were aware of his presence there, and had the last clear chance of avoiding the accident by readjusting the lumber in the sling before stacking it over the side of the ship, or by taking such other action as they reasonably might to avoid the accident. See Inland & Sea Board Coasting Co. v. Tolson, 139 U. S. 551, 557, 558, 559, 11 S. Ct. 653, 35 L. Ed. 270; Grand Trunk Railroad Co. v. Ives, 144 U. S. 408, 428, 429, 12 S. Ct. 679, 36 L. Ed. 485; Cavanaugh v. Railroad, 76 N. H. 68, 79 A. 694, and cases there cited.

[3] It has been suggested that the question of contributory negligence was submitted to the jury. This is not so. After stating that the plaintiff could not recover if he was working in front of the hatch "against orders" of "his superior officers" in "a place of danger where he [knew] it [was] very perilous, and where he [had] been ordered not to go," the jury were told, "No such question is put to you here." In view of this, which was the only reference made to the question, the jury undoubtedly understood, and had the right to understand, that no question of contributory negligence was submitted to them for consideration. In giving this instruction, the court evidently took the view that the plaintiff was not and could not be found to be negligent, if he went to work in front of the hatch in obedience to the order of his superior officer (as the evidence showed he did), although he knew the place was dangerous. The fact that he went to work in a place of danger in obedience to orders of his superior officer would not, of itself and as a matter of law, relieve him from fault in being there. His presence there in obedience to orders was simply one of the facts or circumstances to be considered by the jury in determining the plaintiff's care and the defendant's fault, the latter being aware of his presence in a place of danger. We do not find it necessary to consider the other questions raised.

The judgment of the District Court is vacated, the verdict is set aside, and the case is remanded to that court for a new trial.

ANDERSON, Circuit Judge (dissenting). I concur in the view of the majority that the plaintiff made out a case for the jury. I dissent from the conclusion that there was a mistrial, and that this personal injury case, involving nothing but damages for a broken leg, should be sent back for another trial.

The case was submitted to the jury on special issues, and for a general verdict in the alternative form approved by this court in Automatic Pencil Sharpener Co. v. Boston Pencil Pointer Co. (C. C. A.) 279 F. 40. The

sole object of taking verdicts in this alternative form is to avoid new trials, except under very rare and unusual circumstances, which do not obtain in the present case.

The defendant's contentions, as now urged, are directed merely against the answers to two of the special issues (which in the view we all take of the case are immaterial), and to the proposition that "the contributory negligence of the plaintiff was as a matter of law a complete defense to the action"; that therefore this court should now order judgment for the defendant under the power accruing under the alternative verdict. This is the only real question before this court. As we are all agreed that contributory negligence was not as a matter of law made out, the judgment below should be affirmed.

The point on which the majority opinion goes is not even argued by defendant's experienced and learned counsel. No new trial is sought by defendant; it asks for judgment on this record. No assignment of error involving the adequacy and accuracy of the charge on contributory negligence is, on fair analysis of the record, before this court. Defendant's counsel submitted requests for instructions; among others, not now material, the untenable proposition that "the defendant owed no duty to adapt its work or carry on its work with reference to the safety of the plaintiff."

At the close of the charge the court saved defendant's exceptions so far as the requests were not covered by the charge, and the record proceeds:

"The defendant also excepted to that portion of the charge in respect to the possibility that the jury might find that the defendant was negligent in going on with the work un til the plaintiff had been removed."

This exception thus saved was made the basis of the fifth assignment of error, in which the excerpt from the charge, quoted in the majority opinion, is recited, and which then proceeds: "The defendant submits that this was not a correct statement of the law as applicable to the evidence in the case."

It thus clearly appears that the exception to this part of the charge is directed solely to its application to the defendant's negligence, and not at all to the plaintiff's contributory negligence. The only exception to the charge, on the question of contributory negligence, was to the court's refusal to order a verdict for the defendant on that ground. It was not suggested to the trial court that, if contributory negligence was for the jury at all, the instructions given were not accurate and adequate.

Otherwise stated, the fifth assignment of error is, in effect, nothing but a reassertion of the defendant's theory that it owed no duty to the plaintiff in the conduct of its stevedoring work.

But the question of plaintiff's contributory negligence was submitted to the jury under a brief instruction as follows:

"Now we have this man there. If he is working in the front of this hatch, if he is working there against orders, if he has been told not to go there by his superior officers, he has no business there; and if he disobeys orders, and goes into a place of danger, where he knows it is very perilous, and where he has been ordered not to go, while no such question is put to you here, I don't need to say now that such a person cannot recover, if he suffers the consequences of his own disobedience and recklessness."

This was sufficiently favorable to the defendant. Plaintiff might have complained that it did not state that the burden of proving contributory negligence was on the defendant. Duggan v. Bay State Ry., 230 Mass. 370, 377, 119 N. E. 757, L. R. A. 1918E, 680; Central Vermont Ry. Co. v. White, 238 U. S. 507, 512, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252. But here is an explicit instruction, to the effect that, if the plaintiff knowingly put himself into a place of danger, where he had no business to be and contrary to orders, he could not recover. This in substance was, except as to burden of proof, the instruction the majority hold should be given at a new trial. The statement that "no such question is put to you here," read with the context (not quoted), simply means that there was no such special issue submitted not that contributory negligence, as a question of fact, was not before the jury.

How the quoted instruction on the defendant's negligence can be said to be "equivalent to an instruction that the plaintiff's presence at the place of the accident was a condition, and not a contributing cause," I cannot comprehend.

I cannot assent to upsetting a just verdict on a technical point which is not before this court. Of course, this court may, under rule 11, deal with "a plain error not assigned." But this is a power that should be exercised sparingly and cautiously, and only to prevent gross injustice, or to vindicate some principle of general importance, such as I thought presented in Charlie Hee v. United States (C. C. A.) 19 F. (2d) 335, May 17, 1927, or perhaps when the court, through its receiver, is a trustee, charged with affirmative duties of administration and distribution. Generally,

the rights of litigants are better enforced, and the duties of counsel, of trial court and of appellate court, better performed, by the reviewing court's limiting itself to dealing with the contentions presented by the competent counsel selected by the parties in real interest.

On this record, I can see no justification for this court's ordering a new trial which neither party wants.

FLETCHER et al. v. PORTER. Circuit Court of Appeals, First Circuit. June 16, 1927.

No. 2104.

Banks and banking 249(1)—Individual liability of stockholder in national bank continues for 60 days after transfer of stock (Federal Reserve Act, § 23 [Comp. St. § 9689]).

Under the provision of Federal Reserve who shall have transferred their shares or regAct, § 23 (Comp. St. § 9689), that stockholders istered the transfer within 60 days next before the date of failure of a national bank shall be liable to the same extent as if they had made holder continues for 60 days after transfer of no such transfer, the double liability of a stockhis stock, though the bank was solvent when the transfer was made, and may be enforced if failure occurs within the 60 days.

In Error to the District Court of the United States for the District of Massachusetts; Elisha H. Brewster, Judge.

Separate actions at law by James F. Farrell, receiver (J. M. Porter, receiver, successor), against Edward F. Fletcher and against three other defendants. Judgment for plaintiff, and defendants bring error. Affirmed.

For opinion below, see 14 F. (2d) 204. Robert G. Dodge, of Boston, Mass. (H. K. Rising, of Boston, Mass., on the brief), for plaintiffs in error.

George S. Fuller, of Boston, Mass. (Charles L. Favinger, of Boston, Mass., on the brief), for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge. This is one of four actions brought originally by James E. Farrell as receiver of the First National Bank of Warren, Mass., to enforce double liability imposed upon stockholders in national banking associations by section 23 of the federal Act of December 23, 1913, 38 Stat. 273 (Compiled Stat. 1916, § 9689). Owing to the resignation of the original plaintiff, J. M. Porter was substituted as re

ceiver. As the same question is raised in them all, only one case has been argued, but the decision in this case will dispose of all. The question involved calls for a construction of section 23 of the Federal Reserve Act, which is as follows:

"The stockholders of every national banking association shall be held individually responsible for all contracts, debts, and engagements of such association, each to the amount of his stock therein, at the par value thereof in addition to the amount invested in such stock. The stockholders in any national banking association who shall have transferred their shares or registered the transfer thereof within sixty days next before the date of the failure of such association to meet its obligations, or with knowledge of such impending failure, shall be liable to the same extent as if they had made no such transfer, to the extent that the subsequent transferee fails to meet such liability; but this provision shall not be construed to affect in any way any recourse which such shareholders might otherwise have against those in whose names such shares are registered at the time of such fail

ure."

The First National Bank of Warren was organized in 1919, and each of the defendants became a stockholder in the bank at the time of its organization, and continued as such until January 23, 1923, when they sold part or the whole of their stock holdings for $140 a share, and this transfer was immediately recorded upon the books of the bank and registered in the name of the transferee. The bank was solvent at the time of these transfers, and remained solvent until some time after February 5, 1923. None of the defendants, after the above transfers, had any further connection with the bank as directors or officers, and took no part in the conduct of its business. On or about February 6, 1923, one of the parties to whom a large part of the stock had been transferred by the defendants misappropriated certain securities held by the bank and these were never recovered. As a result of this misappropriation the bank failed to meet its obligations and was closed on February 21, 1923, and a receiver appointed February 23, 1923. These actions at law were brought by the receiver, under the direction of the Comptroller of the Currency, after notice of an assessment was mailed to all stockholders of record, and also to the defendants, in which notice attention was called to the provisions of section 23 of the Federal Reserve Act. Suits have been brought against the parties to whom the defendants transferred their stock, upon which judgments have been re

covered and executions issued, which have never been satisfied, and the receiver is unable to find any property owned by them or in their possession that can be reached to satisfy these executions.

The construction placed by the defendants upon section 23 is that it does not apply to a stockholder who in good faith and for valuable consideration transferred his stock in a banking association which was solvent at the time of the transfer and whose failure was not then impending, even though the transfer was made within 60 days from the date of the failure of the bank, and the refusal of the court to give instructions which in substance sustained this contention is assigned as error.

The language of section 23 of the act is unambiguous and fixes the liability of an assessment not only upon stockholders of record but upon those who have transferred their stock "within sixty days next before the date of the failure of such association to meet its obligations." We do not think the next clause, "or with knowledge of such impending failure," applies to stockholders who transfer their stock within 60 days, but that it applies to stockholders who have transferred their stock at any time with knowledge of an impending failure. While it is true that under the National Banking Law, which the Federal Reserve Act superseded, shareholder of a national banking association who sold and transferred his shares in good faith without knowledge that it was insolvent or its failure was impending would escape liability providing the transferee was insolvent and unable to respond to double liability and the transferrer did not know or have reason to know that such was the transferee's financial condition, the Federal Reserve Act was passed in response to a widespread and longcontinued demand that the old National Banking Act be revised.

The legislative history of the act shows clearly that it was the intent of Congress to fix arbitrarily a time before the failure of a national banking association in which no transfer of its stock could be made which would relieve the transferrer from double liability and while we think the language of the act is plain and unmistakable, and therefore does not present a case in which resort may be had to reports of committees or debates in Congress to explain a doubtful provision, the intent of Congress is shown by the majority report of the House committee on banking and currency which, after referring to the practices which had sprung up of transferring stock to evade double liability, said: "It is believed that by making

Appeal from District Court of the United States for the District of Oregon; Robert S. Bean, Judge.

Suit in admiralty for collision by the McCormick Intercoastal Steamship Company, claimant, of the American steamship Charles R. McCormick, her engines, boilers, tackle, etc., and another, against the Japanese steamship, Yoshida Maru No. 1, the Yamashita Kisen Kabushiki Kaisha, claimant. Decree for libelant (15 F. [2d] 386), and claimant appeals. Reversed, with instructions.

W. H. Hayden, Lane Summers, and Huffer, Hayden, Merritt, Summers & Bucey, all of Seattle, Wash., for appellants.

he steered his course toward the south side, trusting that the McCormick would yield her right and avoid danger. Undoubtedly such is the import of some of the testimony, and that he believed the McCormick was of her own notion taking the north channel is highly improbable. The version of his testimony most favorable to the Yoshida is that, when he first sighted the McCormick, then below Port Stevens, she was showing her red light, but about the time she passed Port Stevens her green light came into view, and thereafter remained visible. This was at a distance of at least a mile and a half. He does not contend that she sounded her whistle or otherwise signified her intention to take the north side. The deeper, and hence the preferable, channel was on the south side, which of right belonged to her; and yet we are asked to believe that immediately upon ob

DIETRICH, Circuit Judge. This is an This is an appeal from an interlocutory decree holding the steamship Yoshida Maru alone at fault for a collision with the McCormick, on the lower Columbia river, about 3 o'clock in the morning of April 17, 1925. The Yoshida was proceeding downstream with a cargo of lumber, and the McCormick was coming up the river, partly loaded. The collision, which was almost end on, occurred at a point between Flavel and Port Stevens, where the channel, though comparatively narrow, was of ample width for safe passing. The night was dark, but not stormy, and generally it may be said that conditions for navigation were fair. The rules (article 25 [Comp. St. § 7899]) required each vessel to keep to the right side of the channel, if such course was not dangerous or impracticable. Unless relieved from so doing by necessity or the consent of the McCormick, it was therefore the duty of the Yoshida to proceed on the north side, but instead she sought and undertook to make a starboard passage without awaiting the McCormick's consent.

The only justification attempted by her pilot in his somewhat inconsistent testimony is that he believed or suspected that in disregard of the rule the McCormick proposed to take the north side. Upon some of the material questions the testimony is highly conflicting, but we agree with the lower court that under the facts, either admitted or established by a clear preponderance,

away, he in good faith concluded that against interest and in violation of a fundamental rule she was going to take the north side, and that he feared, if he insisted on making a port to port passage, as was his right, he would be forced beyond the navigable channel. It was his duty to assume that the McCormick would observe the law of the road until there was at least substantial reason to fear she would not, or could not, do so. Any other practice would be prolific of disaster. The Albert Dumois, 177 U. S. 240, 249, 20 S. Ct. 595, 44 L. Ed. 751. If, in truth, the McCormick did show her green light as she cleared Port Stevens wharf, the fact would be of little significance. She was at that time more than a mile and a half away. The intervening fairway was clear, and, as has already been stated, the south was the better side.

[1] The sounding by the Yoshida of the twoblast signal about the time she first observed the green light does not materially alter the case. The testimony on the point by the McCormick's officers is to the effect that it was not heard by them. But, however that may be, admittedly the latter did not respond, and without an answer the signal can be regarded only in the nature of a request to the McCormick, and established no right against her. The John King (C. C. A.) 49 F. 469; The Cygnus (C. C. A.) 142 F. 85. "Where a vessel has no right to pursue a particular course without receiving the assent of the vessel she is meeting, the whistles she uses to obtain that assent are merely invitations