TIlE RESCU1:.

927·

such shares to the interest by the ship. It seems to me, therefore, that it would be fair and reasonable to treat the salvage award as though it were a part of the, legitimate proceeds of. theV'oyage, and distribute it accordingly. The decree will therefore provide for a distribution of the salvage on that basis, as follows: To the captain, having 1 1/14 lay, (1) · $614 22 To those having 1 1/23 lay, (3) 373 42 each ." " " II/55 lay, (2). 156 35 " " "" 11/80 lay, (6) · 10749" " "" 11/85 lay, (1) · · 101 18 " "" 1 1/90 lay, (2) 95 55 each " "" 1 1/100 lay, (3) · 85 99 " " "" 1 1/110 lay, ( 1 ) · . 7890 " "" 1 1/120 lay, (1) · 71 60 " "" 1 1/170 lay,' (2) 50 58 each " " ." 1 1/1801ay, ( 2 3 ) - 47 77 " To officers and crew, - 84,592 54 To owners of ship, 4,00654 Total amount awarded,
-$8,599' 08

Let a decree be entered in accordance with this opinion.

THE REscuil:.·

GLOUCESTER FERRY

Co· .,. THE RESCUJ!.

eou.rllTOW 11.,.......· BTlUlIIIBII.

A lIt.eamboatapproacbing ber wbal'f fa bound to obll8rve tbe signal of another steamer 'backing out from anotber Wharf, and to bote the visible effect of the tide on the latter, and wbether she has suftlcient steerageway for bandy control or speedy movement, before shaping and bolding her course directly towards her, even tboup;h the former had given a lawful signal, by obey:ing which the latter, under ordinary circWDSt.&nC8a, would have. cleared.

In Adminl1ty. Suit by the Glouoester Ferry Company to recover damages fromtlIe tug Rescue for·a oollision. LiLel dhimisaed. Charles 11. D(llI)'ning, for lihelant. John F. Lewia, for responuent.
BUTLER, District Judge. On 12, lSnO, when the ferryboat Peerle88, on her way from Glouoester to South street wharf, Philauelphia, had reaohed a point opposite, and near Windmill island. in the river Delsaw the tug Rescue alongside the end of Knight's wbarf.-

IBeported bJ Kark Wllka Collet, Esq., of the Philadelvllia bar.

928

FEDERAL REPORTER,

vol. 51.

Bome distance below South street. The tug had beeh lying at the upper side olthis wharf, with her stern to the river. After signallng her purpose to move, she had backed out,-her stern swinginK up,theriver under the influence of a flood tide,-and had started down, intending to turn eastward and run up. When she reached the end of the wharf, (where seen,) the Peerless signaled her to port and keep westward. She immediately responded and ported; but having little steerageway on, the tide swung her head eastward, and she swerved off in that direction, passing Ii short distance from the wharf. The Peerless, instead of keeping eastward under a port wheel, as her duty required, after signaling,starboarded, and ran directly towards the Rescue, (under expectation, that the latter would pass down the river.) When near together both vessels reversed their engines, but too late to escape collision, and they came together, virtually head on. The testimony, as usual in such cases, is irreconcilable. Some 'of it (frOID ignorance of the witnesses, or other cause) seems incredible: I find the facts to be, however, as above stated. The Peerless was, in my judgment, clearly in· fault. She should have heard the Rescue's first signal, and observed her movements from the start. Two at least of those on board her did. This failure may not be very important, except as it tendsJo.sbow gellera} C$relessness. And yet, had she observed these movements she should have known that the vessel's steerageway was insufficient for her handy control, or speedy movement. The act of putting her wheel to starboard, instead of port, running directly towards the Rescue, and continuing this course until almost upon her, was clear (if not gross) negligence. I can see no excuse for it. She had no occasion to cross so low down. She could as well have reached Soqth street eastward, and going higher. A change of wheel when even a sbort distance back would have avoided the accident. As before suggested, she doubtless expected seen however, in the Rescue to pass down, westward. She should time to change her wheel and escape the danger, that the Rescue was swinging eastward japq yetshekept directly on with no attempt to change until the collision was inevitable. rhe only doubt I is whether the Rescue could have done InOre than she did to avoid the' accident. I am satisfied she ported when signaled to do so. This seems to be put beyond doubt, not only by the testimony of those on board, but also by the fact that her head did not swing further up. But whether with greater exertion,-the application of more steam,-she could not have gotten further down before the Peerless reached the point where she lay; and whether she reversed as soon as she should, I have some doubt. The burden of proof, however, is on the libelant; and under the circumstances, the doubt is not sufficient to justify a finding in her favor. Her own fault is sufficient to account for the accident; and to warrant the court in relieving her of any part of the consequences the evidence of fault in the respondent should be clear. The libel must be dismissed, and a decree may be prepared accordingly.

lUJIHUA ·

L.

:a.

<lOBP. tI. BOSTON. L.

:a. con.

CoRP.

929

NASHUA

&: L. R.

CoRP. tI. BOSTON

&: L. R.

(CXreuit Court of Appeals, First Circuit. September 6, 1899.)

No. 26.

L

APPB.u...-DEOISION-LAW OJ' TIIlIl CASB.

Where the supreme court decides that the circuit court, has jurisdlctlotl of a catllM\ and remands the same for the taking of an account, the circuit court ot appeala 0U0 not, on a subsequent appeal, reopen the question of jUrisdiction. 'nlat the circuit court had no jurisdiction ot a cause is no ground for dismissing an appeal for want of jUrisdiction in the appellate court; the proper remedy ilia reversal of the judgment.
OF TRIAL CoURT.

..

S.

Where the supreme court, after afIl.rming the jurisdiction of the circuit court, No mands the cause, and directs the taking of an account, but without in any way passing upon the amount to be found due, the final decree of the circuit court, aBCl>rtaining such amount, is in no sense a mere execution of the judgment and mandate of the supreme court so that the same can be reviewed by mandamus. The proper me'hod of review is by a new appeal; and where the new decree is rendered after July,)., 189..1J and the cause does not fall within any of the provisions of section II of the _ of Jnarch 8, 1891, such appeal must be to the circult courtot appeala.
SllIs-MOTIONS TO DISMISS.

ApPEAL-CIRCUIT CoURT OJ' APPEALS.

4.

After an appellee has filed one motion to dlsmi811 the appeal. he has no right too file a second without leave of the court; and suoh leave should not be granted on formal grounds only.
ted by directions of appellant's attorney is Dot necessarily a ground for dismissing

II. SllIB-DIlFEOTIVB TRAl'lSORIPT.,.-DISMISSAL.

The fact that the transcript shows that certain portions of the record were omit-

the apJlea)., for the appellee may suggest a diminution of the record, and ask for a

certiorari.

In Equity. Bill by the Nashua & Lowell Railroad Corporation against the Boston & Lowell Railroad Corporation for an accounting. Decree for complainnnt for 829,616.41, and interest amounting to $3,363.32. Complainant appeals from the part of the decree relating to interest. Motion to dismiss the appeal denied. Francis A.BTooks, for appellant. JOBiah H. BtmWn, Jr., for appellee. Before GRAY, Circuit Justice, PUTNAM, Circuit Judge, and WEBB, District Judge.
GRAY, Circuit Justice. This 'Was a suit in equity, brought in the circuit court for the district of Massachusetts, by a corporation established by the laws of New Hampshire and also by the laws of Massachusetts, against a corporation established by the laws of Massachusetts, upon a contract in writing concerning the business of the two roads. The circuit court held that it had jurisdiction of the suit, but, at a hearing upon pleadings and proofs, entered a final decree dismissing the bill. The plaintiff appealed to the supreme. court of the United States, which held that the circuit court had jurisdiction of the case, and that the plaintiff was entitled to an accounting by the defendant for 80 much of the net earnings of the joint management of the two roads 81 had been appropriated to the payment to the defendant of sums expended by it in the purchase of stock in two other railroad corporations, v.51F.no.14-59