THE MIRANDA.
523
therein by the parties, which shall operate to oust the court of its ordinary jurisdiction. In the case of Hamilton v. Insurance Co., 137 U. S. 370, USup. Ct. 133, the policy in suit provided that"In case differences shall arise touching any loss or damage after proof thereof has been received in due form, the matter shall, at the written request of either pilrty, be submitted to arbitrators, wllOse award in writing shall be lJinding on the parties as to the amount of such loss or damage, but shall not decide the liability of the company uuder this policy." It was held that the refusal of the assured to perform this condition did not preclude the maintenance of a suit by him; that to have such effect the policy should have further provided that llO such action should be brought until after the award. To the same effect are Crossley v. In-8'Urance Co., 27 Fed. Rep. 30; Reed v. Insurance a>., 138 Mass. 572; Badenjeld v. Association, 154 Mass. 77, 27 N. E. Rep. 769. Counsel for the defendant has called the attention of the court to the case of the Chippewa Lumbera>. v. Phenix Ins. a>., 80 Mich. 116, 44 N. W. Rep. 1055, and the case of Morley v. Insurance Co., 85 Mich. 210, 48 N. W. Rep. 502. as holding a contrary doctrine. In this claim counsel is mistaken. In the first of these cases the policy of insurance ex· pressly provided that "the amount of loss or damage shall be ascertained by arbitration, and shall not be payable until it is so ascertained by arbitration, and that such arbitration shall be a condition precedent to bringing suit on the policy." It was held that this condition was reasonableand valid, and that no suit could be maintained until the conditionbad been performed or its performance waived. It is clear that the court would have reached a different conclusion if the language in the policy before it had been similar to that in the certificate under consideration. The condition in the policy in the case last above cited provided that the money secured by it should not become payable until the amount of the loss or damage should be first ascertained by the award of arbitrators. The court followed the doctrine ann01ilnced in its former decision. It follows that the answer in abatement is insufficient. Let the uewutltlf be sUlitaineu, with leave to thl!l d\Jfenuunt to alllSWtJl over.
THE MIRANDA.. UNITED STATES 11. THE MIRANDA.
ale
(C(rcuU Cowrt of .AppeaZ8, Second Circuit. JUly 20, 1891.) SHIPPING-LIGHT MONBr-FoBBIGN-BUILT VBSSBL-COLLBCTOB's CEBTIJ'ICATIL
A unregistered vessel, which, carries a collector's certificate tbal the ,)wner Is an American citizen, and that the, bill of eale tor such vessel Wall 'lalid and duly recorded- In the United States custOmhouse, Is In possession of such 1'l1gular document as Is required by Rev_ St. 5 and exempt trom payment ot light. Rev. St.. S4225, 011 entering a port or t.he Unit.ed States. 4.7' Fed. Rep.
sa.
,
'
52.4,
FEDERAL
uPOR'fER ,
vol. 51.
AppeaI£rom the United States District Court for the Southern District ofNewYt>rj:t. In Admiralty. Action by the United States against the schooner Miranda, her tackle, etc., and George H. B. Hill. Judgment for defendants. Plaintiff appeals. Affirmed. 'fh07ltaS Greenwood, Asst. U. S. Dist. Atty. J. Langdon Ward, for claimant. Before WALLACE, LACOMJJE, and SHIPMAN, Circuit Judges· · SHIPMA:N, Circuit Judge, This is an appeal from a decree of the district court, which dismissed the libel of the United States against the sc.hooner Miranda to enforce the collection of the duty known as "light money," and claimed to be collectible under section 4225 of the Revis.ed Statutes. . The facts in the· case were undisputed, and are stated BENEDWT in his opinion (47 Fed. Rep'. 815) as follows: .,";fheschooner Miranda was built at Wivenhoe, Eng. In 1886 she was bJ' George H. B. Hill. the present claimant, who then was, and still is. a citizen of the United States. By such purchase the claimant became. and has since continued to be, the soI.e owner of the schooner, and she has, since her purchase, been used for the purposes of pleasure only, never having been employed in trade or in any kind of transportation for hire. In the year 1886 the chtimant produced to theco11ector of the port of New York his bill of sale of the Miranda, together with proof that he was a citizeu of the Ullited Statel!l; and thereupon. pursuant to a general regulation of the treasury department, the collector recorded the bill of sale ill his office, and indorsed thereon a certificate, under 'his hand and Official seal, stating that the bill of sale held by George H. B; Hill ·is in form and substance valid and effective in law, and has been duly recorded in my office, and that the said George H"B. Hill is a citizen of the United States.' The Miranda is enrolled among the of the Royal Yacht Club, and the claimant is a member of tbat club, .which is a regularly organized yacht club of England. By section 4216 of the Revised Statutes !:If the Unfted States, ·yachts belonging to a regularly organiz;ed yacht club of any foreign nation, which shal1 extend like priVileges to the yachts of the United States, shall have the priVilege of entering or leaving any. port of the United States without entering or clearing at the customhollsethereof, or paying tonnage tax.' On the 18th day of .July. 1891, the Miranda arrived at New York from Vineyard Haven, Mass., and anchored off Bay Ridge, in the harbor of New York; whereupon the collector of the port of New York demanded payment of light money for the yacht, which being refused, this action was brought to collect the same. The statute relied on by the government 'is section 4225 of the Revised Statutes of the United States. That section is as follows: ·Sec. 4225. Adlltyof fifty cents per tOll, "to be denomiijated "light money," shall be levied and collected on all vesselsoot oftb'e United States which may enter the ports of the United States.' The claimant, among other things, relies upon the next succeeding !¥lctiQIJ'ofthe Revised Statutes,which c\)Iltains the folIowing provision: ·Sec. 4226. The preceding section Shall not be deemed to operate upon unregistered vessels owned by citizens of the United States, and carryblg)a sl1la'le1tet or other regUlar issued from a customhouse of the vessel to be American,property.' the reasons stated by Judge BENED1<:T. that the certificate issued from the customhouse on September 15,1886, is a "reg-
MAGONE ".
KING.
525
ular document," proving the schooner Miranda to be American property, within the meaning of section 4226, and that she is by virtue of that section exempt from lia.bility to pay light money. The conclusive argument in favor of this proposition was so clearly stated by the district judge that a repetition of it is unnecessary. The decree of the district court is affirmed.
MAGONE, Collector, (Circuft Court of
ft. KING
tIC aI.
Second Circuit. .July 00, 1899.)
I.O'ln!TOM8 DUTIE8-CL.U8IJrICATION-COPPER RoLLERS.
Under the tariff act of 1883, rollers used in printing patterns, and coD1posed wholly of copper, Were dutiable at 35 percent. ad under the copper clause ot the metal schedule, (C,) which Clause includes" copper in rolled plates, * * * and all manufactures df copper, or of 'which copper shall be a component of chief value, II and not at 45 per.cent. under the residuary clause of that schedule,which prOVides for manufactured articles not specifically enumerated, composed wholly 'or In part of iron, steel, copper, lead, etc.
So
BUD-CONSTRUCTION OP STATUTE·
S.
.As the act of 1883 reduced the duty on copper and copper articles,while it increalled it on unenUlnerated metal articles, it would defeat the intent of congress to place the imports under the latter clause; and the rule applies that generallegislation must give way to special legislation on the same subject.
SUIB.
In such case the provision of the act declaring that if two or more rates of duty are applicable to any imported article "it sball be classified for duty under the highest of sucb rates, II bas no application, for the articles in question are clearly BUb!ectonly to tbe dutvof 35 per cent.
Error to the Circuit Court of the United States for the Southern District of New York. Action by William King and Robert A. Lawrie Daniel Magone, as collector of the port of New York, to recover $370.31, alleged to be an'excess of duty paid by them. The court directed a verdict for plaintiffs, and defendant brought this writ of error. Affirmed. The imports in question were certain rollers composed wholly of copper, and used in printing patterns on oilcloth. The collector levied and eollected a duty of 45 per cent. ad valorem, under the last paragraph '{)f Schedule 0, Tariff Act of March 3, 1883, (22 St. at Large, c. 121, p. 500; Heyl, 216.) The importers protested, claiming that the roll-ers were dutiable at 35 per cent., ad valorem, under the copper clause of said 8chedule, (HeyI; '186.) The importers appealed to the secretary Qf the treasury, who affirmed the collector's decision, and thereupon this action was brought. ,Edward MitcheU, U. S. Atty., and Oharle8 Duane Baker, Asst. U. S. Atty., for plaintiff in error. Wm. Wickham Smith, for defendant in error. Before WALLACE and SHIPMAN, Circuit J udgea.