Rogers v. Mechanics Insurance Company. control the solemn contracts of parties, who are not, or cannot be, presumed to know it, or to adopt it, as a rule to govern their own rights or interests. Indeed, in the present case, as has been suggested at the bar, the policy in its printed form refers, not to the usages and customs of New Bedford, but to those of Boston. But not a single witness has spoken of his knowledge of any such general custom or usage, even in New Bedford. On the contrary, all of them deny any knowledge of such usage or custom, and only speak of their own opinions, how the interpretation of the language of the policy ought to be, and is understood by them personally. But this Court has nothing to do with the private opinions of witnesses, however respectable, upon matters, which respect the interpretation of contracts. That is matter of law, which the Court itself is bound to expound, in the absence of any usage or custom, which impresses upon the words a peculiar and technical meaning. I own myself to be no friend to the indiscriminate admission of evidence of supposed usages and customs in a peculiar trade and business, and of the understanding of witnesses relative thereto, which has been in former times so freely resorted to; but which is now subjected by our Courts to more exact and well defined restrictions. Such evidence is often, very often, of a loose and indeterminate nature, founded upon very vague and imperfect notions of the subject; and, therefore, it should, as I think, be admitted with a cautious reluctance and scrupulous jealousy; as it may shift the whole grounds of the ordinary interpretation of policies of insurance and other con tracts. As to the other point, I cannot entertain any doubt, that this blubber was as much entitled to, and liable to contribution, in cases of a jettison, as any other property on board. It is property; and if it is of any, the slightest, assignable value, Rogers v. Mechanics Insurance Company. and is sacrificed for the common benefit, it constitutes a claim for general average. It is said, that it is difficult, and indeed impracticable, to ascertain its true and exact value, when thrown overboard. There may be difficulty, and perhaps an impossibility, to ascertain its exact and minute value, for we have no means of weighing it in scales, or fixing its positive price. But the same difficulty occurs in many other cases of insurance; as in cases of injuries to sails, or rigging, or spars, by tempest, or by cutting them away, in cases of jettison; and yet no one doubts, that they must be contributed for according to their value, ascertained by a jury, in the exercise of a sound discretion, upon proper evidence. Suppose, that fruit is insured, and the vessel has a long passage, in which, by ordinary waste and decay, it must suffer some deterioration, and, then, a storm occurs, in which it suffers other positive damage and injury, or there is a jettison thereof; how are we to ascertain, what diminution is to be attributed to natural waste and decay, and what to the perils of the seas? or what was its true value at the time of the jettison? There can be no positive and absolute certainty. The most, that can be done, is, to ascertain, by the exercise of a sound judgment, what, under all the circumstances, may reasonably be attributed to one cause, and what to the other. Absolute certainty, in cases of this sort, is unattainable. All, that we can arrive at, is, by an approximation thereto; and yet no man ever doubted, that such a loss must be paid for, if it is covered by the policy. If, indeed, this blubber, at the time when it was thrown overboard, was entirely worthless, and had no assignable value, it certainly cannot be brought into general average; for, under such circumstances, nothing has been sacrificed, and, of course, nothing is to be contributed for. But this is a matter, which will most properly come before the assessor, who, by the Lee. Lincoln. agreement of the parties, is to be appointed to ascertain the amount of the general average, and also of the contributory interests. Upon this opinion being expressed by the Court, a verdict was taken for the plaintiff, subject to be altered by the report of the assessor, as to the amount of damages, and of the contributory interests. HENRY LEE v. LEVI LINCOLN. Construction of Tariff Laws. - Gunny Bags. Cotton Bagging. THIS HIS was an action against the defendant, as collector of the port of Boston, to recover back the amount of duties, paid under protest, upon a quantity of gunny cloth, imported by the plaintiffs, and charged with the duty on cotton bagging by the collector. The Tariff Act of 1832 lays a duty "on cotton bagging, three and a half cents per square yard, without regard to the weight or width of the article." There is no mention in this, or in any preceding Tariff Law, of the article, gunny cloth. It was stated, and not denied on the part of the government, that the comptroller of the treasury, at Washington, issued a circular, dated December 26th, 1833, in which gunny cloth was declared "exempt from duty, on the assumption of its being an unenumerated article." After this declaration, the article was imported and admitted free of duty in the port of Boston, for nearly five years and a half. But subsequently, the department at Washington was informed, that gunny cloth" was imported in large quantities, and sold for the purposes of cotton bagging; in consequence of which, Lee v. Lincoln. another circular was issued by the comptroller, dated June 3d, 1839, instructing the collectors of the different ports to levy the cotton bagging duty "on all articles suitable for and used in making cotton bagging." This circular was repeated on the 12th of May, 1840. The importers of gunny cloth gave their bonds, in conformity with this requisition, but always under protest; and brought the question before the Circuit Court at its next sitting. This was at the October term, 1840. A verdict was then rendered, under instructions from Mr. Justice Story, in favor of the importers, upon the ground, that gunny cloth was not subject to a duty as cotton bagging within the meaning of the law. Bacon v. Bancroft (3 Law Reporter, 386). After this decision, instructions were transmitted to the collectors of the principal ports, by a circular dated January 19th, 1841, under which the article was admitted free of duty. This continued for a few months, when the former order of June 3d, 1839, was issued again by the comptroller of the treasury. Under this order, the collector of the port of Boston has compelled the importers to give bonds for duties on gunny cloth as cotton bagging, which they have done under protest, and paid under protest. This action, with others, was brought to recover back the money so paid. Mr. Wigglesworth, Mr. Whitney, and Mr. Dixwell, merchants of Boston, testified, that they were acquainted with the trade with Calcutta and the East Indies, prior to 1832 (the year when the tariff was enacted); that the article, gunny, for a long series of years before, was well known as the covering of packages and bales of goods coming from the East Indies; that it had been imported in the shape of bags prior to 1832, and that it had been sometimes imported in whole pieces prior to 1832; that prior to 1832, it was well known among merchants as gunny, and was never included under the term cotton bagging; that its commercial name was gunny, and that it had never Lee v. Lincoln. been applied to the uses of cotton bagging until a considerable time after the passage of the Tariff Law, and about three or four years ago. Depositions of New York merchants were offered, on the part of the defendant, in order to show, that the term, cotton bagging, was, in 1832, applied to all fabrics intended for the bailing of cotton. Mr. Brown, an assistant appraiser in the New York Custom House, was also introduced by the defendant, to establish this view. He said, that the term, cotton bagging was not applied to a fabric of any one material; that generally the fabric was of hemp, tow, or flax ; and that twenty years ago he had known it made of cotton. Most of the witnesses, who had deposed, in their answers to the crossinterrogatories, agreed with the witnesses for the plaintiffs, that if, in 1832, they had received an order from a distant correspondent for a certain quantity of cotton bagging, they should not, at that time, have considered it a proper compliance with the order, to send gunny cloth. They also agreed, that gunny cloth was never applied to the purposes of cotton bagging previous to 1832. Charles G. Loring and Charles Sumner, for the plaintiff. F. Dexter, District Attorney, for the defendant. STORY J., in summing up to the jury, said; - The case turns upon a question of fact, dependent upon the true interpretation of the Tariff Law of 1832. If gunny cloths, or gunny bags, were at or before the passage of the Tariff Act of 1832, known or denominated by merchants, or in commercial trade, or business, as cotton bagging, then the collector has acted rightly in demanding the duties. But if gunny cloth or gunny bags were at and before that period always known by merchants, or in commercial trade, or business, by a distinct name, and were never known by the denomination of cotton bagging, |