to port nearly across stream, and her port bow struck the starboard car float a little forward of amidships, causing the damage in question.

Kirlin, Woolsey & Hickox, of New York City (J. P. Kirlin, William H. McGrann, and Robert S. Erskine, all of New York City, of counsel), for appellant.

C. M. Sheafe, Jr., of New York City, for appellee Transfer No. 10. Peter Alexander, of New York City, for appellee Bleakley.

Before COXE and WARD, Circuit Judges, and LEARNED HAND, District Judge.

LEARNED HAND, District Judge. The important time in this case was after the Transfer had cleared the Terry and caught sight of the Cleary below her and on her starboard bow, up to which time the Transfer's navigation could have no relation to the Cleary. Her subsequent conduct must be judged by what appeared to her at that time. The District Judge has found that the case was not one of overtaking vessels, and we agree with him. So far as the Transfer could see, the case was one of special circumstances, and we find no fault in the navigation of the Transfer after that time. Her only possible fault was her position. As the District Judge has heard all the witnesses, and among them all has chosen Lundquist, the master of the Transfer, for his confidence, we should be governed by his finding, and we should therefore accept the finding that the collision occurred about 300 feet off the pier ends. There is, it is true, considerable difficulty in seeing just how the Cleary, which had been continually backing, could get the bow of the barge so far from the pier ends, especially as the witnesses assert that the tide runs true at that point. It is, moreover, notorious that the estimate of distances, particularly at night, is most unreliable. We therefore have considerable doubt as to just where the accident was; but, as it makes no difference in our judgment, we shall accept the finding of the District Court as above stated, particularly as the barge herself says that her bow was about 150 feet from the pier ends.

The District Court has found, and we accept this finding also, that the Transfer had met an upbound tow and had ported to avoid it; but we place the fault in her porting so far towards the New York shore. If the upbound tow was in the middle of the river, the Transfer had a channel of 750 feet, and she was bound to keep nearer to the middle of the stream. The mere occurrence of the collision in our judgment proves this, because the Cleary was at the very pier end when she began to back, and all she did was to back, trying to get out of the way. It may be that her judgment was bad under the circumstances, but it seems to us that a car float tow in any event comes too close to the pier ends if she collides with another tow itself at the very pier ends, which is doing, and has done, nothing but its best. to keep out of the way. It was the purpose of the statute to keep such vessels out of the way of shipping, navigating in and out of slips, and this court has already held it a fault to come within even 400 feet of the pier ends. The Amos C. Barstow, 66 Fed. 366, 13 C. C. A. 515.

The decree is reversed, and a decree will be entered for the libelant against the Transfer, with costs, and for the Cleary, with costs against the Transfer.

COXE, Circuit Judge. I dissent. I think the Cleary was plainly at fault, if not solely at least jointly with the Transfer.

(235 Fed. 110)

EXPLORATION CO., Limited, et al. v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit.

August 2, 1916.)

No. 4676.

LIMITATION OF ACTIONS 99(1)—FRAUD AS GROUND FOR RELIEF-EFFECT OF CONCEALMENT.

Concealment of a fraud will prevent the running of the statute of limitations against an action based thereon, whether the concealment is active, or whether the fraud is committed in such manner as to conceal itself.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 477; Dec. Dig. 99(1).]

Appeal from the District Court of the United States for the District of Colorado; Jacob Trieber, Judge.

Suit in equity by the United States against the Exploration Company, Limited, and Philip L. Foster. Decree for the United States and defendants appeal. Affirmed.

For opinion below, see 225 Fed. 854. See, also, 203 Fed. 387, 121 C. C. A. 491.

Henry McAllister, Jr., of Denver, Colo. (George E. Tralles, of Denver, Colo., on the brief), for appellants.

Frank Hall, Sp. Asst. Atty. Gen., of San Francisco, Cal. (Harry B. Tedrow, U. S. Atty., of Denver, Colo., on the brief), for the United States.

Before SMITH and CARLAND, Circuit Judges, and AMIDON, District Judge.

CARLAND, Circuit Judge. This case was before us at a former term of the court on an appeal from a decree sustaining a demurrer to the complaint. The decree was reversed. United States v. Exploration Company, 203 Fed. 387, 121 C. C. A. 491. A trial of the case has been had, and a decree rendered in favor of the plaintiff. Defendants have again appealed, assigning error.

The principal question in the case now, as well as on the former appeal, is as to whether plaintiff's cause of action, at the time the complaint was filed, had been barred by the statute limiting the time for the institution of suits to vacate and annul land patents. The statute referred to may be found in 26 Stat. 1095, 1099, 1093, and 29 Stat. 42, being Act March 3, 1891, c. 559 (Comp. St. 1913, § 4992), and chapter 561, and Act March 2, 1896, c. 39 (Comp. St. 1913, §§ 4901

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

4903). We are not asked to reverse our former decision holding that the cause of action was not barred, and we adhere to our former ruling, the reasons for which are stated at length in the opinion of the court on the former appeal. It is now claimed, however, that the evidence introduced at the trial in support of the complaint failed to establish the facts alleged. The trial court made findings of fact and they appear in United States v. Exploration Company, Limited, 225 Fed. 854.

We have carefully considered the evidence taken at the trial, and find that it fully supports the findings of the trial court. It is now claimed, however, that our former ruling on the statute of limitations was based on the allegations of the complaint to the effect that the defendants actively engaged in a conspiracy to conceal the fraud committed in obtaining the patents. In deciding the questions raised by the demurrer, we of course referred to the language of the complaint; but the reason for our ruling, and the authorities cited in support thereof, applied to cases of concealed fraud, whether active or passive. In our former opinion we quoted an excerpt from Bailey v. Glover, 21 Wall. 342, 22 L. Ed. 636, as follows:

"To hold that by concealing a fraud, or by committing a fraud in a manner that it concealed itself, until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud the means by which it is made successful and secure."

Indeed, the rule seems to be well established. The important question in this case is as to whether it may be applied to the statute of limitations under consideration. For the reasons stated on the former appeal, which need not be repeated here, we hold that it does. In the case at bar the defendants did not advertise the fact that they were committing a fraud, nor did they discuss the fraud among themselves in the presence of others, but the manner in which the fraud was committed constituted all the concealment that was necessary. After it was supposed the statute of limitations had barred any action, the participants in the fraud talked very freely, telling the truth when it was thought it would do no harm. The findings of the trial court, in our judgment, are fully sustained by the evidence, and the findings sustain the decree rendered.

In regard to the point that the right Exploration Company was not sued, we are satisfied with the disposition of that question, and the reasons therefor appearing in the opinion of the trial court. 225 Fed. 860. It is further objected that the decree entered should have. recognized the interest of one Alexander Burrell. Burrell was originally named as a defendant in the suit. He appeared and filed a separate demurrer. The demurrer was sustained, and a decree entered dismissing him from the case. On the former appeal counsel moved to dismiss the same, for the reason that Burrell was a party defendant in the court below, and was not made a party on the appeal. We then decided that it did not appear that Burrell, taking the allegations of the complaint to be true, had any interest in the controversy, nor does it now appear from the evidence. Having demurred to the

complaint on the ground that it stated no cause of action against him, Burrell cannot now be heard to say that he should be recognized in the decree.

COLLISION 96 VESSEL LEAVING SLIP-OBSTRUCTION OF VIEW BY PIERDUTY TO GIVE SIGNALS.

A steamship, leaving her pier and passing out into North River close along the north side of a covered pier 1,000 feet long, which cut off the view to and from the south, was in a situation requiring great care, and her failure to go at slow speed, or to give warning to approaching vessels after her slip signal on leaving her own pier, 1,300 feet distant from the end of such long pier, rendered her in fault for a collision with another vessel approaching from the south.

[Ed. Note:-For other cases, see Collision, Cent. Dig. §§ 203-205; Dec. Dig. 96.]

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

Suit in admiralty for collision by Michael Blasius and Nicholas Blasius, owners of the steamer Seneca, against the steam tug Daniel Willard; the Pennsylvania Coal Company, claimant. From a decree holding both vessels in fault, libelants appeal. Affirmed.

On appeal from a decree of the District Court for the Southern District of New York holding the steam tug Daniel Willard and the steamer Seneca jointly in fault for a collision which occurred in the North River about 150 feet northeast of the corner of the Scandinavian Pier which extends into the river about a fifth of a mile from the Weehawken Cove, New Jersey. The Willard was destined for the Coal Pier at Weehawken; the Seneca was proceeding out into the North River from her berth in the rear of the Scandinavian Pier. The Seneca alone appeals.

Alexander & Ash, of New York City (Peter Alexander, of New York City, of counsel), for appellants.

Barry, Wainwright, Thacher & Symmers, James K. Symmers, and Earle Farwell, all of New York City, for appellees.

Before COXE and WARD, Circuit Judges, and CHATFIELD, District Judge.

COXE, Circuit Judge. The District Court held both the Willard and the Seneca liable. The Willard has not appealed. The only question, therefore, is-was the Seneca also guilty of negligence? The District Judge found her liable for going out of the slip at too great a rate of speed so that when the vessels saw each other they were only about 200 feet apart and in a position where collision was in

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evitable. The Scandinavian Pier is a covered structure about 1,000 feet long. It is impossible for a vessel passing out along this structure to see a vessel approaching from the south until the bow of the former projects from the end of the pier. The same is true of the northbound vessel. She cannot see a vessel coming out along the pier until her helmsman or lookout has passed the corner of the pier. Manifestly the situation was such as to require great care and caution on the part of both the approaching vessels. That whistles were blown while the Seneca was passing along the north side of the pier and was nearing the river is doubtful. The mate, a deckhand on the port bow and another deckhand on the port side near the pilot house of the Willard were in a position where they must have heard any signal coming from the Seneca if one were given, but they testify that they heard none. When first seen by those on the Willard the Seneca was coming out directly across the course of the Willard. It was then too late to avoid collision. We find it difficult to believe that if the proper signals had been sounded from the Seneca the collision would have occurred. The situation unless handled with skill and caution was one of great peril. The Seneca was about to enter the North River in such a manner that a vessel going north or intending to enter the Weehawken Cove could not possibly know of any approaching danger until she had passed the Scandinavian pier head. A vessel intending to leave the Cove was unquestionably required to notify passing vessels of her intention so to do. Especially is this true when a vessel intends to pass out so near to the pier that a north-bound vessel cannot be expected to see her until her bow is about even with the pier head. Rule V of article 18 of the Inland Rules provides for such a situation as is here shown but its directions were not followed by the Seneca. Of course the blowing of a long slip whistle when the Seneca left her own pier behind the Scandinavian Pier cannot be regarded as a compliance with the rule as she was then about 1,300 feet from the head of the pier. A signal at that point would have given the Willard no definite information as to the Seneca's course. By hugging the Scandinavian Pier so closely she created a situation which made it more than ever incumbent upon her to inform vessels approaching the pier end from the south of her presence and her intentions. If she had passed out into the North River at a speed so moderate that she could have controlled her movements the collision would probably have been averted. We do not think the Seneca can be held free from negligence on this proof.

The situation was analogous to that shown in the case of The Steinway, 135 Fed. 344, 68 C. C. A. 14, where this court decided that it was negligence for a vessel to round a dangerous point so near the shore that it was impossible to get an accurate view of the situation on her port hand until she had actually rounded the point.

The decree is affirmed with costs.