ing of the vessel was ascribable to the method of the distribution of the cargo in loading, and that certain drums of glycerine ought not to have been laden in the between-decks, or, if laden there, more weight of cargo or of ballast should have been laden above it, to make the vessel easy. The Circuit Court of Appeals for the Second Circuit, said:

"The judgment of the master and officers as to the proper trim of the ship and the proper distribution of the cargo and weights is much more valuable than that of the witnesses who expressed opinions in answer to hypothetical questions. The former were acquainted by experience with the characteristics of the ship, and, as is well known, two ships built on the same lines act differently under similar conditions of wind and sea. The case for the libelants rests almost wholly on the theory that the weather was not extraordinary, and the consequent inference either that the drums were not properly stowed to resist the rolling of the vessel, or that the weights were not distributed as they should have been to prevent unnecessary rolling of the vessel. We think the seas were sufficiently violent to account for the disaster to a vessel in seaworthy trim with her cargo sufficiently secured. There is no rule by which it can be defined with accuracy what degree of violence of the wind or waves is necessary to constitute a peril of the sea. Different cases must be determined according to their special circumstances. The term, of course, refers only to such forces of the elements as cannot be resisted by the ordinary exertions of human skill and prudence."

THE SAN RAFAEL. THE SAUSALITO. In re NORTH PAC. COAST R. CO. NORTH PAC. COAST R. CO. v. HALL et al. (two cases). NORTH SHORE R. CO. v. McCUE.

(Circuit Court of Appeals, Ninth Circuit. October 16, 1905.)

Nos. 1,175, 1,176, 1,177.

1. ADMIRALTY-APPEAL-MATTERS REVIEWABLE.

An appeal in admiralty by either party from the District Court to the Circuit Court of Appeals vacates altogether the decree of the District Court and opens the whole case for trial anew in the appellate court.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Admiralty, §§ 748, 759.

New proofs in admiralty, see notes to The Venezuela, 3 C. C. A. 322.] 2. SHIPPING-PROCEEDINGS FOR LIMITATION OF LIABILITY-SCOPE.

The purpose of proceedings for limitation of liability for a collision is to exempt the petitioner from all personal liability on account of the collision, on whatever ground it may rest; and where the petition is for the limitation of liability as owner of a vessel sunk, but it is found on the hearing, on appropriate allegations in the answer, that petitioner was also owner of the other vessel concerned, and that both were in fault for the collision, it is a condition precedent to the granting of the relief sought that both vessels and their pending freight be surrendered.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Shipping, § 654. Limitation of shipowner's liability, see note to The Longfellow, 45 C. C. A. 387.]

3. COLLISION-STEAM VESSELS MEETING IN FOG-ERRONEOUS SIGNALS.

Two meeting ferry steamers both held in fault for a collision in the Bay of San Francisco; one on the ground that she gave a passing signal which required the vessels to cross each other's course in a fog so dense that they could not see each other, and the other for assenting to such signal and attempting to carry it into effect.

[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Collision, 40.]

4. DEATH EVIDENCE TO ESTABLISH.

Libelants, consisting of an insane woman and her seven minor children, by their guardian ad litem, sued to recover damages for the death of the husband and father. At the time of the alleged death the mother was confined in an asylum, and the children, the oldest of whom was 17 and the youngest 3 years of age, resided with their father, who supported them and was uniformly kind and affectionate toward them. He was also a man of good habits. He left home, expressing the intention of going to San Francisco, and from there, on a boat which left at a certain hour, to San Rafael, where he intended to stay overnight with his brother-in-law, and to go the next day to visit his wife. He rode as far as Oakland with an acquaintance, who saw him leave there on a ferryboat which reached San Francisco in time to make the expected connection; but he was never seen or heard from afterwards by any one who knew him. The San Rafael boat which he intended to take was sunk on the trip in a collision in a fog. A man answering his description was seen by other passengers on such boat immediately before the collision, seated in the restaurant at a place from which it was doubtful if he could have escaped after the collision. Held, that such evidence was sufficient to warrant a finding of his death and that it was due to the collision, although but three years had elapsed at the time of the trial. [Ed. Note. For cases in point, see vol. 15, Cent. Dig. Death, §§ 5, 6.]

5. SAME-Damages.

An award of $5,000 damages in a suit in admiralty for the death of a man who left an insane wife and seven minor children, all of whom were dependent on him for support, the oldest child being 17 and the youngest 3 years of age, held too small, and increased to $7,500.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Death, §§ 120-124.]

6. EVIDENCE-DECLARATIONS-STATEMENTS SHOWING INTENTION.

Whenever the intention of a person is of itself a distinct and material fact in a chain of circumstances, as where it is sought to prove by circumstantial evidence that a person who has not since been seen or heard from was a passenger on a vessel when she was sunk in collision, and so lost his life, and as one of the circumstances that he intended to take such vessel, such intention may be proved by his oral declarations made contemporaneously.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Death, § 4; vol. 20, Cent. Dig. Evidence, § 1063, 1064.]

7. ADMIRALTY-MISJOINder of DefenDANTS—AMENDMEnt of Libel.

Where exceptions to a libel against a vessel and its owner were sustained, on the ground that they could not be sued jointly, it was not error to permit the libel to be so amended as to declare against the vessel alone.

[Ed. Note.-For cases in point, see vol. 1 Cent. Dig. Admiralty, §§ 289, 295, 524.]

8. MARITIME LIENS-ENFORCEMENT-LIMITATION BY STATE STATUTE.

A state statute limiting the time within which liens on vessels given thereby must be enforced does not restrict or affect the jurisdiction of a court of admiralty to enforce a lien given by the general maritime law. [Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Maritime Liens, § 99.]

9. SAME TORTS-SALE OF VESSEL TO BONA FIDE PURCHASER.

A lien for a maritime tort follows the vessel into the hands of even a bona fide purchaser.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Maritime Liens, § 86.]

10. COLLISION-PERSONAL INJURIES-DAMAGES.

An award of $1,000 damages for personal injuries received in a collision by which libelant's arm was broken and his hands mutilated and

partially disabled, a part of one of his ears was cut off, and he was rendered permanently deaf in one ear, besides receiving other injuries, held too small, and increased to $4,500.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Damages, § 372.] Appeals from the District Court of the United States for the Northern District of California.

For opinion below, see 134 Fed. 749.

These appeals grew out of the same accident, and were argued and submitted together; the cause being a collision in the Bay of San Francisco between the ferry steamers Sausalito and San Rafael, by which the latter was sent to the bottom of the bay, where she has ever since remained a total wreck. Both steamers were owned and operated at the time by the North Pacific Coast Railroad Company, in connection with its railroad, for the transportation of its passengers and freight between the city of San Francisco and the Sausalito terminus of its road. The accident occurred on the 30th day of November, 1901. On the 17th day of September, 1903, that company filed in the court below its verified petition, by which it sought, not only to obtain a limitation of its liability, under and pursuant to the provisions of Act Cong. March 3, 1851, c. 43, 9 Stat. 635, subsequently substantially incorporated into Rev. St. §§ 4282-4290 [U. S. Comp. St. 1901, pp. 2943-2948]. but to obtain a decree relieving it of any liability by reason of the matters and things alleged in its petition. It was therein alleged, among other things, that most of the passengers upon the San Rafael were rescued and saved; that "all or most" of the merchandise, personal property, baggage, and effects were lost, and that nothing remained of the steamer San Rafael but four of her iron boats, the aggregate value of which did not exceed $400; that at the time of the collision and of the wrecking of the San Rafael the amount of her "freight pending was $40.98, that is, $3.48 prepaid freight, and $37.50 prepaid passage money," and no more; that the value of the San Rafael and her freight pending "immediately upon, at, and after the happening of the misfortune aforesaid, did not and does not exceed the sum of $440.98." The petition also alleged that one J. S. McCue had commenced an action in the superior court of the city and county of San Francisco against the petitioner to recover from it damages in the sum of $300,000 for injuries alleged to have been sustained by him while a passenger on the San Rafael at the time of the collision, and had also commenced an action in the superior court of Marin county, Cal., against the petitioner to recover damages in the sum of $500 for merchandise alleged to have been lost by him by reason of the collision, and that various other persons, claiming to be similarly injured and damaged, will or may bring similar demands against the petitioner. The petition contained the usual prayer, and on the 21st day of December, 1903, a bond for the appraised value of the San Rafael and her freight pending was filed, and on the same day an injunction and monition were issued, the latter of which was returned into court showing due publication.

On the 5th day of April, 1904, the widow and children of one Alexander Hall, by Patrick Cassidy, their guardian ad litem, appeared as claimants, and, without waiving their right to contest the sufficiency of the petition in point of law as well as fact, alleged, among other things, that Alexander Hall was one of the petitioner's passengers on board the San Rafael at the time of the collision in question, which collision they alleged was caused by the gross carelessness of the petitioner, its servants and employés, in so navigating the two steamers as to bring them together, resulting in the sinking of the San Rafael and the death of Hall, for which damages were asked in behalf of his widow and children in the sum of $50,000.

On the 6th day of April, 1904, J. S. McCue filed in the court below a paper entitled "Exceptions and Objections of J. S. McCue," concluding with a prayer that the court deny and dismiss the petition, which paper the court treated as an answer thereto. At the same time McCue filed a claim against the petitioner for the sum of $300,000 as damages alleged to have been sustained by him in the collision, in which he alleged, in substance, that he was a passenger of the petitioner on board its steamer San Rafael at the time in

question, on one of her trips from San Francisco to Sausalito, during which time the petitioner's other steamer Sausalito, was making one of her trips from Sausalito to San Francisco, when, near Alcatraz Island, the San Rafael was run into by the Sausalito, through the gross carelessness of the officers of each of the boats, by which collision the San Rafael was sunk, and the claimant seriously injured in the particulars therein specifically set forth, for which injuries he demanded damages in the sum of $300,000. In his "Exceptions and Objections" to the petition McCue alleged, among other things, substantially the same facts, and also set up in defense of the petition that, inasmuch as the collision which inflicted his injuries was brought about by the fault of both steamers and their respective masters, the petitioner was not entitled to any limitation of its liability without the surrender of both steamers, and accordingly prayed that the petition be denied and dismissed. This point on the part of McCue was overruled by the court below, the court saying, in its opinion: "It is a sufficient answer to this to say that the petitioner does not seek to limit any liability which it may be under as owner of the steamer Sausalito, and in my opinion the right of the respondent, or any other person injured by the collision referred to, to proceed against the steamer Sausalito, or the petitioner, in so far as that vessel is liable for damages growing out of such collision, is not affected by this proceeding. The petitioner does not allege that it is the owner or has ever been the owner of the steamer Sausalito, and the decree in this case will be restricted to its liability as owner of the steamer San Rafael. There was no evidence given upon the trial bearing upon the allegation of the petition that the collision was the result of inevitable accident. The claim of the petitioner for exemption from all liability must therefore be denied, and a decree entered limiting its liability to the appraised value of the San Rafael and freight pending. Further hearing of the case upon the question of the amount of damages may be brought on by either party, upon notice to the other." In accordance with this conclusion, the court below entered a decree, on the 2d day of November, 1904, adjudging and decreeing "that the default of each person and all persons who may claim to have suffered damages or loss on said voyage or resulting from said collision, and who have not heretofore presented his or their claims herein pursuant to said monition aforesaid, be, and are hereby, adjudged herein to be forever barred; that the petitioner North Pacific Coast Railroad Company, a corporation, is entitled to limit its liability as owner of the steamer San Rafael, if any liability there be, for and on account of the matters and things in its said petition alleged; and that the claim of petitioner for exemption from all liability is denied, and its liability as owner of the steamer San Rafael be, and the same is hereby, limited to the appraised value of the said steamer San Rafael, with its freight pending, hereby adjudged to be the sum of $425.23, together with interest thereon, from December 21, 1903; and that the further hearing as to the amount of damages may be brought on upon notice by either party; and that such matters as are not herein specifically adjudged, be and are reserved for further hearing and consideration."

Further hearing in respect to the matter of damages was subsequently brought on, resulting in findings by the court below made and entered December 16, 1904, to the effect that the collision in question was caused by the fault of both steamers and their respective officers, and that McCue had sustained damages by the collision to the extent of $1,500, and that the widow and children of Alexander Hall had been damaged by the death of the latter in the sum of $5,000, upon which findings there was entered, on the 5th day of January, 1905, a decree in favor of McCue against the petitioner in the sum of $1,500, with costs, but with a limitation to the effect that satisfaction of the decree should "be limited to such portion of the sum of four hundred twenty-five and twenty-three one-hundredths (425 23-100) dollars, together with interest thereon from December 21, 1903, as may be on the further proceedings herein apportioned to said J. S. McCue, upon a consideration of all judgments or decrees rendered against said petitioner herein," and further adjudging "that the full limit of the liability of said petitioner, as owner of said steamer San Rafael, for or on account of any matter or thing alleged 141 F.-18

in said petition, is hereby limited to the said sum and value of four hundred twenty-five and twenty-three one-hundredths (425 23-100) dollars, together with interest thereon from December 21, 1903, until the said sum and interest shall, upon the proper order of this court therefor, be paid into the register of this court." A similar decree, with similar limitations and provisions, was at the same time entered by the court below in favor of Cassidy, as guardian ad litem of the widow and children of Alexander Hall, against the petitioner North Pacific Coast Railroad Company, for $5,000. Meanwhile, to wit, on the 21st day of November, 1903, McCue brought in the same court a libel against the steamer Sausalito and the North Shore Railroad Company, which had then become the owner of the steamer, having acquired the same from the North Pacific Coast Railroad Company, in which libel McCue set up substantially the same matters which he alleged in his former pleadings, exceptions to which, upon the ground that the libelant could not proceed against the steamer and its owner jointly, were sustained by the court on January 13, 1904, with leave to the libelant to amend.

Accordingly, on the 18th day of January, 1904, McCue filed an amended libel against the steamer Sausalito, alleging the same facts previously set up, and praying damages in the sum of $300,000 against that steamer, and that she be sold to pay the same. etc. The answer of the North Shore Railroad Company, then claimant of the Sausalito, to the amended libel of McCue, besides putting in issue the averments with respect to negligence on the part of the steamer Sausalito, and with respect to his injuries and damages, set up, in bar thereof, the limited liability proceedings heretofore referred to, and the decrees entered therein. On the 30th of November, 1903. Cassidy, as guardian ad litem of the widow. and children of Alexander Hall, also brought in the court below a libel against the steamer Sausalito and the North Pacific Coast Railroad Company, as the owner thereof, to recover damages for the alleged death of Alexander Hall, alleging therein the same facts he had theretofore set up as grounds for such recovery, in which proceeding the North Shore Railroad Company intervened as claimant of the steamer Sausalito. Exceptions were filed by both of the railroad companies to that libel, which were, by the court below, sustained, on the ground that the steamer and its owner could not be so proceeded against jointly, whereupon an amended libel was, by leave of the court, filed by Cassidy, as such guardian, against the North Pacific Coast Railroad Company alone, based upon substantially the same averments as he had made in his former pleadings herein referred to.

The libels of McCue and of Cassidy, as guardian ad litem of the widow and children of Alexander Hall, were tried together and submitted upon the same evidence, resulting in findings by the court below to the effect that both Hall and McCue were passengers of the North Pacific Coast Railroad Company, on board the steamer San Rafael at the time of the collision between her and the steamer Sausalito, that Hall lost his life by reason of it, and that McCue lost, from the same cause, personal effects of the value of about $400, and suffered personal injuries to such an extent as to make his damages aggregate $1,500, and further finding that the collision was brought about by the fault and carelessness on the part of both steamers and of their respective masters, the court gave judgment in favor of McCue for $1,500 and costs, but further adjudged that the decree "be satisfied upon the payment of said sums, less any amount paid to the libelant upon a decree heretofore rendered in his favor in the matter of the petition of the North Pacific Coast Railroad Company for limitation of its liability, filed in this court and numbered 13,112," and further adjudging "that unless this decree be satisfied as above provided, or proceedings thereon be stayed by an appeal from said decree within the time limited and prescribed by the rules and practice of this court, that then the libelant may have execution against said claimant and against its surety, upon the admiralty stipulation given in the aboveentitled proceeding for the release of said steamer Sausalito," from which decree the claimant appealed. And the court gave judgment in the case of Cassidy, as guardian ad litem of the widow and children of Alexander Hall, against the North Pacific Coast Railroad Company for $5,000 and costs, but further adjudged that the decree "be satisfied upon payment of the sum so