William Rix, for plaintiff in error. Nathan H. Frank, for defendant in error. Before GILBERT, ROSS, and MORROW, Circuit Judges. GILBERT, Circuit Judge. When this case was formerly before this court (Standard Marine Insurance Co. v. Nome Beach L. & T. Co., 133 Fed. 636, 67 C. C. A. 602, 1 L. R. A. [N. S.] 1095), we reversed a judgment rendered in favor of the defendant in error on a policy of insurance covering certain articles laden on the barkentine Catherine Sudden for a voyage from the port of San Francisco to Nome, Alaska. The judgment was reversed, and the cause remanded for a new trial, on the ground that the evidence of the master of the vessel, Capt. Panno, indicated that the loss of the cargo resulted directly from the master's act in designedly undertaking to force the vessel through floating ice in order to arrive more quickly at his destination, and secure a better market for his cargo, with full knowledge of the dangers to be encountered, and with ample time to have avoided them. Such conduct we held to be not mere negligence, but willful omission to perform a legal duty, and an intentional commission of a wrongful act, and we held that the insurer was not liable for loss caused thereby. On the second trial of the cause a verdict was again returned for the defendant in error, and judgment was rendered thereon. The evidence adduced on behalf of the defendant in error on the second trial differed from that which was introduced on the first trial, in that testimony of witnesses was taken to establish the fact that it was usual and customary with vessels on the voyage to Nome, when reaching floating ice, to enter the same, and proceed through it by selecting leads or channels and following from one opening to another, thus making their way forward by degrees. The assignment of error which is now principally relied upon is that. on the trial in the court below, the plaintiff in error was denied the right to introduce evidence of the testimony given by Capt. Panno on the first trial; it being shown that he had died since so testifying. That such testimony was admissible, the plaintiff in error contends, is shown by Ruch v. Rock Island, 97 U. S. 693, 24 L. Ed. 1101, and Mattox v. United States, 156 U. S. 237, 15 Sup. Ct. 337, 39 L. Ed. 409. The defendant in error, on the other hand, contends that in the federal courts, by reason of section 861, Rev. St. (U. S. Comp. St. 1901, p. 661), evidence of the testimony given by a witness on a former trial, deceased at the time of the second trial, is not admissible; citing Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117, Diamond Coal & Coke Co. v. Allen, 137 Fed. 705, 71 C. C. A. 107, and Mulcahey v. Lake Erie & W. R. Co. (C. C.) 69 Fed. 172. We deem it unnecessary to pause to consider which of these two contentions is correct; for, as we read the record, it appears there from that, if it was error to exclude the proffered testimony, the error was harmless, for the reason that substantially the same testimony is to be found in the deposition of Capt. Panno taken prior to the first trial, and introduced on the second trial, and in the testimony of Capt. Simmie, who testified on the second trial. It is not necessary to relate in detail all of the testimony of Capt. Panno on the first trial which the plaintiff in error offered on the sec ond trial. It all related to his navigation of the vessel after reaching the ice, and to his efforts to get through the ice. The most important portions of it are the following: "Some of these small chunks that I noticed floating about were a quarter of a mile, a mile, and five miles apart. They were not very numerous. I sailed right on, and did not turn around and go back. My object was to get through it. When I got to the ice itself, I found leads once in awhile." * * He testified to sighting a number of vessels about the time when he first struck the ice, and said that they were all in the position in which he was, steamers and sailing vessels bound for Nome with the same kind of cargo that he had. "We were all trying to get through as soon as we could-as early as we could get there. We wanted to market our goods. The next morning after sighting the ice it was broken, but rather larger-larger in proportion. * On the third day we could not get through it. We got in a lead, and we could not get through. I tacked ship and stood back again, and found a lead I suppose 10 or 15 miles. I went right into it, still fighting to get up to Nome. * * * There was a piece of ice that I supposed I would go clear of, and down under water it stuck out like that desk, and hit her bow down under water. * * * The moment I struck the ice there was a hole in my bow." In his deposition above referred to, which was admitted in evidence on the second trial, Capt. Panno deposed: "When I first sighted the ice, I presume I might have put about if I desired, and have gone to Dutch Harbor. As a matter of seamanship, I could have done it; for I could have come back to San Francisco if I so desired. I was eight days in the ice before I was taken out of the ice and to Nome. 帛 * At the time I got into the ice some came together a little. There would be cakes of ice all through." Capt. Simmie, a master mariner of 30 or 40 years' experience, who was on board the vessel, testified: "About three or four days after we got into Behring Sea, we encountered the ice. It was small drift ice at first, gradually getting into larger pieces and floating fields, drift ice. * * * Danger was first to be apprehended when we got into the ice. We could not get any further. We got to the end of the lead. The ice apparently is constantly on the move with open leads. and we followed the leads as far as we could, and then made fast to the ice. After we got into a position of that sort, and the danger was apparent, there was no means by which we could have turned back. ** The Catherine Sudden sailed in various directions, always making toward the north if possible toward Cape Nome. Some days the wind was from the south, so that we had a fair wind, and, of course, we could not beat back, because there was not any room to beat back. Then the ice closed in on us, and it was then too late to return." * But it is not necessary to proceed further with the details of his testimony. It is substantially the same as that given by Capt. Panno on the first trial, and is not contradicted by any witness. The only other assignment of error requiring notice is that the court overruled the objection of the plaintiff in error to the admission in evidence of the record of the salvage suit of Benson et al. v. The Barkentine Catherine Sudden, in the District Court of Alaska, Second Division. The objection was that the record was not binding on the plaintiff in error, and was res inter alios acta. On the argument in this court counsel for the plaintiff in error makes the further objection that the final judgment in the salvage suit was not rendered until long after the commencement of this action. Neither of these objections is well taken. The judgment in the salvage suit, decreeing the sale of the barkentine for the benefit of the salvors and others, was binding upon all who had any interest in the res. Gelston v. Hoyt, 3 Wheat. 246, 313, 4 L. Ed. 381. As to the second objection, it is true that the final decree of distribution in the salvage case was made after the commencement of this action, but the vessel was ordered to be sold, and default was entered, and an order of reference was made long prior to the commencement of the action. Thereby the defendant in error was deprived of all right and title in the vessel. That the final decree was rendered after the commencement of this action does not render the record incompetent. The judgment is affirmed. UNITED STATES v. BREWSTER. (Circuit Court of Appeals, Fifth Circuit. January 18, 1909.) CUSTOMS DUTIES (§ 20*)-CLASSIFICATION-ZINC ORES "CALAMINE"-"MIN- The zinc ores known as carbonate, silicate, and sulphide of zinc are free of duty, the carbonate and silicate as "calamine," and the sulphide as "minerals, crude," under Tariff Act July 24, 1897, c. 11, § 2, Free List, pars. 514, 614, 30 Stat. 196, 199 (U. S. Comp. St. 1901, pp. 1682, 1685), except that when they contain lead they are subject to the duty provided on "lead-bearing ore of all kinds," in section 1, Schedule C, par. 181, 30 Stat. 166 (U. S. Comp. St. 1901, p. 1644). [Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 26.*] Appeal from the Circuit Court of the United States for the Southern District of Texas. The court below affirmed decisions by the Board of United States General Appraisers, which had reversed the assessment of duty by the collector of customs at the port of Laredo. The case involves the following provisions of Tariff Act July 24, 1897, c. 11, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1626): "Par. 181. Lead-bearing ore of all kinds, one and one-half cents per pound on the lead contained therein. "Par. 183. Metallic mineral substances in a crude state, and metals unwrought, not specially provided for in this act, twenty per centum ad valorem. "Par. 514. Calamine. "Par. 614. Minerals, crude, or not advanced in value or condition by refining or grinding, or by other process of manufacture, not specially provided for in this act." The character of the materials in controversy is stated as follows in the government's brief: The imported ores, broadly described, were: (a) Concentrated sulphides containing 28 per cent. zinc and 2 per cent. lead. (b) Carbonates crushed and hand-picked, containing 28 per cent. zinc and 7 per cent. lead. (c) Carbonates and silicates combined, crushed and hand-picked (21 to 35 per cent. carbonate, 2 to 26 per cent. silicate), in some less than 1 per cent. of lead, and in others no lead. In some instances duty was assessed under said paragraph 183, Tariff Act 1897; in other instances duty was assessed on the lead contents under said *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes paragraph 181, and on the zinc contents under paragraph 183; and in one case duty was assessed only on the lead contents. The Board of General Appraisers held, as claimed by the importer, that the merchandise was free of duty, the carbonates and silicates under paragraph 514. as "calamine," and the sulphides under paragraph 614, as "minerals, crude," except that the lead-bearing ores were held subject to the duty provided in said paragraph 181 for "the lead contained therein." This conclusion was affirmed by the Circuit Court, except that the latter tribunal held that said provision in paragraph 181 for "lead-bearing ores" was exclusive. The opinion filed by the Circuit Court is as follows: "BURNS, District Judge. This is an appeal in the nature of a petition to review the action of the Board of General Appraisers in holding the several importations in question subject to duty under paragraph 181 of the tariff act of July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 166 (U. S. Comp. St. 1901, p. 1644). Said paragraph is as follows: "Lead-bearing ore of all kinds, one and one-half cents per pound on the lead contained therein.' "The counsel for the importer concedes that this assessment is correct; and. whilst the action of the collector of customs in so assessing duty was embraced in the original protests, it was abandoned upon the hearing, and therefore is not at issue here. The appellant in its petition complains of the action of the board in not sustaining the action of the collector in assessing an additional duty of 20 per cent. ad valorem under paragraph 183 on the value of the zinc contents. The importations involved in the several protests consist of zinc ore; and the importer in his protests claims the same to be free of duty under paragraphs 514, 614, 629, or, in the alternative, that, in the event the same is subject to duty, only the lead contents thereof are dutiable at the rate of 1% cents per pound. "In so far as the specific duty is concerned, the question presents no difficulty; the language clearly and specifically provides that the lead contents shall be subject to duty at the rate assessed by the collector. Besides as suggested, this feature has been eliminated by the counsel for the respondent, and therefore not a subject for further inquiry. "The single question here presented is, are the ores free of duty under paragraphs 514 and 614, or subject to duty at the rate of 20 per cent. ad valorem under paragraph 183? If the latter provision does not apply, it follows that the General Board is not in error in holding the importations not subject to the ad valorem tax. "Paragraph 183 is as follows: "Metallic mineral substances in a crude state, and metals unwrought, not specially provided for in this Act, twenty per centum ad valorem.' "From the evidence in this case it appears that zinc as metal is not found in the ores involved herein, nor are they metallic mineral substances, and therefore not subject to duty under paragraph 183. This conclusion is reached from the entire record as an original proposition, and is supported by the opinion in the case of Hempstead v. Thomas, 122 Fed. 538, 59 C. C. A. 342. "The court is of the opinion that the importations in question are free of duty under sections 514 and 614, and the contention of appellant cannot be sustained that the latter section is without application by reason of the importations having been advanced in value by what is claimed as 'a process of manufacture'; said process consisting of eliminating the rock and dirt by hand and hammer, in order to reduce the bulk and save the paying of freight charges upon useless and foreign matter. This contention would require a broad stretch of the imagination to designate the labor performed as 'a process of manufacture.' "The case cited, Hempstead v. Thomas, supra, is conclusive of the contention made by the appellant. It follows as a conclusion of law: "First. That the provision for lead-bearing ores in paragraph 181, under the facts in this case, is exclusive, and that the importations are not subject to additional duty. "Second. That paragraph 183 is without application to the merchandise in question. "Third. That the ores are free under paragraphs 514 and 614 of the tariff act of 1897. "The petition for review disclosing no error, the finding of the Board of General Appraisers should be in all things affirmed; and the decree will so provide, with directions to the collector of customs to liquidate the entries in accordance with this holding." Lodowick McDaniel and Rufus E. Foster, U. S. Attys. (James C. McReynolds, Sp. Asst. Atty. Gen., of counsel; Charles E. McNabb, on the brief), for the United States. Baker, Botts, Parker & Garwood (W. Wickham Smith, of counsel; Henry S. Wardner and Howard T. Walden, on the brief), for appellee. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. PER CURIAM. Under the facts in this case it is not necessary to decide whether the provision for lead-bearing ores in paragraph 181, Tariff Act July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 166 (U. S. Comp. St. 1901, p. 1644), is exclusive. On the merits the Board of General Appraisers and the Circuit Court ruled correctly. The judgment of the Circuit Court is affirmed. THE DORCHESTER. THE FANNIE S. GROVERMAN. (Circuit Court of Appeals, Fourth Circuit. December 12, 1908.) No. 858. COLLISION (§ 99*) — STEAMER AND SAILING VESSEL-FAILURE TO KEEP PROPER LOOKOUT. A decree affirmed which adjudged a steamship solely in fault for a collision with a small schooner at night in the Elizabeth river near Norfolk, based on findings that the schooner carried proper lights, and that they should have been seen by the steamer in time to have avoided the collision had she kept a proper lookout. [Ed. Note. For other cases, see Collision, Cent. Dig. § 211; Dec. Dig. § 99.* Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.] Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk. For opinion below, see 163 Fed. 779. Robert M. Hughes, for appellant. W. W. Old and W. W. Old, Jr. (James F. Duncan, on the brief), for appellees. Before GOFF, Circuit Judge, and MORRIS and BRAWLEY, District Judges. PER CURIAM. This is a case of collision in the nighttime between a large passenger steamship and a small schooner-rigged sailing vessel of only seven tons, occurring in the channel of the Elizabeth river about one mile south of the Deep Water Pier of the Jamestown Exposition shortly after midnight on September 12, 1907. The steamship struck the schooner amidship on her port side and cut her in two, her forward part passing the steamship on the steamship's port side, and the after portion of the schooner passing on the steamship's *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |