of other reasons urged against the validity of the removal, Brady's removal of the cause into the Circuit Court of the United States was not warranted by any of the acts of Congress on which he relied.

Brady, having wrongfully removed the case into the Circuit Court, must pay the costs in that court, as well as the costs of the three appeals to this court. Mansfield &c. Railway v. Swan, 111 U. S. 379; Torrence v. Shedd, and Tennessee v. Union & Planters' Bank, above cited.

Appeal of the plaintiffs sustained, and decree reversed, with costs of the three appeals against Brady; and case remanded to the Circuit Court, with directions to render judgment against him for costs in that court, and to remand it to the state court.

Statement of the Case.

THE EDWIN I. MORRISON.1

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 227. Argued January 24, 1894. - Decided April 30, 1894.

When it is agreed by a charter party, on the part of the vessel, that she shall be tight, staunch, strong, and in every way fitted for the voyage, the owner is bound to see that the vessel is seaworthy and suitable for the service on which she is to be employed, and he is not excused by the fact that a defect is latent and unknown to him; but no obligation in that respect rests upon the owner of the cargo.

In a suit in admiralty, where the libellant sought to recover for injuries to a cargo caused by the vessel taking in water through a hole in her side, made by the breaking away of the cap from one of the bilge-pump holes, and where the defence was that such breaking was caused by a danger of the sea within the exception in the charter party and bills of lading, the court below, after finding that such bilge-pumps were not unusual, and describing them and the dangers to be apprehended from them, and after finding that before sailing the cap and plate showed no indications of looseness, in an examination which, after detailing it, was found to be such as a reasonably prudent master might be expected to give, and after finding the condition of the hole at the end of the voyage, found further that “at the time of the contract and lading of cargo and commencement of voyage the vessel was tight, staunch, and strong, and in every way fitted for the contemplated voyage; " that "there was no latent defect in the vessel which contributed to the

injury to the cargo; " and that "the whole of said damage to cargo was caused by a danger of the sea, and was within the exception in charter party and bills of lading." Held,

(1) That these were findings determined by the interpretation which the law put upon the circumstances of the transaction as stated in the previous findings, and, as such, open to revision here;

(2) That these deductions were incorrect, and the specific conclusions of law did not follow.

THIS was a libel filed by the Bradley Fertilizer Company in the District Court of the United States for the Southern District of New York against the schooner Edwin I. Morrison,

1 The docket title of this case is "The Bradley Fertilizer Company, Ap. pellant, v. The Schooner Edwin I. Morrison, her tackle, etc. - Stephen S. Lavender et al., claimants."

Statement of the Case.

to recover for the damage done to a cargo of guano by sea water taken aboard on January 10, 1884, on her voyage from Weymouth, Massachusetts, to Savannah, Georgia. The libel set up the charter, the loading, the bills of lading, the sailing from Weymouth, the arrival at Savannah, and the delivery of the cargo in a damaged condition; and also alleged that the schooner, when she left Weymouth and before, "was not tight, staunch, strong, and every way fitted for said voyage as agreed;" "and that the cap was gone from off the bilgepump hole on the port side of said schooner, or was then so loosely, insecurely and negligently fastened and screwed that the same worked and came off without any danger of the sea intervening, whereby said vessel was unseaworthy and unfit for said voyage, or after leaving port said cap was removed and not properly and securely replaced and screwed down, or was negligently and improperly loosened and left insecure by those in charge of said schooner, so that by the unseaworthiness of said schooner or by the negligence and improper navigation of those in charge of her, said cap came off from said pump-hole without any danger of the sea," and that about seven feet of water was admitted through it into the hold and upon the cargo.

The answer admitted the charter, shipment, bills of lading, sailing, arrival, and delivery of the cargo in a damaged condition, and in excuse thereof alleged: "That on said voyage the said vessel encountered very rough and tempestuous weather, in consequence of which she shipped large quantities of water, and was greatly damaged by the seas, and it was found on the arrival of the said vessel at Savannah that her said cargo or a portion thereof was damaged by the said perils of the seas encountered on the said voyage, or from causes excepted in the said contract or contracts of affreightment."

The District Court found that nine-tenths of the damage to the cargo was occasioned by sea water taken in through the bilge-pump hole on the port side, and that the vessel was not seaworthy in respect of the proper security of this port cap and plate, and rendered a decree in favor of libellant. The opinion is reported in 27 Fed. Rep. 136.