Supreme Court of United States.
*318 Mr. C.E. Kremer, Mr. H.C. Wisner, Mr. F.C. Harvey and Mr. W.O. Johnson for petitioners.
Mr. Harvey D. Goulder, Mr. S.H. Holding, Mr. F.S. Mast and Mr. Frank H. Canfield for respondent.
Mr. F.H. Canfield filed a brief for Intervening Underwriters.
MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
Petitioner applies for this writ of mandamus upon the ground that the District Court refused to enter a decree in conformity with the opinion of this court dividing the damages, but in effect entered a decree imposing upon the Union Steamboat Company, the petitioner, about seventy-six per cent of the damages occasioned by the collision.
The duty of an inferior court upon receiving the mandate of this court is nowhere better described than by Mr. Justice Baldwin in an early case upon that subject, Ex parte Sibbald v. United States, 12 Pet. 488, 492: "Whatever," said he, "was before the court, and is disposed of, is considered as finally *319 settled. The inferior court is bound by the decree as the law of the case, and must carry it into execution, according to the mandate. They cannot vary it or examine it for any other purpose than execution; or give any other or further relief; or review it upon any matter decided on appeal for error apparent; or intermeddle with it, further than to settle so much as has been remanded. . . . If the special mandate, directed by the twenty-fourth section, (of the judiciary act,) is not obeyed or executed, then the general power given to all courts of the United States to issue any writs which are necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law, by the fourteenth section of the judiciary act, fairly arises, and a mandamus or other appropriate writs will go," although an appeal will also sometimes lie. Perkins v. Fourniquet, 14 How. 328, 330; Milwaukee & Minnesota Railroad Co. v. Soutter, 2 Wall. 440, 443. See also Boyce's Executors v. Grundy, 9 Pet. 275; Ex parte Dubuque & Pacific Railroad, 1 Wall. 69; Durant v. Essex Co., 101 U.S. 555; In re Washington & Georgetown R.R. Co., 140 U.S. 91; City Bank v. Hunter, 152 U.S. 512; In re City National Bank, 153 U.S. 246; In re Sanford Fork & Tool Co., 160 U.S. 247; In re Potts, 166 U.S. 263.
It is equally well settled, however, that such writ, as a general rule, lies only where there is no other adequate remedy and that it cannot be availed of as a writ of error. In re Pennsylvania Co., 137 U.S. 451; In re Morrison, 147 U.S. 14, 26; Ex parte Railway Co., 103 U.S. 794; Ex parte Baltimore & Ohio R.R. Co., 108 U.S. 566; In re Atlantic City R.R., 164 U.S. 633. The inferior court is justified in considering and deciding any question left open by the mandate and opinion of this court, and its decision upon such matter can only be reviewed upon a new appeal to the proper court; In re Sanford Fork & Tool Co., 160 U.S. 247, 256, and the opinion of this court may be consulted to ascertain exactly what was decided and settled. West v. Brashear, 14 Pet. 51; Supervisors v. Kennicott, 94 U.S. 498; Gaines v. Rugg, 148 U.S. 228, 238, 244; Sanford Fork & Tool Co., 160 U.S. 247, 256.
The libel in this case was for a collision between the Conemaugh *320 and the New York. The only questions decided were as to the respective faults of the two vessels, and the claim of the underwriters upon the Conemaugh's cargo, that they were entitled to a recovery to the full amount of their damages against the New York, notwithstanding the Conemaugh was also in fault for the collision. This claim was sustained, and directions given to enter a decree in conformity to the opinion of this court. Such decree was entered, dividing the damages between the two vessels, and awarding to the underwriters of the cargo a full recovery against the New York. It may be true that the decree holds the New York liable for seventy-six per cent of the entire damages and not fifty per cent, but this results from the fact that she was primarily held for the entire value of the cargo. The equal division applied only to the vessels, and upon the other hand if petitioner be entitled to the recoupment claimed, it would, apparently, result in an affirmative decree in its favor. But no question of recouping one half of such damages to the cargo from the moiety of damages awarded the Conemaugh was made by counsel or passed upon by this court. It is now insisted that, under the cases of The Chattahoochee, 173 U.S. 540, and The Albert Dumois, 177 U.S. 240, this should have been done. This may be so; but it is an entirely new question, quite unaffected by the case of The New York, and if the court erred in refusing to allow such recoupment, the remedy is by appeal and not by mandamus. Perhaps a mandamus might lie to review the allowance of interest, but that may also be considered on appeal.
No disobedience of the mandate having been shown, the petition must be
Denied.
