to exemption out of a larger mass, or a homestead estate in property worth more than $1,000. Here the entire real estate in question was the homestead; the entire piece of property, the equity of which was worth less than $1,000 was exempt, and no act of any kind by the trustee was necessary to secure this exemption to the bankrupt.

The petition of the trustee for the sale of the real estate, subject only to the lien of the mortgage incumbrances, should have been denied, and the petition of appellant to set aside the order of sale of the equity should have been granted.

The order of the District Court, affirming the orders of the referee for the sale of the equity, and dismissing appellant's petition to set this order aside, will therefore be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. NOTE.-Judge KOHLSAAT concurred in these conclusions, but died before the opinion was prepared.

THE ADA.

(Circuit Court of Appeals, Second Circuit. December 11, 1918.)

No. 109.

1. ADMIRALTY 119-COSTS-DECREE ON MANDate.

Where the mandate of the appellate court in an admiralty case contains no direction as to costs of the lower court, their allowance remains discretionary with the court.

2. COURTS 405(5)—APPELLATE JURISDICTION OF CIRCUIT COURT OF APPEALS -QUESTION OF JURISDICTION OF LOWER COURT.

An appeal does not lie to the Circuit Court of Appeals, where the sole question is whether a court of admiralty has jurisdictional power to grant costs on dismissal of a libel for lack of jurisdiction over the subjectmatter; the question being one of jurisdiction of the lower court as a federal court and reviewable only by the Supreme Court under Jud. Code, § 238 (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. § 1215]).

Appeal from the District Court of the United States for the Southern District of New York.

Suit in admiralty by the Universal Transportation Company, Incorporated, against the steamship Ada; Rederiaktiebo Laget Amie, claimant. Appeal by claimant from decree disallowing costs. Appeal dismissed.

See, also, 250 Fed. 194, C. C. A. —.

Engel Bros., of New York City, Conlen, Brinton & Acker, of Philadelphia, Pa. (William J. Conlen, of Philadelphia, Pa., and Joseph G. Engel, of New York City, of counsel; J. Thurston Manning, Jr., of Philadelphia, Pa., on the brief), for appellant.

Kirlin, Woolsey & Hickox, of New York City (L. De Grove Potter and John M. Woolsey, both of New York City, of counsel), for appellee.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

HOUGH, Circuit Judge. The decree appealed from was entered upon the mandate of this court issued in The Ada, 250 Fed. 194, C. C. A. —.

Our decision disposed of the case upon a single point, viz. that the so-called charter party, for breach of which the libel was brought, was in substance and legal effect no more than a contract of sale, was not of a maritime nature, did not give rise to a maritime lien, and that therefore admiralty had no jurisdiction over the subject-matter of the suit.

This left nothing for the District Court to do but enter a final decree upon our mandate. On the settlement of such decree claimant applied for an award of the costs of the District Court. The application was denied (as is expressed in the decree appealed from) on the ground of lack of jurisdiction in the court to give the costs applied for; thereupon this appeal was taken, which raises no question but the propriety of the holding as to jurisdiction above stated.

[1] The matter is unaffected by the fact that we directed the District Court to dismiss the libel, for our mandate contained no direction as to the costs of the lower court, and since in admiralty, as in equity, costs are discretionary, the matter remained for the lower court's determination under Romeike v. Romeike, 251 Fed. 273, - C. C. A. ———.

[2] Therefore this appeal asks us to consider the question whether a court of admiralty organized under the Constitution and laws of the United States possesses jurisdictional power to grant costs when dismissing a libel for lack of jurisdiction over the subject-matter. The inquiry is exactly what it would have been had the decree complained of been entered by the District Court of its own volition instead of in obedience to our mandate.

We are compelled to hold that this court lacks jurisdiction to entertain this appeal. It is plain that an appeal direct to the Supreme Court would have lain upon certificate as to jurisdiction. The Jefferson, 215 U. S. 130, 30 Sup. Ct. 54, 54 L. Ed. 125, 17 Ann. Cas. 907; The Ira M. Hedges, 218 U. S. 264, 31 Sup. Ct. 17, 54 L. Ed. 1039, 20 Ann. Cas. 1235. There are some questions of jurisdiction that may be brought to this court "along with other questions arising upon the trial of the merits of the case.' Boston & Maine R. R. v. Gokey, 210 U. S. at 161, 28 Sup. Ct. 658 (52 L. Ed. 1002). But where the sole question on appeal is of jurisdiction in the sense that one challenges the "power of the District Court as a federal court to take jurisdiction of the subject-matter of suit," this court is without jurisdiction-the remedy is solely in the Supreme Court. Great Northern Ry. Co. v. Blaine, 252 Fed. at 550, C. C. A. —. It is otherwise where the objection to power rests on want of territorial jurisdiction or the like. Davis v. Anderson, 252 Fed. 683, - C. C. A., and cases cited.

Since, therefore, no question is presented to us except one of jurisdiction in the lower court over the subject-matter of litigation, the appeal must be dismissed. It does not advance the matter to assert that the question is one of jurisdiction as to costs. If there had been jurisdiction over the subject-matter, jurisdiction as to costs is not doubt

ed. In legal effect the money question involved is not even a variant of the fundamental jurisdiction point.

If this appeal pertained to costs alone, it should be dismissed for another reason. Du Bois v. Kirk, 158 U. S. 58, 15 Sup. Ct. 729, 39 L. Ed. 895; City Bank v. Hunter, 152 U. S. 512, 14 Sup. Ct. 675, 38 L. Ed. 534.

Appeal dismissed, without costs.

EAGLE OIL TRANSPORT CO., Limited, v. BOWERS SOUTHERN

DREDGING CO.

THE SAN VALERIO.

(Circuit Court of Appeals, Fifth Circuit. January 15, 1919.)

No. 3259.

SHIPPING 81(1)-LIABILITY OF VESSEL-FOULING ANCHOR LINE OF DREDGE

PONTOONS.

A ship held in fault for injury to the pipe line and supporting pontoons of a dredge working in an adjoining slip, caused by striking the anchor line of the pontoons in backing out of the slip, where it was in the same position when she safely passed in the day before, and no request was made of the dredge to move it.

Appeal from the District Court of the United States for the Southern District of Texas; J. C. Hutcheson, Jr., Judge.

Suit in admiralty by the Bowers Southern Dredging Company against the steamship San Valerio; the Eagle Oil Transport Company, Limited, claimant. Decree for libelant, and claimant appeals. Affirmed.

Wm. B. Lockhart, of Galveston, Tex., and J. Parker Kirlin, of New York City (Kirlin, Woolsey & Hickox, of New York City, on the brief), for appellant.

John Neethe, of Galveston, Tex. (Williams & Neethe, of Galveston, Tex., on the brief), for appellee.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

WALKER, Circuit Judge. On November 24 and 25, 1916, the appellee was engaged in dredging in a slip between two docks in the port of Galveston, and had a dredge located in that slip, to which dredge was attached a line of floating pipe, supported by pontoons, extending around the pier immediately west of that slip to the next pier in that direction. At the turn or elbow of the pipe line it was anchored. On the morning of November 25th the steamship San Valerio, while it was being backed out of its berth alongside the pier immediately east of the slip, collided with the line of the anchor mentioned, and caused damage to the pipe line and some of the pontoons, which the libel

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

attributed to negligence in the management and control of the ship in attempting to back it out of the slip.

When the ship went to its berth on the day before-November 24th -the floating pipe line, the pontoons, and the anchor mentioned were located just where they were when the ship backed out. When the ship entered the slip, those in charge of its navigation were apprised of the location of the anchor to the pipe line by a buoy, which was afloat and seen at that time, and got the ship in without colliding with the anchor line and without its being moved. There was evidence in behalf of the ship that, when it backed out the next morning, that buoy was submerged and could not then be seen. But the evidence without dispute showed that those in charge of the navigation of the ship as it was backed out knew of the presence of the anchor line, if not of its exact location. The pilot in charge of the ship as it backed out testified in its behalf. He admitted that he knew the pontoon line was fastened either by an oversea wire or a submerged wire, and that he did not look out for that wire, because, without having any knowledge at all of the length of the anchor line, he guessed that it was shorter than it was in fact.

There was no contradiction in the evidence to the effect that those in charge of the dredge, the pipe line, and pontoons opened the line whenever it was desired to let a ship through, and moved the buoy and anchor when notified that it was in the way of a passing ship. The danger of contact with the anchor line could have been avoided by slacking it down. Those in charge of the ship did not signal or ask that this be done. There was nothing to indicate that the pipe line was wrongfully at the place at which it was anchored. The ship having gone to its berth with full knowledge of the location of the pipe line and its anchor, those in charge of the latter were not, the situation remaining the same, and in the absence of any signal or request to do so, called upon to move the anchor or to slacken its line to get it out of the way of the ship when it was leaving its berth. It was not shown that it was disclosed to them that that precaution was any more needed in the one case than it had been in the other.

The collision in question being one between a moving vessel and an anchored pipe line, the location of which was known, there is a presumption of fault on the part of the moving vessel. The Oregon, 158 U. S. 186, 15 Sup. Ct. 804, 39 L. Ed. 943; The Charles Hubbard, 229 Fed. 352, 143 C. C. A. 472. To say the least, the evidence adduced was not such as to rebut that presumption, or to show that the collision was attributable, in whole or in part, to any fault of those in charge of the pipe and pontoon line and its anchor. The court did not err in rendering the decree against the ship. The amount of the award. is not complained of.

The decree is affirmed,

NICHOLSON et al. v. ERIE R. CO.

(Circuit Court of Appeals, Second Circuit. December 11, 1918.)

No. 76.

1. SHIPPING 54-INJURY TO VESSEL-NEGLIGENCE OF CHARTERER. Charterer of a barge held liable for her injury, resulting from her being left at the exposed end of a pier at a time when storm signals were shown, and the placing by charterer of another barge beside her, so that when the wind rose they pounded together, and where, although notified, it did not send assistance for two hours.

2. TOWAGE 11(9)—INJURY TO TOW-Disregard OF STORM SIGNALS.

It is the duty of tug masters, engaged in moving boats around New York Harbor, to observe and give weight to the Weather Bureau's warning signals.

Appeal from the District Court of the United States for the Southern District of New York.

Suit in admiralty by Martha Nicholson and others, owners of the barge Nicholson, against the Erie Railroad Company. Decree for libelants, and respondent appeals. Affirmed.

Libelants own the barge Nicholson, which they chartered to respondent. While in the possession of the charterer the barge was left by one of the railroad company's tugs at the end of Pier 39, Brooklyn, outside of two other barges. This occurred shortly after midnight of February 26-27, at which time the weather was calm. By noon of February 28 the wind had arisen, and before that time lighter 262-F, belonging to the Erie Company, was moored at the same pier end, and to and alongside of the Nicholson, by a tug not belonging to the railroad company.

When the wind arose the 262-F and the Nicholson began to pound, and the situation became dangerous for both. Before 2 p. m. of the 27th the master of the Nicholson by telephone applied for assistance to the Erie office from which he was accustomed to receive orders. No help arrived until about 4 p. m., before which time the Nicholson had received considerable injury by pounding against No. 262-F.

Pier 39, Brooklyn, is much exposed to northwesterly winds, and on February 26th the United States Weather Bureau had displayed in all the usual places around the harbor warning against a northwest storm. This action was brought to recover for the injuries received as above stated, and two tug masters in the service of respondent railroad company were examined concerning the movements of the barges above named. Neither of them seem to have observed the storm warning, and one of them (the master whose tug had left the Nicholson at Pier 39) deposed that he did not take "storm warnings into consideration when [putting] boats at piers in the harbor, unless it [was] blowing at the time"; and when asked, "Don't you rely on those storm warnings?" answered. "Not always." The District Court granted a decree for libelant; respondent brings this appeal.

Herbert Green, of New York City, for appellant.

Macklin, Brown & Purdy, of New York City (William F. Purdy, of New York City, of counsel), for appellees.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

HOUGH, Circuit Judge. While entertaining no doubt that the charter, by virtue of which respondent was in possession of the Nicholson, amounted to a demise, we do not ground decision on the relation

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes