word "Way's" began to be used, it was properly employed to indicate that Way was the inventor, and moreover it was thus employed with his consent, and in connection with the manufacture of the muffler under the implied license which he not only recognized, but allowed to remain an exclusive license. But that license did not pass to the complainant. Hapgood v. Hewitt, 119 U. S. 226, 7 Sup. Ct. 193, 30 L. Ed. 369. It ceased when the Way Manufacturing Company sold its property and business, and thereafter Way had the exclusive right to use his own name in describing the article manufactured under his own patent. The imitation of the defendant's box lid is scarcely denied, and, indeed, denial would be ineffectual.

A decree may be drawn dismissing the complainant's bill, and substantially granting the relief asked for in the cross-bill, namely, restraining the complainant from the use of the word "Way" or "Way's," and from marking its goods patented, or patented as of the date of the defendant's patent, or indicating that it has any ownership in the patent, and from the unfair use of a box lid similar to the defendant's.

BURROWS et al. v. LOWNSDALE.

(Circuit Court of Appeals, Ninth Circuit.

No. 1,068.

October 17, 1904.)

1. SHIPPING-INJURY OF PASSENGER-UNSAFE GANG PLANK.

A gang plank consisting of a plank 10 feet long, 16 inches wide, and 1 inch thick, with cleats nailed on one side, but having no railing, rope, or other guard, and which, when extended from the deck of a steamer to a wharf, sloped downward at an angle of about 30 degrees, does not furnish a reasonably safe means for discharging passengers, nor can its use be justified by custom; and the vessel is liable in damages for the injury of a passenger by falling from it into the water.

2. DAMAGES FOR PERSONAL INJURY-INTEREST.

Interest should not be allowed on the amount of damages awarded by a court of admiralty for a personal injury.

Appeal from the District Court of the United States for the Western Division of the District of Washington.

J. B. Bridges, for appellants.

J. W. Robinson and J. C. Cross, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS, Circuit Judge. The appellee, who was the libelant in the court below, was a passenger on board the steamer T. C. Reed, which was a small boat plying the waters of Gray's Harbor and the Chehalis river, in the state of Washington. The libelant took passage in the city of Aberdeen for the city of Hoquiam, some five miles distant. When the steamer arrived at the dock at the latter place, a gang plank was thrown out from the passenger deck of the steamer to the stationary wharf for the purpose of landing the passengers. That plank was introduced in evidence in the court below, and is brought here as an

exhibit. It is about 10 feet long, 16 inches wide, 1 inch thick, and has small cleats nailed to one side of it, about 19 inches apart. It has no railing, ropes, or guards of any kind, and had none at the time of the accident in question. When placed for the passage of the passengers, with one end resting on the boat and the other on the wharf, the angle of declination towards the latter was very considerable; the court below finding, from conflicting evidence upon the point, that the angle was about 30 degrees. The purser of the vessel stood at the end of the plank that rested on the boat, and assisted the libelant, who was a man past 70 years of age, as far and as well as he could; but libelant, either from dizziness, or from the slipping of his foot as he stepped from one cleat to another, fell from the plank into the water below, striking the steamer one or more times in his descent, and was rescued in an unconscious condition. His injuries, according to the evidence, were serious, and fully justified, in our opinion, the amount of $2,500 awarded him as damages by the court below, if he was entitled to recover at all.

We also agree with the court below that the plank used by the officers of the steamer in question was not a safe method for the discharge of its passengers. It is not a sufficient answer to say, as do the appellants, that it is the same kind of a plank that is usually used for the purpose by similar boats plying those waters, and that it has generally, if not always, been found sufficient. Such a plank as that described, extending over the water at such an angle, without any railing, ropes, or guards, is not a reasonably safe means of passage for man, woman, or child, of whatever age. The law made it the duty of the carrier to provide a reasonably safe means for discharging its passengers, and the failure of appellants in that regard in the instance in question rendered them clearly liable in damages.

We are of the opinion, however, that the court below erred in giving the libèlant interest upon the amount of damages awarded him from the time of filing the libel to the time of giving the judgment.) It is the settled law in this country that whether interest shall be allowed by the court of first instance, or by the appellate court, in admiralty, on the amount of damage in a collision case, is within the discretion of the court. Hemmenway v. Fisher, 20 How. 258, 15 L. Ed. 799; The Ann Caroline v. Wells, 2 Wall. 538, 17 L. Ed. 833; The Scotland, 118 U. S. 507, 6 Sup. Ct. 1174, 30 L. Ed. 153; The North Star, 62 Fed. 71, 10 C. C. A. 262. But this rule does not apply to actions for damages for personal injuries. The distinction between the two classes of cases is clearly pointed out by the Supreme Court of Tennessee in the case of Louisville & Nashville R. Co. v. Wallace (Tenn.) 15 S. W. 921, 14 L. R. A. 548. As there said, a personal injury never creates a debt, nor becomes one, until it is judicially ascertained and determined; nor until that time can it draw interest.

The cause is remanded to the court below, with directions to modify the judgment by striking out the interest allowed from the filing of the libel to the date of the judgment; and, as so modified, the judgment will stand affirmed.

UNITED STATES v. VANDIVER.

(District Court, E. D. Pennsylvania. November 14, 1904.)

No. 1.

1. CUSTOMS DUTIES-PERSONS LIABLE FOR-BROKER MAKING DECLARATION AS CONSIGNEE.

A customhouse broker, who makes the sworn declaration for entry of goods, in which he declares himself the consignee, cannot thereafter deny that he is such as against the government, and becomes liable for the duties under the provision of section 1 of the customs administrative act of June 10, 1890, c. 407, 26 Stat. 131 [U. S. Comp. St. 1901, p. 1886], that "all merchandise imported into the United States shall for the purposes of this act be deemed and held to be the property of the person to whom the merchandise may be consigned," including additional duties imposed for undervaluation under section seven of such act as amended by section 32 of the tariff act of July 24, 1897, c. 11, 30 Stat. 211 [U. S. Comp. St. 1901, p. 1892].

Action to Recover Duties. On motion by defendant for judgment on point reserved notwithstanding the verdict.

J. Whitaker Thompson and John C. Swartley, for the United States. S. Morris Waln, for defendant.

J. B. MCPHERSON, District Judge. The question in this case arises upon the following facts: In June, 1903, Mrs. William G. Steel, of Mt. Airy, Philadelphia, bought of Salviati & Co., in Venice, five pieces of decorated glassware, for which she was to pay 800 lire when the goods should be delivered at her residence in this city. This price was to include packing and transportation charges and the duty imposed by the United States on such articles. The invoice made out by Salviati & Co., however, aggregated only 190 lire, or $37. The goods were shipped from Genoa to New York by the steamship Manilla, and from a certified extract from the steamship's bill of lading it appears that they were entered at the last-named port by the American Express Company. It does not appear whether or not the express company was formally named as the consignee-the evidence does not satisfactorily show who was thus named-but on July 17, J. J. Hughes, described as "attorney for American Express Co.," made application to enter the goods without a certified invoice, and declared under oath that they were "imported by the American Express Co.," and that the price of 190 lire was "the actual cost or the foreign market value of the merchandise." The entry was made on the same day, but was merely to obtain immediate transportation in bond over the Pennsylvania Railroad to the port of Philadelphia. The entry for that purpose is signed, "For J. L. Vandiver, The American Express Co., by [an illegible name], Attorney." Upon this paper is stamped, "Consigned to the Collector of Customs at Philadelphia, pursuant to Art. 24, Treasury Regulations, August 7, 1890." When the two cases reached Philadelphia, the defendant, who is a customhouse broker, and had been employed to look after the goods on their arrival, made the following sworn declaration:

"Declaration of Consignee, Importer or Agent.

"I, John L. Vandiver, do solemnly and truly declare that I am the consignee of the merchandise described in the annexed entry and invoice; that the invoice and bill of lading now presented by me to the Collector of Customs are the true and only invoice and bill of lading by me received of all the goods, wares and merchandise imported in the Manilla, whereof

is master, from Genoa, for account of any person whomsoever for whom I am authorized to enter the same; that the said invoice and bill of lading are in the state in which they were actually received by me, and that I do not know or believe in the existence of any other invoice or bill of lading of the said goods, wares and merchandise; that the entry now delivered to the collector contains a just and true account of the said goods, wares and merchandise, according to the said invoice and bill of lading; that nothing has been on my part, nor to my knowledge on the part of any other person, concealed or suppressed, whereby the United States may be defrauded of any part of the duty lawfully due on the said goods, wares and merchandise; that the said invoice and the declaration therein are in all respects true, and were made by the person by whom the same purports to have been made; and that if at any time hereafter I discover any error in the said invoice, or in the account now rendered of the said goods, wares and merchandise, or receive any other invoice of the same, I will immediately make the same known to the collector of this district. And I do further solemnly and truly declare that to the best of my knowledge and belief Wm. G. Steel is the owner of the goods, wares and merchandise mentioned in the annexed entry: that the invoice now produced by me exhibits the actual cost at the time of exportation to the United States, in the principal markets of the country from whence imported, of the said goods, wares and merchandise, and includes and specifies the value of all cartons, cases, crates, boxes, sacks and coverings of any kind, and all other costs, charges and expenses incident to placing said goods, wares and merchandise in condition packed ready for shipment to the United States, and no other or different discount, bounty or drawback but such as has been actually allowed on the same."

On the entry accompanying this declaration, which was also signed by the defendant, the merchandise is said to be "imported by John L. Vandiver," and the duty is set down at $22.20. This sum was paid on July 21 by the defendant, but before the cases were delivered they were seized for undervaluation, and were duly appraised at $79.12. From this appraisement the defendant appealed on July 30, signing the following paper:

"Importer's Notice to Collector, Claiming Reappraisement.

"As I consider the appraisement made by the United States Appraisers too high on two cases of glassware imported by me, in the Manilla and R. R. from Genoa, I have to request that the same may be reappraised, pursuant to law, with as little delay as your convenience will permit, at Philadelphia."

On October 23 the general appraisers affirmed the appraised value, and duties were thereupon imposed as follows: Duty of 60 per cent. on $79, amounting to $47.40, and additional duties amounting to $38.60, under section 7 of the customs administrative act of June 10, 1890, c. 407, 26 Stat. 134, 1 Supp. Rev. St. p. 748, as amended by section 32 of the tariff act of July 24, 1897, c. 11, 30 Stat. 211 [U. S. Comp. St, 1901, p. 1892], making a total of $86, and leaving a balance of $63.80, for which the present suit is brought.

The defense is that a customhouse broker is not liable for duties upon merchandise toward which he renders such service only as a broker is ordinarily called upon to render, and that the suit should therefore have been brought against the ultimate owner. To this position I think.

it is sufficient to reply that the defendant cannot be permitted to deny his sworn declaration, wherein he has distinctly and deliberately described himself as the consignee. Indeed, in the absence of evidence to the contrary, I think I should be justified in holding that this declaration was true, and that the goods had been formally consigned to the defendant. In either case, he is to be treated as the consignee, and the consequence follows that under section 1 of the customs administrative act (26 Stat. 131, 1 Supp. Rev. St. p. 744 [U. S. Comp. St. 1901, p. 1886]) he becomes liable as if he were the real owner. That section provides, inter alia, that "all merchandise imported into the United States shall, for the purpose of this act, be deemed and held to be the property of the person to whom the merchandise may be consigned." As was pertinently said by the Circuit Court of Appeals for the Second Circuit in Baldwin v. United States, 113 Fed. 217, 51 C. C. A. 174:

"The government is not called upon to hunt up any ultimate consignee when there is a primary consignee to whom the goods are sent, who himself presents the invoice, makes the entry, receives the bill of lading, and gets the goods, thus being himself their 'importer.'

99

In my opinion, that case is in no essential particular different from the case at bar, and is therefore decisive of the present question. So, also, if I am right in supposing that the defendant's sworn declaration that he was the consignee prevents him from denying it now, the recent decision of United States v. Bishop, 125 Fed. 181, 60 C. C. A. 123, is also in point. If the liability of a customhouse broker, as such, to pay duties, is to be determined, it ought to be raised in a case where he confines himself to his agency, and does not assume another character. No doubt it is convenient for these brokers to make the necessary declarations themselves, instead of requiring their clients to make them, but, if they choose to take upon themselves a character to which they are not entitled, they may be called upon to bear some of its burdens-at least, so far as the government is concerned. Who should ultimately pay such a duty as is here involved—the broker or his principal—is not now in controversy.

Judgment may be entered for the government on the point reserved.

In re FARRAR.

(District Court, D. Vermont. November 22, 1904.)

1. PRISONS-ALLOWANCE FOR GOOD TIME-FEDERAL STATUTE.

Section 1 of Act June 21, 1902, c. 1140, 32 Stat. 397 [U. S. Comp. St. Supp. 1903, p. 448], providing for an allowance for good time to "each prisoner who has been or shall hereafter be convicted of any offense against the laws of the United States and is confined in execution of the judgment," is to be given effect in accordance with its express terms in favor of a prisoner who was convicted prior to its passage, notwithstanding the provision of section 3 that "this act shall apply only

* * *

to sentences imposed by courts subsequent to the time that this act takes effect, as hereinbefore provided," which, in view of the direct conflict which would result if applied to section 1, must be construed as applying only to section 2, providing for the restoration by the Attorney General of allowances for good time which have been forfeited.