Page:Federal Reporter, 1st Series, Volume 3.djvu/535

 628 FEDERAL REPORTER. �wbîch the circuit court bas made conforma to our mandate. Our mandate was not an order to take further proceedings in the case in conformity with the opinion of this court, * * opinion ; * * * * but it was specially to enter a decree in conformity with the opinion of this court. Of what dam- ages did we order an equal division? There were no others asBsrted or claimed than those sustained hy the libellant. We do not say that a cross libel is always neoessary, in a case of collision, in order to enable claimants of an offending vessel to set off or recoup the damages sustained by suoh vessel if both be found in fault. It may, bowever, well be questioned whether it ought not to appear in the answer that there were such damages. * * » * Without deciding that the claimants of the Sapphire were not at liberty to show that their ship was damaged by the collision, and to set off those damages against the damages of the libellant, it must still, we think, be held they bave waived any such claim. If our mandate was not a direction to enter a decree for one-half the damages of the libellant; if its meaning was that a decree should be made dividing the aggregate of loss sustained by both vessels, which may be conceded, — it was the duty of the respondents to assert and to show that the Sapphire had been injured. This they made no attempt to do. When the cause went down, they neither asked to amend their pleadings, nor to offer further proofs, nor to bave a new reference to a commis- sioner. So far as the record shows they set up no claim even then, or at any time before the final decree, that there were any other damages than those which the libellant had sustained," Id. 55-56. �The last decree of the circuit court was afBrmed, and, as is evident, upon the ground that the claimants had not, after the return of the case to the circuit court subsequent to the first appeal, asserted or set up in proper form this claim for damages, and by omission so to de had waived such claim. �In this connection I refer to the case of The Pennsylvania, 12 Blatchf. 67. In this case the circuit court, affirming the decision of the district court, deereed in favor of libellants. ����
 * * or to adjust the loss upon the principles stated in our