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26,029], which had affirmed the assessment of duty by the collector of customs at the port of New York.

Comstock & Washburn (J. Stuart Tompkins, of counsel), for importers.

D. Frank Lloyd, Asst. U. S. Atty.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. The importations in controversy are cherries from which the pits had been removed, the fruit then washed several times in water, as a result of which the dirt and free juices were removed, then exposed to sulphur fumes, and then packed in casks in a weak solution of salt water in order to preserve the fruit in transit; the salt ranging in percentage from .118 to .402. They were designed to be converted into candied cherries, which is done by washing out the salt and sulphur dust, then boiling them in fresh water and then boiling them in sugar sirup. They were subjected to a duty of 1 cent per pound and 35 per cent. ad valorem, under paragraph 263 of the tariff act of July 24, 1897 (chapter 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651]), which reads as follows:

"263. Comfits, sweetmeats, and fruits preserved in sugar, molasses, spirits, or in their own juices, not specially provided for in this act, one cent per pound and thirty-five per centum ad valorem.

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The question presented by the appeal is whether the importations were properly classified under that paragraph, or whether they should not have been classified under paragraph 262 or paragraph 559 of the same tariff act. Paragraph 262 prescribes duty as follows:

"262. Apples, peaches, quinces, cherries, plums, and pears, green or ripe, twenty-five cents per bushel; apples, peaches, pears, and other edible fruits, including berries, when dried, desiccated, evaporated or prepared in any manner, not specially provided for in this Act, two cents per pound. *

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Paragraph 559 places upon the free list "fruits or berries, green, ripe, or dried, and fruits in brine, not specially provided for in this act.' Section 2, Free List, 30 Stat. 198 [U. S. Comp. St. 1901, p. 1683].

We are satisfied that the importations were not within the description of paragraph 263. That paragraph is intended to apply to fruits which have been "preserved"; that is, treated so as to become a preserve or comfit, and not to such as merely remain temporarily in their natural juices. As this court pointed out, in United States v. Reiss, 136 Fed. 741, 69 C. C. A. 393, the paragraph refers to a class of goods, which are commercially known and dealt in as preserved fruits. In the case of the present importations the fruit was not in any just sense preserved in its own juices; indeed, the juices which were retained in it only tended to produce its decay, and this effect was minimized as far as practicable by the treatment with sulphur and salt water.

We are also satisfied that the importations were not free under paragraph 559, and agree with the reasoning of the Board of General Appraisers and of the court below upon that question. In our judgment, they fall within the more specific description of paragraph 262,

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and were dutiable as "cherries," under the first part of that paragraph, or as "edible fruits prepared in any manner," under the latter part. The first part would seem intended to apply to the fruits, ripe or unripe, specifically mentioned therein, when imported in their natural state. The latter part appropriately refers to the same fruits when something has been done to them to prepare them better for preservation, and which may consist either in drying, evaporating, or desiccating them, or in preparing them in any other manner. The term "other edible fruits" properly includes not only the cherries and the other fruits specifically mentioned in the first part of the paragraph, but also a class outside of these. It is used to save recapitulating all the varieties previously enumerated, and also to cover other varieties. We are not impressed with the argument that the words "prepared in any manner" are to be limited upon the rule noscitur a sociis so as to embrace only fruits prepared by a drying process. The importations in controversy are removed from the enumeration of the first part of the paragraph and transferred to that of the second because they have been prepared within the meaning of that part of the paragraph. Our conclusion is that they should have been subjected to duty at 2 cents per pound.

The decision of the court below and of the Board of General Appraisers is modified accordingly.

THE GOLDEN ROD.

(Circuit Court of Appeals, Second Circuit. January 30, 1907.)

No. 41.

1. MARITIME LIENS-SUPPLIES-VESSEL IN POSSESSION OF CONTRACT PURCHASER. For the purpose of determining the validity of a maritime lien for supplies furnished to a vessel while she is in the possession of a purchaser under a contract of conditional sale, the vessel should be considered as though in the possession pro hac vice of a charterer.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Maritime Liens, 88 4-6, 26.]

2. SAME HOME PORT.

Hoboken, N. J., is not the home port of a vessel whose owner resides in New York City, but a foreign port as relates to supplies there furnished her.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Maritime Liens, $$ 8, 9.]

8. SAME STATE STATUTE-SCOPE.

A state statute giving the right to a lien for supplies furnished vessels Is applicable only to domestic vessels of the state and a lien cannot be obtained thereunder on a foreign vessel.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 34, Maritime Liens, $ 24, 25, 27.]

4. SAME -LIEN UNDER GENERAL MARITIME LAW-RELIANCE ON CREDIT OF. VESSEL.

To sustain a claim for a lien under the general maritime law for supplies furnished to a vessel in a foreign port, it must be shown that the credit of the vessel was properly relied on, and no lien can be obtained

where the claimant knew that the vessel was in possession of a charterer or contract purchaser who was bound to furnish and pay for all supplies, or where he was put upon inquiry as to the terms of such a contract.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Maritime Liens, § 12.

Maritime liens for supplies and services, presumption as to credit to vessel, see note to The George Dumois, 15 C. C. A. 679.]

Appeal from the District Court of the United States for the Southern District of New York.

Garrard Glenn, Herbert Barry, Earle L. Beatty, Morton G. Bogue, and Davies, Stone & Auerbach, for appellant.

Herbert Green and Wilcox & Green, for appellee.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

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LACOMBE, Circuit Judge. The yacht was owned by Watt, who made a contract of sale with one Durlacher May 18, 1905. This contract provided that "Watt shall sell and Durlacher shall buy the said yacht Golden Rod, etc., for $22,000." payable in nine monthly installments, beginning July 1, 1905, and that "concurrently with the execution of this agreement Watt shall execute a bill of sale, ** * which shall not be delivered to Durlacher until the entire purchase price shall have been paid, * and in the meantime said bill of sale shall remain in escrow in the hands of A. P. Bliven." It was further provided that upon signing of the agreement and the effecting of insurance Watt should deliver possession to Durlacher. Durlacher covenanted to keep the yacht in as good condition as when delivered to him, and that he would make no alterations or changes in hull or machinery without the consent of Watt or his authorized representative, and at Durlacher's own expense, and further engaged to furnish a bond to protect against any liens for seaman's wages, repairs, supplies, etc. It was further provided that until full payment Watt should keep Bliven on board the yacht as his designated representative. Durlacher took possession while the yacht was out of commission in the Erie Basin, and subsequently appointed one Ludlow captain. A similar contract was before the court in The H. C. Grady (D. C.) 87 Fed. 232, and it was held that, when a question as to maritime lien arises, the vessel should be considered as if she were in the possession pro hac vice of a charterer to whom the owner had temporarily turned her over. In this view of the law governing the case we fully concur. The coal was furnished in Hoboken, N. J. The owner resided in New York City. The supplies were therefore furnished, not in her home port, but in a foreign port. We so held in The Havana, 64 Fed. 496, 12 C. C. A. 361, and our attention is called to no authority questioning the correctness of that decision.

The contention of the appellant is that it obtained a lien under the statute of New Jersey, 2 Gen. St. N. J. p. 1966. The Supreme Court of the United States, while holding that it is competent for the states to create such liens for necessaries furnished to domestic vessels, said, "The right to extend these liens to foreign vessels in any case is open to grave doubt." The Roanoke, 189 U. S. 194, 23 Sup. Ct.

491, 47 L. Ed. 770. In The Electron, 74 Fed. 689, 21 C. C. A. 12, that question was before this court, but not passed upon because we had already certified it to the Supreme Court in The Kate, 164 U. S. 458, 17 Sup. Ct. 135, 41 L. Ed. 512. Although the cause thus certified was disposed of on other grounds, the expression of opinion above quoted from The Roanoke sufficiently indicates the principles to be applied by the inferior courts in such cases. The Golden Rod, being in a foreign port, was not affected by the provisions as to maritime lien contained in the New Jersey statute.

In the court below it was insisted that, if Hoboken were held to be a foreign port, libelant nevertheless obtained a lien for the supplies under the general maritime law; and such a claim is, we understand, still made on this appeal. To sustain such a claim it is necessary to show that the credit of the ship was properly relied upon by the person furnishing the supplies. In The Kate, 164 U. S. 458, 17 Sup. Ct. 135, 41 L. Ed. 512, it was held that, if the libelant knew that the vessel was being operated under a charter which provided that the charterer should furnish and pay for all needed coal, he could not maintain a lien under maritime law. And in The Valencia, 165 U. S. 264, 17 Sup. Ct. 323, 41 L. Ed. 710, the same court further held that if the circumstances attending the transaction put the libelants upon inquiry as to the terms and existence of such charter party, "but they chose to shut their eyes and make no inquiry touching these matters,' they acquired no lien, even though they "delivered the coal in the belief that the vessel would be responsible for the value of such coal." The application of the rule thus laid down disposes of all question as to general maritime lien in this cause. It is quite apparent from the evidence that the master did not order the coal, and that before it was actually furnished the representatives of the libelant were advised that the yacht was under charter, or had been "bought on the installment plan," as the captain expressed it, but they made no effort to inform themselves as to the terms of the agreement under which she was in the possession of Durlacher instead of Watt. Under these circumstances no lien was obtained.

The decree of the District Court is affirmed, with interest and costs.

THE GOLDEN ROD (two cases).

(Circuit Court of Appeals, Second Circuit. January 30, 1907.)

Nos. 121, 122.

1. MARITIME LIENS-STATUTORY LIENS-SUPPLIES AND REPAIRS.

Under a state statute, as well as under the general maritime law, a lien will not attach to a vessel for supplies or repairs unless it appears that credit was given to the vessel.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Maritime Liens, $$ 12, 30.]

2. SAME.

A vessel held subject to liens under the New York statute for work and materials furnished for repairs in her home port on orders given by one in charge representing the owner and on the credit of the vessel, although

she was in possession of another under a conditional sale; libelants having no knowledge of such fact or of facts to put them on inquiry.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Maritime Liens, §§ 4-6, 26.]

Appeal from the District Court of the United States for the Eastern District of New York.

Herbert Green and Wilcox & Green, for appellant.

George L. Robinson and Robinson & Robinson, for appellees.
Before LACOMBE, TOWNEND, and COXE, Circuit Judges.

LACOMBE, Circuit Judge. The claims in these two causes are against the vessel whose situation we discussed in the opinion in Con-* solidation Coal Co. v. The Golden Rod (handed down herewith) 151 Fed. 6. They arose while the vessel was in the possession of Durlacher, with Bliven actually or technically on board as the representative of Watt.

There is no question here of any lien under general maritime law since the work and materials were furnished in New York City, the home port of the vessel. The libelants rely solely on the statute of the state of New York (Laws 1897, pp. 526, 527, c. 418, as amended by chapter 246, p. 494, Laws 1904, §§ 30, 32); notice of lien having been. duly filed, as required by the act, in the office of the county clerk. Under a state statute, however, as well as under the general maritime law, a lien will not attach unless it appears that credit was given to the ship. This court so held, after a careful discussion of the authorities, in The Electron, 74 Fed. 689, 21 C. C. A. 12. Apparently a contrary opinion has been reached in the First circuit (The Iris, 100 Fed. 104, 40 C. C. A. 301), but we find in that circumstance no reason for modifying our former opinion, which seems to be in accord with the views of the Supreme Court in The J. E. Rumbell, where, referring to the two varieties of lien, general maritime and local created by state statute, the court says: "Each rests upon the furnishing of supplies to the ship, on the credit of the 'ship herself.'"

The testimony in both causes shows that the labor and material, which were ordered by Bliven, the owner's representative, were furnished upon the credit of the vessel, and, although there is some dispute between the witnesses, we are satisfied that the respective libelants did the work and furnished the materials without knowledge that the owner had chartered the boat, or turned over her possession under some conditional sale, and with no information as to any circumstances which should indicate the necessity of further inquiry as to her situation. The decrees are affirmed, with interest and costs.

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