WARD, Circuit Judge. This is a libel against the steamship Margaretha, in rem, and against Giacomo Calo, her owner, in personam, to recover damages for refusal to load a cargo of naval stores from Savannah to Bristol at 13 shillings per ton under charter party dated August 19, 1905. The charter party not having been entered upon, there was no right against the steamship in rem (The Monte A [D. C.J 12 Fed. 331); but by an order entered on stipulation of the parties, which is not printed in the record, security given to release the vessel is to stand as if given by the respondent to release property covered by foreign attachment in an action in personam.

The defense is that the owner never authorized the charter to be made. The vessel was offered to the libelants by Bennett, Walsh & Co., of this city, for a cargo of naval stores-i. e., barrels of rosin, tar, or turpentine-from Savannah to Bristol. Bennett, Walsh & Co. derived their authority to sign by cable from Rob M. Sloman, Jr., of Hamburg, who derived his authority by cable from the owner, Giacomo Calo, of Tunis, Africa. The vessel is a tank steamer, having 14 tanks for liquid cargo in bulk, 7 on each side, and a hold forward for general merchandise. She was capable, however, of loading naval stores into her tanks, though at a greater expenditure of time and money, because of the small size of the hatches, which were intended for liquid cargo. The charter being at a rate of freight per ton, this difference would fall upon the owner. It is quite clear that the owner did not intend to authorize a charter for solid cargo in the tanks, but the District Judge held that the cables he received from Sloman did not justify his conclusion that the cargo offered for the tanks was to be liquid. He had been negotiating for a cargo of oil in tanks and general merchandise in the forward hold to the Mediterranean, which fell through. The subsequent cables which resulted in the charter under consideration tell their own story:

August 14th.

Bennett to Sloman: Margaretha the order quoted is now filled Mediterranean port, offer your firm subject to reply by 3 p. m. today, Savannah to Bristol 13/- full cargo naval stores to load and discharge as fast as steamer can receive and deliver, 22% address commission.

August 14th.

Sloman to Calo: Mediterraacan order gone I have an offer for Margaretha subject to answer New York three o'clock today Savannah Bristol 13/full cargo loading and discharging as fast as the steamer can 5% total commissions telegraph instantly whether you entertain this business.

August 14t.

Bennett to Sloman: Margaretha we repeat offer.

August 15th.

Calo to Sloman: 13/- too low if you can increase offer I prefer Mediter

ranean.

August 15th.

Sloman to Bennett: Margaretha your rate is too low impossible to work basiness at your figures owners prefer Mediterranean.

August 18th.

Calo to Sloman: Margaretha free in August would accept Savannah Bristol if better impossible 13/- full cargo including hold for merchandise. Urgent answer.

August 18th. Sloman to Bennett: Margaretha owners say if you cannot do better accept Savannah to Bristol .13/-.

August 18th.

Bennett to Sloman: Margaretha we confirm charter answer if all is in order.

August 19th.

Sloman to Bennett: Margaretha will telegraph as soon as we hear from

owners.

August 19th. Calo to Sloman: Failing freight Savannah offer freight possibly petroleum for Mediterranean.

August 19th. Sloman to Calo: New York telegraphs we have chartered Margaretha 13/Savannah Bristol full cargo merchandise impossible better nothing offering petroleum telegraph instantly that everything in order.

August 19th. Calo to Sloman: Agreed I give orders to Margaretha presently New York to sail to Savannah advise charterers to negotiate directly with the captain telegraph me urgently name of charterers.

As soon as the owner learned that solid cargo was to go into the tanks he repudiated the charter entirely. It is said that his cable of August 18th, by expressly mentioning merchandise for the forward hold, plainly showed Sloman that he was expecting liquid cargo in the tanks. If the use of the words "merchandise in the forward hold" was intended to express this distinction, the owner should have perceived from Sloman's answer, "Full cargo merchandise * * nothing offering petroleum," that the whole cargo was to be merchandise and none of it oil. The agency to charter was special, and the burden lay upon the libelants to prove the authority of Bennett, Walsh & Co. and of Rob M. Sloman to sign the charter party for Calo. But we agree with the District Judge that they have done so by the cables. They show that Calo authorized the charter party to be signed for the cargo offered by the libelants, and, although he was laboring under a mistake as to its character, it was a mistake which greater care and attention on his part would have prevented. Everybody concerned was acting in good faith, and the decree is affirmed, with interest and costs.

HAMILTON et al. v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. January 12, 1909.)

No. 126 (5,108).

1. CUSTOMS DUTIES (§ 36*) FACTURES OF PAPER." Plain paper was stamped by a single operation into shapes with lacelike effects, which are known as tops or doilies, and are used for placing on the tops of packages of candy, fruit, etc., or under finger bowls. Plain paper might have been used for the same purpose, except that it would not have been so pleasing. Held that, as the improvement of the original material had not interfered with its distinguishing characteristics, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

CLASSIFICATION-LACE PAPER-"PAPER”—“MANU

it was dutiable as "paper," rather than as "manufactures of paper." under Tariff Act July 24, 1897, c. 11, § 1, Schedule M, pars. 403, 407, 30 Stat. 189 (U. S. Comp. St. 1901, p. 1673).

[Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 36.*

For other definitions, see Words and Phrases, vol. 5, p. 4362: vol. 6, pp. 5160-5161.]

2. CUSTOMS DUTIES (§ 36*)—“PRINTED MATTER."

Paper used for box tops and similar purposes was printed with trademarks and business names and addresses, and in some instances with floral or other decorative designs. Held, that the authorities would justi

fy its classification as "printed matter," under Tariff Act July 24. 1897, c. 11, § 1, Schedule M, par. 403, 30 Stat. 189 (U. S. Comp. St. 1901, p. 1673).

[Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 36.*

For other definitions, see Words and Phrases, vol. 6, pp. 5563–5564; vol. 8, p. 7763.]

Appeal from the Circuit Court of the United States for the Southern District of New York.

This cause comes here upon appeal from a decision of the circuit court affirming a decision of the Board of General Appraisers (G. A. 6,674, T. D. 28,479), which approved the action of the collector of the port of New York in assessing certain importations as manufactures of paper under Tariff Act July 24, 1897, c. 11, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1626).

William B. Dungar (Everit Brown, of counsel), for appellants.
J. Osgood Nichols, Asst. U. S. Atty.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

LACOMBE, Circuit Judge. The relevant paragraphs are:

"402. Paper hangings and paper for screens or fireboards, and all other paper not specially provided for in this act, twenty-five per centum ad valorem. "403. Books of all kinds, including blank books and pamphlets, and engravings bound or unbound, photographs, etchings, maps, charts, music in books or sheets, and printed matter, all the foregoing not specially provided for in this act, twenty-five per centum ad valorem."

"407. Manufactures of paper, or of which paper is the component material of chief value, not specially provided for in this act, thirty-five per centum ad valorem."

The importations are apparently the same as those before the Circuit Court in United States v. Hensel, 152 Fed. 578, a decision which was not appealed. As shown by the samples, the articles are paper. All of them have been stamped from plain paper, by a single operation, at one and the same time, into shape with lace-like effects. They are used for placing on the tops of boxes or baskets of candy, raisins, fruit, or the like, to improve their appearance, or for putting under finger bowls; and hence they are called "tops" or "doilies." The plain paper might just as well be used for the same purpose, only it would not be so attractive. Except for the pleasing effect, it has been in no wise changed. It is still paper. It has not been made into an article having another use, as it would if manufactured into an envelope, a bag, or a box. In De Jonge v. Magone, 159 U. S. 562, 16 Sup. Ct.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

* * *

119, 40 L. Ed. 260, paragraph 392 of the tariff act of 1883 (Act March 3, 1883, c. 121, § 6, Schedule M, 22 Stat. 510) was under consideration. It provided, as does paragraph 402, supra, for "paper hangings and paper for screens and fireboards, and all other paper, not specially provided for." The court held that it covered paper that had been coated, colored, and embossed to imitate leather, and also paper which had been coated with flock to imitate velvet, saying:

"While, directly speaking, the products in question might be termed manufactures of the particular variety of paper stock employed as their basis, yet the resultant product of such manufacture was a higher and better grade of paper."

The same principle has found expression in numerous other cases, where the original material has been improved without interfering with its distinguishing characteristics. Murphy v. United States (C. C. A.) 162 Fed. 871; United States v. Pierce, 147 Fed. 199, 77 C. C. A. 425; United States v. Knipscher and M. S. D. Company (C. C.) 152 Fed. 590; Brauss & Co. v. United States (C. C.) 120 Fed. 1017; Tilge v. United States (C. C.) 115 Fed. 254. There is no reason to suppose that Congress used the words "all other paper" in paragraph 402, supra in association with "paper hangings and paper for screens," with any different meaning from that given to it when used in paragraph 392 of the act of 1883 in a like association; and we are of the opinion that the articles in suit are covered by the phrase.

Some of the articles have been printed with the trade-marks, name, and address of the manufacturer, and in some instances with floral or other decorative designs. It is contended by the importer that they are "printed matter," under paragraph 403, supra. The authorities warrant such classification. Arthur v. Moller, 97 U. S. 365, 24 L. Ed. 1046; Bonte v. Seeberger (C. C.) 31 Fed. 884. But the question is academic, since paragraphs 402 and 403 impose the same rate of duty. The government relies' upon Kraut v. United States (C. C.) 134 Fed. 701, affirmed by this court 142 Fed. 1037, 71 C. C. A. 684. The articles in that case were not merely paper. They had been manufactured into a distinct article-bags-for use as such, and were dutiable as manufactures of paper; the printing on them being merely incidental.

The decision is reversed.

B. F. DRAKENFELD & CO. v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. Janua. 12, 1909.)

No. 133 (4,992).

CUSTOMS DUTIES (§ 36*)-CLASSIFICATION-DUPLEX PAPER-"PAPER”—“MANUFACTURES OF PAPER."

So-called duplex lithographic transfer paper, which is used in transferring decalcomania designs to pottery, and is produced by pasting together two sheets of paper, one coated with a gummy substance and the other uncoated, is "paper," rather than "manufactures of paper," under Tariff

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Act July 24, 1897, c. 11, § 1, Schedule M, pars. 403, 407, 30 Stat. 189 (U. S. Comp. St. 1901, p. 1673).

[Ed. Note. For other cases, see Customs Duties, Cent. Dig. §§ 115-120; Dec. Dig. § 36.*

For other definitions, see Words and Phrases, vol. 5, p. 4362; vol. 6, pp. 5160-5161.]

Appeal from the Circuit Court of the United States for the Southern District of New York.

This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York, affirming a decision of the Board of General Appraisers, which approved the action of the collector of the port of New York in classifying certain importations for duty as manufactures of paper, under Tariff Act July 24, 1897, c. 11, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1626).

The following is the opinion of the court below:

PLATT, District Judge (orally). The merchandise in question is invoiced and known as "duplex litho transfer paper." It was assessed for duty at 35 per cent. ad valorem under paragraph 407 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule M, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673]); the importers in their protest claiming the same properly dutiable at 25 per cent. ad valorem under paragraph 402 of said act. Other claims were set forth in the protest, but were not insisted upon by counsel upon argument. Said paragraphs are as follows:

"407. Manufactures of paper, or of which paper is the component material of chief value, not specially provided for in this act, thirty-five per centum ad valorem."

"402. Paper hangings and paper for screens or fireboards, and all other paper not specially provided for in this act, twenty-five per centum ad valorem. *

Counsel for the importers relies chiefly upon De Jonge v. Magone, 159 U. S. 562, 16 Sup. Ct. 119, 40 L. Ed. 260, as decisive of the question herein. In the record the parties hereto stipulated "that the merchandise covered by protest 229,768 [which is the protest in question herein] consists of duplex transfer paper manufactured of two sheets of paper pasted together, one coated with a gummy substance, and the other uncoated," etc. It would seem that we have a different article here from that involved in the De Jonge Case. It has gone beyond it, and has become a distinct article in itself, as the result of the process of manufacture it has undergone.

The decision of the Board of General Appraisers is affirmed.

Comstock & Washburn (Albert H. Washburn, of counsel), for appellants.

J. Osgood Nichols, Asst. U. S. Atty.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

LACOMBE, Circuit Judge. The relevant paragraphs are 402, covering "paper hangings and paper screens or fireboards, and all other paper not specially provided for," and 407, "manufactures of paper, or of which paper is the component material of chief value." The article in question consists of so-called "duplex lithographic transfer paper," produced by pasting together two sheets of paper; one coated with a gummy substance, and the other uncoated. It is used in the manufacture of ceramic decalcomanias; the designs being printed on the gum

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes