Decisions announced without Opinions.

No. 763. CLAFLIN, AS EXECUTOR, v. TUTTLE, AS TRUSTEE. Second Circuit. Denied April 12, 1897. Mr. Edmund Wetmore and Mr. C. W. Gould for petitioner. Mr. B. F. Lee opposing.

No. 461. AMERICAN BELL TELEPHONE Co. v. WESTERN UNION TELEGRAPH Co. First Circuit. Denied April 12, 1897. Mr. John F. Dillon and Mr. J. H. Benton, Jr., for petitioner. Mr. James J. Storrow opposing.

No. 667. BONDHOLDERS AND PURCHASERS OF THE IRON RAILROAD v. TOLEDO, DELPHOS & BURLINGTON RAILROAD Co. Seventh Circuit. Denied April 12, 1897. Mr. John C. Coombs and Mr. Charles H. Hanson for petitioners. Mr. Clarence Brown opposing.

No. 769. DEIMEL V. STROHEIM. Seventh Circuit. Denied April 12, 1897. Mr. Hiram T. Gilbert for petitioner. Mr. Levy Mayer opposing.

No. 749. CHAPMAN v. UNITED STATES. Court of Appeals of District of Columbia. Denied April 19, 1897. Mr. George F. Edmunds, Mr. A. J. Dittenhoefer and Mr. J. M. Wilson for petitioner.

No. 766. MUTUAL LIFE INSURANCE CO. OF NEW YORK V. PHINNEY, EXECUTRIX. Ninth Circuit. Granted April 19, 1897. Mr. Edward Lyman Short, Mr. Robert Sewell and Mr. John B. Allen for petitioner. Mr. S. Warburton and Mr. A. F. Burleigh opposing.

Nos. 725 and 726. NATIONAL FOUNDRY & PIPE WORKS, LIMITED V. ANDREWS, and SAME v. CITY OF OCONTO. Seventh Circuit. Denied April 26, 1897. Mr. George H. Noyes for petitioner. Mr. W. H. Webster opposing.

VOL. CLXVI-46

Decisions announced without Opinions.

No. 780. NEWARK ELECTRIC LIGHT & POWER Co. v. GARDEN, ADMINISTRATOR. Third Circuit. Denied April 26, 1897. Mr. Mahlon Pitney and Mr. John O. H. Pitney for petitioner. Mr. Henry M. Garden opposing.

No. 764. ANGLO-CALIFORNIAN BANK V. SECRETARY OF THE TREASURY. Ninth Circuit. Denied April 30, 1897. Mr. J. F. Evans for petitioner. Mr. Attorney General and Mr. Solicitor General opposing.

No. 787. STEAMTUG "TITAN" v. LEGG ET AL., ADMINISTRATORS. Second Circuit. Denied April 30, 1897. Mr. Henry W. Goodrich and Mr. John A. Deady for petitioner. Mr. Henry Galbraith Ward opposing.

No. 790. NATIONAL MACHINE Co. v. WHEELER & WILSON MANUFACTURING Co. Second Circuit. Denied April 30, 1897. Mr. Edwin H. Brown for petitioner. Mr. Livingston Gifford opposing.

No. 793. EINSTEIN, WOLFF & Co. v. UNITED STATES. Second Circuit. Denied April 30, 1897. Mr. Charles Curie, Mr. W. Wickham Smith and Mr. David Ives Mackie for petitioners.

No. 794. UNITED STATES v. ROESSLER & HASSLACHER CHEMI

CAL Co. Second Circuit. Granted April 30, 1897. Mr. Attorney General, Mr. Solicitor General and Mr. Assistant Attorney General Whitney for petitioners. Mr. Albert Comstock opposing.

1. When a libel in admiralty is ordered to stand dismissed if not

amended within a time named, the prosecution of an appeal within
that time is a waiver of the right to amend, and the decree of dis-
missal takes effect immediately. The Three Friends, 1.

2. In admiralty cases, although the decree of the Circuit Court of Appeals
is made final in that court, this court may require any such case to be
certified for its review and determination, with the same power and
authority as if it had been brought here, directly, from the District or
Circuit Court; and although this power is not ordinarily to be exer-
cised, the circumstances justified the allowance of the writ in this
instance. Ib.

3. The forfeiture of a vessel proceeded against under Rev. Stat. § 5283,
does not depend upon the conviction of the person or persons charged
with doing the acts therein forbidden. Ib.

4. Demurrage is a proper element of damages, but it can only be allowed
when profits have either actually been lost, or may be reasonably sup-
posed to have been lost, and their amount is proven with reasonable
certainty. The Conqueror, 110.

5. The best evidence of damage suffered by detention is the sum for which
vessels of the same size and class can be chartered in the market; but
in the absence of such market value, the value of her use to her owner
in the business in which she was engaged at the time of the collision
is a proper basis for estimating damages for detention, and the books
of the owner showing her earnings about the time of her collision are
competent evidence of her probable earnings during the time of her
detention. Ib.

6. Testimony as to value may be properly received from witnesses who
are duly qualified as experts, but the jury, even if such testimony be
uncontradicted, may exercise their independent judgment; and there
is no rule of law which requires them to surrender their judginent, or
to give a controlling influence to the opinions of scientific witnesses.
· Ib.

723

7. The testimony in this case falls far short of establishing such a case of
loss of profits as entitles the claimant to recover the large sum awarded
to him for the detention of his yacht. lb.

8. Whether the other charges were proper or not, was a matter for the
courts below to determine, in the exercise of their best judgment; and,
as the commissioner found that they were proper, and as both the
District Court and the Court of Appeals affirmed his action in that
regard, this court is not disposed to disturb their finding, although the
amount seems large. Ib.

9. Torts originating within the waters of a foreign power may be the sub-
jects of a suit in a domestic court. Panama Railroad v. Napier Ship-
ping Co., 280.

10. The facts in this case, as detailed in the statement of the case, do not
show a negligence on the part of the railroad company and its agents,
which makes it responsible to the shipping company for the damage
caused by the accident to the Stroma. Ib.

11. By printed contract the Oceanic steamship company agreed with the
libellants, in consideration of the passage money paid, to land them
with their luggage in New York. The contract ticket had attached to
it a "notice to passengers," printed in fine type, that the contract
was made subject to "conditions," among which were the following:
"3. Neither the Shipowner nor the Passage Broker or Agent is respon-
sible for loss of or injury to the Passenger or his luggage or personal
effects, or delay on the voyage, arising from steam, latent defects in the
Steamer, her machinery, gear or fittings, or from act of God, Queen's
enemies, perils of the sea or rivers, restraints of princes, rulers and
peoples, barratry or negligence in navigation, of the Steamer or of any
other vessel. 4. Neither the Shipowner nor the Passage Broker or
Agent is in any case liable for loss of or injury to or delay in delivery
of luggage or personal effects of the Passenger beyond the amount of
£10, unless the value of the same in excess of that sum be declared at or
before the issue of this Contract Ticket, and freight at current rates for
every kind of property (except pictures, statuary and valuables of any
description upon which one per cent will be charged) is paid." “7. All
questions arising on this Ticket shall be decided according to English
law, with reference to which this Contract is made." The ticket was
'purchased for libellants by their father, was not examined by him, was
not examined by them, and neither he nor they knew of these conditions,
nor was their attention called to them. On the voyage the luggage of
libellants was flooded with water, which came in through a broken port-
hole, from causes described by the court in its Statement of the Case
and opinion, which are held not to be an "act of God," necessarily
exempting the company from liability. Held, (1) That by the rule in
England the "conditions" were notices, and nothing more; and that it
could not be held as matter of law that, whether they were regulations
for the conduct of business, or limitations upon common law obligations,

they constituted any part of the contract; (2) That the rule was not
otherwise in this country; (3) That on the evidence the court cannot
conclude that the libellants should be held bound, as a matter of fact,
by any of the alleged conditions or limitations, as they were not in-
cluded in the contract proper, in terms or by reference. The Majestic,

375.

12. The "act of God," which would exempt from liability under such
circumstances, is limited to causes in which no man has any agency
whatever. Ib.

13. The Umbria, a passenger steamer carrying the mails, coming out from
the harbor of New York at full speed about midday in a fog which
was at times dense and at times intermittent, collided with the Iberia
about eleven miles from the entrance to the harbor and sank her.
Held, that the Umbria was gravely at fault in the matter of speed, and
that this fault was not lessened by the fact that passenger steamers
carrying the mails run at full speed in a fog in order to pass the
foggy belt. The Umbria, 404.

14. Accepting, in the absence of other evidence, the testimony of the officers
and crew of the Iberia as conclusive, the court, while of opinion that it
would have been more prudent not to have changed her course in man-
ner as set forth in the Statement of the Case, is unwilling to say that
the doing so was necessarily a fault on her part. Ib.

15. The general consensus of opinion in this country is that in a fog a
steamer is bound to use only such precautions as will enable her to
stop in time to avoid a collision, after the approaching vessel comes
in sight, provided such approaching vessel is herself going at the
moderate speed required by law. lb.

16. The damages should not have been divided by the court below. The
majority of this court think that the Iberia was not in fault under the
circumstances set forth in the Statement of the Case, and the other mem-
bers of the court are of opinion that her fault, if any, did not contribute
to the collision. Ib.

17. In cases of total loss estimated profits of a charter party not yet entered
upon are always rejected; and there is nothing in the facts to take this
case out of the general rule. Ib.

See NEUTRALITY.

BOND.

See SIGNAL SERVICE.

CASES AFFIRMED OR FOLLOWED.

Bank of Aberdeen v. Chehalis County, 166 U. S. 440, affirmed, followed and
applied to the several facts in these respective cases. Bank of Com-
merce v. Seattle, 463.