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HAZEL, District Judge. The articles were invoiced and entered as half pearls. They were also commercially known as split pearls or sawed pearls, and concededly were neither set, strung, nor in their natural state. The importations were assessed by the collector at 20 per cent. ad valorem, and were classified pursuant to section 6 of the tariff act of July 24, 1897, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693], as nonenumerated "articles manufactured in whole or in part." The importers paid the duty under protest, claiming that the merchandise was dutiable at 10 per cent. ad valorem, either directly under paragraph 435, c. 11, Schedule N, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], or, in the alternative, by similitude or component material of chief value, under paragraph 436, or under section 6 of said act, which provides for unenumerated articles. The Board of General Appraisers sustained the collector as to suit No. 2,781; and subsequently, as to suit No. 3,324, the board found and decided that the pearls in question could be held dutiable by similitude, either as "pearls, set or strung," or as "pearls in their natural state," and accordingly the higher rate of duty under section 7 applied, namely, 60 per cent. ad valorem. It is contended by the government that the decision of the Board of General Appraisers upon the question of similitude is fully justified by the facts. The argument and evidence of the importers were chiefly directed toward establishing that half pearls in fact are precious stones advanced by splitting.

Much testimony is found in the record, little of which was before the board, tending to show that pearls also belong to the category of "precious stones." Twenty-four expert witnesses testified upon the controverted point; 17 substantially to the effect that pearls were commercially regarded as precious stones, and were generally known as such in trade and commerce, though it was practically admitted by all the witnesses that pearls are not strictly precious stones. The board was of the opinion that the term "precious stones," as commercially used, did not include pearls, and that the meaning of that term is limited to mineral substances of that nature. Congress, however, has made a significant distinction between pearls and precious stones, which must prevail irrespective of the evidence tending to establish a different trade designation. This intention of the lawmaking power is quite apparent from an examination of the various paragraphs declaratory of a duty upon precious stones, jewels, and pearls. For example, paragraph 434 refers to "precious stones set, pearls set or strung." These terms are not correlative. If Congress had intended to include pearls in the category of precious stones, a phrase reading "precious stones set or strung" would have more aptly expressed such intention. It is settled law that when an article of importation, through having a commercial signification, has been plainly and specifically described in the tariff laws, the intention of Congress must be looked to for the purpose of fixing the rate of duty. Cadwalader v. Zeh, 151 U. S. 171, 14 Sup. Ct. 288, 38 L.. Ed. 115. As already appears, half pearls are not enumerated in the tariff act. Their resemblance to an enumerated article must, therefore, be ascertained in order to fix the rate of duty. Arthur v. Fox,

108 U. S. 125, 2 Sup. Ct. 371, 27 L. Ed. 675; Hahn v. United States, 112 Fed. 635, 40 C. C. A. 622; Tiffany v. United States, 112 Fed. 672, 50 C. C. A. 419. I think the record discloses that the importations more nearly resemble pearls in their natural state than pearls set or strung. They were not adapted for stringing, but were chiefly useful for jewelry setting, involving labor and expense in completion. The half pearl is the better part of the true pearl, from which the flaws or blemishes in appearance and shape have been removed by sawing or splitting. The decision of the circuit court of appeals in the Tiffany Case, supra, is in strong analogy to the case at bar. I think the Board of General Appraisers erred in deciding that the importations are equally within the terms, by similitude, of said paragraphs 431 and 436. The half pearls in question, in my opinion, are dutiable by similitude under paragraph 436 only, and hence should be assessed at the rate of 10 per cent. ad valorem.

The decision of the Board of General Appraisers is reversed.

THE ADELAIDE. THE COFFIN.

THE M. A. LENNOX.

(District Court, E. D. New York. July 7, 1904.)

1. SHIPPING-INJURY TO BARGE BY CROWDING AGAINST DOCK.

A steamship held liable for breaking the guard rail of a barge, which was between herself and a dock, caused by pressing the barge against the dock, on the ground that proper care was not exercised in adjusting the booms so as to keep her off with the changing tide.

In Admiralty. Suit to recover for damage to barge.
Wilcox & Green, for libelant.

Convers & Kirlin, for respondent Hudson.

James J. Macklin, for the Adelaide.

Wing, Putnam & Burlingham, for the Lennox.

THOMAS, District Judge. The only question in this case is whether the steamship Westmeath was properly boomed off, so that within reasonable expectation she would not press the scow Buffalo against the dock, and cause the injury to the guard of the latter for which the libel was filed. The accident happened in 1897, and the evidence of witnesses as to what was said and done on the occasion is scrutinized with unusual care after such an interval. The correspondence after the event throws very little light upon the subject. Capt. Cherry, the libelant's superintendent, on September 20, 1897, wrote to the superintendent of the East Central Pier, where the accident occurred, but there is no suggestion of specific negligent acts or admissions which caused the injury. He says:

"By orders of your stevedore our barge Buffalo was placed between your pier and steamship Westmeath, and against the persistence of the captain of the barge. He warned the stevedore that it was unsafe to place the barge there. Placing said barge at that point caused considerable damage to her guards."

This letter was referred to Tiffany, the superintendent of the stevedoring company, who forwarded it to Barber & Co., the ship's agents, with his report indorsed thereon. He said that the captain of the barge

"made no objections until after the barge was jammed; then he claimed that it was no place for to put the barge"; and adds: "The damage was to the guard rail, and if the barge's rail had been in good condition it would have stood the strain. The wood was very rotten, and perfectly unsound." In October, 1897, Capt. Cherry wrote to Barber & Co., agents of the vessel, but his statements made no important addition to those in his former letter. Burrows, master of the Buffalo, upon the trial stated that no timbers or booms were used to keep the ship off. Morrisey, foreman of the stevedores of the Atlantic_Stevedoring Company, Tiffany, the company's superintendent, and Jansen, one of the company's employés, all testify that the vessel was boomed off. Belton's evidence adds nothing in this regard. It is apparent that the evidence of the respondent that the booms were used is stronger in the number of witnesses and equal in quality to that of the libelant. Hence it is concluded that the booms were used. But, even so, it is probable that the booms were not suitably adjusted to keep the steamship off with the changing tide. Jansen testified:

"If a tugboat came and squeezed against the ship's side, it would squeeze her in up against the barge. Q. And the weight of the steamship against the barge would squeeze her up against the string piece? Is that right? A. Yes, that is right. Q. And that is what probably broke the guard? Is that your judgment? A. That is my judgment, yes."

It is true that more or less of the timbers to which the rail was fastened were rotten. Capt. Cherry told the entire truth as to that. But it is not believed that an ordinary pressure would have broken off so many of these timbers had the booms been properly readjusted to meet changing conditions. It was the duty of the vessel and those to whom it committed the management of affairs to see to it that the booms were readjusted as occasion demanded.

Pursuant to these views the libelant should have a decree against the respondent, who was the owner of 43/64 of the vessel, and under the Dingley act of June 26, 1884, c. 121, § 18, 23 Stat. 57, 1 Supp. Rev. St. p. 443 [U. S. Comp. St. 1901, p. 2945], the decree against him must be limited to the proportion of the damage that his individual share of

the vessel bears to the whole.

CHADWICK et al. v. WILEY et al.

(District Court, E. D. New York. July 7, 1904.)

1. COLLISION-STEAMER AND SAILING VESSEL MEETING-CHANGE OF COURSE BY STEAMER.

A schooner held not chargeable with contributory fault for a collision with a steamer, brought about by the gross fault of the latter in changing her course so as to cross the schooner's bows when they were approaching nearly head on, on the ground that she should have luffed, where there was very little time for such maneuver after the steamer was seen to change her course, and no certainty that it would then have avoided the collision.

In Admiralty. Suit for collision.

Wing, Putnam & Burlingham, for libelants.

Hyland & Zabriskie (Charles M. Hough, of counsel), for respondents.

THOMAS, District Judge. With the burden of proof on the respondents, it is not sufficiently clear that the failure of the Lockwood to luff contributed to the collision. The master testified:

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"I was just getting on deck about the time she struck-getting on deck—an 1 she struck pretty near the time I got on deck. * * Q. When did you see the steamer? A. * About two points on the port bow. She was showing her green lights then. Q. How far distant was she then? A. I guess perhaps a quarter of a mile, when I saw her. I don't know. An eighth of a mile I guess. Q. When you were called on deck, tell me what was said by the person who called you? A. The mate says, "There is a steamer coming.' I came on deck, and I says, 'What is the matter? He says, 'That fool of a steamer is putting his wheel up, and is sheering across our bow, and he will be into us. Q. When you got on deck, did you see the steamer? A. Yes. Q. Did you see her hull? A. Yes, sir. Q. See the whole of her? A. * I guess she was about an eighth of a mile [away]. She was pretty close to us. Q. And she was then sheering under a starboard wheel? A. Yes, sir."

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It appears that the schooner was going three or four knots per hour and the steamer at full speed. Although the schooner was on a course northeast one-half north, with the wind north-northwest, and the steamer was going at full speed, and changing from southwest by south one-half south, until at the time of the collision she was heading south one-half east, yet it is apparent that the time for change of course on the part of the schooner was very limited. Whether the mate at the wheel, not called as a witness, saw the steamer sheering before he summoned the captain, or before the captain same on deck, does not clearly appear, although it is inferable that the steamer had begun to sheer before the captain arrived. Just how much time the mate had to luff is in doubt. It does seem that it would have been better had the schooner luffed, but it is not sufficiently clear that either the mate or captain were guilty of culpable negligence in not luffing after the steamer had made the gross error of starboarding across the schooner's bow; or that, if the schooner had luffed, she would have cleared the steamer, although it seems probable that such maneuver would have caused the vessels to clear. In any case it is regarded as a mere mistake of judgment, that should not condemn the schooner.

The cargo should contribute in general average. The amount will be determined on a reference, but salvage will be excluded.

In re WILKA.

(District Court, N. D. Iowa, W. D.

August 26, 1904.)

1. BANKRUPTCY-JURISDICTION OF COURT-SALE OF PROPERTY OUTSIDE of Dis

TRICT.

A trustee in bankruptcy is vested with title to the bankrupt's property wherever situated; and when he has taken actual possession thereof, although it may be in another state, it is in the custody of the court of bankruptcy administering the estate, and a referee has jurisdiction to order its sale free from liens.

2. SAME-RESIDENCE OF CREDITOR.

The fact that a mortgagee of a bankrupt's property resides in another state, where the property is also situated, does not affect the jurisdiction of the bankruptcy court administering the estate to order it sold free from the lien of the mortgage on proper notice to the mortgagee.

In Bankruptcy. Submitted on petition of the Granite City Bank of Dell Rapids, South Dakota, for review of order of referee directing the trustee to sell personal property of the bankrupt free from the mortgage liens of said bank.

From the certificate of the referee it appears that the trustee presented a petition to the referee alleging: That certain property of the bankrupt, to wit. live stock and grain, situate in Moody county, S. D., was covered by liens and mortgages, one of which was to the Granite City Bank of Dell Rapids, S. D., for over $15,000, made by the bankrupt June 27, 1903, shortly after said bank had attached said property in an action against the bankrupt; that said mortgage was a preference within the meaning of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]), and that the amount due the bank thereon from the bankrupt, if anything, is uncertain; that the property is of a perishable nature, and will be lost if not soon sold; and praying that he be authorized to sell the property free from the mortgage and other liens thereon. The referee fixed a time for the hearing of said petition, and gave to all creditors notice thereof by mail, and notice was also served personally upon the Granite City Bank of such hearing, in Dell Rapids, S. D. At the time fixed for such hearing the Granite City Bank appeared specially to object to the jurisdiction of the court, and did object thereto upon the grounds, in substance, that neither the property referred to in the petition of the trustee nor the Granite City Bank were within the territorial jurisdiction of the court, and for that reason the court had no authority to order a sale of the property free from the lien of the bank's mortgage. The referee found that the trustee was in the actual possession of the property, and ordered that it be sold free from the liens thereon, and that the proceeds be applied to the payment of the liens as they may be established. The Granite City Bank petitions for a review of this order.

Aiken & Judge, for Granite City Bank.
C. J. Miller, for trustee.

REED, District Judge (after stating the facts). The sole objection urged in argument to the jurisdiction of the referee is that, because the property covered by the liens of the bank's mortgage and the bank itself were without the territorial jurisdiction of the court, it had no jurisdiction to make the order for the sale. The referee finds, however, that the trustee was in the actual possession of the property. If this is true, though the property may then have been situated in South Dakota, the court was in the actual custody and possession of the property through its trustee. Section 70 of the bankruptcy act vests the trustee, by operation of law, as of the date of the adjudication, with the title to the property of the bankrupt not exempt to him, wherever it may be situated. Such title authorizes the trustee to reduce such property to his actual possession, and when he has done so the property is then in the actual custody and control of the bankruptcy court administering the estate. The Granite City Bank is a creditor of the bankrupt, Wilka, and therefore a party to the bankruptcy proceedings in such sense that it is bound by the orders of the court made with reference to property in its actual custody. Hanover Nat. Bank v. Moyses, 186 U. S. 181, 22 Sup. Ct. 857, 46 L. Ed. 1113; In re Pekin Plow Co., 112 Fed. 308, 50 C. C. A. 257.

Section 58 of the bankruptcy act of July 1, 1898, c. 541, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3444] provides "that creditors shall have ten days notice by mail * * (4) of all proposed sales of

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