THE NORTH STAR. THE FRANCIS J. REICHERT. (Circuit Court of Appeals, Second Circuit. January 15, 1919.) 1. COLLISION Nos. 122, 123. 63-LIABILITY-VESSELS AT FAULT. In a suit for collision between a steamer and a cattle float in charge of a tug, held, that the steamer and tug were both at fault. 2. COLLISION ←~25—LIMITATION OF LIABILITY—RIGHT TO LIMIT. Where a collision was due entirely to careless navigation, the fact that the mate of the tug, in charge of a cattle float injured by the collision, was not on board, held not ground for denying the owner of the tug the right to limit liability; it appearing that the collision did not occur during the mate's watch. Appeals from the District Court of the United States for the Southern District of New York. Libel for collision by the Reichert Towing Line, Incorporated, against the steamer North Star, her engines, etc., claimed by Calvin Austin, as receiver of the Eastern Steamship Corporation, and by the New York Stockyards Company, against the steamer North Star, her engines, etc., also claimed by Calvin Austin, as receiver, and the steam tug Francis J. Reichert, her engines, etc., claimed by the Reichert Towing Line, Incorporated. From decrees finding both vessels at fault, the Reichert Towing Line, libelant, which was claimant of the steam tug Francis J. Reichert, and Calvin Austin, receiver, claimant of the steamer North Star, appeal. Modified and affirmed. Foley & Martin, of New York City, for appellant Reichert Towing Line, Inc. Park & Mattison, of New York City, for appellee New York Stockyards Co. Haight, Sandford & Smith, of New York City, for the North Star. Before WARD, ROGERS, and HOUGH, Circuit Judges. WARD, Circuit Judge. December 8, 1915, about 5 p. m., the cattle. float El Paso, on the starboard side of the tug Francis J. Reichert, bound down the North River, came into collision with the steamer North Star, bound up the river about off Pier 1 or 2. The night was dark, but clear, and the one thing certain is that the collision was inexcusable. There is even more than the usual contradiction between the witnesses as to lights and signals, and there are the usual obvious inaccuracies in the estimates of time and distance. It would be quite useless to review the testimony in detail. The story of the Reichert is that the North Star, being on the starboard bow of El Paso, ported, and so struck the starboard side of the cattle float. The story of the North Star is that the Reichert, being on the port bow of the North Star, starboarded across her course, and so came into collision with her starboard bow. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes [1] Certain facts are fairly clear. Each vessel contends that she was going straight up or down the river, respectively parallel with the line of the New York piers. Each agrees that the collision was a side swipe between the bluff of the North Star's starboard bow and the starboard side of El Paso, and each admits that if the North Star's stem, which is sharp, had struck El Paso, it would have gone right through her side. The engine room log of the North Star shows that the engines were worked as follows: Stop, 5:14. Stop, 5:16. There is no reason to doubt the accuracy of these entries, and they show quite obviously that the danger of collision was appreciated all at once at 5:14, and that the collision happened somewhere between 5:14 and 5:16, when the signal to stop must have been given after it. The North Star has a left-handed propeller, which backs to port, and the bow of El Paso is square. It seems quite plain to us that the steamer and cattle float must have been approaching nearly head on, and such is the testimony of a number of the witnesses. We are satisfied that a vigilant lookout on either vessel would have prevented the collision, and that they were so close when they appreciated the danger that the collision was practically unavoidable. Starboarding of their helms in accordance with the signal of two blasts blown by the Reichert, though this is not testified to, and the effect of reversing the North Star's left-handed propeller, might explain the bluff of her bow coming in contact with El Paso's starboard side a little aft of the bow and the vessels then scraping past and clear of each other. But quite apart from this possible explanation, lack of vigilance and of a proper lookout is sufficient to put each vessel at fault. What occurred is much more consistent with the lack of vigilance on the part of both vessels than such an extraordinary and senseless manoeuver as each attributes to the other. A great deal is made by the counsel for the cattle float of the nearness of the North Star to the New York shore. It does not seem at all important to us in this case, and if it were a fault both vessels were guilty of it. [2] Upon the question of the Reichert's right to limit we cannot agree with the District Judge. The collision was due entirely to careless navigation. There is no pretense that the master of the tug was not properly licensed, and there is no obligation that her lookout should have a license. The particular fault attributed to the owner, viz. that the mate was not aboard the tug, had nothing whatever to do with the collision, because it did not happen in his watch, and if he had been on board he might well have been asleep, and he certainly had no duty to perform. On the same reasoning, the owner's right to limit might be denied, because there was no anchor aboard. The decrees finding both vessels at fault are affirmed, but modified, by allowing the owner of the tug to limit its liability. No costs of this appeal. ROBERTS CONE MFG. CO. et al. v. BRUCKMAN et al. (Circuit Court of Appeals, Eighth Circuit. February 10, 1919.) No. 5310. 1. APPEAL AND ERROR ~671(1)—REVIEW-QUESTIONS PRESENTED FOR KE VIEW. Only errors that properly appear on the record in the appellate court are reviewable. 2. APPEAL AND ERROR 688(1)—REVIEW-QUESTIONS PRESENTED. Where appellants pointed out no place in the record before the Circuit Court of Appeals where the terms of their special appearance and objections to the District Court's jurisdiction were set forth, and the record showed no motion by appellants in the District Court to transfer the case to the law side, or objection or exception to the ruling thereon, their motion to direct the court below to reverse its decree and transfer the case to the law side should be denied. Appeal from the District Court of the United States for the Western District of Missouri; Joseph W. Woodrough, Judge. Bill by Frederick A. Bruckman and others against the Roberts Cone Manufacturing Company and others. Decree for complainants, and defendants' motion to direct the court below to reverse its decree and transfer the case to the law side of the court was denied. On motion for rehearing of the motion to direct the court below to reverse its decree, etc. Motion for rehearing denied. Toulmin & Toulmin, of Dayton, Ohio, and Culver & Philip, of St. Joseph, Mo. (H. A. Toulmin, of Dayton, Ohio, of counsel), for appellants. Albert E. Dieterich, of Washington, D. C., for appellees. Before SANBORN, Circuit Judge, and TRIEBER, District Judge. SANBORN, Circuit Judge. [1, 2] The motion to direct the court below to reverse its decree and transfer this case to the law side of that court was denied, because the record did not disclose that a proper motion or objection or exception to a ruling of the District Court on the subject was made in that court, and it was too late to make such objection or motion in this court. The motion to direct the District Court to reverse its decree and to transfer this case to the law side of the court was submitted to this court on printed briefs, in which no specification or reference to any part of the record before this court. was made, wherein the facts appeared that the appellants had made a motion in the District Court to transfer this case to the law side of that court, or had made any objection to the trial of this case in equity in that court, on the ground that it was triable at law only, or that the court had overruled any such objection or motion, or that any exception had ever been taken in that court to any such ruling therein. The appellees, in their answering brief on the motion to direct the reversal, asserted that at no time during the trial below did the appellants object to the jurisdiction of the District Court in equity or move for a jury trial, or for a transfer of the case to the law side. The For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes appellants made no denial of that assertion. This court did not discover in the records here any recital of such an objection or motion, or of any ruling of the District Court thereon, or of any exception to such a ruling, and the defendants have not now, in their motion for a rehearing or in their argument upon it, pointed out any place in the record in this court where such a motion or objection or ruling or exception appears. They allege in their printed argument for rehearing that they made a special appearance, under which they could raise. any questions which they desired without consent to the jurisdiction of the court below, and that at that time they raised the question of the District Court's jurisdiction in equity by oral argument and written brief; but they point out no place in the record before this court where the terms of such special appearance, the objections specified therein, the motion to transfer to the law side, or the argument or written brief to which they refer, are set forth. Hence none of these can be considered, for those errors that properly appear upon the record in this court, and those only, are reviewable here. The transcript of the record in this case has not been prepared and printed in accordance with the rules in equity and the rules of this court. Rule 75 in equity (198 Fed. xl, 115 C. C. A. xl); rule 23, Circuit Court of Appeals (188 Fed. xv, 109 C. C. A. xv). The motion to direct the District Court to reverse its decree and to transfer this case to the law side of the court was an attempt to secure a decision upon one of many specifications of error before the transcript was properly prepared or printed, and thereby to evade the rules and to try this case in this court piecemeal. Let the motion for rehearing be denied. NEW YORK LIFE INS. CO. v. JOHNSON. (Circuit Court of Appeals, Eighth Circuit. February 1, 1919.) No. 5161. 1. COURTS 280-FEDERAL COURTS-DUTY TO DETERMINE JURISDICTION. It is the duty of every federal court to inquire into its jurisdiction of a cause, whether or not that question is raised by the parties. 2. COURTS VERSY. 329-JURISDICTION OF FEDERAL COURTS-AMOUNT IN CONTRO It is not the amount claimed in the prayer for relief which determines the jurisdiction of a federal court; but, if it unmistakably ap pears from plaintiff's pleading that the amount recoverable is not within the jurisdiction of the court, it is its duty to dismiss the action. In Error to the District Court of the United States for the Southern District of Iowa; Page Morris, Judge. Action at law by Isabel H. Johnson against the New York Life Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed. E. D. Perry, of Des Moines, Iowa (John Barnes, of Milwaukee, Wis., James H. McIntosh, of New York City, and H. H. Stipp, R. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes J. Bannister, and Vincent Starzinger, all of Des Moines, Iowa, on the brief), for plaintiff in error. S. F. Prouty, of Des Moines, Iowa, for defendant in error. TRIEBER, District Judge. The defendant in error, plaintiff in the court below, instituted this action to recover on a policy of life insurance for $3,000 issued by the plaintiff in error on the life of her husband, alleged to be dead. The prayer of the complaint is that the plaintiff have judgment for the sum of $4,080, but there are no allegations in the complaint which will justify a recovery for a greater amount than the face of the policy, unless it be interest which had accumulated from the time of the alleged death of the assured until this action was instituted. The policy which is the basis of the action shows that the amount involved does not exceed $3,000.. [1] Judgment having been rendered for the plaintiff, the cause was brought to this court on writ of error. Neither party has raised the question of jurisdiction, but section 37 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1098 [Comp. St. § 1019]) makes it the duty of the District Court to dismiss any cause, if at any time it appears to the satisfaction of the court that such suit does not really and substantially involve a dispute properly within the jurisdiction of said District Court. So far as the appellate courts are concerned the well-established rule is that: "On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it." M., C. & L. M. Ry. Co. v. Swan, 111 U. S. 379, 382, 4 Sup. Ct. 510, 511, 28 L. Ed. 462; Chicago, B. & Q. R. R. v. Willard, 220 U. S. 413, 419, 31 Sup. Ct. 460, 55 L. Ed. 521; Chicago, R. I. & P. Ry. v. State of Nebraska, 251 Fed. 279, C. C. A. Nor may it be waived by consent of parties. Minnesota v. Northern Securities Co., 194 U. S. 48, 62, 24 Sup. Ct. 598, 48 L. Ed. 870; Chicago, R. I. & P. Ry. v. Nebraska, supra. [2] It is not the amount claimed in the prayer for relief which determines the jurisdiction of the court, if the unmistakable fact and legal certainty be that the plaintiff could not have had any reasonable. expectation that she could recover, exclusive of interest and costs, an amount within the jurisdiction of the court. In such a case it is the duty of the court to dismiss it for want of jurisdiction, although the ad damnum clause demands judgment for a sum sufficient to confer jurisdiction on the court. Smith v. Greenhow, 109 U. S. 669, 3 Sup. Ct. 421, 27 L. Ed. 1080; North America, etc., Co. v. Morrison, 178 U. S. 262, 267, 20 Sup. Ct. 869, 44 L. Ed. 1061; Vance v. W. A. Vandercook Co., 170 U. S. 468, 472, 18 Sup. Ct. 645, 42 L. Ed. 1111; Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 549, 23 Sup. Ct. 754, 47 L. Ed. 1171; Bank of Arapahoe v. David Bradley & Co., 72 Fed. 867, 19 C. C. A. 206; Less v. English, 85 Fed. 471, 29 C. C. A. 275; Fuerst Bros. & Co. v. Polasky, 249 Fed. 447, C. C. A. —. |