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.
,.yol. 51.
Him qf,6..
dause.
this case ia. whfl'ther cerof <.lopper-bemg wHersfor ;patternsTwere duti,able under: the., copper.· clll;Ul;\e of 9' tg e tariff act of MarC,h 3, 1883, "Metals," or The former reads as follows:
·..
"Copper. in rolled plates, called · braziers' cOPPElr,' sheets" rods. pipell, and copper bottoms, and all manufactnres of copper, or of which copper shall be the component of chief val ue, not specially enumerated or provided for in this acl, 35 per centulll ad valo1·em."
The residuary clause reads as follows: "Manufactures, articles, Ol' wares not speciallyenllmerated or provided for in this aet, composed wLolly or in plirt of irol1, steel, copper, lead, nickel, pewter, tin, zinc, gold, silver, platinulll, or any other metal, and whether partly or wPOlly manllfactu.r(:l\l, 45,per centum ad valorem. "
We have no difficulty in reaching the conclusion that the copper follers :<lu,ti3:ble under clause, instead of under. the residuary clauseo':Schedule C. The copper clause is reproduced from the pre-exact, except that the rate of duty .is reduced from 4.5 to 35 per;.cenLumadvalorem, while the residuary cla'use increases the uuties inlpdsed"':by the pre-existing act upon all Unehumerated metal articles from 35 per cent. ad valorem to 45 per cent. Thus it was manifestly the i1'1tention'of:,Mngl'eSS, while increasing the duties on metal articles generally, (0 reduce those on Ulllnufactures of copper, or of which copper is the component of chief valui:'. The intention to create an excepti<;>n in favor,of .copper articles would be frustrated by treatingtbe residuary clause as the 'operative one. The settled tule ofstathtory construction is that general legislation must give W:lY to special legislation on the same subject, whether the provisipp8,are in same statute Of in, different statutes; and general provisions must be interpreted so as to embrace only cases to Which the special provjsions, 'are, not applicable. Churchill v. Crease, 5 179; State v. Clrl1'ke, 25N. J. Law, 54; Long v. Culp, 14 Kun. 412; 1!'eltv.:Felt, 19 Trenton, 38 N. J. Law, 64; Townaendv. Little, 109U. 8.504, 3 357. Applying this rule of C011s,trllction,theresirlullryclause, liP fluns it relates to can be r,ead 80 as to subject to thEil l}.uty of 45 per cent. all metal articles not Iipeciallyenurna,rated in is not Jl. component of chief value. drag-lltlt clause, embrace all metal articles 110t elsewhere ip'Sohedule ,Csupjectedtodt'ty· 1i o,f,the of 1883, declaring that l if two or more rates appliC:l.lble QecIussified for 9Qty hlillOQ IIpplicatjoo,tQ the present Cllse, becau8e under the correct construction of the two clauses the imthe duty .of as pe.t centum ad valOrem. The judgment is affirmed. , " , '. L t :!
627 ,I,
l.
TH$ .CO. v. THE. JERSEY CITY et 01. CC-weuit Oourt of Appeals, Secon"" Circuit.· July 20,1892.} 1. CO,LLISION-INJURY TO Tow-BAILOR AND BAILEE-SUBltOGATION.
The owner of a tow which was injured by collision while in charge of 8 tug claimed damages from the tug owner. '.rhe latter, protesting that he was not lia1;111' and that the collision was without fault on the part of the tug, finally paid the demand, taking in return a paper releasing him from all liability, and in tex:ms tlubrogating him to the right of the tow owner to recover from any person who migbt be liable for the damage. The tug owner then libeled the colliding vessel, setting up these facts, and alleging tbat by rea.son thereof he became SUbrogated to· the rights of tbe tow owner. Hel.d, that the question of subrogation was immaterial, for tbe tug owner. was entitled, .8S bailee of the tow, to recover full damages, 8ndtbe fact that be had previously paid the tow owner did not in any way aitect his right of action. . A tug, with several boats in tow alongside, came down the North river,l'9unded to,· ana lay about SllO feet from the New York piers, holding herself against the ebb tide, and Waiting for the· steamboat City of N" which was coming up·astern, to pass inside of her. While SQ. waiting, a ferryboat,bound from Jersey :City to New York, attempted to pass between the tow and the City of N., and her pl'ddle w.bealstruck the outside' boat on the starboard side of, the tug, causing it to ·8ink. Heta, .tbat the fel1ryboat wae liable for the damage. 44 Fed. Rep. 112, affirmed. TOW-CROSSING COtTRSES. . r
2.
Appeal from the District Court of the United States for the Eastern District of New York. , In Admiralty. Libel by the Cornell StearnboatCompany againstthe ferryboat Jersey City and others to recover damages for collision with a tow while in charge of a tug belonging to libelant. An exception to the libel was overruled. 43 Fed. Rep. 166. Aftei'wards a decree w,as rendered'against tbe ferryboat, (44 Fed. Rep. 112,) and her owners'appeal. Affirmed. Robert D. BenediCt, for appellant. Hem.ry G. Ward, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. WALLACE, Circuit J udge. We concur in the opinion of the learned district judge that the ferryboat was exclusively in fault for the collision with the tow. The only question upon tbis branch of the case is one of factj viz., whether, when the ferryboat attempted to make her slip by passing between the tug and her tows and the steamboat City 9f Norwich, the tug allowed' herself and tows to drop back with the tide, and thus intercept the course of the ferryboat. The weight of theev:idence is decidedly against the contention for the ferryboat,and, were it 'DOt, we should 110t feel at liberty to' disregard tbecorlclusions of the district judge upon a qUeStion of fact, depending wholly upon the intelligence and 'credibility of the witnesses, When all the ,witnesses were in his presence. The only question of law in the case which has 'been arguedil.t the liar is whether the libelant became subrogated to the claim of the Delaware & Hudson Canal Company, the owner of the injured tow, against