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the claimants, testified that the order actually given by the master was to heave tight and make fast to the bitts. This certainly was not an absolute command to take the hawser from the capstan and make it fast to the bitts. But, assuming that the last order given was to the effect that the hawser should be removed from the capstan and made fast to the bitts, still the libelant, under the particular facts of this case, is entitled to recover damages for the injuries sustained by him. The hawser had been taken to the capstan by direction of the master, who knew that the place where the libelant was working was thus rendered unsafe in the event that any strain should be placed upon the hawser while it was on the capstan. Under such circumstances it was the duty of the master, as the representative of the owners, to have ascertained, before he backed the steamer, that his orders had been conveyed to the men at the capstan and executed, thus making it safe for the libelant to remain in the place where he was working. The owners of the steamer owed to the libelant the positive duty of providing him a safe place in which to work, and they are responsible for the failure of the master to discharge this duty. For these reasons, and also because, upon consideration of all the evidence, I believe the allegations of the libel as to the manner and cause of the accident are sustained, a decree must be entered in favor of the libelant.

Upon the question of damages the evidence shows that at the time of the accident the libelant was in his twenty-second year, in good health, and earning $45 per month as an able seaman. The injuries received were attended with great suffering and pain, and have made him a cripple for life. In my judgment, the libelant is entitled to recover damages in the sum of $1,500 and costs.


(District Court, N. D California. June 29, 1904.)

No. 13,188.

1. SHIPPING-CARRIAGE OF PASSENGERS-INSUFFICIENCY OF ACCOMMODATIONS. Allegations of a libel by steerage passengers or a voyage from Seattle to San Francisco to recover damages for breach of contract on the ground that the ship failed to furnish them with proper food, quarters, and bedding, held not sustained by the evidence.

In Admiralty.

Wm. P. Hubbard and Arthur H. Barendt, for libelants.
Frank & Mansfield, for claimant.

DE HAVEN, District Judge. This libel is brought against the steamer Centennial by a number of persons who were passengers on her on a voyage from Seattle to San Francisco. Each of the libelants demands damages in the sum of $500. The allegations of the libel are, in substance, that libelants were not furnished bedding and blankets; that during the whole voyage the food given them was of poor quality, not properly cooked, and wholly unfit for con

sumption; that the steerage compartment had poor ventilation, and their berths were near the toilet, from which came disagreeable odors, by reason of not being kept in a clean and sanitary condition; and that four dogs were kept in the large steerage compartment assigned to the libelants for sleeping quarters. It appears from the evidence that the libelants were furnished with bunks and standees upon which to sleep, but no blankets or other covering. It also appears that libelants were steerage passengers, and the evidence shows that it is not usual or customary upon steamers plying between San Francisco and Seattle to furnish steerage passengers with blankets or other covering. The libelants Gilbert, Thompson, Rieman, and Sullivan, however, testified that when they purchased tickets representations were made to them by the ticket agent to the effect that their tickets would entitle them not only to a berth, but also a bed with blankets or other covering. The other libelants did not so testify, and the alleged fact that such representations were made is denied by the agent who sold the tickets. Upon consideration of all the evidence upon this point, I am not satisfied that such representations were made. So, also, the other allegations of the libel-those in relation to the unwholesomeness of the food, poor ventilation of the steerage cabin, and the stench arising from the toilet therein are not, in my opinion, sustained by the evidence. The evidence does show that three or four dogs were kept in the steerage cabin. Assuming that the libelants have some cause to complain because dogs were carried in the steerage cabin, still this did not constitute such a breach of the libelants' contract for passage as to entitle them to substantial damages.

The libel is dismissed, with costs.



(Circuit Court, S. D. New York. July 5, 1904.)

Nos. 3,414, 3,415.


Edible wafers, raised in the making by the use of baking powder or bicarbonate of soda, are “leavened," although such agents do not produce fermentation, and are dutiable under section 6, Tariff Act July 24, 1897, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693], as nonenumerated manufactured articles, and not entitled to free entry under paragraph 696 in the free list, covering "wafers, unleavened or not edible" (Act July 24, 1897, c. 11, 2, 30 Stat. 202 [U. S. Comp. St. 1901, p. 1688]).

Appeals from a Decision (G. A. 5,393, T. D. 24,596) of the Board of United States General Appraisers.

Albert Comstock, for importers.

Charles Duane Baker, Asst. U. S. Atty., and Albert H. Washburn, counsel for the Treasury Department, for the United States.

131 F.-52

TOWNSEND, Circuit Judge. The merchandise in question comprises wafers, edible, which were assessed for duty as a nonenumerated manufactured article, at 20 per cent. ad valorem, under the provisions of section 6 of Act July 24, 1897, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693], and are claimed as free under the provisions of paragraph 696, as "wafers, unleavened or not edible" (Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 202 [U. S. Comp. St. 1901, p. 1688]). It is conceded that baking powder or bicarbonate of soda was used in the manufacture of these wafers. The question is whether they are leavened.

The Board of General Appraisers found as follows:

"In order to produce a leaven, it is only necessary that an agent to set up fermentation be employed; and baking powder or bicarbonate of soda are such agents. The Standard Dictionary defines leaven as 'any substance that sets up or is intended to set up fermentation.' The Century and Webster's Dictionaries each defines leaven as 'to excite fermentation in; to raise and make light, as dough or paste.'"

The board concluded that these wafers were leavened, within the dictionary definitions, because they thought that baking powder and soda set up fermentation. It admitted that the board were mistaken in this conclusion, and that said substances do not set up fermentation. In its most technical and limited sense leaven is sour dough, and in this sense the term was understood 2000 years ago. Later, yeast was substituted for sour dough as a leaven. Each of these substances leavened in the sense that it set up fermentation. The government contends that the term has now been extended so as to include in common speech anything which accomplishes the result of a leaven in its etymological sense-that is, which raises or makes light-and that the term "unleavened," as applied to wafers, is restricted to wafers such as are used as a vehicle for taking medicine, or as seals, or for religious purposes. There is a hopeless conflict of evidence as to the sense in which the term "leaven" is commonly used. The finding of the board states that "it conclusively appears from the evidence before us that there is no common, uniform, or general trade understanding which includes the words 'leavened' or 'unleavened.'" We are brought, therefore, to a consideration of the dictionary definitions. Here there is a substantial agreement that leaven means any substance that sets up fermentation in, or raises and makes light. There is considerable evidence tending to show that this broad definition corresponds with ordinary understanding and speech. The strongest argument for the importers is in the matzoths or Passover bread of the Hebrews, which, while raised or made light by the action of intense heat upon the water in the dough, is known as unleavened bread. But matzoths are not made light by any substance except the steam generated in the course of baking the dough. And it is thought that the limited application of this term in a biblical sense to a peculiar product used in the religious observances of a particular sect is insufficient to overcome the broader general understanding of the term.

The decision of the Board of the General Appraisers is affirmed.



(District Court, N. D. Iowa, Cedar Rapids Division. August 8, 1904.)

No. 426.


The recording of a chattel mortgage, and the effect of such recording, are governed by the law of the state where the property is situated.


The recital in a chattel mortgage of the residence of the mortgagor is not evidence of his place of residence, to affect the question of where the mortgage should be recorded.


Where a chattel mortgage was duly executed in Iowa, and recorded in the county where the property was actually situated, and in the possession of the mortgagor, the burden rests on one attacking the validity of the record to show by competent evidence that the mortgagor was not a resident of such county.


Under Code Iowa, § 2906, which requires a chattel mortgage to be recorded in the county where the holder of the property resides, a mortgagor may be a resident of a county, within the meaning of the statute, although his legal domicile is elsewhere; and a mortgage given by a railroad contractor on property in his possession, in a county where he is at work, and in which he actually resides with his family, while engaged in performing his contract, is properly recorded in such county, although his residence there may be only temporary.

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A description of property in a chattel mortgage as "twelve head of work horses, twelve sets of harness, eight dump wagons, one New Era grading machine, all camp outfit, camp utensils, all scrapers (12) now in my camp outfit * * now working on the electric line from Iowa City to Cedar Rapids, Iowa, * the said property being located on the right of way of above electric line, in Johnson County, Iowa," is sufficient to identify the property, under the Iowa authorities.


In Bankruptcy. On review of order of referee.

On petition of E. A. Wickham for review of order of referee denying claim of the petitioner to priority in the proceeds of property covered by a chattel mortgage of the bankrupt to him. James Brannock was adjudged an involuntary bankrupt by this court February 9, 1904, upon petition of certain of his creditors filed January 2d preceding. He was a railway contractor, and came to Johnson county, Iowa, in June, 1903, where he had a contract for grading upon the Cedar Rapids, Iowa City & Southern Railroad-an electric railway line then in process of construction through Johnson county. June 25, 1903, at Council Bluffs, Iowa, he made to the petitioner, Wickham, a chattel mortgage on his grading outfit, then in Johnson county, and used by him in such railroad work, which mortgage was duly acknowledged by the bankrupt as required by the laws of Iowa, and was filed by petitioner in the office of the recorder of deeds of Johnson county on June 29, 1903, and afterwards duly recorded in said county. The mortgage, so far as material to the questions presented for review in this proceeding, is as follows: "That I, James Brannock, Omaha, Nebraska, of the County of Douglas and State of Nebraska, in consideration of the sum of $1,067.25 to me in hand paid by E. A. Wickham of Council Bluffs, Iowa, party of the second part, do grant, bargain, and convey unto said second party the following goods and chattels, to wit: Twelve head

11. See Chattel Mortgages, vol. 9, Cent. Dig. § 151..

of work horses, twelve sets of harness, eight dump wagons, one New Era grading machine, all camp outfit, camp utensils, all scrapers (12) now in my camp outfit that has been working upon the G. W. railroad, in Shelby County, Iowa, and are now working on the electric line from Iowa City to Cedar Rapids, Iowa, under subcontract with Murray Bros., of Cedar Rapids, Iowa; the said property being located on the right of way of above electric line, in Johnson County, Iowa." This property was sold by order of the referee, free from the mortgage lien; the proceeds being held in lieu of such property. The petitioner made proof of his debt secured by the mortgage, and claimed priority upon the proceeds of the mortgaged property. Charles Barrow and other creditors of the bankrupt filed objections to its allowance as a prior claim upon the grounds (1) that the bankrupt at the time of making the mortgage was a resident of the state of Nebraska, and that the record of the mortgage in Johnson county, Iowa, was unauthorized; and (2) that the description of the property in the mortgage was void for uncertainty. The referee sustained the former of these objections, and denied the claim of the petitioner to priority. In his certificate, the referee says: "The legal residence of James Brannock is in dispute in this controversy. He worked on the line during the summer and fall, and left Johnson county some time in December, 1903. Much of the evidence introduced in relation to the residence of James Brannock is incompetent and hearsay, and but little weight is to be given to the same. However, we think the statement in the mortgage, 'I, James Brannock, Omaha, Nebraska, of the County of Douglas and State of Nebraska,' raises a presumption that his residence is in Omaha. This presumption, taken with the evidence in the case, compels us to find that his legal residence was in Nebraska. Certain it is, he had no legal residence in Johnson county, Iowa. He was here only for a temporary purpose, and went away as soon as that was accomplished. The recording of this mortgage in Johnson county was not in accordance with the statute, and did not impart constructive notice of the mortgage. It is not necessary to pass upon the question of the sufficiency of the description in the mortgage, for the reason that the holding above disposes of the case." The petition for review challenges the correctness of this decision or order of the referee.

Remley & Ney, for petitioner.


Ranck & Bradley, Baldwin & Fairchild, and Baker & Ball, for contesting creditors.

REED, District Judge (after stating the facts). The questions for determination are: (1) Was the chattel mortgage of the petitioner, Wickham, properly recorded in Johnson county, Iowa? (2) If it was, is the property sufficiently described therein?

1. The property being situated in Iowa when the mortgage was made, record of it in the state of Nebraska, even though the mortgagor had then resided there, would have been wholly ineffective in Iowa, as constructive notice to creditors of, or purchasers from, the mortgagor. Green v. Van Buskirk, 7 Wall. 139, 19 L. Ed. 109; Hervey v. Locomotive Works, 93 U. S. 669, 23 L. Ed. 1003; Aultman & Taylor Co. v. Kennedy, 114 Iowa, 444, 87 N. W. 435, 89 Am. St. Rep. 373; Golden v. Cockrill, 1 Kan. 259, 81 Am. Dec. 510; Kanaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 62; Ames Ironworks v. Warren, 76 Ind. 512, 40 Am. Rep. 258. Such a mortgage is governed by the law of the place where the chattels are situated at the time it is made, and the question of its priority, as between different lienholders, is to be determined by the law of such place. Ames Ironworks v. Warren, 76 Ind. 512, 40 Am. Rep. 258; Harrison v. Sterry, 5 Cranch, 289, 3 L. Ed. 104; Aultman & Taylor Co. v. Kennedy, 114 Iowa, 444, 87 N. W. 435, 89 Am. St. Rep. 373.

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