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BASSETT, MCNAB & CO. v. UNITED STATES.

(Circuit Court, E. D. Pennsylvania. June 4, 1907.)

No. 82 (1,739).

CUSTOMS DUTIES-CLASSIFICATION-JACQUARD FIGURED GOODS.

Goods which have been made on a Jacquard loom and contain two or more colors in the filling are dutiable under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 391, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670], for "all Jacquard figured goods in the piece, made on looms and containing two or more colors in the filling," irrespective of the fact that they are not such goods as are customarily made upon the Jacquard loom nor are its characteristic and usual product.

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

Foulkrod & McCullagh (Walter Evans Hampton, of counsel), for importers.

Jasper Yeates Brinton, Asst. U. S. Atty. (J. Whitaker Thompson, U. S. Atty., on the brief).

HOLLAND, District Judge. The merchandise here was assessed for duty by the collector of customs of the port of Philadelphia, at the rates provided for in paragraph 387 of the act of July 24, 1897, c. 11, § 1, Schedule L, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670], against the protest of the importer that 50 per cent. ad valorem, under paragraph 391 of said act, is the legal rate for "all Jacquard figured goods in the piece, made on looms, of which silk is the component material of chief value, dyed in the yarn, and containing two or more colors in the filling etc," which this merchandise is claimed to be. Testimony was taken by the Board of General Appraisers, and a decision overruling the contention of the protest was returned by it July 28, 1905. On an appeal to this court further testimony was taken, and the government made the following admission:

"The Government admits for the purposes of this case that the goods contained in the importation in question were made upon Jacquard looms. but denies that the goods were such as were usually and customarily made upon Jacquard looms, or formed its regular and characteristic product; and denies also that they may be made as cheaply upon Jacquard looms as upon other looms; and denies that they are Jacquard figured goods."

This admission as to the question of the kind of loom upon which the imported goods were made accords with the weight of the evidence that they were made upon the Jacquard machine.

From the reading of paragraph 391 we are of opinion that Jacquard figured goods describes a class of goods "made on looms

containing two or more colors in the filling." Figured goods containing two or more colors in the filling may or may not be made on Jacquard looms. There may be other looms devised of a different name to make the Jacquard figured goods, and, so long as they are "made on looms containing two or more colors in the filling," the product is Jacquard figured goods. The material in question in fact was made upon the Jacquard loom, and they contain two or more colors in the

filling. We, therefore, think they are Jacquard figured goods. U.S. v. Johnson & Faulkner (C. C.) 139 Fed. 55, affirmed by the Circuit Court of Appeals, 142 Fed. 1039, 71 C. C. A. 686.

The decision of the Board of General Appraisers should be overruled and the protest of the importer sustained, and the goods assessed at 50 per cent. ad valorem under paragraph 391 of the tariff act of 1897; and it is so ordered.

In re PURE MILK CO. OF MOBILE.

(District Court, S. D. Alabama, S. D. May 4, 1907.)

No. 459.

1. BANKRUPTCY-PETITION-ACTS OF BANKRUPTCY.

An averment of an act of bankruptcy, that the alleged bankrupt had within four months paid money to one or more creditors, with intent to prefer such creditors over its other creditors, was insufficient.

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 118.]

2. SAME-AMENDMENT.

Leave will not be granted to amend a bankruptcy petition, when the proposed amendment introduces entirely new acts of bankruptcy.

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 128.] 3. SAME.

A bankruptcy petition, averring no specific act of bankruptcy, cannot be amended, so as to allege an act of bankruptcy committed more than four months prior to the amendment.

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 128.] 4. SAME PETITION FOR AMENDMENT-REQUISITES.

An application to amend a bankruptcy petition must show why the act of bankruptcy proposed to be inserted by amendment was not set out in the original petition, in compliance with bankruptcy rule 11 (18 Sup. Ct. v).

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 128.] In Bankruptcy. On motion for rehearing of application to amend petition, etc.

Jno. E. Mitchell, for petitioners.
Richard W. Stoutz, for bankrupt.

TOULMIN, District Judge. The averment in the petition that the alleged bankrupt had within four months paid money to one or more creditors, with intent to prefer such creditors over its other creditors, is insufficient as an averment of an act of bankruptcy. In re Nelson (D. C.) 98 Fed. 76, and authorities cited therein. If the petition originally filed was insufficient in averring an act of bankruptcy, then it in effect averred no act of bankruptcy. Leave to amend may be granted, but will not generally be granted when the proposed amendment would introduce into the petition entirely new acts of bankruptcy. New acts of bankruptcy will not be permitted to be introduced into the petition after the four months' period has expired. A fortiori, where no act of bankruptcy is averred in the original petition, should an act of bankruptcy be permitted to be introduced after the four months' period has expired? Brandenburg on Bankruptcy, p. 304, § 466.

Here the petition avers no specific act of bankruptcy, and the amendment is founded upon an act which it appears was committed more than four months before the amendment is proposed to be made, which, it seems to me, is a much stronger case against the petitioner's claim than when a new act of bankruptcy is sought to be introduced.

Moreover, the application to be allowed to amend does not comply with rule 11 (18 Sup. Ct. v). No showing is made why the act of bankruptcy now proposed to be averred was not set out in the original petition. Collier on Bankruptcy, pp. 223, 224; Loveland on Bankruptcy, p. 183; White v. Bradley Timber Co. (D. C.) 116 Fed. 768. The motion is hereby denied.

PALMER et al. v. MERCHANTS' & MINERS' TRANSP. CO.
(District Court, D. Massachusetts. June 18, 1907.)

No. 1,741.

1. COLLISION-SPEED OF STEAMER IN FOG-MODERATE SPEED.

A steamer at sea, proceeding at night in a dense fog, in frequented waters, at a speed of 10 or 11 knots an hour, is not going "at a moderate speed, having careful regard to the existing circumstances and conditions" as required by article 16 of the international navigation rules (26 Stat. 320 [U. S. Comp. St. 1901, p. 2868]).

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, § 170. Collision rules-speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]

2. SAME-HEARING OF FOG SIGNAL AHEAD-DUTY TO STOP.

When the master of a steamer at sea at night in a dense fog heard a single blast of the fog horn of another vessel nearly ahead and apparently only a short distance away, he was not justified in assuming that he could locate the precise position of such vessel, and that he was overtaking her; but it was his duty to at once reverse and go full speed astern until the steamer was stopped and the location and course of the other vessel was definitely ascertained.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, §§ 152, 153, 170, 172.]

3. SAME STEAM AND SAILING VESSELS MEETING - EXCESSIVE SPEED OF STEAMER.

The large schooner Harwood Palmer, while sailing free at night in a dense fog through the South Channel from 25 to 30 miles S. S. E. of Cape Cod light, on a course N. 2 E., came into collision with the steamer Juniata, which was on a course S. S. E. from the Cape Cod light until immediately before the collision. The schooner had reduced sail and was making about three knots an hour, and was sounding three blasts of her fog horn at intervals of one minute. The steamer was also sounding fog signals and was going at a speed of 10 or 11 knots an hour, her full speed being 14 knots, when her master heard a single blast of a fog horn, which he located as one or two points on the starboard bow. He assumed that he was an overtaking vessel, and starboarded his helm and slowed, but the collision occurred within a minute or two thereafter. Held, that the direct and immediate cause of the collision was the immoderate rate of speed of the steamer, which prevented the hearing of the full signals of the schooner and the control of the steamer in time to prevent the collision after the schooner could be seen; a secondary fault being the failure of the master to at once reverse.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, § 170. Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]

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4. ADMIRALTY-PLEADING-UNTRUTHFUL ALLEGATIONS.

In an admiralty cause, the court has the right to expect substantial ac curacy in the allegations of the pleadings, and, if the parties have reason to suppose that their allegations are not true and correct, either before or during the trial they should amend.

[Ed. Note. For cases in point, see Cent. Dig. vol. 1, Admiralty, §§ 519, 520.]

5. COLLISION-SUITS FOR DAMAGES-INTERFERENCE WITH WITNESSES.

In a collision cause, attempts on either side to interfere with or solicit witnesses who are on the other vessel are always looked upon with suspi cion by the court.

6. SAME-STEAMER AND SCHOONER-ALLEGED FAULTS OF SCHOONER.

A schooner held on the evidence not in fault for a collision with a steamer at sea in a fog on the ground of failing to keep a proper lookout or to sound fog signals with sufficient frequency; it appearing by a preponderance of the evidence that she kept her course as she was required to as the privileged vessel, that the master was aware for some time of the approach of the steamer, and that by his orders fog signals, correctly indicating the course of the schooner, were sounded during such time at intervals of not more than 30 seconds.

7. SAME ALLEGATIONS OF EXCESSIVE Speed.

A schooner which, as a preponderance of the evidence tended to show, was proceeding at night in a fog at a speed not exceeding 3% knots an hour, held to have been going at a moderate speed in compliance with the rules.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, § 171.] 8. SAME-LICHTS.

A schooner held not chargeable with contributory fault for a collision at night with a steamer in a fog, on the ground that her side lights were so located that they could be obscured by the sails, where a preponderance of the evidence tended to negative such claim, and it also appeared that the lights were in fact seen by those on board the steamer as soon as the vessels were close enough together so as to render them visible through the fog.

9. SAME CHANGE OF COURSE IN EXTREMIS.

Whether or not the master of a schooner gave a proper order as to change of course immediately before a collision with a steamer, brought about by the latter's fault in going at an excessive speed in a fog, is immaterial in a suit for the collision, where the error, if one, was one made in extremis, and in any event no change then made could have averted the collision.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Collision, § 225.]

In Admiralty. Suit for collision.

Benjamin Thompson, Edward S. Dodge, and Howard M. Long, for libelants.

Daniel H. Hayne, A. Nathan Williams, and Frank Healey, for respondent.

HALE, District Judge. This libel in personam is brought by the owners of the schooner Harwood Palmer to recover damages alleged to have been sustained by that vessel, by reason of a collision with the steamship Juniata of the respondent company. The collision occurred about 9:50 o'clock on the evening of September 20, 1905, at a point off the Atlantic Coast in the so-called "South Channel," from 25 to 30 miles S. S. E. of Cape Cod light. The hearing of the case

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before the court occupied more than 30 days. The record covers more than 6,000 pages.

The Harwood Palmer is a five-masted schooner of the burden of 2,885 gross tons. She is 301.7 feet long, 46.3 feet beam, 27.8 feet deep. When loaded, she draws about 26 feet 6 inches aft. At the time of the collision, she was on a voyage from Baltimore, Md., to Portland, Me., with a cargo of 4,425 tons of coal. She was then drawing 26 feet forward and 26.6 feet aft. She had on board a crew of 13 men all told, consisting of a master, two mates, engineer, eight seamen, and steward. The steward's wife was also on board. The schooner sailed from Baltimore on the 14th of September, 1905, and continued on her voyage until September 19th, when she came to anchor off Handkerchief Lightship, Nantucket Shoals, and remained. there until about noon of the next day, September 20th, when she got under way and proceeded on her voyage through the Round Shoal Passage. The testimony in her behalf shows that she continued to carry all her sails until about 4 o'clock in the afternoon, when the fog came in; that her mechanical fog horn was then placed on the cavil of the double bitt and blown three blasts at a time up to the time of the collision; that about 5:30 she passed the whistling buoy and came into the South Channel; that a light and baffling wind was blowing from S. by W. to S. S. W., and there was a moderate swell; that the schoon- . er's course was changed to N. E. 1⁄2 N., and her patent log was put over; that about 6 o'clock her fore, main, mizzen, and jigger topsails were clewed up, her spanker topmast staysail was hauled down, the clews of the other three staysails were hauled up so that none of them were drawing, leaving only her lower sails and the spanker topsail set. It is claimed that this diminished the driving power of her sails about one-fifth, and that this precaution was adopted on account of the weather continuing thick, the master desiring to reduce her speed as she was running free and was the burdened vessel in meeting and passing sailing vessels going out of the South Channel, and that her speed was only about enough to give her steerage way; that after this she was making about three knots an hour, and logged 13 miles from 5:30 in the afternoon to 9:50, the time of the collision. Her testimony further shows that at sunset her lights, which were the largest used on vessels of her class, were lighted and properly set on screen boards in the main rigging; that from 8 o'clock until the time of the collision her starboard watch was on deck, the watch consisting of Capt. Creighton, the second mate, Charles McLaughlin, and four seamen; that the captain was in charge of the watch, the second mate and two men were in charge of the deck, Peter Bento was at the wheel, and Peter Santos was on the lookout and blowing the horn; that at 9:20 the captain gave orders to jibe the schooner-that is, swing the booms over onto the starboard side-which order was completed before the collision; that the schooner's course after the last change and at the time of the collision was N. 1 E., that being her course from the point where the change was made. The testimony of those on board the schooner is that the wind at the time was light, from S. S. W. to S. W. by S., the night was still, and that a dense fog prevailed.

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