The Schooner Helen J. Holway.-The Schooner Enoch Moore.

consisting of two persons, namely, her mate, A. L. Thompson, who was forward on the lookout, and a seaman named Wilson, at the wheel. Her master, G. E. Thompson, and who was one of her owners, had been below, but came on deck before the collision. The master and the mate, who are brothers, were examined by deposition on the 6th of August, 1872, and were also examined orally at the trial. They are the only witnesses from the Holway.

The only case set up by the Moore, in her pleadings, is, that the Holway, being close-hauled on her starboard tack, was bound to keep her course, but failed to do so, and, instead, starboarded, and so thwarted the efforts which the Moore made, by porting, to keep out of the way of the Holway.

There is a dispute as to the wind. The Moore insists that it was east-northeast, and that the Holway could lay her north course up the bay, having six points of wind in which to do so. In this view, the witnesses from the Moore say that they thought at the time that the Holway was on a north course. The Holway contends that the wind was north-northeast, and that she was heading northwest by north half north, thus heading four and a half points off the wind, and making really a northwest by north course, falling to leeward half a point, and unable to make her north course, having been beating and tacking, and sailing as close to the wind as she could. Whether the wind was northnortheast or east-northeast, it was free for the Moore, in either case, being either two points or six points abaft her beam, on her port side.

It is positively testified by those on the Holway, that she was as close-hauled as she could be; that her actual course by the compass, after the Moore was seen by her, and down to the moment before the collision, was northwest by north half north; that her helm was kept steady, and she was kept on the same course, because

The Schooner Helen J. Holway.-The Schooner Enoch Moore.

of the approach of the Moore, and under an order given with that view; that her helm was not starboarded; and that, when the collision was inevitable, her helm was ported, in order to prevent her being run over by the Moore, and to make the blow one of the stem of the Holway against the Moore. The testimony of witnesses from a sailing vessel, as to the course of such vessel, her being close-hauled or not, and her compass course, is much more reliable than the testimony thereto of witnesses from another vessel, which is herself sailing free. The evidence in this case has brought me to the conclusion, that the Moore mistook the course of the Holway. The Holway was really crossing the course of the Moore, at an angle of from two and a half to three points. The colored lights of both vessels were burning. The master of the Moore says that he saw both of the colored lights of the Holway a little off his port bow, and immediately ported, and that afterwards the Holway shut in her red right, her green light continuing visible. Admitting that, if the Moore was on a south course, and the Holway on a course northwest by north half north, the Moore could not have seen the red light of the Holway, still, if one of the two conclusions must be reached, either that the red light of the Holway was not seen by the Moore, before the Moore ported, or that the Holway was not on a course northwest by north half north, the whole evidence makes it impossible to adopt the latter view. I conclude, therefore, that the case is one falling under the 12th Rule. The two vessels were crossing, so as to involve risk of collision, and they had the wind on different sides, and the Moore having the wind free, on her port side, was bound to keep out of the way of the Holway, and the Holway was bound, by the 18th Rule, to keep her course, and did keep her course. The pleadings of the Moore put the case as one of an observance by the Moore of the 12th Rule, and a violation by the Holway of the 18th Rule. They do not put the case as

The Schooner Helen J. Holway.-The Schooner Enoch Moore.

one under the 11th Rule, where both of the vessels were bound to port, as meeting end on, or nearly end on. For, although the Moore sets up, in her pleadings, that she ported, and did right in porting, yet she does not set up therein that the Holway ought to have ported, and did wrong in not porting. On the contrary, the pleadings of the Moore assert that the Holway was close-hauled; that the master of the Moore saw that the Holway was close-hauled; that, because he so saw he ordered the helm of the Moore to be ported; that the Holway, being close-hauled, was bound to keep her course; and that, if she had kept her course, no collision would have occurred. This being so, the Moore, even if she were to establish that the vessels were meeting end on, could not be permitted to contend that it required porting by the Holway to prevent a collision. The Moore has affirmed in her pleadings, that an adherence by the Holway to her close-hauled course, combined with the porting done by the Moore, would have avoided a collision. It is not meant to be implied, by anything I have said, that, if the Holway had been heading north, close-hauled on her starboard tack, so that the vessels were meeting end on, or nearly so, so as to involve risk of collision, the case would have been one requiring the Holway to port her helm. It is certainly true, however, that where the Moore, in her pleadings, asserts, that, the Moore having ported, porting by the Holway was unnecessary, to avoid a collision, the Moore cannot be heard to say that it was a fault in the Holway not to have ported, the Moore having ported.

The libel of the Moore must be dismissed, with costs. On the libel of the Holway, there must be a decree for the libellants, with costs, with a reference to a commissioner to ascertain the damages sustained by them.

A. J. Heath, for the Holway.

D. McMahon, for the Moore.

The United States v. 236 Dozen Boxes containing Cosmetics.

JUNE, 1873.

THE UNITED STATES v. TWO HUNDRED AND THIRTY-SIX DOZEN BOXES

CONTAINING

COSMETICS KNOWN AS LILY WHITE.

INTERNAL REVENUE.-STAMPS ON COSMETICS EXPORTED.-Forfeiture. -CONSTRUCTION OF STATUTES.

A manufacturer of cosmetics in New York, having received an order from a customer at Havana, put up the goods and sent them, without any internal revenue stamp being affixed to any of the boxes, to the wharf of the Havana steamer, for transportation to Havana. The owners of the steamer gave a receipt for them. They were then seized by the Government, and an information was filed to forfeit them, on the ground of their not having stamps on the boxes. The goods were not manufactured in the warehouses prescribed by the 28th section of the internal revenue Act of March 3d, 1873 (12 U. S. Stat. at Large, 727), and the 168th section of the Act of June 30th, 1864 (13 Id. 296):

Held, That, under the 167th section of the Act of June 30th, 1864, as amended by the 1st section of the Act of March 3d, 1865 (Id. 482), the goods should have been stamped, although they were intended for exportation, and, not having been stamped, were liable to forfeiture.

BLATCHFORD, J. This is an information on a seizure of 236 dozen boxes containing cosmetics, known as lily white, which are alleged to be forfeited to the United States for a violation of the internal revenue laws. It comes before the Court on an agreed statement of facts. The information avers that the articles seized were articles or commodities mentioned in Schedule C of the Act of June 30th, 1864, and Acts amendatory thereof, and were subject thereby to a duty of one cent on each of said boxes, and were manufactured by Felix B. Etrouse, a manufacturer of said articles or commodities, at his manufactory, number 84 Duane street, in the city of New

The United States v. 236 Dozen Boxes containing Cosmetics.

York, and that Strouse, on the 18th of February, 1873, at the city of New York, sold, sent out, removed, or delivered the said articles or commodities, so manufactured, before the duty thereon had been fully paid, by affixing thereon the proper stamp, as provided by law, and removed, or conveyed away, or deposited the same in some place, to evade the duty chargeable thereon, contrary to the statute of the United States in such case provided, whereby the same became forfeited to the United States.

The goods were found on the wharf of the Havana steamer, in New York, in a case addressed, "G. D. M., Habana." They were manufactured in New York, by the claimant, and were a cosmetic, with no admixture of domestic spirits. The claimant had received from G. Del Monte of Havana, Cuba, a merchant there, an order, sent from Havana, in these words: "Send 25 gross cascarilla, oval, medium size, equal to what I had before." Del Monte was not an agent of the claimant, but was a frequent purchaser of goods from the claimant. The claimant put up the goods in question, in pursurance of this order, and sent them, without any internal revenue stamps being affixed to any of the boxes, to the wharf of the Havana steamer, in a case, addressed as above, for transportation to Havana. The owners of the steamer received the case from the claimant, and gave him a receipt therefor, containing its address, as above. The case was then seized. In the ordinary course of business, if the goods had not been seized, the claimant would have received from the owners of the steamer a bill of lading for the goods, expressing their consignment to Del Monte, and would have forwarded such bill of lading to Del Monte, at Havana; and the claimant would have had the goods insured on his own behalf against the risks of the voyage to Havana. The retail price or value of each box, and of the cosmetic in it, did not exceed 25 cents, and