to the stream north and south, immediately barges and in failing to see that they were south of the coal pier. safely moored, so as not to cause injury to other vessels at its dock, including the Universe. The four barges, Mary F. Scully, Josephine, Queen Anne, and Francis Scully, were lying in pairs at this bulkhead, directly to the south of the Universe-the first pair being the Josephine, with her port side to the dock and her bow downstream, and Mary F. Scully, moored outside and alongside of the Josephine, also with her bow downstream; the second pair being the Francis. Scully, with her starboard side to the dock, about 25 feet to the south of the Josephine, and her bow upstream, and the Queen Anne, moored outside and alongside of the Francis Scully, with her bow downstream. The Queen Anne was made fast to the Francis Scully by means of a 3-inch line running from her second forward cleat to the stern of the Francis Scully, where it was doubled and carried to her own forward cleat, and by a 4-inch stern line doubled up several times. She also had a new 5-inch line run ning from her middle bitt to the dock, where it was securely fastened at a point downstream from the stern of the Francis Scully. Until shortly before the accident the ice had been solid along the docks, which extended about 200 feet out into the Hudson river; but shortly before the accident the ice to the north and south of the barges was broken by the operation of a tug. The tide, which was flood, moving upstream against the ice, caused the lines of the Francis Scully to part, with the result that this barge and the Queen Anne were carried into collision with the Mary F. Scully and the Josephine, whose lines in turn parted. In the resulting mêlée the collision with the Universe occurred. William F. Purdy, of New York City, for libelant. Park, Mattison & Lynch, of New York City (Anthony V. Lynch, Jr., and Frank P. Treanor, Jr., both of New York City, of counsel), for respondent Federal Sugar Refining Co. Thomas E. Murray, Jr., of New York City, for claimant Neville. Macklin, Brown & Van Wyck, of New York City (Paul Speer, of New York City, of counsel), for claimant O'Boyle. THACHER, District Judge (after stat ing the facts as above). No one saw the sequence in which the Queen Anne's line to the dock slipped around the bitt and the lines of the Francis Scully parted. Plested, the captain of the Francis Scully, testified that he was awakened by the operations of the tug, got up, and started his fire. He continued his testimony as follows: "Q. Captain, after you dressed, forgetting all about this towboat, tell me when you saw the first indication of the boats breaking away and how it happened. A. I happened to glance over towards the dock, and I saw the boats starting to move. I opened my door, and just as I did my line was creaking. When I got outside of the door, the line from the middle cleat from the Queen Anne, that was fast to the eye on the dock, was in the ice. After that I went around to the starboard side of my boat to render my lines, to ease the surge on my lines, so that they would not carry away. But I could not get there fast enough. The line was gone.' Both he and the captain of the Universe agree that the Queen Anne's line to the dock did not part, but that it slipped on the bitt aboard the Queen Anne, dropping down upon the ice. The libel was dismissed as against the Mary F. Scully and the Josephine upon the trial. In behalf of the Francis Scully it is claimed that her lines did not part until after the 52-inch line from the bow of the Queen Anne to the dock had loosened or slipped on the bitt, thus throwing a great strain upon the lines of the Francis Scully, [1-4] Capt. Plested's statement, that his to which the Queen Anne was made fast. boat was already in motion before he left his In behalf of the Queen Anne it is contend-cabin, satisfies me that his lines had aled that its line to the dock did not slip until after the lines of the Francis Scully, which it is claimed were old and worn, had broken, and that therefore the accident was due, not to the failure of the Queen Anne's line to hold, but to the insufficiency of the lines used by the Francis Scully. The libelant charges the Federal Sugar Refining Company with fault in placing the ready parted then. But still there is no direct testimony to show whether they parted before or after the line from the Queen Anne slipped on her bitt. It is, however, to be plainly inferred from the circumstances that the lines of the Francis Scully must have parted first. So long as the lines of the Francis Scully held, she could not move appreciably, and if she did not move, except 14 F. (2d) 321 as her lines permitted, there was nothing to cause the line to the Queen Anne to slip off the bitt and fall on the ice. Further more, I am satisfied from the evidence that the lines of the Francis Scully were old and worn, and not adequate to withstand the strain resulting from conditions which were obvious. After the accident these lines were sent to a junk shop. There was no effort to produce them on the trial, and the inference may therefore be properly drawn that, if they had been produced, their defective condition would have been disclosed. I am therefore constrained to find the Francis Scully at fault, and that the proxi mate cause of collision was the defective condition and consequent parting of her lines. No one can say that the single line from the Queen Anne to the dock alone would have held the two barges, if it had not rendered under the strain put upon it after the Francis Scully had parted all her lines. In any event, the fact that it was not so securely fastened as not to slip under the added and extraordinary strain is not sufficient to charge the Queen Anne with fault. There is nothing to show, aside from the mere fact that it did slip under a strain which it was not intended to withstand, that it was not properly fastened. Certainly there was no duty upon the outside barge to be so securely moored to the shore as to save the inside barge after all of her lines had parted. The Francis Scully was owned, controlled, and operated by the respondent Federal Sugar Refining Company. As owner of this barge, its liability for the damage resulting from the neglect of its servants charged with the responsibility of seeing that she was properly moored is clear, and it becomes unnecessary to consider the additional ground for liability alleged by reason of the control exercised by it over vessels lying at its dock. States, and may be maintained against the United States collector of customs and United States attorney in charge of such matters 2. Injunction 28-Absence of evidence that liquor-laden vessel seized on high seas was unlawfully engaged held to warrant injunction against institution of any proceedings against it, or its cargo, master, or crew. Absence of evidence that liquor-laden vessel, seized on high seas and held for investigation, was engaged in conspiracy to bring liquor into United States, or had entered a collection district, within Tariff Act, or was engaged in continuous transportation of liquor into United States by aid of smaller boats, held to warrant injunction against institution of any master, or crew. proceedings against such vessel, its cargo, In Equity. Suit for injunction by Ernest Haylock, as master of the schooner Evelyn D., against M. O. Dunning, United States Collector of Customs for the port of Savannah, Ga., and another. Decree for complainant. Connerat & Hunter, of Savannah, Ga., for complainant. of Savannah, Ga., for respondents. Ernest BARRETT, District Judge. Haylock, as complainant, brought his bill against the aforesaid respondents, averring that he was master of the schooner Evelyn D., and as such the lawful bailee and agent the authority and duty of safeguarding and of the owner of said schooner, charged with protecting his vessel and cargo; that he and the mate of the schooner are citizens of the republic of Honduras, two of the crew are Cubans, and three are Spaniards; lector of customs for the port of Savannah, that M. O. Dunning is United States colresident in Savannah, and Charles L. Redthe Southern district of Georgia, actively in ding is assistant United States attorney for charge of the prosecutions that may be instituted by the United States in the Savannah division of the Southern district of Georgia; that James Miller, a British subject, resident of the island of Grand Caiman, is the owner of the schooner, which schooner has a provisional registry under the republic of Honduras, with a cargo man(District Court, S. D. Georgia, Savannah Divi- ifested for St. Pierre-Miquelon; that while THE EVELYN D. HAYLOCK V. DUNNING, Collector of sion. August 10, 1926.) 1. United States 125-Suit to enjoin proceeding against liquor-laden vessel held not against the United States, but is maintainable against federal officers. Under the facts, suit to enjoin institution of any proceedings against liquor-laden vessel seized on high seas held not suit against United 14 F.(2d)-21 on voyage on the 12th day of May, 1926, at a point more than 351⁄2 miles from the nearest land or point of the United States, said schooner, cargo, and crew were seized by the United States Coast Guard cutter Yamacraw, and over the protest of complainant brought into the port of Savannah, and there kept for 46 days under guard; that the schooner is worth at least $12,000, and the cargo is of great value; that there has been great expense in the detention, and such expense will continue; that the only reason alleged for the seizure and detention of such schooner, cargo, and crew was that it is for the purpose of investigation; that neither your complainant, nor the said schooner, nor crew were guilty in any way of any crime against the United States, and were on the high seas at the time of the seizure, and there was no probable cause for such seizure; that complainant was advised by said assistant United States attorney that appeal to this honorable court for relief and protection of said schooner, cargo, and crew against a further large loss would be useless, inasmuch as a libel for condemnation would then be filed to prevent a hearing on the said rule, and delay the liberation of said schooner for some months; that said seizure and subsequent detention amount to a deprivation of personal liberty and private property without due process of law, or any process of law, or justification or sufficient probable cause therefor; that your complainant has been advised that he cannot secure the release of the said schooner and cargo by giving bond and other security; and that there is no adequate remedy at law. The prayer is, briefly stated, that the respondents be enjoined from interfering with the said schooner, cargo, master, or crew, or from instituting proceedings of any kind against the same. The answer of respondents averred that there had been no "seizure" of said vessel, though it is admitted that the Yamacraw brought the schooner, cargo, and crew into the port of Savannah; that it is the right of the United States to have held the said vessel, cargo, and crew for the purpose of investigation; that the master of said vessel, complainant, was specifically advised that said vessel was formerly named the Nina Sande, and had been engaged in the business of rum runner for the past several years; that at the time the said schooner was boarded "she was engaged in a conspiracy with unknown bootleggers resident in the United States to illegally import intoxicating liquors into the United States through the state of Florida"; that there is probable cause of the said vessel and crew violating the laws of the United States to authorize their detention, and "respondent avers that upon information and belief said schooner Evelyn D. has been engaged in the business of illegally importing intoxi cating liquors into the country for a number of years; he believes that she is the property of American bootleggers operating in the state of Florida; that she has brought thousands of cases of intoxicating liquors into the United States, by conspiring with citizens and residents of the United States to take intoxicating liquors from said vessel while anchored on the high seas and import them into the United States"; "that the conduct of said vessel has been mere subterfuge; that, as a matter of fact, at the time she was boarded she was engaged in the act of making a continuous trip or voyage from foreign shores to the United States, by transshipping her cargo of liquors on the high seas to smaller vessels, which would in turn smuggle intoxicating liquors into the country, all of which was prearranged and understood"; and that said vessel had no legal registry. The facts alleged in the original bill were proved substantially, except as herein indicated. The master of the schooner, complainant herein, testified as follows: The Evelyn D. was formerly the Nina Sande, and was known to witness to have been a well-known liquor boat, and he would not have gone out on her, had her name not been changed. The Evelyn D. held a provisional Hondurian registry granted in Cuba, under which registry she should have immediately proceeded to Honduras to have carried this registration through; but she did not go to Honduras for such purpose, and did not plan to go. He had told the assistant United States attorney at Savannah that he thought the Evelyn D. belonged to Allen W. Johnson, and explained that his statement now made that the vessel belonged to James Miller was because, since coming to Savanah, he had seen a bill of sale to Miller. The bill of sale was not introduced, and Miller had never told witness that the vessel belonged to him, though he had talked to Miller. (There was no evidence as to who Johnson was.) He did not know to whom the cargo of liquor belonged. All he knew about it was that Minor Gwynne, a liquor dealer, had had same placed on board the vessel and told him to cruise along the coast of Florida about 40 miles from the shore, and a vessel would come out from Florida, deliver to witness a bill of lading, and the liquor should be delivered to such outcoming vessel. If the bill of lading did not cover the entire cargo, he was to sell the balance to such persons as might wish to purchase. The witness stated that he had no intention of going to 14 F. (2d) 323 St. Pierre-Miquelon, which destination was if any overt act had been committed in the indicated by the manifest, and that his United States in pursuance thereof, prosecuorders were to deliver the liquor off the tion and condemnation might be successful. coast of Florida. The previous activities Latham v. United States (C. C. A.) 2 F. of the vessel, when known as the Nina (2d) 208 (2); Wharton's Criminal Law Sande, were before the date of the alleged (11th Ed.) §§ 323-330. There is no law bill of sale to Miller, and the Nina Sande under the existing proof which would auhad been once seized by the United States thorize prosecution or libel by either of the government, taken into Tampa, and subse- respondents. quently released. (There was no testimony offered as to who was Minor Gwynne, his citizenship, his activities in this country, if any, by whom the bill of lading was to be issued, or where, or as to the previous activities of the Nina Sande, except her reputation as a liquor boat, and none as to any conspiracy to bring liquor into this country, other than as above stated.) [1] 1. Under the averments of the bill, the respondents are proper defendants, and are subject to be enjoined. This is not a suit. against the United States. Philadelphia Co. v. Stimson, Secretary of War, 223 U. S. 605, 32 S. Ct. 340, 56 L. Ed. 570; Payne v. Central Pac. R. Co., 255 U. S. 228 (5), 238, 41 S. Ct. 314, 65 L. Ed. 598; Colorado v. Toll, 268 U. S. 228 (1), 45 S. Ct. 505, 69 L. Ed. 927. [2] 2. The suspicions in this case are comprehensive, and probably well founded; the evidence is uncontradicted, simple, and within narrow limits. The latter must control. The Evelyn D. was on the high seas when taken in charge by the revenue cutter Yamacraw. There is no evidence proving the charge that she was engaged in a continuous transportation of intoxicating liquor into this country by the aid of smaller boats. It may well be suspected that such was the intention of the schooner's master, but "there can be no violation until there is an attempted entry or introduction of merchandise into this country." U. S. v. 2180 Cases of Champagne, 9 F. (2d) 710 (C. C. A. 2d Cir.). Neither vessel nor cargo can be forfeited for violation of the existing Tariff Act (42 Stat. 858), when they had not been shown to have been within any collection district, and when not shown to have made any sales of liquor to persons intending to introduce it into commerce of the United States. The Sagatind, 11 F. (2d) 673 (C. C. A. 2d). So far as is disclosed, the sale, if made, might have been completed on the high seas. That is no crime against the United States. The Over the Top (D. C.) 5 F. (2d) 838. There is no evidence to support the charge of conspiracy. If there were, and It is therefore ordered that both respondents are enjoined from instituting any proceedings against the Evelyn D., its cargo, its master, or crew. 3. Internal revenue 25-Showing that tax payer's books did not reflect his income held insufficient to warrant assessment of income tax on basis of average profit of those engaged in like business (Revenue Act 1921, § 212 [Comp. St. § 6336af]). Where revenue agent had access to taxpayer's records, and, after examining them 1% days, left, saying that, due to volume of books, he would base his report for assessment of income tax on amount of sales according to ing that taxpayer's books did not reflect his sales record, held, there was insufficient showincome to warrant assessment, under Revenue Act 1921, § 212 (Comp. St. § 6336%f), on basis of average percentage of profit of those engaged in taxpayer's business, as determined by statistical department. cate for review of order of referee, disallowing the claim of the United States for taxes. Order affirmed, and petition dismissed. J. Howard Reber, of Philadelphia, Pa., for trustee. George W. Coles, U. S. Atty., and Claude Olwen Lanciano, Asst. U. S. Atty., both of Philadelphia, Pa., for the United States. THOMPSON, District Judge. The collector of internal revenue, on behalf of the United States, filed with the referee a proof of debt for income taxes under the Revenue Acts of 1918 and 1921 for the following amounts: For the taxable year 1919, $15,778.27; for 1920, $10,000.84; and for 1921, $1,647.94—a total of $27,427.05, with interest from January 17, 1924, at 1 per cent. per month, until paid. The trustee duly filed objections to the allowance of the claim, and after hearing, at which testimony was taken, the referee made an order disallowing the claim. The matter comes before the court upon a certificate for review of the referee's order. The petition in bankruptcy was filed June 3, 1922, and adjudication entered August 10, 1922. The bankrupt had filed an income tax return for the year 1919, stating his,net taxable income as $22,620.01, and the tax thereon $2,361.60, was paid by him. He had also filed income tax returns for the years 1920 and 1921, setting forth that his net taxable income was below the statutory requirements and no tax was due. The collector assessed the additional taxes on May 20, 1924, after the petition in bankruptcy was filed. It appears from the testimony taken before the referee that the assessment was arrived at by the following method: The Statistical Department of the Bureau of Internal Revenue has found that the average net profits of those engaged in the business in which the bankrupt was engaged, based on their gross annual sales, was as follows: For the year 1919, 6.51 per cent.; for 1920, 6.51 per cent.; for 1921, 5.46 per cent. The revenue agent, who computed the extra assessments, ascertained from the books of the bankrupt the amount of his gross sales for the respective years, and multiplied that by the average percentage applicable to such year, from the information derived from the figures of the Statistical Department. As the agent who made the assessment was no longer in the service, his figures were interpreted by an agent still in the service. The method of computation followed is claimed to be under the authority granted the Commissioner of InterRevenue Act of 1918 (Comp. St. § 6336%f) nal Revenue by section 212 (b) of the and section 212 of the Revenue Act of 1921 (Comp. St. § 6336sf), providing as follows: "The net income shall be computed upon the basis of the taxpayer's annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made upon such basis and in such manner as in the opinion of the Commissioner does clearly reflect the income." [1] Section 64 (a) of the Bankruptcy Act (Comp. St. § 9648), making taxes preferred claims, provides that a trustee shall be credited with the amounts paid therefor upon filing receipts of the proper public officers, and that "in case any question arises as to the amount or legality of any such tax the same shall be heard and determined by the court." The effect of this provision is that, where a claim for income taxes is made against a bankrupt estate, the ordinary rules of procedure governing collection of taxes against individuals, such as appeal or claim for abatement, and payment of the tax under protest, with the only remedy against their enforced payment a suit instituted for their recovery, do not apply to a trustee in bankruptcy. The purpose of the Bankruptcy Act is that the bankrupt estate shall be promptly wound up, and ordinary procedure would delay its final settlement. In re Wenatchee Heights Orchard Corporation (D. C.) 212 F. 787; In re Anderson (D. C.) 275 F. 397; affirmed (C. C. A.) 279 F. 525; In re Fisher Corporation (D. C.) 229 F. 316. And any question which arises as to the amount or legality of taxes must be heard and determined by the court with a view to ascertaining the amount really due. In re Williams Oil Corporation (D. C.) 265 F. 401. [2] The court is therefore not concluded by the findings of the taxing authorities. New Jersey v. Anderson, 203 U. S. 483, 27 S. Ct. 137, 51 L. Ed. 284. The question to be determined, then, is whether the evidence upon which the taxes were attempted to be assessed is such as to show a lawful imposition of taxes in the amount claimed or in any amount. The so-called regulations of the Commissioner providing for the average |