remained until nearly the time of the collision, when it was put back in the binnacle. The mate explains this by stating that he was afraid of steamers, and always used this precaution. It was very bad practice on his part, and, if it had any effect in producing collision, the vessel should be condemned for it. The steamship claims that she supposed that the light was one of an overtaken vessel shown in conformity with article 10 of the sailing rules."

He excused the schooner (1) because it was doubtful whether the steamer changed her course, by reason of the misleading light, sufficiently to bring about collision; and (2) because the exhibition of that light was in the extremity of collision.

In the first of these propositions we are unable to concur. There is no testimony and no conceivable reason why the steamer should have changed her course before she saw the schooner's light. She had laid her compass course at Nantucket lightship for Fire Island lightship, and only the presence of some other vessel to be avoided would have induced a departure from it. The light first seen was a white light a little on the port bow. The captain and the second and fourth officers, all on the bridge, so testify. The lookout in the crow's nest (called by libelants) says that he heard the lookout at the bow report "light on the port bow," and soon thereafter he himself saw a white light right ahead. All of these witnesses saw a green light a little later, but the helm had been already ported in the belief that the white light was displayed by an overtaken vessel. One witness only, the lookout in the bow, also called by libelant, testified that he first saw a green light on the port bow. His evidence is unpersuasive. When confronted with a contradictory statement which he had signed, he sought to explain it away by saying that he was drunk when he signed it. This explanation was disproved by several persons who were present at the time. Moreover, he insists that he warned them on the bridge by singing out that "he had better put his helm hard down, otherwise he would go right into the schooner." If he did see a green light a little on the port bow or about ahead, this was a manoeuvre certain to produce disaster. Further questioning apparently warned him of the effect of this testimony, for he states that by "hard down" he meant "hard astarboard." Since the wind at the time was coming over the starboard quarter, the explanation is a lame one, and we think his whole testimony entitled to no credit. It seems to us well established that the white light did mislead the steamer, and that if she had not ported to pass it, but had made no change till the green light became visible, she could then have starboarded and passed in safety.

With some doubt, however, we concur in the conclusion that the exhibition of the binnacle light is to be excused because it was in extremis. Counsel for the steamer contends that there are serious contradictions in the testimony of the mate of the schooner; but, upon a careful analysis of the evidence, we think they are more apparent than real, and are satisfied that he did not exhibit the binnacle light till just as he called the captain, when for some little time the steamer, showing her mast-head and red light and some lights through the dead lights on her port side, was bearing down on him apparently unconscious of the schooner's proximity. There are sufficient instances

in the reports of steamers navigating the North Atlantic in fog at a rate of speed too great to enable them to discover the presence of privileged vessels in time to avoid them to insure the court's appreciation of the mate's remark, "Every time I see a steamer, I think she is going to run into us." No antecedent fault on the part of the schooner had produced the perilous situation. She was sounding her fog horn, a good one, and kept her course and speed until the end. The apparent risk was induced by the fault of the steamer in running in a fog so thick (as the second officer says) that a light could not be seen until less than the ship's length away, and at a rate of speed so high that she was almost on top of the schooner before her navigators heard the fog horn. Under these circumstances, we are not inclined to hold the schooner in fault because the mate, terrified in the presence of impending peril, lost his head so completely as to do the one thing which made the threatened catastrophe certain.

As to the damages the commissioner has followed the authority of La Champagne (D. C.) 53 Fed. 398, which lays down the rule to be followed in similar cases. As to minor criticisms of his findings, we concur with the district judge that they are without merit.

The decree is affirmed, with interest; but, since both sides appealed, without costs of this appeal.

(154 Fed. 351.)

ERIKSSON v. GOODWIN et al.

(Circuit Court of Appeals, Second Circuit. April 30, 1907.).

No. 245.

NEGLIGENCE-DEFECTIVE CAR COUPLING-FAILURE TO INSPECT.

A train of cars loaded with sand and operated by defendants was being backed upon a pier for the purpose of dumping the sand into a scow which was hired by defendants, when the coupling between the locomotive and the first car broke, and the cars ran by their acquired momentum with such force against the bumper at the end of the track that the end car mounted the bumper and spilled its load upon the scow, injuring libelant, who was the wife of the owner and rightfully on the scow and at the place where the injury occurred. The evidence tended to show that the breaking of the coupling was due to improper handling of the cars by the engineer or to its defective condition. Held that, in either case, the defendants were chargeable with negligence, which rendered them liable for the injury, in the absence of any evidence to show the condition of the coupling, or that it had been recently examined to ascertain whether it was safe for ordinary use.

Appeal from the District Court of the United States for the Southern District of New York.

W. J. Martin and John F. Foley, for appellants.

Nelson Zabriskie and Hyland & Zabriskie, for appellee.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. As the witnesses in this case were examined in the presence of the district judge, and his conclusions upon the facts depend wholly upon the weight he gave to their testimony, and his opin

83 C.C.A.-9

ion of their credibility and intelligence, the case is not one in which it would be proper for the court to interfere with his findings of fact. The libelant is the wife of the owner and master of a scow boat, and resided with him upon the boat, and, while the boat was receiving a load of sand from the appellants at their dumping trestle, she was injured by being struck with part of a car load which was prematurely dumped, and fell upon the place on the scow where she happened at the time to be, instead of the part of the boat where the sand ordinarily would have been dumped. The scow was in the usual place, under the dumping trestle, and was there by the implied invitation of the appellants who had been loading it with sand, and, after it had been loaded and had carried away its loading several times, her husband had returned for another load. Customarily the sand was brought to the dumping trestle by a train of cars belonging to the appellants and operated by their employés, and, when one of the cars was brought into the proper position, it was dumped from the side against a shield, and thus the sand was directed and thrown into the scow below. On the occasion in question the train consisted of six loaded cars attached to a locomotive which was backing them to the dumping place, and, when the train was some little distance away, the coupling between the locomotive and the car to which the locomotive was attached gave way, and the train by the momentum which it had previously acquired ran with such force against the bumper at the rear of the track and dumping place that the front car mounted the bumper, and spilled its contents on the boat below. If the coupling had not given out, the locomotive could have so regulated the movement of the train as to bring the cars safely into the proper position for being dumped.

The only question in respect to which there is any fair doubt is whether the district judge should have found the appellants guilty of negligence. The libelant was properly upon her husband's scow, and all those who were properly upon it were there upon the implied promise of the appellants to use reasonable care that they should not be subjected to any unnecessary danger during the loading operations.

The evidence indicates that the coupling gave way, either because it was so defective that it was unsafe for ordinary use, or because the engineer shut off the steam of the locomotive too abruptly. If the coupling was unsafe for ordinary use, and liable to break, although not subjected to any unusual strain, the appellants knew or were bound to know that it might give out at a critical time and under conditions similar to those in the present case. They were also chargeable with knowledge that, if it should give out under such circumstances, the safety of the persons upon a boat under the dumping place would be more or less jeoparded. Consequently they were under the duty of exercising ordinary care to ascertain whether it was in a reasonably fit condition for use upon the occasions when its use was required. No evidence of the slightest value was offered by them to show the previous condition of the coupling, or how long it had been in use, or that there had been any recent examination of it to ascertain whether it was safe for ordinary use. If it broke without being subjected

to any extraordinary strain by the act of the engineer in shutting off the steam of his engine too abruptly, the presumption is that it was not fit for ordinary use. On the other hand, if the coupling gave way because of the carelessness of the engineer, the defendants were liable because his negligence is to be imputed to them. Whether the accident happened from the one cause or the other, or from the combination of both, we think negligence was sufficiently established. The judgment is affirmed, with interest and costs.

(154 Fed. 1.)

UNITED STATES v. LUEDER.

(Circuit Court of Appeals, Second Circuit. February 1, 1907.)

No. 126 (3,339).

1. CUSTOMS DUTIES TREASURY REGULATIONS-POLARISCOPIC TEST. Under the general authority conferred by section 251, Rev. St. [U. S. Comp. St. 1901, p. 138], the Secretary of the Treasury promulgated regulations for ascertaining the polariscopic test of sugar drainings. Held that, where these regulations were substantially followed by the government polariscopists, the findings by those officers are conclusive.

2. SAME-SUGAR Test-Fraction of Degree-DE MINIMIS, ETC.

In determining whether sugar drainings should be classed under a tariff act as "not above fifty-six degrees" by the polariscope, or as "fifty-six degrees and above," held, that the rule of de minimis non curat lex does not apply to drainings testing 56.025, so as to require their classification under the former provision as testing 56, by disregarding the fraction of a degree.

Appeal from the Circuit Court of the United States for the Southern District of New York.

For decision below, see (C. C.) 146 Fed. 149, affirming a decision. of the Board of United States General Appraisers, which had reversed the assessment of duty by the collector of customs at the port of New York on merchandise imported by A. Lueder.

The majority and dissenting opinions of the Board of General Appraisers read as follows:

Waite, General Appraiser. The merchandise in question consists of sugar drainings, upon which duty was assessed at the rate of six cents per gallon under the provisions of paragraph 209 of the act of July 24, 1897, c. 11, § 1, 30 Stat. 168 [U. S. Comp. St. 1901, p. 1647]. The rate of duty to be assessed is determined by polariscopic test. If the test indicates more than 56° the duty should be assessed at six cents per gallon; if not, it should be assessed at three cents per gallon. The only question here is one of fact, as to what the test actually was at the time the goods were imported.

The goods were entered on February 1, 1901, and unloaded about the 19th of February. Samples were taken on the 19th, and tests made at different times from the 21st of February, 1901, to some time in 1902. The test used as the basis for assessing the duty was arrived at by averaging a number of tests, and showed 56.025°. Thus it will be seen that the reading was carried to one-fortieth of a degree. It is undisputed that drainings, after fermentation commences, show a higher reading by the polariscope, and that this in

crease continues during fermentation, and after fermentation ceases it returns to its normal state. The evidence indicates that the tests relied upon by the government were taken after fermentation had commenced, as the tests seem to have increased for a period after samples were taken, and then fallen away again until they indicated a condition considerably below 56°. We are of opinion that the first tests taken by the government were more nearly correct than subsequent ones, and there was no occasion for taking the third test. Besides, tests made by other competent polariscopists indicate that the test relied upon was erroneous. Hence we conclude that the duty should be assessed as upon drainings showing a test of 56° or under.

The protest is therefore sustained and the collector's decision reversed, with instructions to reliquidate the entry accordingly.

De Vries, General Appraiser (dissenting). The sole question here is the true polariscopic test of certain sugar drainings. They were assessed for duty at the rate of six cents per gallon, as testing 56° and above by the polariscope, and are claimed to be dutiable at the rate of three cents per gallon, as testing not above 56° by the polariscope, under the provisions of paragraph 209 of the act of July 24, 1897 (30 Stat. 168, c. 11, § 1 [U. S. Comp. St. 1901, p. 1647]) which, in so far as pertinent, is hereinafter quoted. The undisputed facts shown by the record and testimony may be epitomized as follows:

(1) The merchandise was imported per Vala, which arrived at the port of New York January 31, 1901. This merchandise was entered for consumption February 1, 1901, and the following note made on the entry: "The within cargo damaged by water and a large quantity of molasses found and landed in 220 packages, February 18, 1901."

(2) February 21, 1901, tests were made at the government laboratory of samples of the 220 packages of drainings. The examining officer on that day took from the drainings the requisite quantity for samples, intermixed the same, and sent to the laboratory one regulation can thereof. This was divided into two parts in the laboratory and each part tested by a different expert, with the results that one part showed a polariscopic registration of 55.9° and the other 56°, with the average of 55.95° as the accepted test of that sample, all of which was duly certified to and recorded by the said examiner. On the same day the second can forwarded to the laboratory and likewise treated and tested and the results certified and recorded as 56.1°, 56.1°, average and accepted test of sample, 56.1°. The average of the two accepted tests (55.95° and 56.1°) was then taken as the true test of that sample of the drainings, and due notice thereof given to the importer.

(3) No application was made by the importer within the required two days under the provisions therefor in article 1372. Customs Regulations, 1899, providing: "Should the importer, within two official days after such notice has been sent to him by the appraiser, claim an error in the test so reported and request a retest of any mark or portion of a mark, such retest may be granted. * * The following article of said regulations is pertinent and provides: "1373. In case of retest, the test upon which sugar shall be classified shall be the original test unless such test is higher than the retest, in which case the retest, or the average of the test and retest, shall be taken as the basis of classification, whichever is shown to the satisfaction of the appraiser to be the correct test." On March 1, 1901, however, many days after time required, the importer filed a request in writing for a retest of the drainings in question, upon which the examiner, however, acted, and a retest was on March 2, 1901, made pursuant to the regulations with the following results: The first can tested 57° and 57.1°, average and accepted test of the can 57.05°; the second can tested 56.6° and 56.7°, average and accepted test of that can 56.65°, which was duly certified to and recorded by the examiner with the average of tests for the accepted test of the "retest" sample 56.85°. A further test was made in response to complaint of the importer on March 7, 1901, of one sample can resulting in 57° and 57°, with an average and accepted test of 57°.

Counsel for importer in his brief contends that the first can, which was but one-half of the first sample, tested at the government laboratory, resulting in 55.9° and 56°, with an average of 55.95°, was the "test" of the drainings, and