,\, CAsTRO V. SEEBERGElL
(O£Tcuit .Oourt, N.D. nUl/lOw. July 18, 1889.)
Under Rev. St. U. S. § 2981, which provides for an appeal to the secretary of the . , treasury, by the owner) importer, consignee or agent of, the merchandise,. from ,the decision of the collectOr\in ascertaining the duties; and makes the decision on appeal final, unless suit shall oe br()ught within a certain time thereafter, a per80n who of the importer, while in bond pd pending an appeal, may sue for the exces8 of duties claimed to have been paid; , .
CuBToJ(lI DUTIE8-AcTION SECRE'fARY OP TREASURY.
PENDIliG APPEAL TO
. . .
TobaCClO composed of fraEents broken or cut oft in the manufacture Of and known to the trade as ,scrap tobacco, "is dutiable as unIllll,nufactured tobacco, under Tarlft Act Maroh II. _ (liey!, oL 251.) Following Oolm y. Bpa14£ng, 24 FeiLRep.111. '
At Law. , Action by Daniel Castro against Anthony F. Seeberger, collector of customs, 'to recover the excessive duty claimed to have beep levied on certain tobacco imported by the "Roper & Baxter Cigar Company, and sold to plaintiff. / Shu1naJil.&: Defreea, for plaintift. W.,G.;Ewing, U. S,. Atty., and G. H. Harris, Asst. U. Atty., for defendant.
J. The Roper, & Baxter Cigar Company importen into the ,portoi' Chicago a quantity of Jtobacco clippings, being the ends cut off, and pieces of leaf broken from, cigars in process of.manuliwture, upon which the collector assessed a duty of 40 percent. per pound, as "manufactuTedtobacco."urider clause 249 of. Heyl's Arrangement. of act of March 3, 1883. The impprters insisted that said tobacco was dutiable at' 30 per cent. ad valorem, unmanufactured tobacco," un251. of Heyl,. protested, and appealed to the secretary of the treasury ,i by whom the nction of: the collector was affirmed. After the assessment of duties, as aforesaid, and pending such appeal, the tobacco remainedinboud, and while the appeal was pending plaintiff purchased thetobaceo from the Alter.the decision of the appeal plaintiff paid the duties so assessed in order to obtain possession of the tobacco, arld:brought this suit in apt time, after the decision of the appeal, to recover'the difference: between the duties assessed and paid, and the rate c,ontended for by the importer, The question as to the classification and rate of duty upon' tobacco clippings', like the goods in question, was. fully considered and decided by thiscounin Cohn v. Spalding, 24 Fed. Rep. 19, and I see no reason for changing the ruling there mad.e·. But it is further contended in behalf of defendant that as plaintiff did not import this tobacco, and was not the owner, consignee, or agent of the goods at the time they were classified, and the duties imposed upon them by the collector, and did not take the appeal to the secretary of
the treasury, he cannot maintain this suit to recover the excess of duties claimed to have been paid'. ) Seotion 2931. of the Revised Statutes provides for an appeal to the secretary of the treasury by the owner, importer, consignee, or agent of the merchandise, if dissatisfied with the action of the collector in the ascertainment and liquidation of the duties; and the contention is that, as plititltiff was neither the owner, importer, or agent of the goods at the time the duties were assessed, he is not one of the persons allowe<l to bring suit, under the law, to recover the duties so paid. It seems to me that a liberal interpretation of this provision of the statute a suit to test the legality of the collector's action in the matter of the aS$Elssment of duties should be givell so as, if possible, to bring all cases which may occur in the course of business .before the proper tribunal for adjudication. In the case before us there is no doubt but that the importer of the goods, who was also the owner at the time they were imported, entered, and the duty assessed, took the proper steps to question before the courts the action of the collector. A protest i1:1 due form was made;'ahd an appeal to the secretary of the treasury; taken from the collector's action, and pending such appeal the impol'terg(jId-the goods, which still remained in bond, to the plaintiff, and after the decision of the appeal the plaintiff,having become the owner of the goods, paid the dutiesexacted"an:d against which due protest had been made.'." 'l'he,purchase bybim virtually places him in the shoes of the importer. Hetakes the goods with the [email protected]
NEW YORK, N. F. & H. S. S. CO., Limited, v. LEARY.
(Distrf.ct Court, E. D. New York. November. 18, 1889.)
TOWAGE-RAPT-CONTRAOT-STQRM-NEGLIGENCE, 'J.'he owner of the steamer Miranda contracted to tow a large raft of logs by l6a from Port Joggins, Nova Scotia, to New York. The tow left Port Joggins on the 6th of December, 1887. 'On the 18th, in the midst of a heavy gale, the toWing haw-' sers parted. The steamer lay by the raft for a time, and then started for New York, arriving there on the.22d. The raft !;Iacame a total loss. Suit was brought to recover for the loss of the raft, and a cross-action to recover the towage money under the contract. The raft-owner claimed various faults in the Miranda: (1), That the original contract had !;Ieen by an agreement that the raft should be towed to Eastport for orders, and not directly to New York, which modification liad. been' violated. Held, that such agreement;wB$ not proved. (2) That the towwas taken to sea Qf a of aboard .the Mirand;a. Held, that the charter-party contamed no provlslon WhlCh gave anyone POWEll' to direct tlie master' of the Miranda where to go, and. on the evidence,the D:ll'Iilter. committed no breacb of duty in going as he did, for at the time he. tnade· such termination the weather was fine, and the' danger of a voyage to New York was not so obvious as to make the attempt negligence. (3) T,hat the contract. wa.s vio-, lated wben the master determined to go outside Nantucket shoals, instead .of through Vineyard sound. Held that,under the then known facts.of the availabil" ity of Vineyard sound for tbe passage of such a tow, it was no breach of the mas. ter's duty.to omit to go that sound. (4) That the master's failure to keep near ports of safety caused the loss. Held that, under the condition ofweath'el' which existed wben the master determined to outside, such failure was no breach Of duty. (5) That the Miranda had insuftlclent hawsers and stores. Hela. that such insuftlClent provisioiling was not proved. (6) That there was fault in: not sooner sending the Miranda out again to look for the raft after arrival. of the steamer at New York. Beld, tbat tbis was no faUlt, as by the time the ste&mer's. necessarv repairs were finished it had become evident that further search was less. The tibel for the loss of the raft was therefore dismissed, and the cross-libel for the towage money
In Admiralty. Action by Leary, owner of a raft known as the "Joggins Raft." against the steamer Miranda, for negligence in towage, resu:lting in the loss of the raft. Cross-action by the owner of the Miranda for towage money. John Berry, (F. A. Wilcox, advocate,) for Leary. Butler, Stillman HUbbard, fqr'the Miranda.
BENEDICT, J. These are cross-actions. The firllt is brought to re;cover damages for an alleged breach of a contract made between the libelant Leary and the owners of the steamer Miranda for the towage of a log raft from New Brunswick to New York, the raft having been lost on the vOy/lge,and, as the libelant Leary asserts, by the ·fault of the steamer. The. second action is brought by the owners of the Miranda against James'D. Leary to recover compensation for towing the raft, demurrage"expenses, etc., according to the stipulations of the contract. The evidence tha1:iin Summer, and autumn of 188'7 a log raft IRepol'ted by Edward G. Benedict, Esq., of the New. York bar.