IN RE CERTAIN MER9HANDISE.

577

and on any such appeal security for damages and costs shall be given as in the case of other appeals in which the United is a party." The government mo'Ves to dismiss. on the ground that the statute as to security for damages and costs has not been com· plied with, but insists only upon the provision as to security for costs. Unquestionably, the statute requires security for costs to be furnished with the original application. We understand the practice in the Second circuit conforms to this idea. In view of the facts,however, that the statute was comparatively new at the time this petition was filed, that there was no express rule of court on the subject defining what the security should be, and that counsel by affidavit establishes that the petition is being prosecuted in good faith, and that the statute was not understood by him as requiring security at the outset, I am disposed not to grant the motion to dismiss, except upon the following condition: The petition will be dismissed unless the petitioner, on or before December 2, 1894, files with the clerk the ordinary cost bond in the sum of $50. And leave is granted to the petitioner to file such security within such time, as of the date of filing the original application. The clerk will enter the same order in Nos. 173, 190,236,273, and 290.

In re CERTAIN MERCHANDISE.

(Circuit Court, D. Massachusetts. No. 237.

November 23, 1894.)

CUSTOMS DUTIES-CLASSIFICATION-WOOLEN CLOAKS LINED AND TRIMMED WITH FUR-ACT 1890.

Cloaks of woolen cloth, lined and trimmed about the neck, sleeves, front, bottom, and back with fur, and not reversible, are dutiable at 4lh times the duty on unwashed wool of the first class, and 60 pel' cent. ad valorem, as cloaks "or other outside garments for ladies, and children's apparel · · · composed wholly or in part of wool, * · · made up or manufactured wholly or In part," etc., under paragraph 397 of the act of 1890, and not at 35 pel' cent. ad valorem, under paragraph 461, as manufactures of leather, fur, or of which these substances or either of them Is the component material of chief value, "all of the above not specially provided for in this act," etc., though fur is a component material of chief value in such cloaks, since they are "specially provided for" by the former paragraph.

Petition by Alanson W. Beard for review of the questions of law and fact involved in the decision of the board of United States general appraisers in respect to a duty imposed on merchandise imported by C. F. Hovey & Co. in 1892. Decision of board reversed. Decision of collector affirmed. Wm. G. Thompson, Asst. U. S. Atty., for petitioner. Josiah P. Tucker, for importer. ALDRICH, District Judge. This is a petition for review of the questions of law and fact involved in the decision of the board of United States general appraisers in respect to a duty imposed upon an importation from Germany by C. F. Hovey & Co. in 1892. Parav.64F.no.5-37

578',

riJ)JjjR:AL RJl:p6RitE:R,'vol.

64.

gijip1i:s9j '&fthe act of 1890 establishes a duty of 4f times the duty imp6ireid'6:ri'unwashed wool oHludi'rst clas'J, a,nd, in addition thereto, 60 'Pet' i ad valorem, "on' cloaks, dolmans, jackets, talmas, ':or! other garments, for ,ladies' auf) children1s apparel and gWl!I.s of similar description, or used for like purposes, compose<I wholly>ol"in'part of v. 001, 'worsted, the hair of the camel, goat, alpaca or othel'ltnim.als, made up or manufactured wholly or in part," etc. Th,e article 'of" import in' question was invoiced with 15 other gar"ready-made'ladies' wO<ilen garments," and entered by the iIAPO'l'teras"German:garmen1:$Y It was a long, outside garment ot'woolen cloth, lined wit!h: fur, and the trimmings and ornamentations ab6tit:theneck, sleeves; 'front, bottom, and back were likewise of fur. The''lJtOOcoratructuraltnaterial, however,was wool. In other words, cloak, lined and trimmed with fur. The garment was not and therefore was in no sense a fur garment lined The petitioner claims that the" article of import was 397, ,While the importer contends that it rightfully comes within the pr0wsions of paragraph 461 of the act of 1896, 'tWliich provides an ad, valorem duty of 35 per centum. The latter paragraph describes "manufactures of leather, fur, guttapercha, vulcanized India rubber known as hard rubber, human hair, * * * or of which these substances or either of them is the component material of Chief value, all of the above not specially proyi;ded for in this' act," etc. Unquestionably this paragraph is broad enough and sufficiently explicit to embrace the article of import in question, were it not specially covered by the earlier provisions of th,e 8ame act. It is clear, however, that the purpose of congress was to exclude from. the general provisions of this paragraph all articles of manufacture specifically provided for elsewhere in the act. , So we come to the question whether the article of importatiOIl is covered by the description embraced in paragraph 397. I tJJ,ink it is. It WQuid be difficult to employ words more clearly and unmistakably descriptive ,of a manufacture consisting of various component materials than those used in paragraph 397, "on cloaks, · * *, or other outside garments for ladies' and children's apparel, · * · composed wholly, OC ,in part of wool * * * made up or manufactured wholly or in part," etc. The garment was a cloak. The structural part of the garment, was not in part but wholly, ofW;QQlencloth, lined and ornamented with fur, and as such is spe<;iaJtvprovided for by this paragraph. , It is true that fur was a comJ;loneptmaterial, and that it was of chief value, but this does not relieve the article of import from the operation of the terms of paragraph 397, for the reason that the, idea of chief value expressed by paragraph 461 is by the terms of the same paragraph limited to artiCles Ilot specially provided for elsewhere. The argument prese:ated that fur was the component material of chief value, anq tha,t the. duty under paragraph 397 is disproportionate, is a strong equitable argument. It is apparent, however, that congress iJitelldE!'d tolay a specific duty upon the manufactured wool entering iIlto, JWsclas$ of garments, and also an arbitrary ad valorem dut:v on tlie>vaIUe,induding, of course, the component materials used

THEe, G,' WHITE.' ,(;:-:.

579

in connection therewith; and, as said by Nelson, J., in Reimer v. Schell, 4 Blatchf. 328, 330, Fed. Cas. No; 11,676, in speaking ofarticles of importation : "The proper inquiry is as to their qualities and characteristics, with a view to ascertain whether they come within the description. If they do, no argument can take them out of the rate of duty whioh has been imposed." Section 397 is a designation of articles by special description (Barber v. Schell, 107 U. S. 617, 2 Sup. Ct 301), and it would seem that the article of import is plainly within such description. Holding these views, the decision of the general appraisers must be reversed, and that of the collector affirmed, and it is so ordered.
THE C. G. WHITE. THE C. G. WHITE et al. v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. November 2, 1894.)

1.

CUSTOMS LAWS-VIOLATION-PENALTY OF MASTER AND MATE-LIABILITY OF VESSEL.

Rev. St. § 3088, providing that when a vessel, its owner or master,has become subject to a penalty for violation of revenue laws, it shall be holden therefor, does not render it liable for a penalty imposed on its mate under section 2867, making the master and mate respectively liable for 'a penalty where the cargo of a vessel is unladrn without authority of the customs officer. Under Rev. St. § 3088, providing that, when a vessel's master has become subject to a penalty for violation of revenue laws,. it shall be .holden for the payment thereof, and may he seized and proceeded against to recover the penalty, the lien may be enforced by libel of the vessel without judment being first obtained against the master:

2.

Appeal from the District Court of the United States for the District of Alaska. Libel by the United States against the schooner C. G. White. Decree for libelant. Libelee and H. P. Lauritzen and others, claimants, appeal. Modified. Andros & Frank, for appellants. Charles A. Garter, U. S. Atty. Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge. GILBERT, Circuit Judge. The schooner C. G. White cleared from the port of San Francisco on the 31st day of January, 1893, bound for a hunting and fishing voyage. She had on board only ballast and sea stores, guns and ammunition, and hunting and fishing gear. She was obliged to put into Honolulu to leave mail and get water. She was compelled by the authorities there to make entry at the customhouse before landing her mail or procuring water. Sheremained there 14 hours, and took on board nothing but water. She then proceeded to sea, and on March 18th she was compelled to put into the port of Yokohama tQ repair her rudder head, which had become shaky and was unsafe. The repairs required five days. By the laws of the port, a vessel, after being at anchor 48 hours" was