C.) 119 Fed. 483, the question arose whether sago flour was within the free list provision for 'sago, crude.' It was shown that sago pulp or pith, known as 'raw sago,' a cruder product than sago flour, was dealt in among the natives in the country where the sago grows, but that the crude product would not bear transportation to this country. The court held that sago flour should be admitted as 'sago, crude,' upon the ground that it was the crudest form of sago imported; the only manipulations which it underwent in the foreign country being those necessary to fit it for importation. Catgut strings produced by cutting, cleaning, and drying the intestine of the sheep, and shown to be the crudest form in which catgut was imported, were held to be free as 'catgut unmanufactured,' in Davies, Turner & Co. v. U. S. (C. C.) 115 Fed. 232. In the Booth Case, G. A. 4,388 (T. D. 20.884), sheepskins preserved in pickle for the purpose of preventing putrefaction and for the convenience of transportation were held not to be thereby removed from the category of raw

skins.

"I am not unmindful of the fact that, in Alart v. U. S., 61 Fed. 500, the Circuit Court for the Southern District of New York held that cucumbers and cauliflowers packed in dry salt, for convenience and preservation during transportation only, were dutiable as 'vegetables, prepared or preserved,' rather than 'vegetables in their natural state.' It is apparent, however, that much less latitude of construction was permitted in that case than would have been possible had the second provision read 'vegetables not prepared or preserved.' An article may be crude or unprepared for the purposes of classification under the tariff laws, notwithstanding it has been somewhat advanced from its natural or original condition. Roessler v. U. S. (C. C.) 94 Fed. 822; In re Reboulin, G. A. 5,547 (T. D. 24,917). In this connection it may also be said that the term 'prepared' is a much broader term than the word 'preserved.' So, in Presson v. Russell, 152 U. S. 577, 14 Sup. Ct. 728, 38 L. Ed. 559, fish cured with dry salt were held to be dutiable as 'fish prepared or preserved.' But the preservation by salt in connection with fish is not such a preserving, either with reference to the kind or the purpose, as the preserving of lemon and orange peel in brine for transportation. Fish preserved by means of salt and brine are kept indefinitely by reason thereof; while the evidence is clear that, in the case of lemon and orange peel, decay would merely be arrested for a limited time-a few months at the longest.

*

"I am aware that a different conclusion from that arrived at in this case was reached by the Board with respect to the same merchandise in its decision in Re Causse, G. A. 4,439 (T. D. 21,156). *** I think, however, that G. A. 4,439 was decided upon an insufficient showing of facts and a wrong interpretation of the law, and hence should be overruled. * The view I take is strengthened by the dictum of the Circuit Court of Appeals for the Second Circuit, in Hills Brothers Co. v. U. S., 123 Fed. 477, 59 C. C. A. 412. In that case certain lemons cut in two and immersed in brine, for the purpose of arresting decay during transportation, had been classified as 'lemon peel, preserved,' under said paragraph 267 of the present act. The court reversed this assessment on the ground that the merchandise was not lemon peel; but it remarked in the course of its decision that it was 'questionable whether lemon peel immersed in brine is "preserved" in a commercial sense or within the meaning of paragraph 267.' This, I think, is a strong indication that the conclusion here reached would be supported by the courts.

"Furthermore, the construction adopted gives effect to both paragraphs 267 and 627. Any other view would leave hardly anything upon which paragraph 627 could operate, because it does not appear that lemon and orange peel is imported or known as a commercial commodity in any forms except those mentioned in paragraph 267, and that which is substantially like the form involved in this case; that is, preserved by brine, or in some simple way, to arrest decay, and for that only, for the purposes of transportation. Within this latter class fall, I think, orange peel dried by mere exposure to the atmosphere (as distinguished from that which is kiln-dried), which was held to be free under paragraph 267 in Board decision in Re Stallman, G. A. 4,161 (T. D. 19,422), followed in Re Hilliers, G. A. 4,660 (T. D. 22.020). In the latter case it was urged that to exclude peel thus prepared would render paragraph 627 nugatory.

*

"The protests should be sustained in so far as they claim free entry under paragraph 627, and the collector's decision reversed in each case."

Comstock & Washburn (J. Stuart Tompkins, of counsel), for importers.

D. Frank Lloyd, Asst. U. S. Atty.

WHEELER, District Judge. This is orange and lemon peel in brine, classified as preserved under Act July 24, 1897, c. 11, § 1, Schedule G, par. 267, 30 Stat. 172 [U. S. Comp. St. 1901, p. 1651], which lays a duty of two cents per pound on "orange peel or lemon peel preserved, candied or dried," against a protest that it comes under paragraph 627, § 2, Free List, 30 Stat. 200 [U. S. Comp. St. 1901, p. 1686], which makes free "orange and lemon peel not preserved, candied or dried." The brine protects the peel from decay, and does not affect its properties or quality. The Board divided in opinion, setting forth the different views fully to which but little can be added. It rather seems, however, that the brine is a mere covering or packing for protection in transportation as from cold or heat, and which when separated from the peel leaves that in its natural state, as the taking off of any covering would; and that by this protection the peel is not preserved as such fruits or fruit products are within the meaning of the tariff law.

Decision reversed.

BURN LINE, Limited, v. UNITED STATES & AUSTRALASIA S. S. CO.

(District Court, S. D. New York. January 15, 1907.)

1. SHIPPING-CHARTER PARTY-PREPAID FREIGHT.

The general rule that freight prepaid, but which is not earned by delivery of the goods, must be refunded, does not apply as between owner and charterer, where by reference in the charter party the bills of lading are incorporated therein, and they contain a provision that freight prepaid shall be considered as earned, ship lost or not lost.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Shipping, § 514.] 2. SAME LIABILITY OF CHARTERER FOR FREIGHT-NEGLIGENT LOSS OF VESSEL. Under a charter party by which the owner agreed to hold the charterer free of and indemnified against claim for loss or damage to cargo arising through the act, neglect or default of the master or crew, the charter freight is not recoverable where the ship was lost by stranding due to negligent navigation.

In Admiralty. Suit for charter hire. On exceptions to libel and

to answer.

Convers & Kirlin, for libellant.

Wing, Putnam & Burlingham, for respondent.

ADAMS, District Judge. This is an action brought by the Burn Line, Limited, owner of the steamship Oakburn, to recover from the United States and Australasia Steamship Company, a second install

ment of hire alleged to be due under a charter of affreightment, dated January 24, 1906, amounting to $14,964.48.

The libel alleges as follows:

"Third. On or about January 24, 1906, at New York, a charter party in writing was entered into between the libellant and the respondent by which the steamship Oakburn was chartered to the respondent to carry a cargo from New York to several named ports in Australia. The charter party contained, among others, this clause:

5. Freight to be a lump sum, say:-£8225 if steamer discharges at three ports in Australia.

£9225 if steamer discharges at two ports in Australia and four ports in New Zealand.

£8725 if steamer discharges at four ports (4) New Zealand only. To be paid in New York as follows:

One-third (1/3) less 32 per cent. to cover interest and insurance, with demurrage at loading port, if any, to be advanced 10 days after final departure of the steamer from New York, Bills of Lading, as presented by Charterers having been duly signed; One-third (1/3) in London two months after sailing of steamer without discount, and the Balance after right and true delivery of the cargo in Australia and/or New Zealand less 22 per cent. commission. Any freight which may be payable by Bills of Lading at ports of discharge, not exceeding the said balance to be accepted by owners without recourse to Charterers. The owners to pay all port charges, pilotages, and all customary charges paid by Steamers, and to pay Charterers an address commission of 22 per cent. on the amount of Freight, to be deducted from the first payment of Freight.'

A copy of this charter party is hereto annexed, marked Schedule ‘A,' and made a part of this libel.

Fourth. Thereafter the steamship Oakburn was provided by the respondent with a cargo at New York, under the above mentioned charter party, and was ordered by the charterers to proceed to two ports in Australia and four ports in New Zealand. The steamer with the cargo that had been provided as aforesaid. sailed from New York on her voyage to the above mentioned ports on April 18, 1906.

Fifth. In reliance on the charter party and the promise of the respondent to pay freight as therein provided the libellant incurred expense in bringing the vessel to New York, in connection with the loading of the vessel at that port in providing her with bunker coals and otherwise in preparing her for the voyage to Australia under the charter party. This expense would not have been incurred by the libellant but for the promise of the respondent as aforesaid.

Sixth. All the cargo loaded on the Oakburn at New York was procured for the vessel by the charterers and was the property of third parties other than the charterers. For all this cargo the charterers caused to be prepared and presented to the master of the vessel for his signature bills of lading on a printed form, of which a copy is hereto annexed, marked Schedule 'B,' and' made a part of this libel. All the bills of lading were signed by the master as presented to him. All the bills of lading issued for the cargo contained, among others, this clause:

'Freight prepaid is considered earned at time of payment, and is not recoverable ship lost or not lost.'

All the bills of lading contained the notation that the freight thereunder was prepaid, except as to the sum of £135:18:6, which was collectible at ports of destination.

Seventh. Freight amounting to £9225 or more on account of the cargo shipped on the Oakburn under the bills of lading above mentioned was prepaid to and collected by the respondent at the port of New York.

Eighth. The first installment on account of freight under the above mentioned charter was payable in New York on April 28, 1906, and amounted to £3075. In making payment on account of this installment, the respondent made certain deductions as follows:

The net amount paid by the respondent on account of the first installment was £2715:15.

Ninth. The respondent has prepared and submitted to the libellant's agents a statement of account dated May 3, 1906, of which a copy is hereto annexed, marked Schedule 'C,' and made a part of this libel.

Tenth. According to the terms of the charter party, the second installment of freight amounting to £3075, was payable in London on June 18, 1906. On or about May 21, 1906, the steamship Oakburn and her cargo were lost by perils of the sea. This installment was not paid by the respondent to the libellant, although due demand has been made on behalf of the libellant that tnis installment be paid at the office of Baring Bros. & Co., Ltd, Bankers, 8 Bishopsgate, Within, London.

Eleventh. By reason of the premises, the sum of £3075, or in currency of the United States, $14,964.48, became due and payable from the respondent to the libellant. Payment of this sum has been duly demanded of the respondent by the libellant but has been refused, and the said sum still remains wholly due and unpaid and owing from the respondent to the libellant."

The charter party referred to was as follows:

"United States & Australasia Steamship Co.

11 Broadway, New York, January 24th, 1906. It is this day mutually agreed between the Burn Line Ltd. of Greenock Owners of the Steamship 'Oakburn' * and the United States & Australasia Steamship Company, of New York, as Charterers of said Vessel, as follows:

"3. * the steamer shall proceed with all possible despatch to Three ports in Australia between Fremantle and Brisbane (both inclusive); or to two (2) Australian Ports as above and/or Aukland, and/or and/or Wellington, Lyttelton, and/or Dunedin; with option of ordering Steamer to discharge at Four New Zealand Ports only. If ordered to New Zealand only, Charterers have the option of ordering steamer to commence discharging either at the north or south end of the Islands, always in geographical order, but not exceeding six ports of discharge in all, at Charterers' option, discharging at each port the Cargo for that port in the usual and customary manner agreeably to Bills of Lading, and so end the voyage.

*

5. Freight to be a lump sum, say:

£8.225 if steamer discharges at Three ports in Australia.

£9,225 if steamer discharges at Two ports in Australia and four ports in New Zealand.

£8,725 if steamer discharges at four ports (4) New Zealand only.

To be paid in New York as follows:

One Third (%) less 31⁄2 per cent. to cover interest and insurance, with demurrage at loading port, if any, to be advanced 10 days after final departure of the steamer from New York, Bills of Lading.

*

16. The Master or Owner to attend daily, or when requested, at the Charterers' or Agents' Office to sign Bills of Lading as presented and as customary, and at any rate of freight, without prejudice or reference to this Charter, but Charterers, or their Agents, are authorized to sign Bills of Lading on behalf of the Master and Owners, against written authority from the Master, such authority to be binding upon the Owners. Tally clerks at Owners' expense shall be nominated by Charterers to measure and take a correct account of the cargo as received, a copy of which account with measurements to be handed to the Charterers as required by them.

18. The Owners agree to hold the Charterers free of and indemnified against claim for loss or damage to Cargo arising through the act, neglect or default of the Captain, Officers or Crew, or from any cause whatever, after the goods have been delivered to the Steamer.

*

21. The Act of God, Perils of the Sea, Fire, Barratry of the Master and Crew, Enemies, Pirates, and Robbers, Arrests and Restraints of Princes, Rulers and People, and others, Accidents of Navigation excepted; Strandings, Collisions, and all Losses and Damages caused thereby are also excepted, even when occasioned by negligence, default or error in judgment of the Pilot, Master, Mariners, or other servants of the Shipowners; but nothing herein contained shall exempt the Shipowners from liability to pay the damage to Cargo occasioned by bad stowage, by improper or insufficient dunnage or ventilation, or by improper opening of valves, sluices and ports, or by causes other than those above excepted; and all the above exceptions are conditional on the Vessel being Seaworthy when she sails on the Voyage, but any latent defects in the machinery shall not be considered unseaworthiness, provided the same do not result from want of due diligence of the Owners or any of them, or by the Ship's Husband or Manager. Owners agree to hold Charterers indemnified in so far as the said Negligence Clause may be contrary to the laws of the United States, and to accept the usual line form of Bill of Lading as customary in this Trade, with the conditions therein, and the same to form part of this Agreement.

The bill of lading referred to contained this provision:

"Freight 10% primage and charges on the said goods to be paid, as per margin, in New York, on delivery of the Bills of Lading in cash at the current exchange for Banker's sight Bills, without deduction, and Steamer to have a lien on the said goods until such freight, primage and charges are paid

* *

Freight prepaid is considered earned at time of payment and is not recoverable, ship lost or not lost."

The statement of account referred to showed how the claim was made up.

The respondent filed exceptions to the libel and answer as follows: "First. The respondent excepts to the relevancy, pertinency or competency of the averments of the sixth and seventh articles of the libel purporting to bring into this suit the terms of the bills of lading, issued for cargo engaged from others by this respondent, as the same were between outside parties and cannot be availed of by libellant.

Second. This respondent also excepts to the averments of the sixth and seventh articles of the libel regarding the prepayment of the bill of lading freight, as irrelevant and not pertinent, inasmuch as it was provided by clause 16 of the charter-party, that bills of lading should be signed at any rate of freight, 'without prejudice or reference to this charter.'

Third. This respondent also excepts to the libel in its entirety, as insufficient, and not stating any cause of action against this respondent, on the grounds following:

I. For that the libel and attached charter-party show that libellant undertook that the Oakburn should proceed to four discharging ports, and there deliver the cargo taken for such ports, whereby performance of libellant's contract in that manner was made essential to the earning, or recovery of any freight thereunder.

II. For that payment of one-third of the lump sum freight, two months after sailing, was an advance toward the performance of the libellant's contract, and was conditioned upon performance being possible when such sum should be so advanced.

III. For that it is not shown that any part of said undertaking was performed, or that any cargo was delivered, or can be delivered, at destination.

IV. For that it is shown that the Oakburn and cargo were lost before