the steamer approaching, they had a right to suppose that the steamer had the schooner in view, and that as she was approaching from forward of the beam it should have exhibited a flare-up light to the steamer. "But it is contended," said the court, "that when the steamer was very close to the schooner then, under article 12, the schooner should have shown a flare-up light to the steamer, to attract her attention. The tendency of the courts is to hold that the exhibition of irregular lights by a vessel to an approaching vessel is attended with great danger, as such action might tend to very greatly mislead." The court held that the schooner was not in fault in failing to show a . flare-up light to the steamer at any time during her approach, or at the time when the vessels came together. In the view we take of the case it is not necessary to pass upon the question whether under the rules now existing the use of a flare would have been unlawful. It is enough in the present case to say that under the circumstances here existing the failure to use a flare, even if its use would have been lawful, was not in itself such an omission as should be attributed a fault leading to a division of the damages.

In The Robert Graham Dun and The Excelsior (D. C.) 102 Fed. 652, it was decided that a schooner is not to be held in fault for a collision with a steamer in the night because of her failure to exhibit a flare-up light, where her other lights were burning brightly. It was said:

"The conclusion that the schooner's light was neither dim nor obscured must be followed by a finding that it is not chargeable with fault for omission to exhibit the flare-up light. The rule permits the use of a flare-up light, but does not make it obligatory upon the schooner, unless perchance the circumstances were such that prudence would require it."

In The Gate City (C. C.) 90 Fed. 314, 320, there was a collision at night between a steamer and a sailing vessel. The steamer was where she was by her own gross fault. The sailing vessel was where she was of right. The lights of the sailing vessel were not seen; those of the steamer were. The steamer, sailing on a course a half point off the schooner's port bow, changed her course to one directly across the bows of the schooner, which kept its course. The fault of the steamer was obvious but it was claimed the schooner was also in fault, and that she should have shown a flash light. The court held otherwise, and said:

"She was carrying the lights required by law, and was not required to have a flash light in readiness, so that it could be sent off if a steamer chanced to run across her course, with scarcely more than a minute's and possibly a few seconds' warning."

Meeker kept his course and at no time changed it. In The Nacoochee, 137 U. S. 330, 340, 11 Sup. Ct. 122, 34 L. Ed. 687, it was claimed that a sailing vessel made no change in her helm up to the very moment of collision, and was in fault for not putting her helm hard aport when the steamer was seen to be within 40 or 50 feet of her, and that the collision might have been avoided if that course had been taken. The court answered it by saying that it was the primary duty of the schooner to keep her course, and that even if it was an error of judgment to hold her course it was not a fault, being an act resolved upon

(269 F.)

in extremis, a compliance with the statute, and a maneuver produced by the fault of the steamer. The steamer was seen when 400 or 500 feet away.

[2] It is to be observed, in determining the question of whether or not there was mutual fault, that this case is one of collision between a steamer and a sailing vessel. In this class of cases the rule is that a strong case must be made out if the sailing vessel is to be held in fault. This rule was stated in Crockett v. Newton, 18 How. 581, 15 L. Ed. 492, where Mr. Justice Curtis said:

"It must be remembered that the general rule is, for a sailing vessel, meeting a steamer, to keep her course, while the steamer takes the necessary measures to avoid a collision. And though this rule should not be observed when the circumstances are such that it is apparent its observance must occasion a collision, while a departure from it will prevent one, yet it must be a strong case which puts the sailing vessel in the wrong for obeying the rule. The court must clearly see, not only that a deviation from the rule would have prevented collision, but that the commander of the sailing vessel was guilty of negligence or a culpable want of seamanship, in not perceiving the necessity for a departure from the rule, and acting accordingly."

[3] It is also to be observed that, if one vessel places another in a position of extreme danger by wrongful navigation, the other ship is not to be held to blame if she does something wrong and is not navigated with perfect skill and presence of mind. The Maggie J. Smith, 123 U. S. 349, 8 Sup. Ct. 159, 31 L. Ed. 175; The Nacoochee, 137 U. S. 330, 11 Sup. Ct. 122, 34 L. Ed. 687. In The Nichols, 7 Wall. 656, 666 (19 L. Ed. 157), the court declared that—

"Mistakes committed in such moments of peril and excitement, when produced by the mismanagement of those in charge of the other vessel, are not of a character to relieve the vessel causing the collision from the payment of full damages to the injured vessel."

And in The Carroll, 8 Wall. 302, 306 (19 L. Ed. 392), the court said: "If there was fault on the part of the schooner, the steamer committed a far greater fault in suffering the vessels to get in such dangerous proximity at the moment preceding the collision, and as she has furnished no excuse for this misconduct, is chargeable with all damages resulting from this collision."

And if in the present case Meeker was guilty of a fault in not using a flare, when at the last he saw that a collision was imminent, his slight fault, due to the gross misconduct of the Lafayette, cannot be used as a justification for this court's relieving her from responding in full measure for all the damages she inflicted.

When a vessel is put in great peril without any fault of her own, the question of her negligence in a sudden emergency does not depend upon whether she did everything she might have done or pursued the best possible course. In such cases the rule is that a mistake made in the agony of almost certain collision is regarded as an error for which the vessel that caused the peril should alone be held responsible.

[4] If, however, we are in error, and Meeker be blameworthy the error cannot by any possibility prejudice the claimant in any of the cases now before the court, except that brought by him suing in his individual capacity. His negligence cannot be imputed to those who who were by his invitation upon the yacht at the time. In the well

known case of Thorogood v. Bryan, 8 C. B. 115, decided in 1849, a passenger in a public vehicle was held chargeable with any negligence of its managers which contributed to his injury, notwithstanding the fact that he had no control over the driver. That case has been overruled in England and rejected in the courts of this country. The theory that one who rides in a private conveyance thereby makes the driver his agent and is responsible for his negligence, even though without power to control him, is maintained in a few states. Lauson v. Town of Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30; Kane v. Boston Elevated Ry. Co., 192 Mass. 386, 78 N. E. 485; Omaha, etc., R. Co. v. Talbot, 48 Neb. 627, 67 N. W. 599; Whittaker v. Helena, 14 Mont. 124, 35 Pac. 904, 43 Am. St. Rep. 621. In 1 Shearman & Redfield on Negligence (6th Ed., 1913) § 66a, the learned authors, speaking of this doctrine, say:

"The notion that one is the 'agent' of another, who has not the smallest right to control or even advise him, is difficult to support by any sensible argument. The theory is universally rejected, except in three states mentioned, and it must be soon abandoned even there."

The doctrine of Thorogood v. Bryan was not followed by the English High Court of Admiralty. In The Milan, Dr. Lushington, of the Admiralty Court, in speaking of that case, said:

"With due respect to the judges who decided that case, I do not consider that it is necessary for me to dissect the judgment; but I decline to be bound by it, because it is a single case, because I know, upon inquiry, that it has been doubted by high authority, because it appears to me not reconcilable with other principles laid down at common law, and, lastly, because it is directly against Hay v. La Neve and the ordinary practice of the court of admiralty." Lush. 388, 403.

The Supreme Court in Little v. Hackett, 116 U. S. 366, 375, 6 Sup. Ct. 391, 29 L. Ed. 652, declared that Thorogood v. Bryan rested upon indefensible ground and disapproved and rejected it. The doctrine of imputed negligence, by which a person in one ship, though not identified with its management or navigation, can be chargeable with the negligence of that ship, and deprived of any right to proceed against the other negligent vessel, is too unreasonable to command respect. Indeed, it is laid down as the law now stands that a person injured on a vessel in collision can proceed against either or both, if both are negligent. Hughes on Admiralty, p. 192.

[5] It appears that Henry Haas commenced his suit on September 18, 1917, and while the suit was pending, on September 4, 1918, he died. Charles Haas was appointed executor of his estate. On the facts being made to appear by his affidavit, the court entered an order upon his request, on January 31, 1919, substituting the executor as libelant in the suit for the purpose of further prosecuting the action.

It also appears that Mary Agnes Meeker commenced her suit in like manner on September 18, 1917. Her death occurred on October 24, 1918, and Augustus S. Meeker was appointed administrator of her estate. On February 17, 1919, the court entered an order substituting him as libelant in her place and stead in the suit which she had commenced.

(269 F.)

It is a long-established principle of the common law that a personal action dies with the person; and if a personal action was commenced, and before judgment the death of either the plaintiff or the defendant occurred, the action abated; but if death occurred after judgment, and during an appeal or writ of error, the suit did not abate. Roberts v. Criss (C. C. A.) 266 Fed. 296; 1 C. J. 169. The principle, however, that death before judgment abates an action for personal injuries, has no application to the facts of this case, which is not a proceeding in personam, but one in rem.

In cases of a maritime tort, the law gives to the party wronged a right to look to the ship for his remedy. A ship has no fixed abode, but is a wanderer, and visits places where her owners are not known, or, if known, are not accessible. The master is usually a person of insufficient financial responsibility to meet all the money demands which may arise out of the voyage. Hence the necessity of treating the ship as security for the demands which the voyage occasions. In such cases the law gives the lien, and vests in the creditor a special property in the ship at the time the debt or claim comes into existence; and it is held accordingly that a suit in rem against a vessel for personal injuries sustained in a collision does not abate by the death of the libelant. The Ticeline (D. C.) 208 Fed. 670; Id., 221 Fed. 409, 137 C. C. A. 207. In accordance with that principle, the substitution of parties, which the court below permitted to be made, was in accordance with the law.

[6] Our attention has been called to a number of New York decisions that a claim for personal injuries does not survive the death of the injured party; and we are also informed that in pursuance of the New York statutes causes of action for personal injuries abate upon the death of the parties. But what has been already said must have made it clear that these actions, arising out of a maritime tort and giving rise to a maritime lien, are not subject to the rules of the common-law courts or to the statutes of the state of New York. We are dealing with a maritime tort, and the rights of the parties are to be determined upon the principles of the maritime law. The lien which is claimed is not one created by any state. The damages which are sought are not damages for causing death.

The decree is affirmed in all five cases.

CARMEN v. FOX FILM CORPORATION et al.*

(Circuit Court of Appeals, Second Circuit. November 10, 1920.)

No. 29.

Equity 65 (2)-Inequitable conduct bar to relief.

When about 20 years of age complainant contracted her services as a motion picture actress to defendants for a term, including options for renewals, of some 4 years. A few months later, while still under 21, representing herself free to do so, she made contracts with another for her services covering the same time. Held that, whether or not as matter of law she might avoid her contracts with defendants on the ground of her minority, her conduct was such that a court of equity would grant her no relief against them.

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

Suit in equity by Jewel Carmen against the Fox Film Corporation and the William Fox Vaudeville Company. Decree for complainant, and defendants appeal. Reversed.

For opinion below, see 258 Fed. 703.

Saul E. Rogers, of New York City (E. Henry Lacombe, of New York City, of counsel), for appellants.

Nathan Burkan, of New York City, for appellee.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS, Circuit Judge. The plaintiff seeks to have certain contracts declared void which she alleges that she made with the defendants during her minority, and she prays that an injunction be issued restraining the defendants from asserting that the contracts are valid and from interfering with her contract relations with any person, firm, or corporation in employing the plaintiff and availing himself or itself of her services under any contract of employment entered into with her. Damages are also asked.

The court below has adjudged that the contracts were duly rescinded by her and have been null and void since July 15, 1918, and has issued a perpetual injunction as prayed, and awarded her damages in the sum of $43,500.

The plaintiff is a moving picture actress, and in her complaint alleges that at all the times mentioned therein she was and still is a citizen and resident of the state of California. The defendants are corporations organized under the laws of the state of New York, and are each engaged in the business of manufacturing and producing photoplays.

The contract with the Fox Film Corporation, which is one of the contracts the plaintiff repudiated and asks to have declared void, provided employment for a period of one year, commencing October 17, 1919. The compensation agreed upon was $175 per week. In consideration of $1,300, which was to be paid in weekly installments of $25, an option was given to continue the employment for further

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Certiorari denied 254 U. S., 41 Sup. Ct. 323, 65 L. Ed.,