the boat, who should give to the plaintiff in person the notice to which he was entitled, and who should wake him for that purpose if he was asleep. The instructions in question were given and the case submitted to the jury upon the law of the case as settled by the appellate court. While this question was not presented to that court in the precise form in which it is now presented, and was not in terms passed upon, yet it inheres in the case. As already suggested, the testimony bearing upon the particular matter was the same in the last trial as in the one that preceded it. In view of the opinion of the Court of Appeals upon the facts before it, I am not prepared to say that the notice required should not have been. of the character suggested by the instructions as defendants interpret them. The plaintiff, in the trial before the last appeal, testified that at the time he went upon the boat there was blastingso he understood; that he heard some noise, and thought they were blasting. It is not probable that he in fact heard blasting at this time, since there was no blasting then going on, and he was speaking with reference to the locality where he was. His statement that he "understood there was blasting at that time" can have no other interpretation than that he knew that the work being prosecuted there involved blasting at that time of the day. He may not remember or correctly state the reasons for his understanding. That is not material. His means of knowledge do not affect the conclusiveness of the admission made against his interest. After going upon the boat and playing a game of cards, he says that he heard some noise that sounded like blasting at a distance; that this noise "sounded very indistinct in there, because there was a cataract of water, and more or less noise going on, caused by the passengers and the unloading of freight." The fact that the blasting sounded like distant blasting was due-so he states-to the noises which he knew about and describes. The plaintiff says that the idea he had "was a vague idea that there was work going on on the outside-whether there was blasting there, or noise that sounded like it." He also says that he dozed off into a light sleep after hearing several blasts. These admissions of knowledge are independent of what he learned when first going on the boat. The use of the word "outside" to describe the location of the noise that sounded like blasting, and the work he supposed was going on, identifies his "idea" of what was going on with the actual facts of the case. There was no noise of distant blasting heard by any of the witnesses, and this blasting was heard by all the witnesses who have testified upon the subject. If it was not sufficient to answer the purpose of notice to the plaintiff, then no warning cry given on the outside would have sufficed, as further appears from the fact that Mosher and Young, witnesses for plaintiff, heard the warning to look out while they were on the bow of the boat. These uncontradicted facts show that plaintiff knew all that he could have learned from any warning cry or notice from without the boat about the fact that there was blasting. It does not appear, however, that he knew the extent of the danger to be apprehended from it. His attorney, examining him as a witness in his own behalf, asked this. question: "If you had been warned that there was blasting going on so close to that boat as to make it dangerous, to make danger of rocks coming down through the roof over your head, what, if anything, would you have done?" etc. To this the plaintiff answered that he "supposed" he would have gone down on the lower deck, if anybody had said anything about it, but there was nobody there but the steward and a few passengers, and "the steward didn't say anything about it." "If the lower deck hadn't been there, and it had been necessary to go off a long distance from the blasting— leave the boat and go off a long distance from the blasting to make yourself safe-what, if anything, would you have done if you had known or been warned that there was any danger there; any blasting there that would have been likely to endanger your life?" With the answer that was wanted thus clearly indicated, the plaintiff answered: "I would have went off, I suppose, if they had made it clear my life was in danger. I think a man naturally would go any place." Upon the second trial, and before there had been any suggestion that the plaintiff might have found a place safer than the boat's cabin by going ashore or to the lower deck, one of plaintiff's attorneys, in his opening argument to the jury, anticipating the defense of contributory negligence, said: "Where could he have gone if this alarm of fire had been heard by plaintiff, and this was not a place of safety? Where would he go, where would he be, not to be guilty of negligence, except in the cabin of the boat?" * * * These facts show that the plaintiff believed himself to be exercising due care for his own safety in going into the cabin of the boat and remaining there, with knowledge of the blasting on the outside, and that he adhered to that belief in the earlier stages of the case; and I am of the opinion that, inasmuch as the other passengers acted as he did, he was justified in that belief, since ordinary care is such care as the great majority of men would exercise in like circumstances. The plaintiff's conduct in this respect was not affected by the question of separate notices of different blasts. If he did not know that there was to be a succession of blasts, nevertheless he remained during all the blasting in the place where he was when the first blast was fired. It is clear, therefore, that if the defendants failed in any duty that was imposed upon them, to the plaintiff's injury-and the fact that the case was remanded for another trial has the effect of a determination that the jury would have been warranted in so finding-it was in their failure to anticipate what happened, and give the plaintiff such a warning as would have enabled a man, in the exercise of ordinary care, "situated as the plaintiff was," to have avoided the injury complained of. Whether they should have advised the plaintiff to leave the cabin, although they may have had the opinion expressed by plaintiff's attorney that it would be negligence for him to do so, it is not my province to decide. At all events, there is a necessary implication from the judgment of the appellate court that the jury might find that the defendants were remiss in some way aside from the question of notice of each separate and distinct blast, in the matter of the warning in question; and so the instructions, if given the interpretation which the defendants say the jury may have given them, did not go too far. I am of the opinion that the verdict is so excessive that a new trial must be granted on that ground unless the plaintiff will consent to remit the larger part of the sum assessed. In the other verdict found for the plaintiff, the jury assessed his damages at $2,000. His physical condition is as good now as it was when that verdict was returned, if not better. He testifies that the hearing in his right ear has been rendered defective, but that his left ear is probably as good as it ever was. His hearing, as it appeared from his examination as a witness, was good. There is frequently much difficulty on the part of witnesses in this court whose hearing is normal, in hearing the questions put to them on the witness stand, because of the bad acoustics of the room and the noise from the street; but the plaintiff seemed to hear without difficulty, and answered without hesitation. His hearing seemed as good as the best. The injuries suffered have made him cross-eyed, but his vision is, for all practical purposes, as good as it ever was, and his capacity for following his usual occupation is not diminished. I do not regard the matter of his personal appearance as a serious damage to a man at plaintiff's age. There is no impairment of plaintiff's ability to follow his occupation; no diminution of his earning capacity, or of any of the faculties upon which his well-being depends. I am of the opinion that, under these circumstances, damages in excess of $3,000 would be excessive. If the plaintiff will consent to remit all above that sum, the motion for a new trial will be denied, and a judgment entered accordingly; otherwise the motion will be allowed. JOHN B. ELLISON & SONS v. UNITED STATES. No. 45. 1. CUSTOMS DUTIES-ENTRY FOR IMMEDIATE TRANSPORTATION-ENTRY AT INTERIOR PORT BEFORE ARRIVAL. Imported merchandise entered at one port for immediate transportation to another cannot be entered for consumption at the latter port before its arrival within the limits of that port. 2. SAME CONFUSION OF Goods. Where an importer has protested against the imposition of duties alleged to be excessive, and there is no way of distinguishing the merchandise properly assessed from that which is subject to the duty claimed by the importer, the protest must be overruled as to all the merchandise. 3. SAME-ENTRY. In the provision in section 33, Tariff Act July 27, 1897, c. 11, 30 Stat. 213 [U. S. Comp. St. 1901, p. 1701], for "merchandise previously imported, for which no entry has been made," the word "entry" refers to an entry for consumption. 4. SAME. The provision in section 33, Tariff Act July 27, 1897, c. 11, 30 Stat. 213 [U. S. Comp. St. 1901, p. 1701], that "on and after" that date merchan dise previously imported should be subjected to the duties imposed by said act, is not limited to merchandise imported prior to that date, but applies also to that imported on that day. 5. SAME. Certain merchandise was imported at the port of New York July 24. 1897, and there entered for immediate transportation to the port of Philadelphia; and, before the tariff act of that date (chapter 11, 30 Stat. 213 [U. S. Comp. St. 1901, p. 1701]) had become operative, the importer sought to enter the merchandise under the tariff act of August 27, 1894, c. 349, 28 Stat. 509, and tendered an entry in due form to the collector at the latter port, which was refused on the ground that the goods had not reached that port. Held, that the action of the collector was justified. On Application for Review of a Decision of the Board of United States General Appraisers. The decision below (G. A. 5,482, T. D. 24,796) affirmed the assessment of duty by the collector of customs at the port of Philadelphia on merchandise imported by John B. Ellison & Sons. William A. Keener and J. Stuart Tompkins, for importers. . Wm. M. Stewart, Jr., Asst. U. S. Atty., J. Whitaker Thompson, U. S. Atty. J. B. MCPHERSON, District Judge. The facts out of which this controversy arises are stated in the following opinion of the Board of General Appraisers: "This case involved the question whether the goods under consideration are dutiable under the tariff act of 1897 or that of 1894. "From the record and the evidence offered at the hearing, we find the following to be the facts: "The goods consist of woolen and worsted cloths, and were imported from England by the steamer Paris, which arrived at New York on July 24th, 1897, on which day a representative of the importers entered them at the New York customhouse for immediate transportation to Philadelphia, the entry reciting that they were 'intended to be transported by the Pennsylvania Railroad Company, under their bond dated February 12th, 1893,' and also that they were 'consigned to the collector of customs at Philadelphia.' The precise hour of the day on which this immediate transportation entry was made is not shown, but is stated to have been early in the day. "On the same day, Saturday, July 24th, 1897, the importers sent a clerk to the customhouse at Philadelphia, who appeared before the special deputy collector there, presented a duly certified consular invoice, tendered the duties in cash, and asked permission to make a consumption entry of the merchandise. The testimony shows that this was at some time before 12 o'clock noon. The deputy collector refused the entry on the ground that the goods had not reached Philadelphia. Subsequently, on July 28th, the goods were formally entered and were assessed for duty under paragraph 366 of the tariff act of July 24th, 1897 (chapter 11, § 1, Schedule K, 30 Stat. 184 [U. S. Comp. St. 1901, p. 1666]). The importers paid the duties under protest, claiming that the articles were properly dutiable under the tariff act of August 28, 1894. "It has been held by this board and the courts that the tariff act of 1897 took effect at the moment the President signed it-that is to say, at 6 minutes past 4 o'clock on the afternoon of July 24th, 1897. United States v. Stoddard, 91 Fed. 1005, 34 C. C. A. 175, affirming 89 Fed. 699, and In re Stoddard, G. A. 3.993; United States v. Iselin, 95 Fed. 1007, 36 C. C. A. 681, affirming 87 Fed. 194, and In re Iselin, G. A. 3,989, T. D. 18,533. It has also been held that after notice of the arrival of a vessel has been posted at the customhouse an importer may enter goods that are on board of her, without waiting for her master or captain to enter her with the collector. States v. Legg, 105 Fed. 930, 45 C. C. A. 134. United "Goods entered in bond for immediate transportation are constructively in a bonded warehouse, and under the custody of the government, and the year within which they may be withdrawn for consumption, as provided by section 2970 of the Revised Statutes [U. S. Comp. St. 1901, p. 1950], begins to run from the date of their arrival at the port of original importation, and not that of ultimate destination. Seeberger v. Schweyer, 153 U. S. 609, 14 Sup. Ct. 881, 38 L. Ed. 839. We do not find it necessary to determine where a withdrawal entry should be presented while goods are in transitu between the two ports, or precisely when the collector of the port of ultimate destination obtains jurisdiction over them. There is much reason for thinking that the merchandise must come within the limits of his collection district before he could lawfully accept a withdrawal entry, although the question is not free from, doubt. In the present case the record contains a report by the collector of customs at New York that the Pennsylvania Railroad Company receipted for six of the cases on the 24th of July, 1897 (the last day on which the tariff act of 1894 remained in operation), and for thirty-four cases on the 26th of July. This report has not been controverted by the importer, and we find it to be true. There is nothing in the record to show which of the cases were received by the railroad company on the 24th of July, or, indeed, the time of day at which they were received. It is, of course, clear that the thirty-four cases which remained under the control of the collector at New York till July 26th, when the present tariff act was in full operation, were properly assessable for duty under that act, and not under the act of 1894. They would be directly within the terms of section 33 (Act July 27, 1897, c. 11, 30 Stat. 213 [U. S. Comp. St. 1901, p. 1701]), providing for goods 'previously entered without payment of duty and under bond for warehousing, transportation, or any other purpose.' As to these the collector at Philadelphia evidently could not have lawfully accepted a withdrawal entry under the tariff act of 1894. "There being no evidence to show which of the six cases were delivered to the railroad company on July 24th, this board is not in a position to make any intelligent order concerning them. It seems highly improbable that they could have passed out of the jurisdiction of the New York collector before 4:06 p. m. on July 24th, 1897. There are many details of regulation to be complied with before the goods could be turned over to the carrier. See General Treasury Regulations for 1892, arts. 394 to 428. Then, too, freight does not move as soon as received, and its progress is apt to be slow. One of the witnesses called by the importers expressly testified that all the goods 'were not placed on board the cars' on July 24th, 1897. It is significant, too, that none of the goods were entered at Philadelphia till July 28th. "Our conclusion is that thirty-four of the cases are clearly dutiable under the tariff act of 1897, and that as to the remaining six the evidence fails to support with reasonable certainty the claim that they are dutiable under the act of 1894, and, further, that it is impossible to tell which of the whole importation these six cases were. "Where an importer mixes en masse two kinds of goods, and it is impracticable or impossible to separate them, a protest, the claim in which covers the entire importation, must be overruled, even though some of the goods might be subject to the classification claimed in the protest.' In re Arbib, G. A. 4,014, T. D. 18,616; In re Schmoll, G. A. 4.624, T. D. 21,900; United States v. Ranlett, 172 U. S. 133, 19 Sup. Ct. 114, 43 L. Ed. 393. "The protest is overruled, and the decision of the collector affirmed." It is no doubt true that something may be said, from an equitable point of view, in favor of the importers' position; but, as I regard it, the difficulty is that the positive language of the law must furnish the rule for decision. The cases cited by the board -to which may be added Nunn v. Gerst Brewing Co., 99 Fed. 939, 40 C. C. A. 190-have decided that the tariff act of 1897 did not go into effect until a few minutes past 4 o'clock on July 24, and that goods entered for consumption before that hour were dutiable under the act of 1894. If, therefore, the plaintiffs' merchandise had |