The Charles Morgan

delivered the opinion of the court. This is a suit in admiralty, brought by the owners of the steamboat “ Cotton Talley,” to recover for the loss of their boat, and certain articles of personal- property belonging to Martin H. Nouns alone, in a collision pn the Mississippi River

Upon the hearing in the Circuit Court that court found, among other things, that at'the time'of the collision the Cotton Yalley, bound for Red River, was the ascending boat, and the Charles Morgan, bound for New Orleans, the descending boat; that the collision occurred near Bringier’s Point, about three miles below Donaldsonville; that both boats were properly officered and manned, and had proper Watches and' proper lights set.

“ Third. That prior to the collision the Cotton Yalley was in her proper position in the river near the left bank, following up the Bringier Point preparatory to rounding the same, while the Charles Morgan was above the point, perhaps in the middle of the river, but heading across and near the point to a wood-yard light, in the bend of the river below the point.

“ Fifth. Both boats kept on their respective courses, approaching each, other, when the pilot of the Morgan sounded three or four short whistles, stopped the Morgan’s engines, and soon commenced backing the wheels, but not enough to stop the Morgan’s headway, and without in any wise changing her course to starboard or port.

“Meanwhile, the Cotton Talley, rounding the point, at the three or.four short whistles given by the Morgan, understanding the signal as a hail, stopped the engines.

“• At this time the boats were within one hundred yards of each other, the Morgan, with her headway and the current, coming straight on without changing her course, the pilot of the Cotton Talley, foreseeing an inevitable collision if he remained still, started the Cotton Talley ahead, sheering to starboard; but this forwarding of the Cotton Talley was too late, for almost immediately the Charles-Morgan, head on, struck her on the port side, about twenty-five feet forward of the stern, and at an angle of about sixty degrees, with such force as to cut through her guards into her hull nearly to the kelson, and cause her to sink in about- ten minutes.

“ Sixth. That the Charles Morgan and her officers were in fault, as the proper position of the boat was nearer the middle of the river, and as her officers disregarded the passing signal, given and answered, and made no effort to change the boat’s course to the starboard, by which the boats would have been so separated that a collision would have been avoided.

“ Seventh. That the Cotton Talley was not in fault, as she was in her proper place as the ascending boat, and as she gave the proper signal for passing.

“ The failure of the pilot to understand the signal of three or four short whistles given by the Morgan was not, under the circumstances of the case, a fault; and if the starting of the

Upon these facts a detíree was rendered against the Morgan and her owners and stipulators for the value of the Cotton Talley, and for the value of the personal property belonging to Kouns, the same as' in the District Court, and also for the value of the stores, supplies, etc., set forth in the supplemental libel, $1,376.16. From that decree this appeal was taken.

The record contains a bill of exceptions, which shows that in the progress of the trial in the Circuit Court the defendants offered in evidence a certified copy of “the finding of the board of local inspectors of stekm vessels, New Orleans, .December 18,1878, being their decision in the case of the collision between the steamers Cotton Yalley and the Charles Morgan, and signed by C. B. Johnson and J. A.'Moffat, United States Local Inspectors.” They also offered certain other documents connected with that proceeding, including an appeal to the District Inspectors and their decision thereon. To the introduction of this evidence the libellants objected, and their objection was sustained. To this ruling the claimant of the Morgan excepted, and the exception was made part of the record.

. It is also shown by another bill of exceptions in the record, that, after the depositions of Albert Stein, .Harry ~W. Stein, Sylvester Doss, John B. Evelyn, and Livingston McG-eary had been read on behalf of the claimant of the Morgan, the libellantsj for the purpose of impeaching and contradicting their evidence, offered certain depositions of the same witnesses used on the trial o'f certain other suits, growing out of the same collision, between one Menge and some insurance companies, to which the claimant was not a party. To the introduction of this evidence the claimant objected, on the ground that no . basis for offering said purported depositions had been laid, it not having been shown or pretended that said purported depositions were ever submitted to the said witnesses, or otherwise verified as their evidence in said causes: but as, “in the .cross-examination of each of. said witnesses in this case, the atten

• The following positions áre taken by the appellants:

1. That the fitídings of fact are not sufficient to support the decree.

' 2. That leave to. file, the supplemental and amended libel should not have been granted, and consequently that the decree should not have included the value of the stores, supplies and ffioney belonging to the Cotton Yalley, which were lost.

8. That the record of the proceedings and findings of the board of local inspectors, and .the documents connected therewith, were improperly excluded as evidence; and

4. That the depositions taken in the Menge cases were improperly admitted.

I. The objection to the sufficiency of the findings is based on Rule 2 of the Board of Supervising Inspectors of Steam Yeseis, which is as follows:

“ Should steamers be likelyto pass near each other and these signals should not be made and answered by the time such boats shall have arrived at a distance,-©! 800 yards from each other, the engines of both boats shall be stopped'; or "should the signal be given and not properly understood, from any cause whatever, both boats shall be backed until their headway shall be fully checked, and the engines shall-not be again started ahead until the proper signals are.made, answered and understoodi Doubts ■ or fears of misunderstanding signals shall be expressed by several short sound^ of the whistle in quick succession.”

The particular specifications of insufficiency are:

..1. That it does not appear that the signals for passing had

There is no complaint in the pleadings as to the time when the -Cotton Yalley made the first signal, and néither party at the hearing below seems to have considered that an important fact in the case. So long as it was made and assented to by the Morgan without any signal of misunderstanding,'it wffi be presumed to have been at the proper distance, as nothing appears to the contrary. The findings show affirmatively that it was understood and assented to by the Morgan.

As the “ several short sounds of the whistle ” were only to be given in case of doubt or fear of a misunderstanding of signals,. it was not necessarily a fault in the Cotton Yalley to misinternret their meaning when made by the Morgan, so short a time after her assent had been given to the signal of the Cotton Yalley to pass to the right. •

2. Admiralty Rule 24 provides that in all informations and libels, in causes of admiralty .and maritime jurisdiction, “new counts may be filed, and amendments, in matters of substance, may be made, upon motion, at any time before the final decree, upon such terms as the court shall impose.” 3 How. xiv. In The Lucille, 19 Wall. 73 , 74, it was decided that an appeal in admiralty from' the District to the Circuit Court “has the effect to supersede and. vacate the decree from which it was taken. A new trial, completely and entirely new, with other testimony and other pleadings, .if necessary, or, if asked for, is contemplated — a trial in which the judgment o'f the court below is regarded as though it had never been rendered. A new decree is to be made in the Circuit Court.” Clearly, under this decision, after an appeal is taken, and thé decree of the District Court vacated, a motion to amend, made while the •case is pending in the Circuit Court for a new trial on its merits, will be before the final decree; and, under the operation of the rule, we have no doubt the Circuit Court may, in its discretion, permit an amendment of the libel, so as to include a claim for damages growing out of th¿ original cause of action

3. The finding of the board of local inspectors, and the documents connected therewith, were properly excluded. The proceeding in which the finding was made was instituted under Rev. Stat. § 4450, for an investigation of . the facts connected with the collision, so far as they had a bearing on the conduct of the licensed officers on board the boats, and at most it only showed the opinion of the board upon the subject from the evidence adduced before them. It was offered, to use the language of counsel, “ as tending to áffeet the evidence offered by the libellants to show that the Cotton Yalley was in her proper position in the river, and had proper watches and lights set at the time of the' collision.” . Clearly it was not admissible for any such purpose.

4. The specific objection to the depositions in the Menge cases that were offered" for the purpose of impeachment, is that they were not exhibited to the witnesses whose testimony was to be impeached upon their cross-examination, or otherwise verified, as the evidence of the witnesses in the former causes. The rule is, that the contradictory declarations of a witness, whether oral or in writing, made at another time, cannot be used for the purpose of impeachment until the witness has been examined upon the subject, and his attention particularly directed to the circumstances in such a way as to give him full opportunity for explanation or exculpation, if he desires to make it. Conrad v. Griffey, 16 How. 38 , 46. If the contradictory declaration is in writing, questions as to its contents, without the production of the instrument itself, are ordinarily inadmissible, and a- cross-examination for the purpose of laying the foundation of its use as impeachment would not, except under special circumstances, be allowed until the paper was produced and shown to the witness while under examination. Circumstances may arise, however, which will excuse its production. All the law requires is, that the memory of the witness shall be so refreshed by the necessary inquiries as to enable

In the case, as it comes to us, we find no error.

The decree of the Gvrcuit Court is affirmed mid interest allowed.