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ing has 'set' or hardened sufficiently, the clay figure inside is broken up and removed, and a plaster of Paris mold thereof is thus obtained. Plaster is then carefully forced into this mold, and when dry is taken out in the form of the original clay figure. This plaster figure, after having been carefully gone over by an artist or skilled workman to cure any defects in the molding, is in turn thoroughly covered with specially prepared plaster for the final mold. This is made in sections, which, when dry, are removed, and together form a perfect mold, and this composite mold becomes the manufacturer's substitute for the artist's clay or plaster cast model, from which he (the manufacturer) produces his molded statues in unlimited numbers. In the molding process the several sections of the mold are in turn laid with the concave side upward, and having a lining of 'carton pierre,' one-half inch or more in thickness, carefully laid and pressed into them by the molder's hands with the aid of suitable tools. The extended arms, fingers, and other slender parts are strengthened by pieces of iron wire laid in the carton pierre.' which is then lined either with heavy paper or coarse-woven regetable fiber cloth secured with glue. After the carton pierre' has dried sufficiently, the several sections of the mold are removed, and their contents joined together around a framework of wood, and a figure is thus formed, the counterpart of the original model. The statue then goes to a skilled workman, called a 'finisher,' who, with knife or other instrument, removes any roughness resulting from the joining of the sections, cures any other defects in the molding. and smooths it down generally. It is then passed to the painter and decorator, who completes it in the style desired.”

The evidence as to whether these figures, as originally molded or cast, were or were not casts of sculpture, is conflicting. In their present condition they are not so known commercially, or to the profession of sculptors generally. In the technical or professional sense, a cast of sculpture is one taken from an original creation in clay as part of the process of making the completed statue in bronze or marble. In a broader sense, the term embraces casts from sculptured objects in marble or bronze, which reproduce the original objects. These objects have been cast or molded, as above explained, from a sculptured object, using the term "sculptured" in its broadest sense. The provisions of paragraph 649 of said act of July 24, 1897, are as follows:

"619. Regalia and gems, statuary, and specimens or casts of sculpture, where specially imported in good faith for the use and by order of any society incorporated or established solely for religious, philosophical, educational, scientific or literary purposes, or for the encouragement of the fine arts, or for the use and by order of any college, academy, school, or seminary of learning in the United States, or any state or public library, and not for sale."

It seems as though congress must have intended by the term "casts of sculpture" such copies of artistic statuary or other sculpture cast in materials such as plaster of Paris as are adapted, for example, for educational institutions, whether intended to be thereafter used as a part of the process of making the statue or not. It cannot have been the intention of congress, however, by said provision to perinit our churches, colleges, and historical societies to import free of duty their whole interior decorations in the plastic art under the guise of casts of sculpture.

Counsel for the importers contends that, inasmuch as these articles are cast, and are copies of sculptured objects, they are, in fact, casts of sculpture, and that, as no trade designation is involved, the testimony of professional sculptors is inadmissible to show the

meaning of said term. But in this case the peculiar phraseology of the statute requires that the court should inquire as to the classes of articles included under the broad term "casts of sculpture,” in order to determine which would be appropriate for such importations for religious or literary societies. In its broadest sense "casts of sculpture" might be so perverted as to embrace, for example, an India-rubber doll. It is not necessary, however, in the disposition of this case to determine whether such objects, if imported in their crude state, would be free of duty under said paragraph. They have been advanced by the skill of the artist from a mere manufacture from composition to a completed decorative object. Not only have the figures themselves been elaborately painted and gilded, but in two of the exhibits original paintings have been made, showing sky and clouds, temples, arches, and other decorations entirely independent of the figure itself. To one of the exhibits there has also been added a piece of twine simulating the rope used by soldiers in their infliction of tortures upon the Saviour. The faces have been so painted as to suggest the sentiments of the actors, and paint simulating drops of blood has been applied to the forehead of the figure of the Saviour. Such objects are not "casts of sculpture.” The decision of the board of general appraisers is affirmed.

W. Wickham Smith, for appellants.
Chas. D. Baker, for appellee.
Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM. Affirmed on opinion of court below.

(113 Fed. 1017.)

THE E. LUOKENBACH (three cases).
(Circuit Court of Appeals, Second Circuit. February 24, 1902.)

Nos. 106-108.

The owner of a tug is not an insurer against marine perils, and is liable only for the want of reasonable diligence and skill in the towing service; nor is an error of judgment on the part of the master equiva

lent to negligence. 2. SAME.

A tug having in tow five mud scows, proceeding down the Elizabeth river to the dumping grounds in Chesa peake Bay, laid up during the night, owing to a high wind. In the morning the weather was clearing, the wind had a bated, and the tug proceeded out into the bay. When near the dumping grounds the wind suddenly increased, the lines parted, and some of the scows were injured. The weight of the evidence showed that there was no good reason to anticipate danger until it was too late to safely return. Held, that the tug was not liable for the damage to the scows. 1 Appeals from the District Court of the United States for the Southern District of New York.

1 As to perils by wind and waves, see note to The Dunbritton, 19 C. C. A. 467.

These causes come here upon appeals from decrees of the district court, Southern district of New York, dismissing the libels, which were brought to recover for damages sustained by scows while in tow of the steam tug E. Luckenbach in Hampton Roads, about 10 a. m., October 31, 1900. Libelants appeal from a decree dismissing the libel.

The opinion filed below, and here reprinted from 109 Fed. 487, was in full as follows:

BROWN, District Judge. In the forenoon of October 31, 1899, five scows in tow of the tug Luckenbach in Chesapeake Bay, near the ripraps off Old Point Comfort, got adrift in a gale and sustained damages or incurred charges for which the above three libels were filed. The tug and tow had come down Elizabeth river the night previous intending to proceed out into the bay to dump the scows; but meeting a high wind they laid up for the night at Lambert's Point below Norfolk. The following morning between 7 and 8 o'clock, the wind being much abated and the sun out occasionally, the tug resumed her way. On coming into the open bay at Sewell's Point, there was more wind, and when near the ripraps, the wind increased suddenly, the tug's bridle soon broke, and afterwards the lines connecting the tandem scows.

The libel charges the tug with fault, first, in leaving Lambert's Point in the existing conditions of the weather; and, second, in not turning back after leaving Sewell's Point on account of the high wind. The answers deny any negligence and aver that the weather was suitable on leaving Lambert's Point and Sewell's Point but increased suddenly at the ripraps; and that the damage arose from the parting of the lines between the scows supplied by the libelants, and also that the tug was chartered to the libelant and was navigated under his control and direction.

The evidence shows that the libelant was the charterer of the tug for the purpose of towing the mud scows; but the na the tug on the particular trips to which she was assigned, was I think under the direction and control of the master of the tug as the representative of the owner at that time, and that the tug is therefore responsible for any negligence or fault of the master in such navigation.

The owner of the tug, however, is not an insurer against marine perils, and is liable only for the want of reasonable diligence and skill in the towing service. The Margaret, 94 U. S. 494, 496, 24 L. Ed. 146; The Allie and Evie (D. C.) 24 Fed. 745.

I think considerable of the testimony on the part of the libelant as respects the conditions of the weather on leaving Lambert's Point and Sewell's Point, is the result of the wisdom that comes after the event. Mr. Buckner, the government inspector, who was on board the tug to superintend the dumping, and a man of long sea experience and a wholly disinterested witness who was called by the libelant, clearly repels any charge of negligence or fault in leaving both places. He says:

gation oi

"Q. What was the weather when you started? A. The weather was good enough when we started.

"Q. Did you see any impropriety about starting? A. Not then. "Q. How fast was the wind blowing when you started ? A. I suppose about 10 miles an hour.

"Q. Did you suppose there would be any trouble until these lines parted between the scows? A. I didn't think there would be any trouble until we got nearly down to ripraps.

"Q. You thought it was all right up to that time? A. Yes sir. "Q. What time of day was that? A. About 10 o'clock.

“Q. Had there been a great decrease in the wind from the night before? A. Yes sir.

"Q. And everything looked safe enough? A. If it had not been we would not have started.

"Q. The wind was north? A. Yes sir.

"Q. Until you had passed the black buoy (halfway from Sewell's Point to ripraps) you did not anticipate any trouble at all? A. No sir.

"Q. Was there a great sudden increase in the wind then? A. Yes sir. "Q. And the sea commenced to get rough? A. Ebb tide, yes sir.

"Q. How far were you from the dumping grounds when you first felt that there was likely to be trouble? A. Well, about a mile and a half from the ripraps then.

"Q. Near to the dumping grounds? A. About a mile and a half.

"Q. If the lines had held together don't you think you would have been all right? A. Yes sir.

*Q. How far from the black buoy had you anticipated trouble for the first time? A. Nearly down to the ripraps.

"Q. How far from the ripraps? A. A couple of miles.

"Q. How fast were you moving before that? A. I don't know, not over three miles an hour.

"Q. Don't you remember the sun shining that day? A. The sun was shining some.

"Q. Was there every indication of clearing weather when you started? A. Looked something like it, but the wind was increasing."

The inspector, who was accustomed to those waters, at no time before the accident suggested any return with the scows. That might have been done when in the vicinity of the black buoy, but not when near the ripraps; and the inspector anticipated no trouble until near the latter, and thinks that no harm would have ensued had not the lines parted, and the testimony shows that the lines were good. This is further confirmed by the fact that during some five or six hours after the accident the Luckenbach and another tug, the Hudson, were maneuvering in picking up the scows, in dumping them and in taking them all back, except one which stranded. All the witnesses, moreover, testify to the sudden great increase of the wind when in the vicinity of the ripraps. I see no reason for charging the master with foreseeing such an event, or that the

lines would part.

The alleged fault in not returning before reaching the ripraps is of much the same character. The superintendent of the line had been urging expedition upon the master. This would not be a reason for excusing him for incurring any unreasonable risks; but it is evident from the inspector's testimony that no trouble was anticipated by any one and no idea entertained of returning, until the accident had actually happened through the breaking of the lines in the sudden increase of wind near the ripraps, and after a return was impracticable with such a tow, through the narrowness of the channel. Even if the master made an error of judgment in not returning sooner, this is not the same thing as negligence, and negligence does not seem to me to be established by the testimony. The Allie and Evie, supra.

Without considering therefore the further defense that the plaintiff's agent was cognizant of the sale of the tug shortly after the accident and that he permitted the sale to proceed to a purchaser for value without asserting or making known any claim of lien upon the tug by reason of this accident, I think the libel should be dismissed upon the grounds first above stated, with costs.

Samuel Park, for appellants.
Le Roy S. Gove, for appellees.
Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM. The facts are quite fully stated in the opinion of the district judge. In one respect his statement of them is fairly open to criticism. The testimony hardly warrants the finding that there was a sudden increase of wind; but we concur with him in the conclusion that the allegations of fault on the part of the tug are supported mainly by the wisdom that comes after the event. It would have been good judgment to stay in port. It would have been good judgment to turn back at Sewell's Point, when return was feasible and safe; but we are not prepared to say that in deciding to push on the master of the tug displayed such bad judg. ment as would amount to recklessness or negligence. The tows were staunch, well-built scows, two-thirds to three-fourths loaded; there was a government inspector along, who apparently was authorized, in the event of urgent necessity, to allow dumping short of the designated ground. The catastrophe was precipitated by the breaking of a bridle rope furnished by the tow, which seems to have been in very poor condition. Although the storm had not finally broken, the wind had gone down very much before they started from the haven they had put into overnight, and according to the weather records it continued to fall much lower during the two hours ensuing their departure. The master made a mistake in pushing on beyond Sewell's Point, but we concur with the district judge in the conclusion that it was not an error of judgment so gross as to justify a finding of negligence. The decree is affirmed, with costs.

(113 Fed. 1018.)

(Circuit Court of Appeals, Second Circuit. March 10, 1902.)


All persons who join in the sale and assignment of a patent, or partielpate in the consideration received therefor, are estopped to allege its invalidity, and a corporation of which such persons own all the stock is


The Sawyer patent, No. 462,065, for a numbering stamp, held infringed as to claims 1 and 2.

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