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the court, the reward given seems small. Cf. The Barge No. 127 (D. C.) 113 Fed. 529. I think a fair award to the libelant for services to the Lowell is $9,000.

While the value of the Puritan was very much greater than that of the Lowell, the danger to which she was exposed was so much less that I regard $5,000 as full compensation.

Strictly speaking, I do not think that any salvage service was rendered to the Priscilla at all, but rewards in the nature of salvage have frequently been allowed in this court for "standing by on request." The River Belle (D. C., S. D. N. Y.) 153 Fed. 475; Index-Dig. of Brown, D. J., tit. "Salvage." And other instances are known to every practitioner at this bar. Whether a service of this nature confers a maritime lien is an academic question, owing to the trifling amounts involved. The Morse was, I believe, requested by duly authorized representatives of the claimant to be ready to assist the Priscilla, and she was ready to assist the Priscilla for eight or nine hours. For this service, and without expressing any opinion on the form of the action, the libelant is awarded $250.

The amounts herein awarded may be allotted in the proportion of three-fourths to the owner of the Morse and one-fourth to the master and crew in proportion to their wage. From the wage list submitted, however, I am of opinion that there is an undue discrepancy between the wages of the master of the Morse and those of her mate (Lennan). He steered the Morse during her service, and that, I think, was a delicate piece of work. Let him receive not only his wage share, but onehalf as much more; the extra half to come out of the owner's proportion. Costs are allowed in each case.

UNITED STATES v. GEORGE BORGFELDT & CO.

(Circuit Court, D. Maryland. April 22, 1907.)
No. 34 (1,547).

CUSTOMS DUTIES-CLASSIFICATION-WOOLEN POWDEr Puffs-Brushes.
In Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 410, 30 Stat
190 [U. S. Comp. St. 1901, p. 1673], the provision for "brushes" does not in-
clude so-called powder puffs, which are composed of flat circular pieces
of woolen cloth with a fuzzy surface and are useful in applying toilet
powder, and which, though resembling brushes in use, do not resemble
them in construction.

[Ed. Note. Interpretation of commercial and trade terms in tariff laws see note to Dennison Mfg. Co. v. United States, 18 C. C. A. 545.]

On Application for Review of a Decision of the Board of United States General Appraisers.

Appeal of the United States from the decision of the Board o United States General Appraisers, overruling the decision of the col lector of customs at Baltimore with respect to the assessment of dut on an importation of powder puffs.

John C. Rose, U. S. Atty.

Robert G. Keegan, for importers.

MORRIS, District Judge. The merchandise consists of certain articles invoiced as powder puffs. They are simply flat circular pieces of white woolen fabric about one-half an inch thick and about three inches in diameter, useful for applying toilet powder to the face and neck. The duty was assessed by the collector at Baltimore upon the articles as a manufacture of wool, at the rate of 44 cents per pound and 55 per cent. ad valorem, under paragraph 366 of Act July 24, 1897, c. 11, § 1, Schedule K, 30 Stat. 184 [U. S. Comp. St. 1901, p. 1666]. The importer contends that the articles were brushes and under schedule N, paragraph 410, of the Act of July 24, 1897 (30 Stat. 190 [U. S. Comp. St. 1901, p. 1673]), liable only to 40 per cent. ad valorem.

Paragraph 410 reads:

*410 Brushes, brooms and feather dusters of all kinds and hair pencils in quills or otherwise 40% ad valorem."

It probably would not have occurred to any one to contend that these flat circular pieces of woolen fabric, precisely alike on both sides, are brushes, except that in previous cases certain powder puffs were held to be properly classified as brushes, and, as these imported articles are used as powder puffs, it is contended that they also should be so classified. The powder puffs originally held to be brushes had handles, and were made by sewing a bunch of swan's down to a circular piece of silk or cotton cloth, and affixing to that a small handle. That article had a handle, had a body to support the brush part, and had the swan's down to answer the place of the bristles or hair or fibers of other kinds commonly used in brushes, and they were used to apply powder to the face or to rub it off. It is bvious that these powder puffs were like "brushes" in construction and use. The articles now in question have none of these points of similtude to brushes, except their use. They are called powder puffs, and are useful in applying toilet powder to the skin; but so would be a towel, a handkerchief, a napkin, or a wash cloth, or any piece of Woolen or cotton fabric, or a wad of cotton or wool. It seems to be a full description of the articie now in question to say that it is a piece of woolen fabric which can be conveniently used for applying toilet powder, and that is all the similitude it has to "brushes." The authority for the assimilation of powder puffs to "brushes" appears first in the letter of Assistant Secretary of the Treasury, French, to the collector at New York, dated November 28, 1876 Synopsis of Decisions, Treasury Department 1876, T. D. 3,028, p. 2). In that case the imported articles were composed of swan's down, cotton, and metal, and were used for applying toilet powder to the face. The contention of the importer was that they were liable ry to a duty of 35 per centum ad valorem, as manufactures of cotton and metal, while the contention of the collector was that they were table at 40 per cent., under the provision placing that duty on brushes of all kinds." The Assistant Secretary, while sustaining the ruling of the collector, wrote:

"In case, however, of an importation of so-called puffs composed in part of Laterials other than those above mentioned bearing a higher rate of duty, it 153 F.-31

would be proper, in order to give due effect to the law, to base the assimilation upon the materials of which the article is composed, rather than upon the use to which it is applied. You are therefore instructed upon any such importations to consider whether, and to what extent, this principle should govern the classification thereof, and if necessary apply to the department for specific instructions in the premises."

Another case that came up for a ruling was in 1877 (T. D. 3,114, p. 50). This was an appeal by the importer from an assessed duty of 60 per cent. ad valorem on certain powder puffs, instead of 40 per cent. The same Assistant Secretary wrote:

"It appears from the special report of the appraiser that the powder puffs in question are similar to those which were the subject of the department's decision of November 28, 1876 (T. D. 3,028), with the exception that they possess as a component material a small piece of scrap silk, which, however, does not give character to the goods, nor is it of sufficiently important a value to be considered in classifying them for duty. In view of these facts, the department decides that the appeal is well taken, and that the powder puffs are dutiable at the rate of 40 per cent. ad valorem, as brushes, under the decision above referred to."

Subsequently the same ruling was applied to an instrument made of brass wire used for cleaning gun barrels, which was held dutiable as a brush, and not as a manufacture of metal, and in other cases to feather dusters, a hair swab for applying remedies to the throat, bundles of fiber bound together by thin wooden strips, gloves made of hair used for rubbing the skin, an instrument for dampening the leaves of letter copy books, composed of a handle and pieces of rubber. instead of hair; all these have been held to be dutiable as "brushes." In many of these cases there has been expressed doubt. In 1892. with regard to powder puffs manufactured of down, the Board of General Appraisers said:

"The Board feels constrained to sustain the protest by reason of the long established practice of the Treasury Department with regard to the classification of powder puffs."

And they further said, speaking of powder puffs composed of down and other materials:

"We do not feel justified in reversing the long-established practice of the department with regard to these goods, although we doubt the correctness of these decisions, and might have reached a different conclusion if we were unembarrassed by them."

The powder puffs, which were composed of a little bit of down sewed to a cotton cloth, made into a puff shape by being stuffed with a little excelsior and covered with a small bit of satin, were quite a manufactured article; each component part separately having hardly an appreciable value, and the whole as put together being pretty and of value for the purpose for which it was manufactured. The articles now under consideration are simplicity itself, being nothing more than two discs of a woolen fabric having one fuzzy and one plain surface, and sewed together with the plain surfaces back to back so as to present the fuzzy surfaces on both the outsides of the discs. Of this article the appraisers at the port of entry certified that, although invoiced as powder puffs, the article was in no sense a brush, but, being composed of wool, was dutiable under paragraph 366, and

the collector certified that they were an entirely different article from that held in T. D. 3,028 to be brushes. The Board of General Appraisers, in conformity to a previous decision, held that these articles, being powder puffs, were dutiable as brushes.

I am fully impressed with the justice and propriety in customs cases of adhering to an established practice of classification upon which importers have relied; but this case appears to be one in which a classification based, in the first instance, upon similarity of use has been step by step extended, until it is held to include the present importation, which, although in construction and material altogether different from the powder puffs which were held to be brushes, is held to be a brush, although it does not resemble either a powder puff or a brush, solely because it is useful for applying a toilet powder and is invoiced as a powder puff by an importer of brushes. It seems to be too wide a departure from the meaning of the words "brushes of all kinds" to hold that Congress contemplated that these discs of woolen fabric might be classified as brushes.

I think the decision of the Board of General Appraisers should be reversed, and the decision of the collector at Baltimore should be sustained.

UNITED STATES v. O. G. HEMPSTEAD & SON.

(Circuit Court, E. D. Pennsylvania. March 14, 1907.)

No. 42 (1,729).

1 CUSTOMS DUTIES-CLASSIFICATION-MAGNESITE BRICK-FIRE BRICK. The phrase "fire brick," in Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 87, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1632], is a well-known commercial designation, which means brick made from fire clay, and therefore does not include magnesite brick.

[Ed. Note.-Interpretation of commercial and trade terms in tariff laws, Bee note to Dennison Mfg. Co. v. United States, 18 C. C. A. 545.] ·

2 EVIDENCE-OFFICIAL REPORTS—ADMISSIBILITY.

An official report by a government chemist, which was made at the request of the Board of General Appraisers, and related to merchandise involved in a case pending before the board, held incompetent because ex parte, not under oath and not subject to cross-examination.

On Application for Review of a Decision of the Board of United States General Appraisers.

For decision below, see G. A. 6,067 (T. D. 26,475), relating to merchandise imported at the port of Philadelphia.

A part of the record returned by the board to the Circuit Court consisted of an official chemist's report, made in the laboratory connected with the office of the United States Appraiser at the port of New York, which was prepared in accordance with a request made by the Board of General Appraisers to said appraiser.

J. Whitaker Thompson, U. S. Atty., and Walter C. Douglas, Jr., Asst. U. S. Atty.

J. Stuart Tompkins, for importers.

J. B. McPHERSON, District Judge. The article in controversy is plain magnesite brick weighing less than 10 pounds each, and the question for decision is, under what clause of the tariff act of 1897 the duty should be imposed. Act July 24, 1897, c. 11, § 1, Schedule B, par. 87, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1632]. The collector classified the importation under clause 3, as "brick, other than fire brick, not glazed, enameled, painted, vitrified, ornamented or decorated in any manner." and assessed the duty at 25 per cent. ad valorem. The importer protested, testimony was taken by the Board of General Appraisers, and the decision of the board sustained the protest, and imposed a duty of $1.25 per ton, under the first clause of paragraph 87, which imposes a duty of that amount upon "fire brick weighing not more than 10 pounds each, not glazed, enameled, ornamented or decorated in any manner." The opinion of the board is G. A. 6,067, and is reported in Treasury Decisions, 26,475. From this ruling the collector appealed; and, further testimony having been taken under the order of the Circuit Court, this, with the testimony that was before the board, has been duly considered.

It will be observed that the decision of the board was apparently much influenced by a communication from R. W. Moore, a chemist in New York, which was evidently regarded by the board as competent evidence, although it was purely an ex parte statement, not under oath, and not subject to cross-examination by the government. It need scarcely be said that Mr. Moore's letter was incompetent, and should not have been considered. I have laid it aside entirely, and base my conclusion solely upon the testimony that was taken in the regular way before the board and under the order of the Circuit Court. This testimony I shall not discuss in detail. It is enough, I think, to say that, as the decision of the case evidently turns upon a question of fact, the government's witnesses have satisfied me beyond doubt that "fire brick" is a phrase with a well-known commercial designation in the trade, that it means brick made from fire clay, and that magnesite brick are not commercially understood as being included within its scope. On the contrary, when magnesite brick are wanted, they are always ordered eo nomine, and never as "fire brick." The testimony establishes these facts clearly, and the result is that the commercial meaning of the word, according to well established rules, must prevail. Maddock v. Magone, 152 U. S. 368, 14 Sup. Ct. 588, 38 L. Ed. 482. In that case the Supreme Court of the United States said, upon page 371 of 152 U. S., page 589 of 14 Sup. Ct. (38 L. Ed. 482):

"In Cadwalader v. Zeh, 151 U. S. 171, 176, 14 Sup. Ct. 288, 38 L. Ed. 115, it was said that it has long been a settled rule of interpretation of the statutes imposing duties on imports that if words used therein to designate particular kinds or classes of goods have a well-known signification in our trade and commerce, different from their ordinary meaning among the people, the commercial meaning is to prevail, unless Congress has clearly manifested a contrary intention; and that it is only when no commercial meaning is called for or proved that the common meaning of the words is to be adopted.' But it is also true that, as observed by Mr. Chief Justice Waite in Swan v. Arthur, 103 U. S. 597, 598, 26 L. Ed. 525: While tariff acts are generally to be construed according to the commercial understanding of the terms employed, language will be presumed to have the same meaning in commerce that it has in ordinary use, unless the contrary is shown.'

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