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sary to avoid immediate danger. There could scarcely be a greater “danger of navigation" than a large steamer approaching at full speed in the nighttime, in apparent ignorance of the presence of another. Each of such vessels is a menace to the safety of another, because their co-operation to a safe course is impossible. Under such circumstances, rules 21 and 24 are of paramount force. They condemn the effort of the Conemaugh to cross the bows of the New York without first obtaining recognition, and for failing to stop and reverse in so grave a peril as that produced by the New York's speed and change of course; and they and rule 19 condemn the New York for changing her course, and failing to stop and reverse when she saw the Conemaugh. In such a situation, failure to stop and reverse is an almost unpardonable sin against the maritime code. The Manitoba, 2 Flip. 241; Id., 122 U. S. 97,7 Sup. Ct. Rep. 1158; The Stanmore, 10 Prob. Div. 135; The D. S. Gregory and The Washington, 2 Ben. 226, 236. It is strongly urged that this error has nothing to do with the disaster. That conclusion would require for its support clear proof, not merely that the violation of rule 21 did not probably, but could not have contributed to the collision. The Pennsylvania, 19 Wall. 125; The Fenham, L. R. 3 P. C. 212; Richelieu & 0. Nav. Co. v. Boston Marine Ins. Co., 136 U. S. 408, 422, 10 Sup. Ct. Rep. 934. The proofs have not this force, but leave it at least doubtful whether the Conemaugh could have been stopped in time to avert the collision. The master, whose ingenuous and straightforward manner on the witness stand commends his testimony, frankly stated that he could not say whether or not that could have been done. The fact that the Conemaugh was struck abreast of the pilot house, about 30 feet abast her stem, is persuasive at least that, had she stopped, she would have escaped the blow inflicted by the New York, though the New York might not have been so fortunate. The severe rule which makes the transgression of the statute prima facie a contributory cause is, however, not infrequently relaxed; and the most forcible consideration urged for the acquittal of the Conemaugh is founded on the indulgence of the courts to an error committed by a vessel which has been brought into immediate jeopardy by the fault of another. In such a case the injured party is not debarred from the recovery of damages if his vessel has done something wrong, and has not been maneuvered with perfect skill and presence of inind. Instances of application of this doctrine are: Steamship Co. v. Rumball, 21 How. 383; The Nichols, 7 Wall. 656-666; The Carroll, 8 Wall. 305; The Elizabeth Jones, 112 U. S. 526, 5 Sup. Ct. Rep. 468; The Maggie J. Smith, 123 U. S. 355, 8 Sup. Ct. Rep. 159; The Blue Jacket, 144 U.S. 371-391, 12 Sup. Ct. Rep. 711; The Bywell Castle, 4 Prob. Div. 219.

The argument is that the effort of the Conemaugh to keep out of the way by starboarding was justified by the circumstances which constitute the exception to pilot rule 2, namely, the obstruction created by the tow, and the danger of her attempting to pass between it and the New York, and, as the Conemaugh had met every requirement of prudence and the rules of navigation up to the instant of the New York's unlaw

each, in their then dangerous proximity, the duty of stopping and reversing. Both were knowingly, under the operation of rule 21, on courses involving risk of collision. The fact that the New York had not responded to either signal, but was drawing near at full speed, with the eyes and ears of her watch closed to the presence and purpose of the Conemaugh, despite the warnings of her lights and signals, called for the extremest precautions on the part of the latter, and should in some measure have prepared her for the necessity of their instant adoption.

It is said that the silence of the New York was not conclusive eve idence that she had not heard the signals of the Conemaugh; for, notwithstanding pilot rule 6 expressly requires that passing signals by whistle shall be given and answered "at all times when steamers are passing or meeting at a distance within half a mile of each other, and whether passing to starboard or port,” the rule, it is matter of common knowledge, is often violated, despite the fact that failure to obey it has frequently been held the ground of condemnation of the offending vessel. The B. B. Saunders, 19 Fed. Rep. 118; The Garden City, Id. 533; The W. H. Beaman, 18 Fed. Rep. 334.

The presumption of law, however, is that the nonobservance of the rule by the New York was not willful. Moreover, under no circum- , stances should the prevalence of this illegal practice be received to excuse noncompliance with rules 21 and 24 of the steering and sailing rules. If it was prudent to check speed when approaching a tow moving in the same direction, the necessity of still greater care when she was about to meet and cross the course of a steamer rushing up the : river at fuil speed, in evident ignorance of the presence of a descend- ; ing vessel, was infinitely more obvious and urgent. Though not called upon to stop when no response was made to her passing signal, because she had the tow between herself and the New York, and there could be no collision while that was the case, yet, when the Conemaugh emerged from that shelter, she did so with knowledge, or at least reason to believe, that her presence was unknown to the New York, and that the safety of her advance was contingent on the latter's adherence to her course, which, though probable, was not assured, because the Conemangh apparently was not a factor in her navigation. The Conemaugh, therefore, could not safely proceed in the expectation that the New York would obey rule 19, and hold her course, in the absence of knowledge on her part that there was a vessel in the vicinity to whom she owed that duty. The steering and sailing rules governing the course of vessels meeting in various situations contemplate that each knows the facts upon which it is called to act. If one alone has that knowledge, and perceives, or has reason to believe, that the other has not, she cannot justify proceeding on the course prescribed for the situation, and, in the event of a collision, ask the determination of the controversy by the rule of that course alone, regardless of the cognate rules of navigation. These rules are all qualified by rule 24, which enjoins due regard to the dangers of navigation, and special circumstances rendering departure from them necese :)

sary to avoid immediate danger. There could scarcely be a greater "danger of navigation" than a large steamer approaching at full speed in the nighttime, in apparent ignorance of the presence of another. Each of such vessels is a menace to the safety of another, because their co-operation to a safe course is impossible. Under such circumstances, rules 21 and 24 are of paramount force. They condemn the effort of the Conemaugh to cross the bows of the New York without first obtaining recognition, and for failing to stop and reverse in so grave a peril as that produced by the New York's speed and change of course; and they and rule 19 condemn the New York for changing her course, and failing to stop and reverse when she saw the Conemaugh. In such a situation, failure to stop and reverse is an almost unpardonable sin against the maritime code. The Manitoba, 2 Flip. 241; Id., 122 U.S. 97,7 Sup. Ct. Rep. 1158; The Stanmore, 10 Prob. Div. 135; The D. S. Gregory and The Washington, 2 Ben. 226, 236. It is strongly urged that this error has nothing to do with the disaster. That conclusion would require for its support clear proof, not merely that the violation of rule 21 did not probably, but could not have contributed to the collision. The Pennsylvania, 19 Wall. 125; The Fenham, L. R. 3 P. C. 212; Richelieu & 0. Nav. Co. v. Boston Marine Ins. Co., 136 U. S. 408, 422, 10 Sup. Ct. Rep. 934. The proofs have not this force, but leave it at least doubtful whether the Conemaugh could have been stopped in time to avert the collision. The master, whose ingenuous and straightforward manner on the witness stand commends his testimony, frankly stated that he could not say whether or not that could have been done. The fact that the Conemaugh was struck abreast of the pilot house, about 30 feet abaft her stem, is

persuasive at least that, had she stopped, she would have escaped the blow inflicted by the New York, though the New York might not have been so fortunate. The severe rule which makes the transgression of the statute prima facie a contributory cause is, however, not infrequently relaxed; and the most forcible consideration urged for the acquittal of the Conemaugh is founded on the indulgence of the courts to an error committed by a vessel which has been brought into immediate jeopardy by the fault of another. In such a case the injured party is not debarred from the recovery of damages if his vessel has done something wrong, and has not been maneuvered with perfect skill and presence of .nind. Instances of application of this doctrine are: Steamship Co.' v. Rumball, 21 How. 383; The Nichols, 7 Wall. 656-666; The Carroll, 8 Wall. 305; The Elizabeth Jones, 112 U. S. 526, 5 Sup. Ct. Rep. 468; The Maggie J. Smith, 123 U. S. 355, 8 Sup. Ct. Rep. 159; The Blue Jacket, 144 U. S. 371-391, 12 Sup. Ct. Rep. 711; The Bywell Castle, 4 Prob. Div. 219.

The argument is that the effort of the Conemaugh to keep out of the way by starboarding was justified by the circumstances which constitute the exception to pilot rule 2, namely, the obstruction created by the tow, and the danger of her attempting to pass between it and the New York, and, as the Conemaugh had met every requirement of prudence and the rules of navigation up to the instant of the New York's unlaw

ful change of course, her failure to stop and reverse in the sudden emergency thereby produced should be held error in extremis. If the Conemaugh had come up in a position in which she was passing when the New York ported under assurances from the latter that the Coremaugh's presence was known, it might well be claimed that the circumstances disarmed the master of the latter of suspicion of danger, and entitled the Conemaugh's advance to the most lenient judgment. But such was not the case. The very vigilance of the Conemaugh as she neared the path of the New York recognized the danger of the situation before the New York ported, and her master frankly admits that after she ported he thought "there wasn't much chance to get away from her,” when the Conemaugh starboarded hard just after sounding her aların whistles. The apprehension that, if the New York should accept and act upon the passing signals by stopping and reversing, the Conemaugh would have been “in the road of the New York," cannot be admitted to justify the failure to take that precaution. There was nothing to suggest the probability of such action on the part of the New York, but on the contrary her actual course negatived the supposition. There could be but one result if both vessels persisted in going ahead. Every instant of advance made this more manifest. Stopping, if not an as'surance of safety, was manifestly less dangerous than a race for the point of intersection, which at furthest was not more than 700 feet away. It is true that a master is entitled to have time to comprehend the exigencies of the situation before he can be held to have transgressed its law; or, to quote the language of the court in The Emmy Haase, 9 Prob. Div.81, approved in Maclaren v. Campagnie Francaise, L. R. 9 App. Cas. 649, and The Beryl, 9 Prob. Div. 137, 138 “A man must have time to consider whether he should reverse or not. The court is not bound to hold that a man should exercise his judgment instantaneously. A short—but a very short-time must be allowed for that purpose. The time, however, must be measured, not by the watch, but by the circumstances. The conditions in this case, preceding the New York's change of course, were, as has been said, preparatory and cautionary. They so plainly forbade experiment that the duty of stopping and reversing needed no consideration. It seems to me it should have occurred to the officer on deck before his vessel had run a length. The equities of the case are so strongly in favor of the Conemaugh that the conclusion that she was also in fault has been reached with reluctance, and not without considerable doubt, in view of the extent to which adjudged cases of high authority have gone in referring collisions, in circumstances not unlike these, solely to the fault of the flagrant transgressor. The great disparity of fault has invited and received the consideration it merits. But the impossibility of enforcing the great commandment of the law of navigation which calls a halt when risk of collision is involved, compels me to adjudge both vessels at fault; and a decree will be entered to that effect, and the usual order of reference to a commissioner to ascertain and report damages. The costs will be equally divided.

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BILLINGS et al. V. ASPEN MINING & SMELTING CO. et al.

(Circuit Court, D. Colorado. January 13, 1893.) APPEAL-MANDATE-PROCEEDINGS BELOW-JURISDICTION.

It is too late to question the jurisdiction of the circuit court after the return of a mandate from the circuit court of appeals, and the circuit court has no discretion but to enter a decree pursuant to the directions of the mandate, and carry the same into effect. In Equity. Bill by Margaret Billings and others against the As. pen Mining & Smelting Company and others, asserting the rights of complainants in a mine, as the heirs at law of William James Wood, one of the original locators. The bill was dismissed on the merits in the circuit court, and complainants appealed to the circuit court of appeals, where the decree was reversed, with specific directions as to the decree to be entered below. See 51 Fed. Rep. 338, 2 C. C. A. 252. Thereafter defendants petitioned for a rehearing, which was denied. 52 Fed. Rep. 250, 3 C. C. A. 69. The mandate having been filed in the circuit court, the defendants now seek by motion to question the jurisdiction of the court to proceed further in the cause. Motions overruled.

T. A. Green, for complainants.
E. O. Wolcott and J. F. Vaile, for respondent Wheeler.
Aaron Fleims, for respondent Aspen Mining & Smelting Company.

RINER, District Judge. The motions filed by the defendants seck to question the jurisdiction of this court to further proceed in the cause, and to order an accounting as directed by the mandate of the court of appeals of this circuit. That these objections come too late has long since been settled by the supreme court, and it requires but a reference to one or two decisions of that court to dispose of these motions.

In the case of Skillern's Ex’rs v. May's Ex'rs, 6 Cranch, 267, the identical question was passed upon by the supreme court. The syllabus is in the following language:

“It is too late to question the jurisdiction of the circuit court, after the cause has been sent back by mandate."

And in the opinion, which is very short,-I will read it,--the court say:

"This court, after consideration, directed the following opinion to be certified to the court below, viz.: 'It appearing that the merits of this cause had been finally decided in this court, and that its mandate required only the execution of its decree, it is the opinion of this court that the circuit court is bound to carry that decree into execution, although the jurisdiction of that court be not alleged in the pleadings.'”

To the same effect is a case in 14 Pet. 51,—the case of West v. Brashear. The syllabus in this case is as follows:

"The mandate of the supreme court to the circuit court must be its guide in executing the judgment or the decree on which it is issued. The mandate is the judgment of the supreme court transmitted to the circuit court; and where the direction contained in it is precise and unambiguous, it is the duty of the circuit court to carry it into execution, and not to look elsewhere for authority to change its meaning."

v.53F.no.6—36

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