For which the vessel and cargo were sold, and which it is agreed in writing by the proctors shall be fixed as the true value thereof.

The commissioner finds: The Fisheries Company of New York by an instrument in writing without date duly released to the Cape Fear Fisheries Company (the libelant) all its rights, title, and claim to the salvage service performed by the steamer Joseph Wharton in saving the bark Launberga aforesaid, and all interests whatsoever in any claim for compensation for such salvage service. The Launberga as she lay in said slough was not without the prospect of other efficient means of assistance, as she was near the usual track of vessels going in or out of the Cape Fear river and of tugs seeking towage employment and the rescue of vessels in distress. The libelant the Cape Fear Fisheries Company incurred certain expenses after the Launberga had been anchored in the Cape Fear river in order to keep her afloat, and filed a bill for the same amounting to $107.37, $705.37 of which the commissioner, after allowing the several items, allows, and also a bill of $54.00 board of caretaker.

Only such conclusions of law excepted to need be discussed. They

are:

(1) That the service rendered by the libelant steamer the Joseph Wharton, its master and crew, to the bark Launberga, was salvage service of a low grade.

The exception to this conclusion seems to be as to the grade of service. Minds may differ as to the grade of a salvage service; but from the decisions, especially that of the Circuit Court of Appeals of this Circuit in The Penobscott, 106 Fed. 420, 45 C. C. A. 372, the court concurs in the conclusion of the commissioner that the service rendered was salvage service of a low grade. It involved no great risk of life or property. "There was no real peril either to the property of the salvors or to the lives of any one employed on either vessel," as said in the opinion in the case cited.

(2) That the Launberga was never abandoned by her crew, nor any of them, nor was said vessel at any time in any sense of the word a derelict.

In the brief for libelants, it is insisted earnestly that the bark was a derelict. In re The Myrtle Tunnel (D. C.) 146 Fed. 324, a marine disaster which occurred on the same shoals, Judge Brawley, one of the most learned admiralty lawyers in this jurisdiction, has ably discussed the definition of a “derelict,” an essential element of which is that the boat must be abandoned. The derivation of the word, from "de linquere," and the definition given in the dictionaries indicate the same meaning, to leave, to abandon, a ship abandoned at sea. That the vessel was in a dangerous position in the event of a storm there can be no question, but there is no evidence she was ever abandoned, even admitting the argument that the captain and crew intended and prepared to leave her, when the small boat was lowered. Hence she was not a derelict. This exception, which it appears from the argument, no grounds therefor being given in the exception, which is general, broadside, is based on the idea that the Launberga was a derelict, is overruled, and the conclusion of the commissioner affirmed. (3) That the Wharton failed to exercise proper care, skill, and

prudence in attempting to move the Launberga, under the circumstances, without first sounding around her, and endeavoring to find a safe passage out.

I cannot concur in this conclusion. Of course, the officers of the Wharton might have acted with more skill and prudence, selected a shorter, safer, or better passage out, all of which with the chart and clear "back sights" in the courtroom at Wilmington can be wisely demonstrated by even a second-class seaman: but on the sea, without light-ship or buoys, or landmarks to steer by, it seems, looking at the chart and soundings and the testimony as to shifting sand bars, the Wharton took about as safe, short, and prudent a course as could have been selected. Under all the circumstances of the case, it appears this conclusion is not justified. The additional soundings, which it seems should have been made, it does not seem would have disclosed to those on the rescuing tug any better course to have been taken. This exception is therefore sustained.

(5) That the court should award to libelants for said salvage services the sum of $2,000; one-third thereof to the officers and crew of the Joseph Wharton in proportion to their wages, as set forth in the report, and the remaining two-thirds thereof to the Cape Fear Fisheries Company, the lessee of said steamer Joseph Wharton, and assignee of the owner's claim for salvage.

Libelants in their brief earnestly insist the award should be 50 per cent. of the salved property. The award in salvage cases is largely in the discretion of the court. In The Penobscott, 106 Fed. 421, 45 C. C. A. 372, the Circuit Court of Appeals, on appeal from this court, which had made an award of $2,000, affirmed the decree, but reduced the award to $1,000, said:

"When we look at the danger to life and property, to which we have already referred [there was less danger in the present than in that case], and when we recall that the property saved did not exceed in,value $8,000, and that the time the Wilmington was engaged in the work of rescue, we are impelled to the conclusion that an allowance of $1.000 for salvage is, under all the circumstances of this case, fair to the saivors and to the schooner so rescued.”

Applying the same rule, considering the amount involved, and all the circumstances of the case, this court is impelled to the conclusion that $2,000 for salvage services, especially in view of the bill for expenses which must be allowed, is just, even liberal, to the salvors and fair to the bark rescued. The exception to this conclusion is therefore overruled, and the conclusion of the commissioner affirmed. The court is, however, of the opinion that the allowance of one-third of the award to the members of the crew and two-thirds to libelants the Cape Fear Fisheries Company is too liberal to the crew, who were working for wages, ran no eminent risk, and were not called upon and did not perform any acts of heroism, daring, or courage. Hence, considering all the circumstances, this conclusion is modified as to distribution in which one-fourth of the award will be allotted to the members of the crew of the Joseph Wharton, and three-fourths thereof to the Cape Fear Fisheries Company, as owner by lease of the steamer Joseph Wharton.

(8) That libelants should have judgment for the sum of $2,000 for salvage services, to be distributed as before stated in the fifth conclusion of law, and for $705.37, expenses as aforesaid.

This exception, for reasons before stated, is overruled, and the conclusion modified as hereinbefore in considering the exception to the commissioner's fifth conclusion.

(10) The tenth paragraph, under the heading of "Conclusions of Law," is a recommendation that judgment be rendered as before recommended to be paid, together with costs out of the proceeds of sale of the vessel and cargo now in the registry of the court.

The exception to this conclusion, for reasons hereinbefore stated, is overruled, and the tenth conclusion of the commissioner affirmed. The interrogatories propounded by claimants under the admiralty rule No. 32 of the Supreme Court, which have been held to have the force of a statute, were proper, and called for information to which claimant was entitled. The rule provides:

"In default of due answer by the libelant to such interrogatories, the court may adjudge the libelant to be in default and dismiss the libel, or may compel his answer by attachment, or take the subject-matter of the interrogatories pro confesso in favor of the defendants as the court in its discretion shall deem most fit to promote public justice."

Libelant did not answer the interrogatories, and there does not seem to be any specific manner in which this shall be done, but at the hearing produced a paper writing signed by another corporation, and the commissioner finds as a fact, which did answer the interrogatories by showing a legal right to claim any award which might be made for salvage services performed by the steamer Joseph Wharton, which seems to have been satisfactory to the proctors for claimant, and, no exception being filed to such finding, this is adjudged to be a sufficient compliance with the requirements of the admiralty rule.

The claim of the American National Bank filed on January 26th, pending the hearing before the commissioner, but not referred to in the report or ever called to the attention of the court, but found in the papers indorsed as filed January 26, 1906, seems to be a derelict abandoned, but being in the files, and apparently a legitimate claim, should be passed upon. This is a bottomry bond. In re Wyandotte, 145 Fed. 321, 75 C. C. A. 117, and authorities cited. It is a valid lien in admiralty, but is not of the highest order, i. e., it is subordinate to a claim for salvage. If the ship be lost during the voyage, the claimant under a bottomry bond loses his claim. For this reason, the risk, a high rate of interest is usually allowed. This bond is a lien on the surplus of the proceeds of sale after the payment of the salvage award and the costs. But for the salvage service, if the ship had been lost, there would have been nothing to which the bottomry bond would attach. It is a pledge of the ship and her freight when she reaches port. It is therefore ordered and adjudged:

1. That the exceptions to the findings of fact by the commissioner be, and the same are, overruled, and such findings of fact affirmed. 2. That the exceptions to the conclusions of law by the commissioner, except as hereinbefore noted, be, and the same are, overruled, and such conclusions affirmed.

3. That the bottomry bond filed by the American National Bank of Philadelphia is allowed as a bottomry bond to be paid out of the surplus of the proceeds of sale after the award for salvage services and cost.

4. That an allowance of $200 be paid to E. S. Martin, Esq., commissioner herein, for services, and the bill of Miss Estelle Schrier, stenographer, for taking and transcribing the testimony before the said commissioner, both of said claims be paid as cost out of the proceeds of sale now in the registry of this court.

LEON RHEIMS CO. v. UNITED STATES.

'Circuit Court, S. D. New York. May 15, 1907.)

No. 4,393.

CUSTOMS DUTIES-CLASSIFICATION-TRIMMED FUR HATS.

In applying the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N. par. 432, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1675], for "hats trimmed, * * composed wholly or in chief value of fur," the composition of the hats should be determined by reference to the whole hat, including the trimming, rather than by reference to the body of the hat alone, so that where hats, the bodies of which are fur, are so trimmed that the silk trimming is the chief component of the value of the hats, they are dutiable under Schedule L, paragraph 390.

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

For decision below, see G. A. 6,411 (T. D. 27,541), in which the Board affirmed the assessment of duty by the collector of customs at the port of New York.

The opinion filed by the Board reads as follows:

HOWELL, General Appraiser. The goods in question consist of hats, the bodies of which are composed of fur, and which are trimmed with silk, artificial flowers, etc.; silk being the component material of chief value in the completed articles. They were returned by the appraiser as "silk wearing apparel," and were assessed with duty by the collector at the rate of 60 per cent. ad valorem, under the provisions of Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 390, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670]. The importers claim that the goods are dutiable under Schedule N, par. 432, of said act (30 Stat. 191 [U. S. Comp. St. 1901, p. 1675]), which imposes various rates of duty, dependent upon the value of the articles, upon "hats trimmed or untrimmed 水

composed wholly or in chief value of fur of the

rabbit, beaver, or other animals." It is not disputed in this case that silk is the component material of chief value in the completed articles; but it is contended that the trimming on the hats should be ignored in determining their classification, inasmuch as it has been held that trimmed hats, the bodies whereof are made of straw, are dutiable under the provision for trimmed straw hats in paragraph 409, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673], irrespective of the value of the trimming as compared with the value of the article without the trimming. G. A. 4,525 (T. D. 21,502) and G. A. 5,734 (T. D. 25,440).

The provisions of paragraphs 409 and 432 are, however, entirely dissimilar Paragraph 409 provides one rate of duty for straw hats when not trimmed, and another and higher rate of duty for such hats when trimmed. Paragraph 432 provides for rates of duty according to the value of the articles, upon bats trimmed or untrimmed, composed wholly or in chief value of fur. Man

trim

ifestly, the only trimmed hats provided for in this paragraph are those composed wholly of fur, or those in which the fur is the component material of chief value in the completed articles. The provision is "hats * med, *** composed wholly or in chief value of fur." Hats, the bodies of which are composed of fur, and which are trimmed with other materials constituting the component material of chief value in the completed articles. as in this case, are in our opinion excluded from the provisions of said paragraph 432, and are properly dutiable according to the component material of chief value in the completed articles.

The protests are, accordingly, overruled, and the decision of the collector in each affirmed.

Comstock & Washburn (Albert H. Washburn, of counsel), for importers.

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

PLATT, District Judge. Decision affirmed.

DODDRIDGE COUNTY OIL & GAS CO. v. SMITH et al. SMITH et al. v. DODDRIDGE COUNTY OIL & GAS CO (Circuit Court, N. D. West Virginia. July 24, 1907.) 1. CORPORATIONS-ACTIONS AGAINST EVIDENCE RELEVANCY

RECORDS.

-

-BOOKS AND

Where a man deals with a corporation under a written contract, undisputed and unambiguous, and subsequent controversy arises solely over the question whether or not such corporation has complied with its requirements, he is not entitled, ordinarily, in the trial of such issue, to enter into an extensive and exhaustive inquiry as to the private and internal affairs of the corporation, or to demand its records and papers relating to its organization, stockholders, outside obligations, and other like matters.

2. MINES AND MINERALS-OIL AND GAS LEASE-FORFEITURE FOR DEFAULT OF LESSEE.

Defendant executed an oil and gas lease on his farm to one who assigned the same to complainant corporation. At the same time, as claimed by defendant, he entered into a contract with the lessee giving him an option to purchase, within a stated time, certain completed wells on the land, and the machinery, tools, and materials thereon. The existence of such contract was in dispute, but in any event it was not assigned to complainant. The lease required the lessee to drill a well within four months, and another within the succeeding four months. Complainant drilled the first, using, with defendant's consent, his machinery and tools and some of his materials. While the second well was being drilled for complainant by a contractor using said machinery and tools, the alleged option expired, and defendant appeared, and demanded of the contractor payment of the stipulated price, or that he cease work, in consequence of which the contractor stopped work, and the time for completion of the well expired before it could be finished, and defendant declared a forfeiture of the lease and took possession of the wells and complainant's property on the land. Held, that complainant had nothing to do with the option contract, if it existed, and that its expiration afforded no justification for the action of defendant in stopping the work.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Mines and Minerals, § 206.]

3. SAME-DEFAULT CREATED BY LESSOR.

While courts of equity, contrary to their rules, will enforce forfeitures of oil and gas leases where necessary to protect the rights and equities of