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lines, as she did the lines on her starboard or westerly side, the question here presented is: Did she owe any such duty to this particular steamship? It seems to us that the duty of the dredge to sink its port lines was a duty owing only to those vessels that might lawfully pass on the easterly side of the dredge. The persons in charge of the dredge were justified in assuming that a steamship such as the Maling, admittedly drawing over 20 feet of water, would steer her course by the range lights, and, when passing down the river, would keep to the westerly side of the dredge. Furthermore, the fact that the port lines were not weighted was not a proximate cause of the collision. The steamship did not run into them, nor was her course altered because of them. Her course was altered solely because of signals from the dredge or the tug, or both of them. The fact that, if the steamship should attempt to pass on the easterly side of the dredge, she would foul the dredge's lines, may have been, and doubtless was, the reason for the signal from the dredge for the steamship to pass on the westerly, and not on the easterly, side of the dredge. But just as in actionable so in contributory negligence the cause of the injury must be a proximate and not a remote cause. Here there was no proximate connection between the placing of the urweighted port lines of the dredge and the collision, for the reason that there was an intervening act on the part of the dredge, namely, a signal to the steamship to pass on the westerly side of the dredge, which the pilot of the steamship admits he attempted to obey. If the dredge was guilty of contributory negligence, it was because of the signal she gave to the steamship, and not because she failed to sink her port anchor lines.

Nor, in view of the condition which suddenly confronted the dredge, should she be held guilty of contributory negligence because of the sig. nal given by her to the steamship. As already stated, she was anchored about 350 feet east of the line of the range lights. That was about 175 feet east of the easterly side of the dredged channel. At low tide she was in about 18 feet of water. This large steamship, 325 feet long and drawing 20 feet and 7 inches of water, was approaching the dredge nearly head on, having the dredge slightly on her starboard bow. She had no lawful right there. As against her, the persons in charge of the dredge had the right to assume that the dredge was in a place of perfect safety. Seeing there was imminent danger of a collision, or that the steamship would cut the dredge's port lines, the watchman of the dredge seized a lantern and violently waved it from east to west. At first the pilot of the steamship, evidently thinking he was on or nearly on the line of the range lights, and that there was safe passage for him to the east of the dredge, did not heed the signal. Presently, after having also received, as he says, a signal of one short blast from the tug, he obeyed the two signals, hard-ported his helm, and sought, too late, to clear the dredge by passing to the westerly side. The steamship complains that the waving of the lantern was not an authorized signal; but it was given to a moving steamer, out of her proper course, by an anchored vessel in imminent danger. The dredge might have shown a flare-up light or used a detonating signal, as authorized by article 12 of the act of August 19, 1890 (26 Stat. 325, c. 802 [U. S. Comp. St. 1901, p. 2867]) but she was not required to do so. In

the circumstances the signal therefore did not render her

The remaining ground on with contributory negligence ed in the fairway—is equally contributory negligence is ndo an act, which is a cont complained of. If the dred river which the steamship ha a different aspect. But she precaution just before nigh to the eastward, and to a pla the steamship should have have been in the fairway of ship's fairway, and by ancho to the particular accident w We conclude, therefore, tha the former vessel did not c

The counsel for the stear of contributory negligence i to the steamship, when the and when the steamship wa dredge, a single short blast nals; and, third, because anchor lights. There is no after it became evident th sion. They were given in conditions. Article 27 of (U. S. Comp. St. 1901, p. expressly provides that in rivers, harbors, and inland gers of collision and to an departure from the rules : ger. The alarm signals gi steamship of impending them as alarm signals. Th had ported her helm and not in anywise contribute t

It is further urged on played lights indicating th and that just before giving of her whistle, thus indica port to port. The master though several witnesses We do not deem it necess statements of these witne this case, that the tug did

and that its lights were ready been observed that a lantern from east to we the steamship port her he

s the signal given did not put the dredge in fault, and t render her chargeable with contributory negligence: s ground on which the steamship charges the dredge

negligence that the dredge was improperly anchor-is equally untenable. It must be borne in mind that ligence is necessarily based on an act, or omission to ch is a contributing proximate cause of the accident

If the dredge had been anchored in that part of the steamship had the right to use, the case would present ect. But she was not so anchored. She had taken the st before night to withdraw from the dredged channel rd, and to a place clearly outside of the path within which p should have held her course. Even though she may the fairway of smaller craft, she was outside of the steamay, and by anchoring there she did not in anywise contribute cular accident which is the subject of our present inquiry.. de, therefore, that as between the dredge and the steamship r vessel did not contribute to the injury she received. unsel for the steamship also contends that the tug was guilty butory negligence for these reasons: First, because she gave teamship, when the two vessels were but a short distance apart en the steamship was still heading for the easterly side of the , a single short blast; second, because the tug blew alarm sigand, third, because the tug showed sailing lights, instead of r lights. There is no doubt that the tug did blow alarm signals it became evident that there was imminent danger of a colli

They were given in extremis, and were fully justified by the Jitions. Article 27 of the act of June 7, 1897 (30 Stat. 102, c. 4 .S. Comp. St. 1901, p. 2884]), which has been in force since 1884, pressly provides that in construing the rules of navigation in our vers, harbors, and inland waters due regard shall be had to all daners of collision and to any special circumstances which may render a departure from the rules necessary in order to avoid imminent danger. The alarm signals given by the tug were intended to notify the steamship of impending danger. The steamship's pilot recognized them as alarm signals. They were admittedly given after the steamship had ported her helm and changed her course. Consequently they did not in anywise contribute to the collision.

It is further urged on the part of the steamship that the tug displayed lights indicating that she was in motion and not at anchor, and that just before giving the alarm signals she gave one short blast of her whistle, thus indicating an intention of meeting the steamship port to port. The master of the tug denies having given such a signal, though several witnesses on the steamship testify that they heard it. We do not deem it necessary to attempt to analyze the contradictory statements of these witnesses. We may assume, for the purposes of this

case, that the tug did first give a signal of one blast of its whistle, and that its lights were sailing, and not anchor, lights. It has already been observed that the watchman on the dredge was waving a lantern from east to west, and thereby signifying his desire to have the steamship port her helm, and pass to the west of the dredge. If

N. ERL.

(Circuit

1. CUSTOMS DUTI

Customs C. S. Com final and col acted legally of the actual praisers may

an item was 2. SAME-CONVEF

l'nder Cu 139 (U. S. besides (ore placing the United Stat was so inclus ered conver absence of to any othe

the tug had her sailing lights up and gave a signal of one blast, the steamship was thereby notified that the tug also desired her to port her helm and pass to the west. The signals on the dredge and tug were therefore harmonious. No confusion was created by them. Furthermore, the pilot of the steamship declares that he saw the tug's red, green, and white lights, saw the light waved from east to west on the dredge, and heard one blast from the tug's whistle, and, then concluding that the tug was pushing the dredge over to the eastward, gave a reply of one blast from the steamship's whistle, and ported his helm when within four or five ship lengths of the tug. He further declares that he first made out the navigation lights of the tug when the two vessels were “the best part of a mile” apart, that he saw the tug's red and green lights at "about the same time, and that he did not lose either of them at any time before the collision. By his own testimony it thus appears that for a considerable time before he changed the course of his steamship, and until she was within four or five ship lengths of the tug, and notwithstanding the tug's lights indicated to him that the tug was approaching him head on, or nearly so, and was pushing the dredge to the eastward, he still kept the dredge on his starboard bow, and obstinately persisted in continuing his course also to the eastward until the lantern was waved and the tug's signal given. The steamship had not been invited to that side of the river by anything done by the tug or the dredge. She had not been forced there by any contingency. She had culpably ignored the range lights. She had violated a plain duty imposed on her by the rules of navigation to keep to the right on observing the tug's red and green lights. Assuming that the tug did display to the steamship her red and green lights, and that by so doing she, too, violated the rules of navigation for the reason that she was tied to the dredge and not moving, that violation did not induce the steamship to hold to her dangerous course. On the contrary, as already intimated, it was a warning to her to change her course to the west and out of the way of danger. The display of the red and green lights, therefore, did not contribute to the collision. And. if the tug gave one blast after the steamship had approached within four or five ship lengths of the tug, as the steamship’s pilot says she did, the danger of collision with the dredge or of fouling her port lines was then so imminent that the signal must be regarded as one given in extremis and wholly ineffective to charge the tug with any contributory fault.

We think the steamship alone should be held responsible for all the damages sustained by the dredge. The decree of the District Court is therefore reversed, and the record remitted to that court, with instructions to enter a decree against the steamship for the amount of the damages, with interest, and also with costs to each of the appellants in this court and in the District Court.

Appeal fron ern District of

For decisio Board of Uni assessment of

The case in 1850, c. 407, S that decisions in reappraisen praisers, "be fi against all par board, the dec dutiable value the collector paid on such m board being a

The opinion follows, so far

"WAITE, G sions were er Three distinct toms officers record. They items describe upon entry f were added t appal being a tinding as amount speci general appra which an api the contention be as follows the appraisin duction of cd

NGER, BLUMGART & CO. V. UNITED STATES.

Court of Appeals, Second Circuit. June 6, 1907.)

No. 294 (3,989). S-FINALITY OF APPRAISEMENT. ministrative Act June 10, 1890, c. 407, § 13, 26 Stat. 136

St. 1901, p. 1932], making decisions of appraising officers clusive, does not prevent inquiry as to whether such officers

; and evidence is admissible to show that items independent al value have been included in the appraised value. Apy not cut off all inquiry into their actiou by merely stating that as added 'to make market value." ERTERS' COMMISSIONS. Customs Administrative Act June 10, 1890, c. 407, § 19, 26 Stat. . Comp. St. 1901, p. 1925), requiring appraised value to include, overings, etc., “all other costs, charges and expenses incident to the merchandise in condition, packed ready for shipment to the States," an invoice item described as a “converter's commission" included. Held, that this inclusion was proper, so far as it covuverters' services in having the goods dyed and finished, and in the e of evidence to the contrary it would be presumed to be correct as other elements of the item.

*

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1 from the Circuit Court of the United States for the Southwrict of New York. decision below, see 152 Fed. 576, affirming a decision of the of Cnited States General Appraisers, which had affirmed the ment of duty by the collector of customs at the port of New York.

case involves construction of Customs Administrative Act June 10, C. 407, $ 13, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1982), which provides decisions of local appraisers, and of general appraisers acting singly appraisement cases, shall, unless appealed to a Board of General Apsers, "be final and conclusive as to the dutiable value of such merchandise inst all parties interested therein," and that, when so appealed to a ird, the decision of the board "shall be final and conclusive as to the tiable value of such merchandise against all parties interested therein, and e collector

shall
liquidate the

duties to be aid on such merchandise”; no appeal from the decision of the reappraisement board being allowed.

The opinion of the Board of General Appraisers in the present case is as follows, so far as pertinent:

"WAITE, General Appraiser. The protests allege that nondutiable commissions were erroneously included in the dutiable value of the merchandise. Three distinct states of fact respecting the action of importers and the customs officers with relation to these alleged commissions are disclosed by the record. They are as follows: * * (3) Instances where amounts equaling items described in the invoices as commissions were deducted by the importers upon entry from the price stated in the invoice for the merchandise, but were added to such value by the local appraiser to make market value. An appeal being taken upon these invoices to a single general appraiser, he made a tinding as follows: "To invoice price packed add [here amount is stated) amount specified as commission, to make market value.' The action of the general appraiser was approved by a board of three general appraisers, to which an appeal was subsequently taken. * * Stated more specifically, the contentions and allegations of the protests, so far as material, appear to be as follows:

(2) That in the circumstances described the appraising officers improperly advanced the value by disallowing the deduction of commissions, and that where they were included upon entry the

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N. ERLANGER, BLU

collector compelled the importers to include them by duress to avoid the imposition of additional or penal duties. * * *

"It is understood that the principal controversy in these cases arises over the invoices referred to in finding 3. It is our opinion, however, that in view of the action of the appraising officers with respect to these invoices the question as to whether the items of so-called commissions were as a matter of fact nondutiable commissions, and the parties to whom they purport to be paid commissionaires, is a matter of no consequence, so far as the power of this board sitting to review the collector's liquidation is concerned. All that has been added was added to make market value and by the proper appraising officers, who were clearly within their right as set forth in sections 10, 13, and 19, Customs Administrative Act June 10, 1890 (26 Stat. 136, 139, C. 407 (U. S. Comp. St. 1901, pp. 1922, 1932, 1924]). U. S. v. Herrman, 91 Fed. 116, 33 C. C. A. 400: U. S. v. Kenworthy, 68 Fed. 904, 16 C. C. A. 61; Wanamaker v. Cooper (C. C.) 69 Fed. 329; In re Rothfeld, G. A. 3,291 (T. D. 16,616). The value returned by the appraising officers as the market value of imported merchandise, including every element which is expressly included to make market value, is, under well-settled principles, final and conclusive upon all persons interested, in the absence of fraud or illegality in the proceedings. Passavant v. U. S., 148 U. S. 214, 13 Sup. Ct. 572, 37 L. Ed. 426; Muser v Magone, 153 U. S. 240, 15 Sup. Ct. 77, 39 L. Ed. 135; U. S. v. Passavant, 169 U. S. 16, 18 Sup. Ct. 219, 42 L. Ed. 644.

"The importers have not suggested fraud, and the only illegality they allege or offered to prove at the hearing was that the items added represented nondutiable commissions paid to a commissionaire, and that they were added as commissions by the appraising oflicers Testimony on this point was excluded, however, in view of the fact that the reports of the appraising officers expressly stated the items to have been added to make market value. Abundant authority for such action is found in the authorities cited above. The Circuit Court of Appeals in the Kenworthy Case, supra, held similar evidence to have been erroneously admitted in the court below, observing (page 908 of 68 Fed., and page 65 of 16 C. C. A.): 'It follows, therefore, that it was error to allow the witness Culver to testify that the disputed charge was paid as a commission and did not enter into the price or value of the wool; for that was a question of fact which had been finally determined by the authorized officials, and was not retriable by the jury. We are of opinion that the court should have given peremptory instructions in favor of the government.' * * * “The protests are overruled, with an affirmance of the collector's decision."

Curie, Smith & Maxwell (W. Wickham Smith, of counsel), for appellants.

J. Osgood Nichols, Asst. U. S. Atty.
Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

"Testimony on this point was
of the appraising officers express
narket value."

Upon appeal to the Circuit
exclude the testimony, and th:
appraisers is final, it may be
independent of the actual va
on this point is abundantly st
Hazel's opinion. See, also,
& Co., 139 Fed. 1, 71 C. C.
in their valuation some impro
foreign country to the United
action by merely inscribingo
the item “to make market va

The importer contends tha
sion paid to his agent for serv
for the goods, and is quite in
goods at the market where
commission represents only t.
would remain whether, under
market, it was “an arbitrary
the market price of the goods
market," as was the case with
Herrman, 91 Fed. 116, 33 (
essary to decide that questio
fortunate, because, by reason
testimony, the conditions of bi
fully set forth as they were in

From the record it appears
cent, is paid is known as a "cc
facturers of the goods samples
Dared to make. These samp]
exhibits to the importer, who
Sometimes the importer goes
tion, and gives an order, and
2:1s, to the converter, who rer
The services rendered by the c
as follows: (1) He receives tl
them, and carefully examines 1
and sample, to see that the

2) He pays the manufacturer
added, to the importer, who p
by the manufacturer folded,
Foiled. Therefore the convert
He has them packed in cases
15) The testimony indicates
goods only in the grey. It is
Gnished.” The invoices indica

LACOMBE, Circuit Judge. The appellants imported certain worsteds and cottons, their invoices containing a statement of the price of the goods in sterling and an addition of 21/2 per cent. commission. The commission was deducted on the entry as nondutiable. The appraiser added it again to the valuation, to make market value. The general appraisers, on reappraisement proceedings, sustained this action. The importers protested against the liquidation. When the protests were transmitted to the Board of General Appraisers, the importers offered evidence in support of their protests. Objection was made to any inquiry as to the 21/2 per cent. commission on the ground that the goods in question had been appraised and reappraised, and that the question of value could not be attacked, unless fraud were shown. The objection was sustained, and, in the language of the board:

were dved.

In addition to the 21% charge variously stated as follow

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