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OBSTRUCTION TO NAVIGATION-CONTRIBUTORY NEGLI
The U. S. tug Resolute while passing up the channel near Fort Winthrop
at high tide, struck a sunken scow and was damaged. The captain of the Resolute knew of the sinking of the scow, its locality, and that boats had been engaged in unloading and trying to raise the boat. At the time of the striking the scow could not be seen, and there was no
danger signal to indicate the presence of an obstruction. Held: That in view of the fact the master of the Resolute knew that tugs
had been engaged in unloading and trying to raise the scow, that the harbor master had been notified of the sinking of the scow, and in view of the imperative requirements of the law and the uniform practice as to keeping danger signals displayed as long as necessary, the master, seeing no danger signal displayed, had the right to suppose that the danger had been removed, and was not negligent in assuming that, in this particular case, there was no danger where there was no danger signal. But if, at the time of the accident, the master of the Resolute knew of the danger, or if under all the circumstances he ought to have known of it, and he failed to take reasonable and proper care to avoid it, and thus met with the accident, no recovery can be had against the owners of the scow.
DEPARTMENT OF JUSTICE,
March 10, 1900. SIR: To your request of March 3, 1900, indorsed on the papers transmitted for my official opinion of the claim of the United States against G. H. Breymann & Bros., of Boston, on account of damages sustained by C'. S. steam tug Rexolute, caused by her striking a sunken scow of said Breymann & Bros. in the channel at Fort Winthrop, Mass., and whether the compromise offer of about one-half the amount of damages, by the owners of the sunken scow should be accepted, I have the honor to reply as follows:
From the papers transmitted, there does not appear to be any dispute that the Resolute sustained the damage alleged, and to the extent claimed by coming in contact, in one of her regular and proper trips, with the sunken scow of said Breymann & Bros.
The only matters disputed by them are:
First. That the sunken scow was actually in the channel, or regular course of vessels;
Second. That there was nothing at such times as the wreck
was covered by high tide to sufficiently indicate its presence or give warning of the danger; and,
Third. That the master of the Resolute bimself exercised due care and was not himself guilty of negligence contributing to the injury.
The first of these is suggested only as a possibility, and, from all the papers submitted, may, I think, be dismissed from consideration. This leaves, as the only questions: First. Was there, at times when the sunken scow was submerged at high tide, anything to sufficiently indicate its presence, or to mark the place as dangerous? And,
Second. Was the master of the Resolute, at the time, in the exercise of due care?
The first is a question of fact, dependent upon evidence, of the extent or credibility of which this Department has no means of knowledge. The question of what the available proof will show as to the presence or absence of proper danger signals, must be left to those having charge of the
But, so far as the evidence which is suggested in the papers submitted alone is concerned, I do not think this should suggest an acceptance of the compromise offered by the attorneys of Breymann & Bros.
The remaining question is, upon the papers submitted, so much a question of mixed law and fact, and the facts so dependent upon unknown evidence, that I can do little more than state some general rules or principles governing it.
It is claimed by the other side that, except at high tide, this sunken scow was, as to a great part of it, above water and plainly visible; that, between the sinking of the scow and the injury to the Resolute, that tug, with the same master, made many trips, passing at all tides in close proximity to and certainly knew of the sunken scow and its locality; and therefore, even at high tide, would, with proper care, have avoided it without any danger signal.
To this it is suggested that tugs had been engaged in unloading and trying to raise the boat, and at the time in question the master, seeing no danger signal, had a right to suppose the danger had been removed, and the more especially in view of the imperative requirements of the law and the universal practice as to keeping such signals as long as necessary, and still more from the fact that the harbor master had been notified and should see that signals are kept as long as needed. That in view of all these and other considerations the master of the Resolute was not negligent in assuming that, in this particular case, there was no danger where there was no danger signal. I barely allude to some of the general considerations which may offset the question.
It is also claimed that there was a buoy to mark this danger place. But the great weight of the evidence submitted is that, for some reasons, it was not visible at high tide, while the plain duty of Breymann & Bros. was to have one visible there at all times.
But the failure of the Breymanns to keep a danger signal would not necessarily make them liable in this case. For, if, at the time of the accident the master of the Resolute knew of the danger, or if, under all the circumstances, he ought to have known it, and he failed to take reasonable and proper care to avoid it, and thus met with the accident, no recovery can be had. So that the whole matter is reduced to the question whether, at the time of the accident, the master of the Resolute, under all the circumstances and facts which he knew or ought to have known, should have done that which he did not do to avoid the accident. This is so dependent upon unknown evidence that it must be left to those having opportunities for knowledge of what evidence is available. But, so far as indicated by the papers,
, it does not seem to justify any claim that the master of the Resolute was at all negligent.
I return herewith the papers transmitted with your request. Respectfully,
JOHN W. GRIGGS. The SECRETARY OF WAR.
IMPORTED LEAD ORES-REEXPORTATION-DUTIES.
The six months within which the refined metal produced from imported
lead-bearing ores must be reexported or the regular duties paid thereon, under section 29 and paragraph 181 of the tariff act of July 24, 1897 (30 Stat., 166), means within six months from the date of the receipt of the ore by the manufacturer at his bonded smelting establishment, and not within six months from the date of the receipt of the ore at its port of entry.
DEPARTMENT OF JUSTICE,
March 16, 1900. Sir: In your communication of the 10th instant, after referring to my opinion of December 29, 1898, to the effect that when refined lead produced from imported lead ore, and set aside under the provisions of section 29 of the act of July 24, 1897, is not exported within six months from the receipt of the ore, the regular duties must be paid on the ore, you inclose certain correspondence presenting a question which has arisen in the course of the administration of the provisions of this section, namely, “Whether the six months should be computed from the date of the receipt of the ore at the first port of arrival in the United States, or from the date of its receipt at the bonded smelting establishment," and request my opinion thereon.
Paragraph 181 of the act of July 24, 1897, provides:
“Lead-bearing ores of all kinds, one and one-half cents per pound on the lead contained therein: Provided, That on all importations of lead-bearing ores the duties shall be estimated at the port of entry, and a bond given in double the amount of such estimated duties for the transportation of the ores by common carriers bonded for the transportation of appraised or unappraised merchandise to properly equipped sampling or smelting establishments, whether designated as bonded warehouses or otherwise. On the arrival of the ores at such establishments they shall be sampled according to commercial methods under the supervision of Government officers, who shall be stationed at such establishments, and who shall submit the samples thus obtained to a Government assayer, designated by the Secretary of the Treasury, who shall make a proper assay of the sample, and report the result to the proper customs officers, and the import entries shall be liquidated thereon, except in case of ores that shall be removed to a bonded warehouse to be refined for exportation as provided by law. And the Secretary of the Treasury is authorized to make all necessary regulations to enforce the provisions of this paragraph.”
It is to be observed that the duties are estimated at the port of entry and a bond given for the transportation of the ore by bonded carriers to sampling or smelting establishments. “On the arrival of the ores at such establishments," they are sampled by Government officers stationed there, the samples assayed and a report of the result made to the customs officers, in order that the duties may be ascertained and the entries in proper cases liquidated.
Section 29 provides, primarily, a method for sampling imported ores in bonded warehouses for exportation without payment of duties. Incidentally, there is a provision for the removal of the refined metal for domestic consumption, upon entry and payment of duties. The ore is removed in original packages or in bulk from the vessel or vehicle on which imported into the bonded establishments, where, under the supervision of Government officers, it is smelted and refined, for exportation or domestic consumption. At the end of the section is to be found this proviso:
“ Provided further, That in respect to lead ores imported under the provisions of this section, the retined metal set
side shall either be reexported or the regular duties paid thereon within six months from the date of the receipt of the ore.”
"The date of the receipt of the ore" governs, but the receipt by whom and where? Evidently by the manufacturer who has imported it for smelting purposes and at the establishment bonded for such purpose. Within six months after the ore has been received by the manufacturer at his smelting establishment, he must export the retined metal produced from it or pay the regular duties upon the ore, which are ascertained by a Government assay of samples obtained after the receipt of the ore at the smelter. If Con