in open court) upon various grounds which were assigned by the court. In several of these instances we think the testimony tendered and rejected was material and competent. But it happens in this case we are able to form definite conclusions without the aid of that which was rejected, and that which was rejected was in support of these conclusions. We think, however, we should call attention to the error and inconvenience of this practice. If the court of first instance was empowered to make the ultimate judgment, there might be little or no objection to the course pursued. But as its determination is subject. to appeal, and the appellate court might have a different opinion in regard to the competency and materiality of the rejected testimony, the difficulty becomes obvious. In such circumstances it might become necessary to undo all that had been done subsequent to the taking of the testimony and go over the ground again, and thus involve much cost and delay. The proper course is to receive the testimony tendered, subject to the objection, unless, indeed, it be so utterly irrelevant or immaterial that there could not possibly be any doubt about it. The power of the court to punish with the costs the bringing in of flagrantly indirect and useless testimony should ordinarily be a sufficient deterrent. We think the district court was right in holding the Wilbur and discharging the Martha, but we cannot approve its decree in discharging the Troy and holding the Mariposa. We are very clear that the Wilbur and the Troy were the parties who should be held responsible for the disaster, and should be condemned to pay the damages. Upon the conclusions already stated, and the reasons given therefor, we think the Wilbur and the Troy should satisfy the damages of the former by equal contribution; the lien of the Wilbur to be subordinate to that of the owners of the Martha for her damage.

The decree of the district court, so far as concerns the responsibility of the Wilbur and the Martha, is affirmed as herein modified by the judgment against the Troy, with costs of both courts. So far as it concerns the responsibility of the Mariposa and the Troy, it is reversed, with directions to enter a decree charging the Wilbur and the Troy with the damages of the Martha and interest, and with the costs of both courts, to be collected one-half from the stipulators for each, with the proviso that, if such moiety cannot be collected from each, recourse may be had upon the other to the extent of its stipulation above the sum of such other's moiety of damage decreed against her, and charging the Troy, in favor of the Wilbur, with one-half the damages of the latter, with interest thereon; each of those parties to pay its own costs here and in the court below, the lien of the Wilbur to be subject to that in favor of the Martha upon the Troy for her damage, interest and costs, as herein decreed.

Following will be found the opinion of the court below:

SWAN, District Judge (orally). The three steamers which figure in this case are all charged with fault-the Wilbur, the Troy, and the Mariposa. So far as the Troy is concerned-for I will commence at the easiest end of the case the situation is this: I find, as I stated during the argument, that the Troy passed the Wilbur when nearly abreast of Woodward avenue; that the Wilbur there renounced her priority of right, and made herself the overtaking vessel. I think that is the fair weight of the testimony. There is on this

point the usual conflict of evidence that attends admiralty cases, and would attend any case, whatever the subject-matter, where the witnesses must speak as to matters that are not plainly visible, not illuminated by daylight-the matters occurring in the dark; but I think that the Troy was thenceforth continuously ahead-at some times further ahead than others. If we throw out all the interested testimony in the case, it fairly appears in the testimony of the mail carriers-the two witnesses from the mailboat, whose names have escaped me that the Troy had fairly cleared the Wilbur while the latter was waiting for the mail. That being the case, the Wilbur was to her an overtaking vessel. That continued to be the relation between them, and gave to their navigation the appearance of being engaged in a contest of speed. Both masters deny that their course up the river had any such character, and I must accept their denial, and believe they were going up there at their ordinary gait-12 or 13 miles an hour, though I think the man that was ahead was very glad to keep his position, and the man behind would have been glad to have exchanged with him. They proceeded upon the usual course, both of them being competent mariners, and I believe both mean to tell the truththey proceeded upon the course which each regarded as safe. There was nothing to intimate danger to them, nothing to induce apprehension. They ran at a speed of 12 or 13 miles an hour, keeping safely away from each other and from other vessels, and navigating without incident until they had entered the mouth of the cut or dredged channel of Lake St. Clair, when they exchanged signals with the steamer Mariposa, which had the schooner Martha in tow, bound down. The Mariposa at that time was about midchannel, and I do not think changed that position. I think she came down with the usual inclination of a vessel having the ranges and being on the ranges to adhere to them. I won't use the term commonly applied to that navigation which monopolizes the ranges, because it is habitually done by most masters, often from timidity inspired by the size and draft of the vessels-a morbid fear of possibly grounding if on either hand of midchannel. The signals between the Mariposa, the Troy, and the E. P. Wilbur were seasonably exchanged. The mutual relations of the Troy and of the Wilbur continued safe as they went up the cut until just before they came abreast of the Mariposa. That is the testimony of Capt. Gillies. It is the testimony of Capt. Fuller. Neither of them, saw any appearance of danger in the situation, and both approved its safety until just before the collision. Now, each vessel, there is no doubt, had a right to go up there just as fast as she could, provided she exercised that right with due regard to the interest and safety of others; and the vessel that was ahead had a right to keep ahead, if she could, providing, as I say, she exercised that right reasonably. Therefore the Troy is not censurable for keeping ahead, as she was safely away from the Mariposa and Martha. Nor is the Wilbur to be condemned for getting along as fast as she could, but, as she was the overtaking vessel, she was bound to exercise that right with much greater circumspection, so as not to approach too closely to the Troy, or bring herself within the operation of the latter's suction; and, if she did so, she must abide the consequences. She put herself voluntarily in that position. She could not lawfully attempt to pass the Troy without the latter's consent, for which she did not ask. According to the testimony, they were at a safe distance from each other, and there was no sign on the part of either boat that it was affected by the proximity of the other until they were getting nearly abreast of the Mariposa. Then it was seen by the master of the Wilbur that his vessel was dropping off to port and towards the course of the Mariposa. It then became his instant duty to check or drop behind the Troy. This he failed to do, but, in his efforts to avoid the Mariposa, drew in so closely to the Troy as to get within her suction, when, of course, and as was to be expected, the Wilbur sheered to port, and held her sheer until she struck the Mariposa's consort, the Martha. No fault can be imputed to the Troy. I think she was navigating properly, and I do not think Capt. Fuller's testimony-any reading of it-will condemn Capt. Gillies' conduct there. Capt. Fuller, as was pointed out in the argument, did not question that the Troy was as far east as she could go, and his judgment upon her course is confirmed by Mr. Montgomery, the lookout of the Wilbur. The witnesses on the Wilbur agree that the distance between the vessels was 75 or 100 feet, until they had proceeded up the cut

some distance, and pronounced that distance safe. When it was reduced to 30 or 40 feet or less by the approach of the Wilbur to the Troy, that was the voluntary act of the Wilbur, which the Troy could not prevent, and for the consequences of which she cannot be condemned. The Troy's witnesses testify that the steamers were much further apart coming up the cut, and when the Wilbur took her sheer; but as the duty of keeping clear was, by the White Law Rule 22, and pilot rule 6, wholly upon the Wilbur, and the Troy, clearly complied with those rules, the latter is faultless. The Troy neither attempted to cross the bow or crowd upon the course of the Wilbur, which took all the risks of her own course, and cannot ask the Troy to share its consequences with her.

No one who ever tried an admiralty case ever found that the witnesses on moving vessels, speaking of distances in the nighttime and of moving vessels, ever got within any reliable distance of anything. The Troy, I think, was safely over to the eastward, and when Capt. Gillies, of the Troy, was called upon by the master of the Wilbur to give him more room, he answered back: "I cannot. I am as far over as I can go." The Wilbur's master then said: "Why don't you check, then?" Capt. Gillies replied: "Why don't you check yourself?" or something of that kind. Capt. Fuller responded: "I have checked." Now, as I have said, Capt. Fuller voluntarily put himself in that situation. The checking of the Troy would not have helped the Wilbur at that time. Perhaps Capt. Fuller thought there was room enough between the Troy and the Mariposa, and rightly thought so, had it not been that he unguardedly brought his steamer within the Troy's suction. That was the springhead of this disaster. I think that at that time the Troy was nearer the distance stated by Capt. Gillies from the east bank than the witnesses for the Wilbur have put it, and I do so for these reasons: (1) Gillies was in a better position to estimate that distance than the master of the Wilbur, who admits that he could not. (2) According to the master of the Mariposa, he thought that the Wilbur was 75 feet away from him. Add to this estimate the Wilbur's beam, about 40 feet, and the distance between the Wilbur and the Troy, 35 to 40 feet, and the beam of the Troy, 45 feet, would put the Troy out about 150 or 165 feet from the Mariposa, upon the judgment of the witnesses on the part of the Mariposa and the Wilbur alone. The weight of the testimony satisfies me that the Troy was fully 250 feet away, at least, from the Mariposa, for a nearer position is irreconcilable with admitted facts. (3) The misfortune in the case was the unfortunate move by the Wilbur, which caused her to sheer off. She went off very rapidly, and when she struck the Martha she did not expend all her energy in that blow. The proofs are clear that she struck the Martha, swung around simultaneously with the blow, which was delivered at a speed of 12 or 13 miles an hour, recoiled, and swung right across stream. The Troy passed her when she had recoiled across the channel. One of the witnesses says he could have jumped aboard the Troy from the Wilbur. Another says there was a distance of 40 feet there. I don't care which it is. It would show that the Troy was considerably further to the eastward when the Wilbur moved out from the Martha simultaneously with the impact than the hurried views of the witnesses on the moving Mariposa and the Wilbur estimated. The Wilbur is 290 feet long between perpendiculars, and probably 310 or 315 feet over all. If 250 feet of her length was across or nearly across the channel-if the Troy cleared her 10 feet when the Wilbur's bow lay on the Martha, or 40 feet, as the Troy's witnesses statethe Troy was about 300 feet to eastward of midchannel at the collision. She perhaps could have gone a little further to eastward, but that her master could not know. His judgment erred on the side of the safety of his own vessel, and cannot be impeached because the event showed he might have gone further. The Star of Hope, 9 Wall. 230, 19 L. Ed. 638; The City of Antwerp and The Friederick, L. R. 2 P. C. 25. Especially is this true in the sudden emergency created by the Wilbur's too close approach. It is incumbent upon the Wilbur to show that she was brought into contact with the Martha through no fault of her own. She is prima facie the wrongdoer. I don't think she has met that burden. She occupies the same position in this case as did the Santiago in the case preceding. Through misfortune or fault or the facts of the case, she is unable to meet that burden, and should be condemned.

The last question is one of more difficulty, and that is as to the Mariposa and the Martha. The misfortune fell upon the Martha. I think that the weight of the testimony shows that certainly the Martha was not further west than the range line at the time she was struck. She was about the center of the channel, and perhaps a little to the eastward of it. I think that her changed position and heading were produced by the energy of the blow with which the Wilbur hit her, which slued her around at that point. The Mariposa was responsible for her position, and ought to share the consequences of the collision. The two vessels which are to be condemned here are the Wilbur, as the first wrongdoer, and the Mariposa, as the second. The Troy is dismissed from the action, with costs.

Mr. Shaw: What does your honor do with the Martha?

The Court: The Martha was helpless. I think the damages should be divided between the Mariposa and the Wilbur-the Wilbur being chiefly in fault; but the Mariposa is blameworthy for not having taken timely and sufficient action to avoid the up-coming vessels and allow them room. There would have been no accident had it not been for the sheer of the Wilbur and her unfortunate navigation, and there probably would not have been any accident if the Mariposa had put her consort in the right place. The Mariposa did not follow her own signal, and, although she announced that she was directing her course to starboard, she did not, and therefore I think the damages should be divided between the Wilbur and the Mariposa.

While the navigation of steam vessels at high speed when approaching other vessels, or under conditions portending possible danger, cannot be too strongly reprobated, and not infrequently is ground of condemnation of both, when one only inflicts the injury, yet in this case the active and proximate instrument of wrong was the Wilbur, which voluntarily took upon herself the hazard of the known danger of too close proximity to the Troy, which, in the judgment of her master, was running as close to the there unmarked easterly boundary of the channel as was prudent—a judgment which is not even now questioned by the master of the Wilbur.

The master of the Troy had a right to navigate his vessel in the belief that the Wilbur would be properly and prudently navigated, and would not attempt to pass the Troy without the latter's consent, and, of course, that she would not draw into dangerous proximity. This fault the Wilbur recklessly committed at a time when no preventive measure could have been taken by the Troy, and the Wilbur therefore has no right to call upon the Troy for contribution.

STONE, Collector, v. WHITRIDGE, WHITE & CO.
(Circuit Court of Appeals. Fourth Circuit. March 14, 1904.)

No. 518.

1. CUSTOMS DUTIES-FOREIGN COINS-FLUCTUATION IN VAlue.

Section 25, Tariff Act Aug. 28, 1894, c. 349, 28 Stat. 552, prescribes that the value of foreign coins shall be estimated in money of the United States on the basis of the pure metal found therein, as estimated by the director of the mint and proclaimed by the Secretary of the Treasury, subject to the proviso "that the Secretary of the Treasury may order the liquidation of any entry at a different value whenever satisfactory evidence shall be produced to him showing that the value in United States currency of the foreign money specified in the invoice was at the date of certification at least ten per centum more or less than the value proclaimed during the quarter in which the consular certification occurred." Held, that the fluctuation to which this proviso has reference is that of the metallic value, and not of the exchange or commercial value. 2. SAME-LIQUIDATION BY ORDER OF SECRETARY OF THE TREASURY-REVIEWJURISDICTION OF BOARD OF GENERAL APPRAISERS.

Where, assuming to act under section 25, Tariff Act Aug. 28, 1894, c. 349, 28 Stat. 552, authorizing the Secretary of the Treasury to order the reliquidation of any entry on the basis of a value different from that 129 F.-3

estimated by the director of the mint when satisfied that there has been a fluctuation of at least 10 per cent. from the proclaimed value of the currency specified in the invoice, the secretary directs a collector of customs to reliquidate on the basis of the exchange or commercial value of a certain foreign coin, and not of the metallic value, held, that he goes beyond his authority, and that the action of the collector pursuant to such direction may be reviewed by the Board of General Appraisers and the courts, under sections 14 and 15, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 137, 138 [U. S. Comp. St. 1901, p. 1933].

3. SAME-BOArd of General APPRAISERS-RELATIONS WITH TREASURY DEPARTMENT.

The Board of General Appraisers, acting within its jurisdiction, is an independent tribunal, empowered by law (sections 13, 14, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 136, 137 [U. S. Comp. St. 1901, pp. 1932, 1933]) to pass upon certain controversies between the government and the importer, and in this respect is not subordinate to the Treasury Department.

Appeal from the Circuit Court of the United States for the District of Maryland.

This appeal was brought by William F. Stone, collector of customs at the port of Baltimore, from an affirmance of a decision of the Board of General Appraisers (In re Whitridge, G. A. 5110-T. D. 23,632), which reversed the collector's assessment of duty on certain merchandise imported by Whitridge, White & Co.

John C. Rose, U. S. Atty. (Morris A. Soper, Asst. U. S. Atty., on the briefs), for appellant.

Albert Comstock and William R. Sears, for appellees.

Before SIMONTON, Circuit Judge, and BOYD and KELLER,. District Judges.

BOYD, District Judge. The facts in this case are substantially as follows: Stone, the appellant, is collector of customs for the district. and port of Baltimore, Md. In June, 1900, Whitridge, White & Co., the appellees, imported from India into the port of Baltimore a cargo of gunny bagging. The gunnies were purchased by the importers at Calcutta, and were invoiced in rupees, which is a silver coin of India. The Barrowmore, in which the gunnies were brought into this country, arrived in Baltimore on the 18th of June, 1900, and the goods were entered for consumption on that day. On the 11th of July, 1900, the collector at Baltimore liquidated the duty on the said goods by converting into United States gold dollars the rupees of the invoices at the rate of 32 cents for each rupee. To this liquidation the importers entered a protest in writing on the 16th day of July, 1900, and on the 29th of May, 1901, the collector, acting under instructions from the Secretary of the Treasury, reliquidated the duty on said goods by converting into United States gold dollars the rupees of the invoices at the rate of 20.7 cents for each rupee. That thereafter, on the 12th day of June, 1901, the collector again reliquidated the invoices, and placed the value of the rupee at 32 cents. This last action of the collector was in response to instructions from the Secretary of the Treasury, relative to these invoices, as follows:

"In this regard I have to inform you that satisfactory evidence has been produced, to the Secretary of the Treasury, showing that the value, in United