[6] Second. The propriety of the court's ruling in ascertaining the damages sustained by the Haggett and determining the liability therefor presents a more complicated question for solution. The learned judge of the court below was of opinion that the damages to the Haggett should, as between that vessel and the tug, be divided; that is, that the negligence of the tug and the barge in respect to the Haggett's losses arose because of the "contributing and concurring negligence" of each vessel, and accordingly so decreed-the court being of opinion that the action of the tug in its failure on the morning of January 1st to return from Norfolk to the anchored barges, and to earlier notify the transportation Company and the Coast Guard of the situation of the barges, constituted an act of contributing and concurring negligence on its part, so far as the Haggett was concerned, and that the tug was liable for one half of the damages sustained by it.

We can but feel that the court erred in this holding. The testimony clearly convinces us that no good could have been accomplished by the return of the tug to the scene of the anchorage on the 1st, had it been prudent or practical so to do, and as a matter of fact, in the circumstances, we think the tug was justified and warranted in not returning to the barges on that day. Had the tug done so, no practical good would have been accomplished; as, aside from the impossibility of the venture by reason of the then weather conditions, the Haggett because of its defective and insufficient anchors and equipment, together with the shortage in its crew, could not have been saved from the disaster which befell it.

The learned judge of the District Court was of the opinion that the Haggett was not properly equipped and sufficiently manned, being navigated alone by its master, with such assistance as his wife could render, and should have had at least two seamen besides, and that the barge should have been held on two anchors, instead of one, as were all the other barges of the like class in the immediate vicinity, all of which held, nevertheless considered that these causes, singly or combined, were not the proximate cause of the disaster.

The Haggett first put out its port anchor about 2 a. m. on the 1st of January, which held for about two hours only. About 4 a. m. the chain parted, and its starboard anchor was let go. It held until 3 p. m. of the

was then rigged up and put out on a rope hawser, which, after the barge had considerably drifted, took hold and held until about 10 p. m. when it parted, and the barge continued to drift. The tug did return to the barges on the morning of the second day, and upon speaking the Hudson and finding her in no immediate danger, though the weather was still severe, started out to look for the Haggett, and about 5:30 p. m. sighted her off Fortieth street, Virginia Beach, whither she had drifted and grounded on the 2d about 12:30 a. m. Four other barges of the class of the Haggett, anchored in the immediate vicinity, and under substantially the same conditions, all upon two anchor chains, withstood the storm, as would doubtless the Haggett, had it been placed upon two anchors, which were necessary in the prevailing weather conditions.

Assuming that the tug could have safely returned to the Haggett on the 1st of January, which the evidence does not support, in our judgment, still it could have rendered no effective or efficient service to her, drifting under its several single anchors, as stated, and it should not be held liable for the losses to the barge, or any part thereof.

Considering the right of the recovery by the Haggett against the tug for losses sustained by it, and its liability in part for such losses, by reason of its contributing and concurring negligence, we are likewise unable to concur with the District Court in respect thereto. We have given our reasons why the tug is not liable for such losses, and, so far as the Haggett has sustained damage, our conclusion is that she should be denied the right of recovery against the tug for any amount, because of her failure to properly equip and man and skillfully navigate the barge; and we are further of the opinion that her acts of omission-that is, her unseaworthiness and lack of a sufficient crew and prudent navigator-in the respects mentioned were not merely contributing or concurring faults, but constituted the proximate and efficient cause of the disaster. The Sunnyside (C. C. A.) 251 F. 271; The M. E. Luckenbach (D. C.) 200 F. 630; The Panther (C. C. A.) 5 F. (2d) 64.

[7, 8] Third. This brings us to the consideration of the court's action in refusing to entertain appellant's cross-libel, whereby recovery was sought for the loss of the tug's tow rope by the barge Hudson, as well as for the towage service rendered said barge. Our conclusion is that the District Court correctly

Reversed.

1. Courts 293-Action by Federal Intermediate Credit Bank is not within jurisdiction of federal court as one "arising under laws of United States" (Comp. St. § 991; 12 U. S. C. A. § 1023; 28 U. S. C. A. § 42). Under Judicial Code, § 24, par. 1 (Comp. St. § 991), an action instituted by a Federal Intermediate Credit Bank incorporated under Act March 4, 1923, 42 Stat. 1454 (all stock being owned by United States government), is not within jurisdiction of federal court as one arising out of the Constitution or laws of the United States, in view of Act March 4, 1923, § 201 (c), being Comp. St. § 98354 (12 U. S. C. A. 1023), providing that such banks shall have the power to sue and be sued, both in law and equity, "and for the purposes of jurisdiction shall be deemed a citizen of the state where located," notwithstanding Act Feb. 13, 1925, § 12 (Comp. St. § 991d; 28 U. S. C. A. 842), excluding federal incorporation as a ground of federal jurisdiction, except in cases of corporations more than half of whose stock is owned by the government.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, AriseArising.]

2. Courts 293-Statute held not intended as implied repeal of prior acts affecting jurisdiction of suits by or against corporations created under act of Congress (28 U. S. C. A. $ 42; Intermediate Credit Bank Act [12 U. S. C. A. § 1023]).

Act Feb. 13, 1925, § 12 (Comp. St. § 991d; 28 U. S. C. A. § 42), excluding federal incorporation as a ground of federal jurisdiction, except in cases of corporations more than half of whose stock is owned by the government, was not intended as a consolidation and im

plied repeal of prior acts (including Intermediate Credit Bank Act, § 201 [el, being Comp. St. 98354; 12 U. S. C. A. § 1023)

PARKER, Circuit Judge. This was an action instituted by the Federal Intermediate Credit Bank of Columbia, S. C., in the United States District Court for the Eastern District of South Carolina, to recover judgment on certain promissory notes in an amount exceeding $3,000 exclusive of interest and costs. The action was dismissed for lack of jurisdiction, and the only question presented by the assignment of error is whether this ruling was correct.

[1] The plaintiff is a corporation created under the Act of Congress of March 4, 1923 (42 Stat. 1454), all of its stock being owned by the government of the United States, and the contention in its behalf is that, because of the federal incorporation and government ownership of stock, the federal courts have jurisdiction of the action. The contention of defendants, on the other hand, is that plaintiff, by the very act under which it is created, is denied the right to invoke the jurisdiction of the federal courts on the ground of federal incorporation.

The District Courts of the United States are given original jurisdiction of actions where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, "and (a) arises under the Constitution or laws of the United States. Judicial Code, § 24, par. 1 (Comp. St. § 991). The universal construction of this clause, since its original enactment in 1875 (18 Stat. 470), has been that corporations organized under acts of Congress, when suing or being sued, where the jurisdictional amount is involved, have the

right, on the ground that such suits arise under the laws of the United States, to invoke the jurisdiction of the federal courts, except where the particular suit is excluded from the federal jurisdiction by some specific enactment. Bankers' Trust Co. v. Tex. & Pac. R. Co., 241 U. S. 295, 306, 307, 36 S. Ct. 569, 60 L. Ed. 1010; American Bank & Trust Co. v. Federal Reserve Bank, 256 U. S. 350, 41 S. Ct. 499, 65 L. Ed. 983; Sowell v. Federal Reserve Bank, 268 U. S. 449, 45 S. Ct. 528, 69 L. Ed. 1041. Since, therefore, plaintiff is created under act of Congress, and this action involves the jurisdictional amount, the District Court had jurisdiction of the action, unless its jurisdiction has been excluded by some special act.

The question, then, narrows itself to this: Is there a special act excluding federal incorporation as a ground of federal jurisdiction in suits by or against Federal Intermediate Credit Banks? We think that there is. Section 201 (c) of the act under which these banks are created (42 Stat. 1454; U. S. C. tit. 12, § 1023; being Comp. St. § 98354) provides:

"(c) Each Federal Intermediate Credit Bank shall have all the usual powers of corporations, and shall have power to sue and be sued both in law and equity, and for purposes of jurisdiction shall be deemed a citizen of the state where it is located."

We are not left in doubt as to the meaning of the language "for purposes of jurisdiction shall be deemed a citizen of the state where it is located." Practically the same language is used in paragraph 16 of section 24 of the Judicial Code (Comp. St. § 991), which, after providing for jurisdiction in the federal courts in certain cases affecting national banking associations, continues:

"And all national banking associations established under the laws of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located." (Italics ours.)

This section was before the Supreme Court in Herrmann v. Edwards, 238 U. S. 107, 35 S. Ct. 839, 59 L. Ed. 1224, and it was there held that the effect of the language used was to exclude federal incorporation as a ground of federal jurisdiction. In that case it was argued that there had been omitted from the section of the Judicial Code certain language contained in the act of 1888 (25 Stat. 433) relating to suits by and against national banks which provided that the federal courts should "not have jurisdic

tion other than such as they would have in cases between individual citizens of the same state," and that the effect of omitting this from the section of the Code was to restore jurisdiction in that class of cases. In denying this contention and holding that jurisdiction was excluded by the language of the Code above quoted, the court said:

"Section 4 of the act of 1888, as will be seen, opened with the provisions which excluded national banks from the federal jurisdiction which otherwise would have attached to controversies concerning them. This being done, the statute proceeded to provide that the exclusion previously specified should not include certain classes of controversies which it was deemed best should come under the federal jurisdiction, thus leaving those classes of cases under the general rule, since they were carved out by the last clause of the section from the provisions as to exclusion which were found in the first. In re-enacting these provisions of the act of 1888 in paragraph 16 of section 24 of the Judicial Code, obviously to make the purpose of the re-enacted statute clearer, just the opposite form of statement was resorted to, since paragraph 16 opens by conferring federal jurisdiction only in those classes of cases which were kept within that jurisdiction by the concluding clause of section 4 of the act of 1888, and hence no jurisdiction was given as to the other classes of cases which were excluded from such jurisdiction by the act of 1888. The re-enacted section in other words, instead of generally stating what was excluded from jurisdiction and then carving out exceptions, as was done in the act of 1888, gave jurisdiction only in the cases where it was intended to give it and then proceeded to declare that in all other cases within the contemplation of the section there should be no jurisdiction, thus making the lines clear and broad and leaving no room for controversy or doubt." (Italics ours.)

Counsel for plaintiff, in endeavoring to distinguish the case at bar from Herrmann v. Edwards, lay much stress on the reasoning of the Supreme Court in that case to the effect that an intention to change the rule prescribed by the statute of 1888 should not be indulged without a clear manifestation of such purpose. But, of course, whatever the reasoning by which the court arrived at the meaning of the statute, the interpretation once made became as much a part of the statute as the language of the statute itself, and when practically the same provision respecting jurisdiction was adopted as a part of the Intermediate Credit