This is a proceeding for limitation of liability for the damages resulting from a collision between the steamers San Rafael and Sausalito in the Bay of San Erancisco, on the night of November 30, 1901. The petition alleges that the petitioner was the owner of both steamers; that the collision was without the privity, knowledge, or consent of the petitioner, or any of its officers or directors, and was the result of fault or error of judgment on the part of the master of the steamer San Rafael in believing that the fog signal of the steamer Sausalito indicated that that steamer was approaching from a point off the starboard bow of the San Rafael, when, in fact, she was approaching from the port bow of the San Rafael. The petition further alleges that:

The petitioner then sets forth that J. S. McCue and Patrick Cassidy, as guardian ad litem for*the widow and minor children of one Alexander Hall, have recovered judgments in this court against petitioner for damages resulting from such collision. The prayer of the petition is that the court cause due appraisement to be made of the value of the interest of the petitioner in the San Rafael and her freight pending—

J. S. McCue and Patrick Cassidy, as guardian ad litem, appeared without service of process and filed an answer to the petition, in which they pleaded in bar of the proceeding a decree of this court, dated April 17, 1906, dismissing a former petition by the present petitioner, for limitation of its liability for the damages occasioned by the collision above referred to between the steamers San Rafael and Sausalito.

It appears from the record that in the former proceeding there was no mention in the petition of the fact that petitioner was also the owner of the steamer Sausalito, and the stipulation given therein was only for the appraised value of the San Rafael, and for her freight pending. McCue and Cassidy, as guardian ad litem, appeared in that proceeding, and in answer to the petition filed therein alleged that the collision between the San Rafael and Sausalito was the result of the negligence of the officers and crew of both steamers, and prayed for an order that the Sausalito be brought into the proceeding, “and duly appraised and turned over to a trustee and sold, and that the proceeds thereof, together with the freight pending,” be a fund out of which to satisfy their respective claims. The judgment dismissing the former proceeding was entered after a hearing upon the merits^ and was given in obedience to a mandate from the Circuit Court of Appeals ; that court holding that upon the facts the petitioner was not entitled to limit its liability for the damages resulting from the collision because it had not surrendered the Sausalito. The San Rafael, 141 Fed. 270 , 72 C. C. A. 388 .

In the present action the petitioner seeks to avoid the objection which was held fatal to its right to limit liability in the former proceeding, and now offers to give a stipulation for the appraised value of the *895 San Rafael and her freight pending at the time of the collision, and all other property then owned by it, and required by law to be surrendered, as a condition whereon its liability for damages may be limited. This broader offer constitutes the only substantial difference between the present petition and that filed in the proceeding which was dismissed.

The conclusion which I have reached upon consideration of the foregoing facts may be briefly stated as follows: The court had jurisdiction of the former proceeding instituted by the petitioner for the limitation of its liability on account of the collision referred to in the petition now before the court, and I am also of the opinion that the final judgment in that proceeding rendered after a full hearing, although in form one for the dismissal of the petition therein, is to be regarded as a judgment upon the merits, as the decree did not provide that the dismissal should be without prejudice. Treating this judgment as one upon the merits, did it finally determine as between the parties thereto that the petitioner is not-entitled to limit its liability for the loss and damage resulting from the collision refereed to in the present petition ? The rule in reference , to the conclusive effect of judgments is well stated in Shinkle v. Vickery (C. C.) 117 Fed. 916 . It is there said:

This reasoning is quite applicable to this case. The right of the petitioner to a limitation of its liability was contested in the former proceeding and decided adversely to the petitioner, and it cannot be permitted to litig-ate the same general question with the parties who appeared therein by filing a new petition alleging that it is now willing to surrender other property for the-purpose of availing itself of the benefits of the statute giving to owners of vessels the right to limit their liability. The judgment of the Circuit Court of Appeals directing this court to dismiss the former petition was intended as a final determination as between the parties thereto of petitioner’s right *896 . to limit its liability' for damages' arising from the’ collision referred tó; otherwise the petitioner would have been permitted by that court to amend its petition and make surrender of the property now tendered, or the direction would have been to dismiss such proceeding without prejudice to the right of the petitioner to commence a new action for the limitation of its liability.

An order will be'made directing■ that an appraisement be made of the steamers San Rafael and Sausalito and their freight pending, and that upon giving a stipulation for such value an injunction as prayed for issue against all persons, except J. S. McCue and Patrick Cassidy, as guardian ad litem of Catherine Hall et al.; and that as to J. S. McCue and Patrick Cassidy, as guardian ad litem of Catherine Hall et al., the petition be dismissed.