The Peshtigo. who, to free himself from loans contracted by the master in the course of the voyage, abandons the ship and freight, is not compelled to account to the lender beyond that for the proceeds of the insurance underwritten upon the ship. (Aix, February 8, 1832.) 2. That the proprietor of the ship who effects an abandonment to the shipper is not held as including the value of the insurance. (Rennes, August 12, 1822.)" Sec. 57. "How could the owner of the ship be held to include in his abandonment the amount of insurance he has taken the precaution to put upon the vessel? Is not this insurance the consideration of the premium he has paid? Can this be affected by his guaranty of obligations contracted by the master? Ought not the relations established by law between the owner of the ship and the lender or shipper to be maintained quite independent of the contracts of insurance which each of them may make?" See also Bedarride, (Code du Commerce, sec. 295,) "In the discussion which the projet de loi of 1841 called forth, certain courts, notably that of Aix, urged that the abandonment should include, besides the ship and freight, the amount of insurance which the owner had bargained for. This claim, which had already been made before the courts, was formally condemned." So, too, Defresquet, in his pamphlet upon the law of collisions at sea, discussing the right of abandonment, observes: "We remark, in conclusion, that if an abandonment has been made of a ship sunk by collision, the owner is not obliged to abandon at the same time the amount of his insurance. This was proposed at one time, but rejected." These authorities seem to me to announce a sound principle of law and to be fortified by unanswerable reasons. The liability of the owner is limited to the value of the ship and freight. That liability ought not to be extended by a contract of indemnity made by him with a third party; in other words, the right of the injured party to reimbursement The Peshtigo. ought not to be dependent upon the contingency of a contract to which he was not a party, and with which he has no concern. He loses nothing which he would not have lost if the insurance had not existed. The contract of insurance is personal in its nature, and is a mere special agreement with a party seeking to secure himself against apprehended loss on account of his interest in a particular subject matter, and not at all incidental to, or transferable with, the subject matter. May on Ins., sec. 6. The shipper has no lien upon it for the non-delivery of his cargo. Clark v. Brown, 7 La. Ann. 342. Nor can even the master or crew have recourse to it in case of the loss of the vessel. Eymar v. Lawrence, 8 La. 42. See also Thayer v. Goodale, 4 La. 222; Steele v. Ins. Co., 17 Pa. 290; White v. Browne, 2 Cush. 412; Stillwell v. Staples, 19 N. Y. 401. Further objection is made to the plea in this case, upon the ground that the owner has not taken the appropriate proceedings under section 4284, and transfered his interest in the vessel and freight for the benefit of the libellants to a trustee as required by section 4285. It is a sufficient answer to this to say that the plea sets forth a total loss of the vessel and cargo from which would also follow a total loss of freight, and that no formal abandonment is necessary in such cases. 2 Pars. on Mar. Ins. 107, 111, 120; Brown v. Wilkinson, 15 M. &. W. 391. Exceptions to the plea overruled. Rawle v. Phelps. HENRY RAWLE v. JOHN PHELPS. CIRCUIT COURT-EASTERN DISTRICT OF MICHIGAN-JUNE 16, 1879. A cause cannot be removed to the Federal Court under the act of 1875 unless the citizenship, required by the act, existed at the time of the commencement of the suit in the State Court. On motion to remand to the Circuit Court for the county of Macomb. The suit was begun in the State Court November 8, 1878; and the petition for removal, under the act of 1875, was filed February 11, 1879. When the suit was commenced, it appears that both parties were citizens of Michigan, but the petition for removal and the affidavits made in opposition to his motion showed that the defendant became a citizen of Wisconsin between these two dates. The question was, whether, under the act of 1875, the parties must be citizens of different States at the commencement of suit. Stanley, for the complainant. Phelps, for the defendant. BROWN, J.-So far as cases originating in the Federal Courts are concerned, it is perfectly well settled that the requisite citizenship must exist at the commencement of the suit, and that the subsequent removal of the non-resident party to the State where the suit is pending, will not oust the jurisdiction. Morgan's Heirs v. Morgan, 2 Wheat. 290; Mollan v. Torrance, 9 do. 537; and in Dunn v. Clark, 8 Pet. 1, this rule was carried so far as to sustain a bill to en Rawle v. Phelps. join a judgment against a resident trustee under the will of a non-resident plaintiff. See, also, Clarke v. Matthewson, 12 Pet. 164. Such being the general policy of the law, it would seem, by parity of reasoning, that where both parties are citizens of the same State at the time the suit is commenced, the subsequent removal of one of them to another jurisdiction, ought not to change the status of the case, or confer a right of transfer to the Federal Court; at least, such construction ought not to be given, unless the words of the statute are clear and explicit. A reversal of a A reversal of a policy adopted at the formation of the government and continued for seventy-five years, ought not to be inferred from doubtful or ambiguous words. The observations of Mr. Justice MILLER in Johnson v. Monell, 1 Wool. 390, 394, are pertinent here: "This is such a wide departure from the restrictions by which Congress had heretofore guarded the right of removal, and. the proposition that a party instituting the litigation in a State Court, and pressing it to the point here mentioned, can, by his own voluntary change of residence, acquire a right to remove the case from the forum of his own selection, is so startling, that nothing short of the clearest evidence that Congress had both the power and the intention to grant such a right, will justify this procedure.” Under the act of 1879 it was held, in The Insurance Co. v. Pechner, 95 U. S. 183, that the petition for removal must show affirmatively that the plaintiff was a citizen of another State at the time the suit was commenced. It is true the court decided the question upon a technical construction of the statute, and did not undertake to state what its opinion would be under the subsequent acts, and the case is therefore not a controlling authority here. But a careful examination of the language of the two acts satisfies me that there is no substantial difference between them. The act of 1789 pro * * Rawle v. Phelps. * * * vided that "if a suit be commenced * * * by a citizen of the State in which the suit is brought, against a citizen of another State * * * * and the defendant shall, at the time of entering his appearance in such State Court, file a petition, etc." The act of 1875 provides that "any suit, etc., now pending or hereafter brought in any State Court, where the matter in dispute exceeds the sum of $500 and * in which there shall be a controversy between citizens of different States, etc., either party may remove." There is certainly no distinction between the words "commenced" and "brought." The use of the word "exceeds" in the present tense, obviously refers to the time the action is brought. The words "shall be a controversy" are somewhat equivocal, but I think they should be regarded as controlled by the previous word "exceeds" and should be construed in connection with it. There would be no reason for holding that the jurisdictional test as to amount should be applied to the time when the suit is begun,' and the test as to citizenship to a subsequent time. The fact that the statute of 1875, as well as those of 1866 and 1867, extends the time within which the petition may be filed, proves nothing as to the time when the requisite citizenship should exist. If it did then the Supreme Court should have decided in the Pechner case that it was sufficient if the petition showed the defendant to be a non-resident corporation, at the time of entering its appearance in the State Court. For these reasons it seems to me quite clear that the act was never intended to give a party the right of ousting the jurisdiction of a State Court, which has once lawfully attached, by removing to another State. It would practically put it in the power of either party to any suit in a State Court involving over $500, to transfer his case to the Federal Court, by acquiring a residence in another State pending the litigation. |