(dissenting).

I am not in accord with the opinion of the majority.

First. One ground for the decision is found in our former opinion which I wrote. If that opinion is subject to the interpretation given it by the majority, it is not what I intended to say. I had no intention of pre-litigating a point which might arise in future proceedings. Furthermore, as can be seen in a casual reference to that opinion, the only point raised and argued was that the decree against the Oregon representatives might be res judicata as against claims filed by Washington representatives. We ordered a modification of the decree so as to provide that the principle of res judicata would not prevent the filing of claims by Washington representatives. The majority now say that we also decided on the first appeal that the monition of the court below and any statute of limitations would not bar the filing of claims by Washington representatives. Not only was that point not decided, but it was not even mentioned.

Second. The majority have undertaken something which I believe it has no power to do. Rule 51 of the Admiralty Rules promulgated by the Supreme Court of the United States, 28 U.S.C.A. following section 723, empowers only the District Courts to issue monitions fixing the time within which claims might be filed. That time had expired long before the first appeal was taken. The majority now say “there was no sufficient reason for denying these dependent heirs an opportunity to establish their case”. It would appear to me that Rule 51 and the monition issued herein are potent reasons for the entry of the decree appealed from. By its present decision the majority are usurping a power lodged by the Supreme Court only in the District Courts.

Third. Apparently ignoring Noonan v. Bradley, 76 U.S. 394 , 9 Wall. 394 , 19 L.Ed. 757 , and The Princess Sophia, 9 Cir., 61 F.2d 339 , 354, the Oregon representatives filed the libels on January 4, 1940. The petition for limitation of and exoneration from liability was filed on February 17, 1940. The monition fixed March 25, 1940, as the date before which claims must be filed. The Oregon representatives filed their claims on March 21, 1940. The decree appealed from contains the following: “ * * * that seven extensions of time for filing such Answers and Claims were duly made and entered herein by the Court upon motion of the proctors now representing said administratrix and the beneficiaries of her tendered claims; that said extensions and the period for filing Answers and Claims herein finally expired on November 15, 1940, and no requests for further extensions were made; that aforesaid extensions were granted for the purpose, among others, of allowing proctors to correct any defect in parties claimant in the Answers and Claims theretofore filed by Oregon administrators for the beneficiaries of the aforesaid decedents; that said beneficiaries and their proctors at all times had actual notice of the pendency of this proceeding for limitation and exoneration and had notice that the capacity and right of said foreign administrators to file Answers and Claims herein was challenged, and had ample opportunity to cure the defect, but voluntarily elected to rest their rights upon the Answers and Claims of said Oregon administrators, and elected not to have any qualified Washington personal representatives appointed or appear herein before the extended time for so doing had expired. * * * ”

It thus appears that while appellant might not have known the rule established by the cases cited above when she filed her libel, she did know it long before the time for filing claims had expired. The majority characterized the situation by saying that “counsel for the claimants mistook what we may assume was plain law on the subject”. It is apparent that appellant did not mistake the law — she ignored it. It would not extricate her from the toils of her own procrastination.