BALLIN 'V. MAGONE.
921
00., 6 South. Rep. 799. The occult nature of the business in which the employe was employed, viz., that of generating and distributing electricity, may have been the ground of the ruling there made. Here the whole source of danger was most palpable. I think the exception is well founded,· and should be maintained.
BALLIN
et 01.
tl. MAGONE.
(Circuit Court, S. D. New York. April,l800.)
L
CUSTOMS DPTIES-CLASSIFIOATION-MANUFACTURES OF WORSTED.
Worsted cloths or coatings. known in the trade as "diagonals," "corkscrews," "fancy weaves," etc., manufactured entirely of yarn produced from wool of the sheep by combing, and spinning, a process resulting in a product known in 1883 and prior thereto as "worsted yarns," are "manufactnres of worsted," under Schedule K, (paragraph 363, Tariff Index, New,) of the tariff act of March 8, 1888.
.. SAME-WOOLEN CLOTHS.
The statute itself recognizes a difference between woolen and worsted articles; and the words "woolen cloths," used in paragraph 862 of the same schedUle; are to be taken as including only those woolen cloths which are not worsted, or composed of worsted, within the meaning of those terms as used in the tariff act. (Syllabus b1I the Court.)
At Law. Action to recover back duties alleged to have been illegally exacted by the defendant, collector of the port of New York. The goods involved in the present suit were imported by the plaintiffs from" England in April, 1889, and were entered as Uworsteds," under Schedule Kofthe act of March 3, 1883, (paragraph 363, Tariff Index, New,) a part thereof being valued at not exceeding 80 cents per pound, and claimed to be dutiable at 24 cents per pound and 35 per cent. ad valorem, and a part at not exceeding 60 cents per pound, and dutiable at 18 cents per pound and 35 per cent. ad valorem. The collector classified the merchandise as "manufactures of· wool," and as "woolen cloth," valued at less than 80 cents per pound, and dutiable at 35 cents per pound, and 35 per cent. a,d valorem, under parap;raph 362 of the same schedule. The plaintiffs duly protested, and appealed from the decision of the collector to the secretary of the treasury, who affirmed the classification of the collector. The plaintiffs' witnesses proved on the trial that the goods in suit were manufactured, as to part oftbem, from fine, cross-bred Australian wool, of a fibre of from 2! to 5 inches in length, and, as to the rest, from low grade Australian cross-bred wool, of a fibre varying from 5 to 9 or"10 inches in lellgth; that the wool was scoured and otherwise prepared; then carded,and afterwards combed by a machine known as the "Noble Comb,'! by which latter process the "noils" or short and broken fibres were removed, and the remaining fibres laid straight and parallel, resulting in a product known as "top," which was further drawn out by a process of "gilling" and drawing, and finally spun into worsted yarn,. Bnd that the goods in suit contained nothing but such yarn; that so-
FEDERAL .
vol.: :41.
yarn" was not combed; nor. the fibres of the wool laid parallel, por:thQ:'.',noils" . Plaintiffs also produced testimony to show that yams:siniilartothQsefrotn whicll,the goods in suit were.. manufacturedwerei.known tattle :trade and commerce of the United. States, in and prior to the year .11883, as worsted yarns, and that the.. Noble comb had been used in the manufacture of such yarns as far back as 1871 j also that goods similar in character and quality to those in suit were imported into the UnitedSliites in 1882 and prior thereto; that they were known in the trade at that time as "worsteds," "worsted coatings," and by other special names. That the "woolen cloth" had a restricted meaning in the trade at the date of the passage of the tariff act of 1883, and ire'f'erredfo broaddloth. The defendant offered to prove that only long "combing wool" of from 5 to spunintowQrsted yarn at the' . dale ofthepassage ofthe.tariffact·of1867, and of priortariff laws; also tQ lilbow k.n()\vn as "w.Qrste<1stuff goods" before 1867,-all of which testitnony' was excluded' by/the' court. Defendant then proved, by uncontradicted testimony., tQa.tjn 1883 fine, short staple clothing wool, not H inch in:lengtb of fibre, couldbeconverted.by the Noble comp:,apd the. s07callep,,:\fp,rsted process" into worsted yarn, or by the so-muled "woolen process" into woolen yarnj that much of the process was the same in both cases, including the carding of the wool, 2tnd that both characters of yam were spun on the same spinning-madhines, "throst1.e frames.," and', "muleS," the "mule" giving in both cases aaoft, tender tYarnj that the p1!ocess: sCHlalled "worsted Cloths" was identical; or neltrly:sO{iWiththe weaving of so-called "woolen fabricsj"that the worsted cloths'lWere often "milled and fulled?, viz., shrunk by machinery acting with soap and water, jn a similar manner to 'woolen flibrics, although ina less'degreej that the worsted coatings were "gigged,"soas to raise the tiS;p,slightly, very much as other woolen cloth's were "teasled;" that the worsteds' were "sheared" or "singed" by a ptocess closely·resembling the treatment applied to the so-called" woolens. "Defenda"ntpro'ved by eXlpellt testimonythat a "tapestry yarn was known to the carpet t:fude in' 1883 which was not "combed," bilt, was spun with the short ,·fibres or "noils" among the longer; also that there Was aniartide in the trade known as "cotton worsted," which contained no wool, whatever. The defendant produced a number of witnesses promineat in thetrade"whotestified that in 1883 and prior iliereto the words "woolen' cloths ",had no different meaning in trade and oommerce .from.the ordinary signification of those words in the English language, and included all the varieties of woven fabrics made,of-wool suitable for garments and other purposes, which fabrics were known by adgreat numb ell 'of, ,special names,auch as "broadcloth," "cassimeres," "chinchillas," "worsteds; diagonals," "cOrkscrews," "serges," etc., At the clos6,of Hie -testimony the'plaintiffs'counsel moved the court 110 direct a verdict for theplaintift's, arid the United,.states attorney made a like motion foradirectioti in favor· of the defendant. The court de-; nied both motions.
BALI,.I;N. V. MAGONE.
923
The presel).ted to the court a number of requests to charge the jury1 theprineipal being that the tariff recogl).ized a distinctidn be.: tween wool and worsted, and differentiated them; that. the designation of " cloth "isnot more distinctive than the term "manufacture ofworste<V' The defendant likewise presented a number of requests, the following be:iIlg the or worsted suitings are not mentioned or provided foltby either of those names or designations in the tariff net of March 3, 1883, alJd if the jury find they were generally known and considered as to and included within the class 'woolen cloths,' at the time of the passage of said act, verdict should be for the defendant. (Hefused except as charged.) ... * The names ·worsted suitings'or 'worsted cloth,' un· der which names the plaintiffs claim the merchandise' in' suit was known in trade and cOl)1merct' in 1883, not being in the tariff act of 1883, the burden of proof is on the plaintiffs to show by satisfactory evidence, not merely that such merchandise was bought and sold by such trade names, but that the general words 'waoien cloths,' used in the tariff act. which otherwise would cover them, did not cover them iu·the trade and commerce oftbis country in 1883; and, unless the plaintiffs have furnished such evidence to the satisfaction of the jury, the defendant is entitled to a verdict. (Hefused, exceptaa charged.) ... ... ... If the jury should find that the goods in guit are not within the gener1l1 term 'woolen . cloths,' but are fitly described. or comprehended equally within the terms' manufactures of wool' and 'manufaetlll'es of worsted/ their verdict should he for the defendant. (Refused, except as charged.)"
Stanley, .Ola,rke &- Smith, for plaintiffs. Edward Mitchell, U. S. Atty., and Henry O. Platt and James T. Van Rensselaer, Asst.U. S. AUys., for defendant. LACOMBE, J. (charging jury.) This controversy concerns articles claimed by both sides to be. dlltiable under Schedule K of the tariff of 1883, providing different rates of duty all, articles generally described ill the title to that schedule as "wool and woolens.:' One paragraph of that sched1,lle, and it is the one under which the plaintiffs claim that their goods should be classed,readsas follows: . "363. Flannels, blankets, hats of wool, knit and all goods made on knitting frames, balmorals, woolen and worsted yarns, and all manufactures of every description, composed wholly or in part of worsted, the hair of the alpaca goat, or other animals, (except such as are composed in part of wool,) not specially enumerated or provided for in this act," shall pay duties varying according to their weight and value. You will observe, in connection with this paragraph, that the rate of duty on all the articles named therein is the same. Agaill" you will observe that two "yarns'" are mentioned in the paragraph,-;a "woolenyarn" and a "worsted yarn." Again, you will observe that the proviso or exception, "except such as are composed in part of wool," by the use of the plural word "are," refers to a plural subject. If it read "manufactures of every description, composed wholly or in part of worsted, the hair of the alpaca goat, or other animals, (except suoh as is in part of wool,)" -U,le. proviso would refer.to .the composition of the worsted, an.d not to
924
FEDEltAL REP01l.TER,
vol. 41.
the composition of the entire manufactures. In other words, if the singnlarword was used in the proviso, then the manufactures of worsted which are dutiable under the section would be only manufactures of the kind of worsted which have no wool in them. The paragraph under which the defendant claims is No. 362: "Woolen cloths, woolen shawls, and all manufactures of wool of every description, made wholly or in part ofwool, notspecially or provided for in this act," shall pay duties varying according to their weight and, value, and at a higqer rate, forcortespollding weight and value, than the duty laid by the section under 'Yht,eb the plaintiffs claim. The defendant contends that these articles are dutiable either as as "woolen' cloths," under the phraae "woolen cloths" in this paragraph, or as manufactures of wool. As woven fabrics, suitable for garments and other purposes, they are un40pbtedly cloths. But the tariff does not in this paragraph provide fol"Ml cloths, but only for woolen cloths. Indisputably ,the plaintiffs' goods are made entirely of wool, in the sense that they are composed wholly of the hairy growth which is sheared from the back of the sheep. But are they by virtue of that fact alone to be classed for tari if purposes in the group known as "woolen cloths?" It appears that woven fabrics made of sheep's fleece or wool are very numerous,and no special uSe 'of the phrase "woolen cloths" is shown. In the ordinary use or'language, that phrase would coverall such fabrics: and the mere use o( special names for special varieties of such fabrics would not be, sufficient to take them out of the group described, by the general phrase,' unless the general phrase was itself restricted by trade usage. Thetarifi act itself, however, recognizes a difference between woolen and worsted articles; between goods composed of worsted and goods composed'(jf wool., We find the words "wool" 'or" woolen" alid"l worsted" , used, in contrast at least six times in this very schedul8;and of successive tariff acts, back to, I think, 1816', shows an unbroken 'continuance of such contrasting use. It seemspiain, therefore,that the words "woolen cloths," used in the paragraph on which the defetidant relies, are to be taken as' in-eluding only,those woolen cloths which are not worsted, or composed of worsted, within the meaning of those terms, (that is, "worsted," or "compdsedofwoI'Sted,") as used in this tariff'. Upbn this distinction, then, between the wool which is known to the tariff act as I'wool," and the wool! which is known to the tariff act as "worsted," the determimition of this case 'rests. Hthe articles imported :by the plaihtiflB are composed wholly or: in part of worsted, and con· tain no wool, (except such worsted,) then they are entitled to your verdictj otherwise 'not. And, of course,the burden of satisfying you by "8. fair preponderance of proof that'their goods are wholly of worsted rests upon them; for, as the collector iSB public officer, his decision is presumed to be, correct, in the absence of proof thM it is erroneous· .Much of the difficulty which is encountered in customs suits is eliminated for yOU by the very full testimony produced by the plaintiffs. They have shown, by the evidence of the men who made these goods,
f).
MAGONE.
925
0.11 the steps of their manufacture, from the fleece to the completed article. It is unnecessary for me to review this testimony. It has been so fully illustrated by samples of the Successive products that I am sure, although it was given over a week ago, that you still remember it distinctly. It will be enough to remind you that it appears from the proof that the goods were woven from yarns produced by a process known in England and here as the "worsted process;" that one feature of that process was the operation known as "combing;" that yarn produced by that process was known in 1883, in England and here, as "worsted yarn;" that the wool from which that yarn was made came (as to some of the goods, the samples in the books) from Australian cross-bred sheep, and as to other of the goods (the samples in the brown paper) from English sheep.· The evidence of the defendant further shows that wool, in all respects like the wool of which the yarn composing these goods was made, came to this country prior to 1883, and, as the witness Whitman says he testified before the tariff commission, (which sat in 1882,) was then very largely used in combing-mills in this country to make yarn for the manufacture of worsted cloth. As to what was the component material of thef:1egoods there can be little doubt. What you are next to determine is whether that component material is "worsted," within the meaning of that word as used in the tariff. In passing these acts, congress, as you know, legislates for the trade and commerce of the country; and when it uses words which are recognize9. by persons engaged in that trade and commerce either as words of a commonmeaningj or as words with a special trade signification, it is supposed· to use those words in the sense in. which persons engaged in trade .andcommerce would understand them. What, then, did congress mean by the word,s "composed of worsted?" What is this "worsted".which congress refers to as something different from wool, although, as the evidence shows, it is in fact sheep's fleece? That is a question for you to determine, and to determine from the evidence. With,out,rehearsing the evidence on that hranch of th,e case, I may briefly call your attention to. one or two considerations which may assist you inz:eaching a conclusion. The distinctionis not one which congress has created; evidently it found it in existence in the community and adopted it. While there may be contradictions between the testimony of the different witnesses on other points, there, is at least, substantial concurrence in the proposition that there is some difference between, for instance, worsted yarn (which one witness characterized as the crudest worsted product known to commerce) and woolen yarn. Again, that difference (between the yarns, I mean) is not a purely arbitrary one,a difference in name only. There is, as the evidence shows, a difference in fact, whether such difference is accentuated solely by the process of manufacture, or partly, also, by the kind of wool used. Again, you will understand that congress, in legislating for the commerce of the country, doe!,! so after familiarizing itself with the conditions of such commerce. When, with the lapse of time, new processes become known to trade, old differences are obliterated, or new oneS created, congress
FEDElb\V'MplkTER,
I
is-supposed'to kaep'lnforrrted as ito':suchchange, .and when It passes a tariff act weassume·;thatit does,so with full understanding, of the cohdi'tionsM thingSwhen'it S6, 'when in the tariff act of 1883 itusesawotd whiolhvouldbe then reoognized by: community at large lis expressing a idea, safely conclude that it uses that wO'td"toexpressthe idea-which it imported in 1883, not to express the idea.·Wbich it may· have' imported' in 1816. This we would, 'be entitled without evidenoe, but in'this Cl1sewe have proQf to that effect. It iapl>en:rsthat aoomInlssidn sat to tiake testimony (among other things) ito' the wool the wooltrade,and oneof the witnesses who testified here appeared before it, and gave evidence on ·behalf of an "ssociation,-theNationaI Association ·ofWool Manufacturers, I think, Wils" the name,-and:1it wasupOllthe report of that commission that conframed the tarHfact of 1883; So you see that We are entitled to aslitune that the condition of things. in ,1883, and acted reason that 1extlludedtestimony as to the ae<Mrdingly,and it situUti01fin 186701' 1842. ''': . 'Again,we are to that congress. means something by the phtases which'it uses. You will' remeinbel'·thrtt there seemed' to besomedifficulty"i!ldefining!'thEhv6td "worsted.", One witness (I thinkit was Mr. Juilliard) told you that he and Some 30 of his associates were unable; aftet:much discussion; to' satisfy themselves as to what" worsted" reany was. Another (Mr;Ammidown) likewise said that there was tId' suoh thing' as' woTsted;· that "worsted" was an adjective, not a tioun;!fhat there W8.s"wol"Sted yaru;" worsted being used adjectively, but tbatthere was' nostlch thing as a noun "worsted." Ndw, the phrase "composed of worsted" is' used three times by congress in this ,rery sehed-ule\;.....the word '(worsted" being used as a noun, whether in fact it is or ilfnot a noun. Whether by that word congress mea.nt "combed wool," (8 phrase used in' the tariff of 1842 apparently as a synonym of "worsted,"Jor meant" worsted yarn," which the defendant's evidence shows tO'be tbeerudest· worsted 'product known to commerce, or. whether it meant all unidentified and unidentifiable .something, which is· prod uced somewhere between the wool top and the worsted yarn in the lJrocess of manufacturing worsted yarn,-whichever of these, or. whatever else congressmayhave meantliHs for you to.find out; but you are to find it out on the theory that congress mearitsomething by the phrase "composed of worsted." Finitlly, then, you will from the evidence before you determine what WIlS' nieantby the expression "composed of worsted," in the' year 188'3; how it'would at that' time have been understood by personsoogaged in trade, and commerce, 0,1' by the commimity at large, if it hadnospetlialorpec'uliar trade meaning. Having reached a conclusion upon that point; you will next consider whether these goods importedby'the are correctly described by that term. If you 'find that they are, andthltt they contain no wool which is not worsted, your verdict will be for the plaintiffs; otherwise for the defendant.
as
The jury found a vertlict for the plaintiff8.' ,
S'rE'l'lJONf.'.THE GLADIATOIlo:
927
STETSON; 'V. THE GLADIATO:a. SAME
THE GEORGE MOON.'
,(Dtstr£ct Court. D.
Massachusetts. Aprl12,1890.)
Tow. '. As t,4e Btllam-yacht S. passed out froIll her ancborageundera hard-a-port wheel, .astealh-tu$ was observed on her port bow, about 800 feet distant. By signal, it was aATeed 'that the S. should pass astern, whlIe the tug, kept her course, and the B, 'Il wbeelwasput to starboar<t, and she continued without slackening speed until D+mostunder the tug's stern, between her and her tow, which wa" oonnected,vH.th ber by a'hlliwser, and which was then ftrat obSEl1!ved by the S., whose engines W8rEl then rlWeJlsed, but the tow.collideli with her. , TheS. had no forward lookout. iIeliX, tluit!the S. waa in 'fault for not having a lookout; for not sooner seeing'th'e to., and for not slackening speed. . . .' , ., · ", " " ' . .
After the agreement by signal, it was not negligenoe In, the tug to continue with. out change of course, tbougll theB. would otherwise have bad the right of way,and .!the to pres}lmei j;hllt the S. would observe tile tow. 8. 8.kQ. , .. ,. .'" .. , .the tow having no propelling power of its own, there 1& no ground for oharging It with n8goUgenee. . '. .
2. SAM"'NllIGJi.IGENCE.
Libel for Collision. T.n. R'IUlfIell and D. A. Doer, for libelant. a. W. Clifford, for the Gla,9iator. . Ftecleri4k Dodge, for the George Moon· . NEUJON,J. This libelwas:filed by John Stetson, owner of the steamyacht Sapphire, against the steam-tug Gladiator and the barge George Moon, to'recover damage caused by a collision, which occurred in Boston harbor on the 17th of September, 1889. At about half past 3 o?clock of the afternoon.of that day, the wel,lther being fine, the Sapphire left .her anchorage on the South Boston side of the harbor, opposite the Commonwealth docks, with her owner on board, bound 01;lt, to Sea on a pleasure trip. Apout the 13ame time the Gladiator started out from the East Boston having in tow, astern with a 60-fatpop:l hawser the coal-barge George Moon, and was j1;ist turning into the main channel on her way down the harbor, bound for New York; her speed being about six knots. As the Sapphire passed out from her anchorage on a circling course under a hard-a-port wheel, her master, who was on the bridge at the wheel, observed the Gladiator over his port bow, about 800 feet distant. At this point the Gladiator sounded two blasts on her steam-whistle, signifying to the Sapphire that she was keeping her course, and that the if intending ,to cross her course, should pass astern. She also slackened Her speed;' .The master of the Sapphire, after assenting to the course proposed by the Gladiator by two answering blasts on his whistle, put his wheel over to starboard; but intent on watching the tug, now round on his starboard bow, he did not see the barge towing astern on his port bow, or the connecting hawser, and continued on without slackening his speed, which was eight knots, until the yacht was nearly under the stern of the tug, between her and the
FEDll:RAL REPon'fER, vol.
tow. Then for the first time becoming aware of the barge and hawser, he stopped and reversed his engine. The master Gladiator, observing the predicament of the Sapphire, also stopped his engine and dropped the hawser. But it was then too late for the Sapphire either to advance or retreat. Tlle.barge (lame on under the impetus of her forward motion, and struck the yacht on the port side, inflicting serious damajie. . The Sapphire had no loqkout stationed forward. · pP'()u these facts, about does not seettUo be any great between the parties, and so Jar as they are disputed are stated favorably for the Sapphire,1t· obvious that the Sapphire was in not having a lookout, for not. sooner seeing' the barge, and. for her speed. A 10okQ.u£ stationed forward would have seen and reported the barge, and had the Sapphire slowed up, she would run into the dallger·. ,1fo blame can be ll-ttributed to those in (}hargeof the tUK. ,The negligence C1harged agaillst her is that slie . was towing with too long a hawser in. the narrow Qhannel, and that as the thedght of way, being on the of the iatOr, the latter was bound to keep out of her way·. But by accepting the course proposed by the Gladiator, the Sapphire agreed that the Gladiator should keep her course, and,that she would cross astern of her and her tow. The method of crossing being thus agreed upon, the Gladiator was right in keeping on without change of course. Having thus undertaken to pass astern, the Sapphire was bound in ,so doing to use all proper precautions to keep clear. The master of the tug had the right to presume that those in charge Of the Sapphire· "'6uM use their eyes and observe the movements of the barge as well as the tug, and (}ordidgly. In regard to the length of the hawser, it is only necessary to say that the bnl'ge was being towed in the uSUlil way, and with no unnecessary length; of hawser. There is no evidence whatever upon which to charge· the barge with fault. Having no propelling power of her :own, it was only by sheering that she could change her direCtion. Bdt. after the Sapphire passed between her and the tug, no amount of sheering that was capable of could avail to avert the collision. . Libel dismissed, with. costs. e
B1m OJ' VOL1JJIB 41.