(concurring). I agree to the disposition made of the case on the merits, and to the affirmance without modification of the decree below. But I do not agree that the right to the benefit of the act of 1884 has been waived by anything which has occurred, but only that the question has not been properly raised. *544The prayer of the petition, on which the proceedings are founded, is that the liability of the petitioner shall be limited to the value of his interest in the steamship immediately after the accident; and this relief he got. Assuming (this being an admiralty case) that it is not too late, by appropriate proceedings, to still further limit his liability here, so as to hold his interest only for its proportionate share, as provided in the act referred to, there is. nothing before the court on which this can be rightly done. Neither by assignment of error, petition, nor motion filed, is the aid of the court in this direction invoked. The right is asserted for the first time in argument at bar, and we are practically asked to go outside of the record to grant this new relief. This is not in accordance with due and orderly procedure, and is therefore properly refused.
On Reargument.
John F. Lewis, for appellant.
John G. Johnson, for appellee.
Before BUFFINGTON and FANNING, Circuit Judges, and YOUNG, District Judge.
PER CURIAM.Upon the reargument of this case the appellant has again contended that this court should reduce the amount of the decree of the District Court from $5,000 to one-third of that sum. Motion is made for leave to amend the record and to file an additional assignment of error. With such amendments it is supposed the reduction may be made. But we are of the contrary opinion. Whatever power of amendment a Circuit Court of Appeals may ordinarily have on an appeal of a case in admiralty, we are satisfied that in this case the decree of the District Court ought not to be reduced. The parties themselves agreed to a reduction from $6,000 to $5,000, and on that agreement the decree was entered. We adhere to our former-conclusion.
The decree will be affirmed, with costs.