The statute places the duty to mark upon the owner and no one else; there is no divided responsibility and, if the statute is to be effectual, there cannot be.

When the towage service ceased by the sinking of the Fahy we think the tugs were justified in assuming that the duty imposed by statute upon the owner would be performed. The masters of the tugs knew that the master of the Fahy was uninjured and able to communicate with her owner which he did as soon as he arrived in New York, and they might well have supposed that if they took measures to buoy the wreck it would be regarded as an impertinent interference with the business of another to whom that duty was specifically delegated. We do not intend to hold that conditions may not arise where a duty is imposed upon a tug to mark a wreck caused by her negligence. It may well be, where all representatives of the owner are drowned or where communication with him is impossible from any cause, that a duty rests upon the tug to mark the wreck. No such situation arises in the case at bar. There was nothing whatever to prevent the owner from marking the wreck; the tugs knew this and were justified in assuming that the owner would act as he was commanded to act by law.

The decree is affirmed with interest and costs.

(153 Fed. 868.)

HORMANN, SCHUTTE & CO. v. UNITED STATES.

UNITED STATES v. HORMANN, SCHUTTE & CO. (Circuit Court of Appeals, Second Circuit.

No. 92 (4,086).

February 4, 1907.)

1. CUSTOMS DUTIES-CLASSIFICATION-BUTTON MOLDS-BUTTON SHANKS. The provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 414, 30 Stat. 190 [U. S. Comp. St. 1901, p. 1674], for "button molds," includes articles commercially known as button shanks, consisting of pairs of metal disks so constructed that when a piece of cloth is placed on top of one of the disks, and they are subjected to pressure, a cloth-covered button is produced.

2. SAME-METAL BUTTON MOLDS.

Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 414, 30 Stat. 190 [U. S. Comp. St. 1901, p. 1674], provides that "buttons * and button molds * * * shall pay duty at the following rates," and the schedule of rates then prescribed mentions only "buttons." Held, that this provision for "buttons" should be construed as though reading "buttons and button molds," and that metal button molds should pay the rate assigned to metal buttons.

Cross-Appeals from the Circuit Court of the United States for the Southern District of New York.

Cross-appeals from order of the Circuit Court, reversing the decision of the Board of General Appraisers (G. A. 6,142, T. D. 26,687), who had affirmed the action of the collector in his assessment of duty on certain merchandise under the act of 1897.

The opinion of the court below is reported in 144 Fed. 707.

Everit Brown, for the importers.

D. Frank Lloyd, Asst. U. S. Atty.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

TOWNSEND, Circuit Judge. The question involved in these appeals is as to the construction of paragraph 414 of Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 190 [U. S. Comp. St. 1901, p. 1674]. Said paragraph is as follows:

"Buttons or parts of buttons and button molds or blanks, finished or unfinished, shall pay duty at the following rates, the line button measure being onefortieth of one inch, namely: Buttons known commercially as agate buttons, metal trousers buttons (except steel), and nickel bar buttons, one-twelfth of one cent per line per gross; buttons of bone, and steel trousers buttons, onefourth of one cent per line per gross; buttons of pearl or shell, one and onehalf cents per line per gross; buttons of horn, vegetable, ivory, glass or metal, not specially provided for in this act, three-fourths of one cent per line per gross, and in addition thereto, on all the foregoing articles in this paragraph, fifteen per centum ad valorem; shoe buttons made of paper, board, papier mache, pulp or other similar material, not specially provided for in this act, valued at not exceeding three cents per gross, one cent per gross; buttons not specially provided for in this act, and all collar or cuff buttons and studs, fifty per centum ad valorem."

The articles in question consist of pairs of metal disks, so constructed that when a piece of cloth is placed on top of one of the disks, and the two are subjected to pressure, a cloth-covered button is produced. These pairs of disks are commercially known as button shanks. They are concededly "parts of buttons and button molds." The appraiser returned them as metal button molds or parts of metal buttons, and the collector assessed each pair at three-fourths of one cent per line per gross and 15 per cent. ad valorem. A line is one-fortieth of an inch, and is used as a unit of measurement from the center to the circumference of the disk. The importers protested against said assessment, claiming that the articles were dutiable either at only 15 per cent. ad valorem, under said paragraph 414, as one of the "foregoing articles" not covered by the word "buttons," or at 50 per cent. ad valorem, under said paragraph, as "buttons [or parts of buttons] not specially provided for," or at 45 per cent. ad valorem, under paragraph 193 of said act, as "articles * not specially provided for * * of * * * metal * composed * * * * partly or wholly manufactured." The Board of General Appraisers overruled the protests, and affirmed the action of the collector, on the ground. that the goods were metal molds, or parts of buttons. The importers appealed, and the court below reversed said decision, and held that the articles should be assessed at 45 per cent. ad valorem, under said paragraph 193 of the act. From this decision both parties appeal. This case has been argued upon the fact, conceded by both sides, that these blanks are parts of buttons, and that it was the intention of Congress, as manifested by the language of said paragraph, that parts of buttons should be subjected to some duty. Counsel for the United States insists that the words "or parts of buttons" should be read into the paragraph wherever a class of buttons is provided for, and that then the relevant portions of the paragraph would read as follows:

* *

*

*

"Buttons, of metal [or parts of buttons of metal], * threefourths of one cent per line per gross, and in addition thereto, on all the foregoing articles in this paragraph, fifteen per centum ad valorem."

But there are two objections to this construction. These disks are not parts of buttons of metal or of metal buttons, but of cloth-covered buttons, as distinguished from metal buttons, and therefore, as there is no specific provision for cloth-covered buttons, or parts thereof, they could only be assessed as parts of buttons, not specially provided for, at 50 per cent. ad valorem.

Again, if these disks should be thus assessed for duty as parts of buttons, each disk, being a part of a button, would pay the same rate of duty, according to line measurement, as a whole button.

We think these objections may be obviated, and the intention of Congress may be effectuated, by construing the provisions of the paragraph to refer to what these articles are proved and conceded to be; that is, not only parts of buttons, but something more, namely, button molds. The two witnesses testify that they are button molds, and one of the witnesses testifies as follows:

"Q. Do you call both parts of those things that match each other button molds, or do you call the two parts together button molds? A. The two parts together."

By this construction the pertinent portion of the paragraph may be applied as though it read "buttons [or parts of buttons, and button molds] * * of metal," and thus the intention of Congress is effectuated, while only one assessment of duty is laid on each pair of disks constituting a button mold.

The decision of the Circuit Court is reversed, and the decision of the Board of General Appraisers, affirming the action of the collector, is affirmed.

(153 Fed. 870.)

BOWERS HYDRAULIC DREDGING CO. v. FEDERAL CONTRACTING CO. (Circuit Court of Appeals, Second Circuit. April 30, 1907.)

No. 221.

1. SHIPPING-CHARTERS-CONSTRUCTION-Dredges.

Where a dredge charter provided that the dredge should be able to deposit on shore an average of 300 cubic yards of material per hour, the owner merely warranted the dredge's capacity, and not that the dredge should in fact deposit that quantity of material.

In a libel for the hire of a dredge, evidence held insufficient to show that the dredge did not pump 300 yards of material per hour, according to its warranted capacity.

3. SAME CHARTER-CONSTRUCTION.

Where a dredge charter provided that it should be used as the charterer or his agents might direct in dredging material and putting the same ashore on the meadows adjoining the Passaic and Hackensack rivers, or at such other localities as the charterer might direct, the charter did not cover dredging material not ordinarily found in such operations, and for which such a dredge as that chartered by reason of its peculiar construction was not adapted.

4. ADMIRALTY-APPEAL-EVIDENCE-ADMISSION-PREJUDICE.

Where, upon a proper construction of a dredge charter, it did not cover the dredging of material not ordinarily found in such dredging operations, and for which a dredge of that construction was not adapted, the charterer, in a libel for the hire of the dredge, was not prejudiced by the admission of representations made by one of its officers as to the character of the material which was to be dredged.

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

This cause comes here on respondent's appeal from a decree of the United States District Court for the Southern District of New York in favor of libelant for $2,525.62 for hire of libelant's dredge. The opinion of the District Court is reported in 148 Fed. 290.

Ed. Norris, for appellant.

H. L. Cheyney, for appellee.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

TOWNSEND, Circuit Judge. The material portions of the agreement between the parties are as follows:

"The owner agrees to let, and the charterer agrees to hire, the said hydraulic dredge and its appurtenances, including necessary pontoons, discharge pipe including two thousand (2,000) feet of shore pipe, derrick scow and two coal scows for and during the working season of 1905, viz., from the date of delivery of said dredge and appurtenances to said charterer at Camden, N. J., on or about the first day of April, A. D. 1905, until on or about December 1st, A. D. 1905; delivery to be made by the charterer to the owner at any locality where said dredge may be at that time.

*

"Said dredge and appurtenances to be used as the charterer or its agents may direct in dredging material and putting same ashore on the property of the Hackensack Meadows Company, located on the Passaic and Hackensack rivers, N. J., or at such other localities as said charterer may direct. "The charterer shall pay for the use and hire of the said dredge at the rate of three thousand ($3,000) dollars per calendar month, excepting for delays at Delaware Breakwater and time lost for repairs, etc., as herein provided for, commencing on the day of delivery of the dredge at Camden, N. J., and at and after the same rates for any part of a month, hire to continue until redelivered to the owner as hereinbefore specified delivery to be made in same good order as when received by the charterer, ordinary wear and tear only excepted; payments to be made as hereinafter provided, and in case of default of such payment or payments as herein provided the owner shall have the right of withdrawing the said dredge from the service of the charterer.

**

*

"It being understood and agreed that said dredge shall be able to deposit on shore an average of 300 cubic yards of material, scow measurement, through 2,000 feet of land pipe per hour."

The dredge commenced work under said contract on April 11, 1905, and the libelant on July 21st withdrew the dredge from the respondent's service, under the provision of the contract for nonpayment of the charter hire for the month of June. Payments were duly made up to July 1st, and this libel was filed to recover for the hire from July 1 to July 24, 1905, amounting to $2,322.48.

Error is assigned to the action of the court below in the following particulars:

ques

"(1) In overruling the objections of the respondent to the tion * * propounded by libelant's proctor to witness Sommers, as follows: 'Q. At the time that contract was entered into, what representations were

made to you by Mr. Thompson as to the character of the material which was to be dredged by your dredge? (Objected to as incompetent, that the contract speaks for itself. Objection overruled. Exception.) A. Mr. Thompson called on me and asked for terms for chartering the dredge to place material on Hackensack Meadow which would come from Bay Ridge or Erie Basin, and the contract was based on that statement entirely.'

"(2) In not allowing respondent damages to offset claim for hire for failure of dredge to carry out its agreement in not depositing 300 cubic yards of material per hour.

"(83) In not dismissing the libel with costs; that the contract sued upon was a land contract, and not a maritime contract; and that admiralty had no jurisdiction of this action."

The second assignment of error will be first considered. The respondent contended that the dredge did not, in fact, deposit on the shore an average of 300 cubic yards of material per hour, and that therefore libelant had broken its agreement. We do not so construe the agreement. It provided, not that the dredge should, in fact, deposit such an amount on the shore, but should be able to deposit such an amount. The evidence conclusively shows that the dredge did have a working capacity for an average of 300 cubic yards of ordinary material per hour, and that on several occasions it dredged such. an average, and in fact so far exceeded it as to indicate that its actual capacity with ordinary material was from 500 to 600 yards per hour. The evidence claimed to show that the dredge did not pump 300 yards per hour falls far short of proving said fact. The testimony of the superintendent of the respondent was based merely on the recollection of an estimate obtained by measuring basins before and after dredging. Upon this point he testified that as close as he could figure the dredge averaged about 3,700 yards per day; that he measured it, and figured it up, and multiplied the length by the breadth and depth, but that he had no estimate or figures; that he did not give his estimate to the company; that the figures were in No. 2 when she sank in the Passaic river, two or three weeks before; that he had not the slightest idea how those figures were made up, or what they were, or how many days he allowed; that he did not charge up any days, but charged by the basin; and that he could not carry in his head how many hours he called a day.

Furthermore, there is no testimony in the record which shows the number of hours which were estimated in making up a day, except in so far as it may be inferred from a statement that the dredge worked constantly all the time.

The libelant claimed that the failure to dredge 300 yards per hour. on certain occasions was due to the fact that the dredge encountered brickbats and stones in such quantity and of such a character that they materially lessened her capacity. The libelant further claimed that the dredging contract contemplated dredging for materials such as are or dinarily found in basins, and did not contemplate any kind of material which the respondent might choose to place there. In support of this contention, the testimony was admitted to which the first assignment of error is directed. Whether or not this oral testimony was admissible, on the theory that it covered a matter concerning which the written contract was silent, need not be decided. In any event, this evi