MOODY v. PATTERSON, Collector of Customs. (Circuit Court, D. Oregon. March 18, 1907.) CUSTOMS DUTIES-CLASSIFICATION-SHEEP DIP-USE. In Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 657, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1687), providing for sheep dips, except "compounds or preparations that can be used for other purposes," the application of this exception is not to be determined by the rule of chief or predominant use of an article as sheep dip; and Cannon's dip, a preparation advertised as fit for various other purposes, and presumably having commercial value for such purposes, is not covered by the paragraph. [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. These proceedings were brought by R. E. Moody, importer, against I. L. Patterson, collector of customs at the port of Portland, Or. Note, Shallus v. Stone (C. C.) 150 Fed. 605. Ralph E. Moody, for plaintiff. WOLVERTON, District Judge. On August 22, 1902, the petitioner imported from England 350 drums of coal tar preparation for sheep dip. This was classified by the collector of customs as a chemical compound under paragraph 3 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule A, 30 Stat. 151 [U. S. Comp Št. 1901, p. 1627]), and a duty of 25 per cent. ad valorem assessed thereon. The petitioner, not being satisfied with the action of the collector, paid the duty under protest, and appealed to the Board of United States General Appraisers. The compound was referred to the United States chemist at New York, who found it to be an "alkaline preparation of mineral oil and coal tar distillates [phenoloid bodies, etc.] pyridin bases, and some resin compounds; does not contain arsenic compounds." Upon the testimony submitted, this report of the chemist being considered, the Board of Appraisers found that the merchandise in question was a preparation adapted for use as a sheep dip, as a medicine, and as a disinfectant, and therefore affirmed the survey of the collector of customs. The plaintiff now petitions the court for a review of the findings of the appraisers, and prays that their judgment in the premises may be reversed. The petitioner claims that the preparation imported is free of duty, and falls within the purview of paragraph 657 of the act of Congress above designated. This paragraph comprises "sheep dip, not including compounds or preparations that can be used for other purposes." The question for decision is whether or not this preparation falls within paragraph 3 of the act alluded to, or within the exception as denoted by paragraph 657. It has been determined as to the latter paragraph that the phrase employed thereby, namely, "that can be used for other purposes," refers to a compound fit for other purposes than dipping sheep in the commercial sense, or that people buy and actually use for other purposes. In re Hulme, G. A. 4124 (T. D. 19,228). The petitioner insists, in respect of the importation of the compound in question, that if, as compared with its use for other purposes, its chief or predominant use was for sheep dip, then it was not dutiable. Cases are cited by which the rule is determined that, as between two classifications carrying different duties, where the article is adapted to use within the language of either classification, it should bear the duty according to its chief or predominant use, and that that would be so even if the article might be used practically and generally for another purpose suitable to the other classification. Such are the cases of Hartranft v. Langfeld, 125 U. S. 128, 8 Sup. Ct. 732, 31 L. Ed. 672, and Meyer v. Cadwalader, 89 Fed. 963, 32 C. C. A. 456. In the former the question came up whether the article of importation should be classified under the clause of the act requiring a duty of 50 per cent. ad valorem on "all goods, wares, and merchandise not specially enumerated or provided for in this act, made of silk, or of which silk is the component material of chief value," or whether it should take the classification under another clause, namely, "hats and so forth, materials for: Braids, plaits, flats, laces, trimmings, tissues, willow-sheets, and squares, used for making or ornamenting hats, bonnets, and hoods, composed of straw, chip, grass, palm leaf, willow, hair, whalebone, or any other substance or material not specially enumerated or provided for in this act," upon which merchanise a duty of 20 per cent. ad valorem was assessable. It was held that, as the chief or principal use made of the importation was for hat trimmings and not for dress trimmings, although it was commonly used for the latter purpose, it was subject to classification under the atter clause, and to a duty of 20 per cent, ad valorem only. The other case cited is of the same nature. But are these cases so in point here as to be controlling? The language employed by paragraph 57 of the present statute, namely, "that can be used for other purposes," would seem to be restrictive rather than general. Concededly could not have the same signification as if it read "used for other purposes"; and it was a condition of the latter character that the courts were considering in the cases cited. The doctrine of those cases is much older than the statute, as the Hartranft Case was decided in 1887, and presumably was familiar to Congress when it adopted this later statute. The most natural inference, therefore, is that it was the intendment of Congress that paragraph 657 should bear a more restricted construction than if the general language had been employed. See Swan & Finch Co. v. United States, 113 Fed. 243, $1 C. C. A. 200, where "common" or "predominant" use is controlled wholly by the condition "fit only for such uses." The paragraph came up for interpretation in the case of Wyman et al. v. United States n the Circuit Court for the Eastern District of Missouri (118 Fed. 202), wherein Adams, District Judge, after remarking that he was disposed to approve of the interpretation placed upon the act by the general appraisers in the case of In re Hulme, supra, says: "This interpretation permits the admission of any preparation for sheep dipping free of duty when the preparation is, in the commercial sense, adapted to and usually and generally employed for that purpose only. I take it that any preparation that is so adapted to that use and generally employed for that purpose should be admitted free of duty, even though it incidentally may be used for other purposes. If its main and very general purpose is for sheep dipping, it may be brought in free of duty; but if, as in the case at bar, the article is not only used as a sheep dip, but is a compound adapted to and is extensively used for other purposes, such as those just detailed, it is not an article admissible duty free." The testimony in the present case does not show as large use for other purposes as was established in that case, but what is shown in that regard appears from a folder found with the evidence, making announcement as follows: "Cannon's Dip (nonpoisonous), sheep dip and cattle wash, for scab, lice, ticks, and all parasites, disinfectant for destroying all infection and contagion"-and contains instructions for use as a remedy for "hoose and tapeworm in calves, and worms in horses," and various diseases of horses and cattle. This suffices to show that the manufactured product was of commercial value for other uses than for dipping sheep. It is adaptable for such other uses, and presumably was actually used in that way. If not, why the advertisement? So that the facts here bring the case within the doctrine of the Hulme Case; and in my opinion that is as far as it was necessary for the government to go, notwithstanding the burden of proof was upon it to establish the fact that the article was subject to duty. Much of what Judge Adams has said in Wyman v. United States, supra, was spoken with reference to the facts of that particular case; and yet, from a careful analysis of his language, it would seem that it was his purpose to approve the doctrine as announced in the Hulme Case, and not to modify it in any particular. Holding these views, it follows that the finding and judgment of the Board of Appraisers should be affirmed; and it is so ordered. THE GEORG DUMOIS. THE CLARA E. BERGEN. (Circuit Court of Appeals, Fourth Circuit. May 7, 1907.) No. 679. 1. COLLISION CONTRIBUTING FAULTS-ABSENCE OF LOOKOUT. The absence of a lockout on a vessel, although a fault, is immaterial in fixing liability for a collision, where it clearly was not a contributory cause because the other vessel was seen in ample time, so that with proper navigation on the part of both vessels the collision would not have occurred. [Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Collision, § 148.] 2 SAME-STEAM AND SAILING VESSEL-CHANGE of Course BY SAILING VESSEL. Where a sailing vessel by her unnecessary deviation from her course renders a collision with a steamer unavoidable, the steamer cannot be charged with liability. [Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, § 51.] 3. SAME. A collision at sea in the night between a schooner and a meeting steamer held due solely to the fault of the schooner in changing her course after the vessels had seen each other, and the steamer had so changed her course that there was no danger of collision if the schooner held her course. [Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, § 51.] Cross-Appeals from the District Court of the United States for the District of Maryland. Randolph Barton, proctor for the Georg Dumois. Robert H. Smith (Harrington Putnam, on brief), for the Clara E. Bergen. Before GOFF and PRITCHARD, Circuit Judges, and BRAWLEY, District Judge. GOFF, Circuit Judge. The three-masted schooner Clara E. Berren, from Staten Island, bound for Charleston, S. C., 145 feet long with 33 feet beam, carrying 103 tons of nitrate of soda, when approachng Hatteras, soon after 1 o'clock a. m. of the night of June 24, 1905, was in collision with the steamer Georg Dumois, 180 feet long by feet beam, with a cargo of fruit from Banes, Cuba, bound for the Port of Baltimore. The weather had been thick and misty, when shortly before the collision the sky became overcast, and rain began falling. The fixed lights of Diamond Shoal Lightship first distinctly isible became obscured, but the flash lights were reflected from the sky. After the rain came a squall from the westward. Because of the storm the schooner's light sails were taken in. There is some dispute as to the locality of the collision; the schooner's testimony placing it to the southwestward after she had passed the lightship, while the steamer insists it was to the northward after she had passed the lightship. The schooner coming down the coast sailing on the starboard tack was making about seven knots an hour. The speed of the steamer was between ten and eleven knots an hour, and at the time of the collision she had no lookout forward; her mate and 153 F.-53 wheelsman being on her bridge, which was about 64 feet abaft her stem. The schooner, struck on her starboard side, was abandoned; the vessel and her cargo becoming a total loss. The libel of the schooner, filed June 30, 1905, included the loss of her cargo, while the cross-libel, filed February 9, 1906, was for damages to the steamer. The causes were consolidated, the testimony being by deposition, Except that the captain of the schooner was examined in open court. The decree below adjudged both vessels at fault, and directed that the damages should be divided. Cross-appeals were sued out. The testimony for the schooner shows that about a quarter after 1 o'clock a. m. her lookout reported a steamer on the starboard bow, and that the captain and mate duly observed it. The lookout states that the steamer was about three-quarters of a mile from the schooner when the steamer's masthead light was first observed; that after reporting it he went over on the port side, and, seeing nothing there returned to the starboard, when he saw the light closer to the schooner and in the same direction; that the light was so far ahead he did not then think there would be a collision. The mate of the schooner heard the report of the lookout, and thought the steamer was from 600 to 700 feet distant when her mast light was first noticed. He notified the captain that the steamer was right off the weather bow of the schooner. The captain of the schooner heard the reports of the lookout and the mate, answering, "I see her." He recognized it as a steamer's light; says he did not see the steamer until she was two lengths away, but saw the mast light when she was farther distant. He differs with his lookout as to the distance the vessels were from each other when the mast light of the steamer was first reported to him. The testimony offered by the steamer is to the effect that at 1:15 a. m., when she was under full steam, the schooner was seen on the starboard side of the Georg Dumois, showing the red light, and distant "something around two miles, perhaps closer." The captain and the mate of the steamer observed the schooner about the same time. The wheel of the steamer was ordered to port by the captain, the effect being that the steamer swung to the eastward, bringing her red light to the red light of the schooner and placing the two vessels on parallel lines; that soon after the helm of the steamer had been ported the schooner changed her course, thereby presenting her green light to the steamer; that then the steamer's wheel was put hard aport and one whistle blown, the schooner still showing her green light, the captain of the steamer rang the engine full speed astern, and between 15 and 20 seconds afterward the collision occurred. At the time of the collision the schooner was sailing about southeast. The court below in directing the decree appealed from said: "There are two decisive facts which stand out very strongly. First. Tha the steamer, when she started to avoid the schooner by porting her helm wher the schooner's red light was observed 3% points on the steamer's starboar bow, either did not put her helm to port sufficiently, or that she did not begi to port at sufficient distance off. This may have been, as seems quite probabl from the testimony, because the light she was manoeuvring to avoid was no the light on the schooner, but on some vessel more distant and more to th westward, and this may have resulted from having no special lookout on the |