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One of the definitions most commonly cited is that the term embraces "all marine casualties resulting from the violent action of the elements, as distinguished from the natural, silent influence upon the fabric of the vessel, casualties which may, and not consequences which must occur"; but the rule deducible from all the cases examined is that, when it is proved that the ship was seaworthy at the inception of her voyage, that the cargo was properly stowed and protected, that she was properly provided with pumps, and the same were properly worked; that her hatches were duly secured, and that she encountered on her voyage heavy seas of unusual violence, adequate to strain her seams and cause her to take in an unusual quantity of water, it is for the shipper, under a bill of lading of this character, to show that the damage could have been avoided by skill and diligence, and, there being no such proof in this case, the decree must go for the libelants.


(Circuit Court, D. Minnesota, Third Division. May 12, 1906.)
No. 115 (1,735).


As to foxberries in barrels, with water added to act as a cushion, so as to prevent crushing, held that, in assessing the duty "per quart," provided in paragraph 262, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 16511], the dutiable quantity should be ascertained by the use of the dry quart and not the liquid quart.

On Application for Review of a Decision of the Board of United States General Appraisers.

Charles C. Houpt, U. S. Atty.

S. C. Olmstead, for importers.

AMIDON, District Judge. This is an appeal by the United States from the decision of the Board of General Appraisers (G. A. 6,080, T. D. 26,512), touching an importation of foxberries at the port of St. Paul, Minn., by the Boak Fish Company. The berries are imported in barrels. After the barrels are filled with the berries, water is added, so as to make a cushion between the berries, and prevent them from crushing by their own weight in the process of shipment. The function of the water is not to chemically change the berry or to act as a preservative. It serves no purpose but to protect the berries against crushing. Boak et al. v. United States (C. C. A.) 125 Fed. 599. At the port of entry the water is first drawn off, and the quantity of the berries is then gauged and the number of cubic inches ascertained. The berries are dutiable under paragraph 262, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], at the rate of one cent a quart. The collector at St. Paul measured them by the liquid quart, which contains 5734 cubic inches, whereas the importer insisted that they ought to be measured by the quart·

of dry measure, which contains 67.2 cubic inches. The Board of General Appraisers sustained this position of the importer, and reversed the action of the collector. The government now appeals against the decision of the Board of General Appraisers.

The statute in no way defines the kind of quart by which the berries should be measured, nor is there any other statute of the United States prescribing what substances shall be measured by dry measure and what by liquid measure. In fact, Congress has failed to establish a uniform system of weights and measures, such as it is authorized to do under section 8, art. 1, of the Constitution. Those matters have, in the main, been left to executive practice. In 1830 the Secretary of the Treasury was directed to cause a comparison to be made of the standards of weights and measures in use at the principal customs houses. As a result of that investigation, large discrepancies were disclosed in the weights and measures in use at the different points. Thus, while the Constitution provides that all duties, imposts, and excises shall be uniform throughout the United States, and while the statute in that respect was uniform, still in practice a wide diversity was found. To correct this evil Prof. Ferdinand Hassler, a scholarly German scientist and the first superintendent of the coast survey, was, by resolution of the Senate, directed to prepare for the Treasury Department standards of weights and measures having the necessary degree of precision. After some years of investigation, such standards were prepared, and copies thereof distributed to the several ports of entry. For the purpose of further encouraging uniformity of weights and measures, the Secretary of the Treasury was, in 1836, directed to furnish copies of the standards thus prepared to the Governors of the several states, and in 1881 a similar provision was made for the furnishing of copies of the standards to the several agricultural colleges. In this way, while the standards have failed to attain scientific accuracy, they have been sufficient for practical purposes, and have steadily tended to build up uniformity in weights and I am not aware of any statute or regulation of the Treasury Department prescribing what articles shall be measured by the standards of dry measure and what by the standards of liquid measure. This has evidently been left largely to business experience. In the statutes of the several states, however, specific directions may be found upon this subject. I cite by way of example the statutes of California. Section 3209 of the Political Code adopts as the standards for that state the standards furnished by the United States government, and specifies the contents of each.

Section 3216 provides:

"The standard gallon and its parts are the units or standards of measure of capacity for liquids. from which all other measures of liquids are derived and ascertained."

Section 3218 provides:

"The standard half bushel is the unit or standard measure of capacity for substances that are not liquids, from which all other measures of such substances are derived and ascertained."

Similar provisions will be found in the statutes of other states. These enactments leave no doubt that all articles except liquids ought to be measured by dry measure. dry measure. The foxberries would, therefore, be properly measured by dry measure. In view of the character of the article, this would seem to be the only sensible standard to adopt. The testimony of several retail grocers in St. Paul was taken by the government in this case, from which it appears that only one quart measure is used by them in their establishments. The evidence leaves it doubtful whether that measure is the dry measure or the liquid measure as to its capacity. Such evidence, however, is of no practical worth in determining the question that is under consideration. The fact is that in recent times nearly all articles that we formerly measured by the dry measure quart are now put up in boxes or other receptacles in which they are delivered to the purchaser.

But if the question raised by this appeal were not thus plain, as I think it is, there is another rule by virtue of which the decision of the Board of General Appraisers ought to be affirmed. It is the settled rule of the courts that, wherever any ambiguity is left in tariff statutes, the doubt ought to be resolved in favor of the importer. Hartranft v. Wiegmann, 121 U. S. 609, 7 Sup. Ct. 1240, 30 L. Ed. 1012; Twine Co. v. Worthington, 141 U. S. 468, 12 Sup. Ct. 55, 35 L. Ed. 821. The decision of the Board of General Appraisers is therefore affirmed.


(Circuit Court, D. Rhode Island. June 7, 1906.)

No. 2,692.


A suit in a federal court against a board of state commissioners for an injunction, the real purpose of which is to secure the enforcement of a contract between complainant and the state, in accordance with the Interpretation placed thereon by compiainant, the correctness of which is denied by defendants, is one in which the jurisdiction of the court is so doubtful under the eleventh constitutional amendment denying jurisdiction of suits against a state that a preliminary injunction will not be granted.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Injunction, § 309.]

In Equity. On motion for preliminary injunction.

Vincent, Bass & Barnfield and Walter B. Vincent, for complainant. Wm. B. Greenough, Atty. Gen. of Rhode Island, for defendants.

BROWN, District Judge. I am of the opinion that the complainant's rights are so doubtful that this court would not be justified in granting a preliminary injunction. The contract between the state of Rhode Island and the complainant, relating to the steel structure of a bridge upon the site of the present Rhode Island Stone Bridge, pro

vides, in section 5 of the specifications, for the loads for which the steel structure shall be designed. Controversy has arisen over the following language:

"The live or moving load shall be taken at 100 pounds per square foot of area of roadway and sidewalk, in addition to one loaded electric car in any position on the bridge at the same time. The electric car load shall be taken at 80,000 lbs.," etc.

Plans submitted by the contractor were rejected by the engineer, on the ground that they did not conform to these requirements. In disposing of this petition, it is not necessary to consider other objections made by the engineer.

The complainant has repeatedly, and in most positive terms, refused to accept the engineer's interpretation of the contract. Although the contract provides that the engineer shall decide as to the meaning and intent of the specifications, complainant insists upon his own interpretation of this clause, which is, in substance, that the steel structure shall be designed, not to carry the electric car load of 80,000 pounds in addition to the live or moving load of 100 pounds per square foot of roadway and sidewalk, but to carry either, and not both, of these loads; in other words, that the provision is not for combined loads, but for alternative loads. The complainant seeks to support his interpretation of the contract by evidence of an understanding between him and one or more of the commissioners and the engineer prior to the execution of the contract, and thereby to explain, control, and qualify the language of the contract. It is doubtful whether this evidence is of any value from a legal point of view, in view of the decisions of the Supreme Court in The Barnstable, 181 U. S. 464, 472, 21 Sup. Ct. 684, 45 L. Ed. 954, and Seitz v. Brewers' Refrigerating Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837.

Passing this question, there arises the further question whether the parties to the contract have not, by their own agreement, conferred upon the engineer full power to determine such a question of interpretation of the specifications as that which complainant has raised.

It is not necessary, however, to consider the grounds upon which the complainant bases the argument that he is not bound by the interpretation of the engineer, for there is the further and most serious objection that this court has no jurisdiction for the reason that the suit is, in effect, a suit against the state of Rhode Island, and therefore substantially within the prohibition of the eleventh amendment to the Constitution of the United States, which declares that:

"The judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

The gist of the case is the interpretation of a contract between the state of Rhode Island and the contractor. It is plain that the state of Rhode Island has a substantial interest in the question, what shall be the strength of the structure which is to be built by the contractor? Whether the state is a party is not to be determined by the nominal parties to the record, but by the effect of the judgment

or decree which is sought. If this complainant could prevail, the engineer would be required to accept plans which in his judgment do not conform to the contract between the complainant and the state.

I am unable to accept the complainant's contention that this bill seeks the enforcement by state officers of purely ministerial duties imposed by law. The complainant seeks to establish a particular interpretation of the contract, and to introduce evidence in aid of this interpretation. He seeks to enjoin particular acts, on the ground that they constitute a violation of his rights under the contract. It was said in Re Ayers, 123 U. S. 443, 503, 8 Sup. Ct. 164, 182, 31 L. Ed. 216: "The defendants as individuals, not being parties to the contract, are not capable at law of committing a breach of it. There is no remedy for a breach of a contract, actual or apprehended, except upon the contract itself, and between those who are by law parties to it."

See, also, pages 489, 491, 501, 503, of 123 U. S., page 164 of 8 Sup. Ct., 31 L. Ed. 216.

The decisions of the Supreme Court upon this subject are numerous. On behalf of the defendants, the following cases are cited: In re Ayers, 123 U. S. 443, 497-507, 8 Sup. Ct. 164, 31 L. Ed. 216; Union Trust Co. v. Stearns et al. (C. C.) 119 Fed. 790, 793; Harkrader v. Wadley, 172 U. S. 148, 159, 19 Sup. Ct. 119, 43 L. Ed. 399; Minn. v. Hitchcock, 185 U. S. 386, 22 Sup. Ct. 650, 46 L. Ed. 954; Chandler v. Dix, 194 U. S. 590, 24 Sup. Ct. 766, 48 L. Ed. 1129; Cunningham v. R. R. Co., 109 U. S. 446, 456, 3 Sup. Ct. 292, 27 L. Ed. 992; Pennoyer v. McConnaughy, 140 U. S. 1, 8, 9, 11 Sup. Ct. 699, 35 L. Ed. 363; Louisiana v. Jumel, 107 U. S. 711, 2 Sup. Ct. 128, 27 L. Ed. 448; Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. 91, 27 L. Ed. 468; Hagood v. Southern, 117 U. S. 52, 6 Sup. Ct. 608, 29 L. Ed. 805. The complainant cites especially Tindal v. Wesley, 167 U. S. 204, 17 Sup. Ct. 770, 42 L. Ed. 137; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819; Davis v. Gray, 16 Wall. 203, 21 L. Ed. 447; Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699, 35 L. Ed. 363; Board of Liquidation v. McComb, 92 U. S. 531, 23 L. Ed. 623; Fitts v. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, 43 L. Ed. 535.

Having in mind the distinctions drawn in these cases between cases against state officers to enjoin or compel the performance of purely ministerial duties, suits to enjoin action under unconstitutional statutes, and suits which, though nominally against officers, are held to be, in substance, suits against the state, I am strongly inclined to the view that the present case is of the latter class.

Petition for a preliminary injunction denied.

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