pounded by the ship to account for the presence of the water; indeed, I cannot conceive of any other theory that is consistent with the facts, while this agrees with them all, and is in conflict with none. The injury having been thus occasioned, is the defense set up by the ship to be accepted? Each of the bills of lading, under which the cargo was received and carried, contains the following clause: "It is mutually agreed that this shipment is subject to all the terms and provisions of, and all the exemptions from liability contained in, the act of Congress of the United States approved the thirteenth day of February, 1893." The third section of the act thus referred to, well known as the "Harter Act" (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]), is in part as follows: "That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel, nor * for losses arising from dangers of the sea or other navigable waters." In my opinion, the application of this provision of the statute to the facts proved relieves the ship from liability. She was in all respects seaworthy, and was properly manned, equipped, and supplied, when the voyage under consideration was begun, and the damage or loss resulted from a fault or error in management. The time at my command does not permit a discussion of the cases to which I have been referred upon this point, but I may say, briefly, that I regard the decisions found upon the claimant's brief as satisfactory. Indeed, without regard to authority, it seems inevitable to conclude that the "management" of a modern steamship must include the inspection, maintenance, and operation of the machinery by which she is moved and is enabled to carry out her contract concerning the safe carriage and delivery of the cargo; and that, where there has been fault in such inspection, maintenance, or operation, and the fault has caused injury to the cargo, the ship is relieved from liability by the express provision of the statute, if the prerequisite concerning seaworthiness has been duly made to appear. A decree may be entered dismissing the libel. In re ELLIS. In re CHARALAMBIS. (Circuit Court, S. D. New York. June 25, 1903.) 1. ALIENS-DEPORTATION-STATUTES-REPEAL. Act Cong. March 3, 1903, c. 1012, 32 Stat. 1213, amending and re-enacting the immigration laws pre-existing and providing for the repeal of all other conflicting provisions, re-enumerated all the excluded classes of aliens specified in Act Cong. March 3, 1891, c. 551, § 1, 26 Stat. 1084 [U. S. Comp. St. 1901, p. 1294], with some additions, but specifically omitted the clause in such section relating to contract laborers excluded 1. Importation of contract labor, see note to United States v. Edgar, 1 C. C. A. 52. under Act Cong. Feb. 26, 1885, c. 164, 23 Stat. 332 [U. S. Comp. St. 1901, p. 1290]. The Congressional Record (page 3205), as to the passage of the act of 1903, showed that the omission was intentional, but that Congress thereby intended to leave intact the contract labor laws as they previously existed. Held, that the omission to provide for the deportation of contract laborers in the act of 1903 did not repeal the provisions of Acts Cong. Feb. 26, 1885, c. 164, 23 Stat. 332 [U. S. Comp. St. 1901, p. 1290], and March 3, 1891, c. 551, 26 Stat. 1084 [U. S. Comp. St. 1901, p. 1294], relative thereto. 2. SAME-LEARNED PROFESSION. Act Cong. March 3, 1903, c. 1012, 32 Stat. 1213, provides for the deportation of aliens, and declares (section 4), that the inhibition against the importation of aliens to perform labor or service of any kind, skilled or unskilled, shall not apply to persons belonging to any recognized learned profession. Held, that aliens imported under contract, who were expert accountants, were not members of a recognized learned profession, within the terms of the exception, and were, therefore, not entitled to entry, Application for Habeas Corpus. These are two applications for discharge from the custody of the immigration authorities, petitioners having obtained writs of habeas corpus and certiorari. These were argued on the same day, and, as the controlling propositions of law involved are the same, may conveniently be disposed of with a single opinion. The return in the first case shows that Ellis is an alien, who, upon arrival by steamship at the port of New York, was detained, and duly examined by a board of special inquiry. By the unanimous decision of the board he was excluded from admission into the United States, and was ordered to be deported to the country from which he came. He appealed to the Secretary of the Treasury, who dismissed the appeal. Subsequently he applied to the board for a reconsideration of its decision, which application was denied, and an appeal from such application dismissed. It appears from the testimony before the board of special inquiry that Ellis' passage as a second-class passenger to this country was paid by the United Railway & Trading Company, Limited, and that he came here under an agreement to be employed by said company. It appears affirmatively that he does not belong to the classes of aliens excluded under section 2 of the act of March 3, 1903, c. 1012, 32 Stat. 1214, to wit, idiots, insane persons, epileptics, etc. The ground of the exclusion is that he is a contract laborer, and not within any of the classes of persons enumerated in the excepting clause of the contract labor law, to wit, "professional actors, artists, lecturers," etc. The petitioner contends that he is an expert accountant-the undisputed testimony sustains this contentionand insists that for that reason he is within said excepting clause as "a person belonging to a recognized learned profession." The return in the second case shows that Charalambis is an alien, a subject and citizen of the Kingdom of Greece, who, upon arrival at the port of New York, was detained, and examined by a board of special inquiry. By the unanimous decision of such board he was excluded from admission into the United States as an alien imported or coming to this country under a contract or agreement to perform labor or service in the United States. Subsequently he was re-examined by another board of special inquiry, with the same result. An appeal to the Secretary of the Treasury was duly taken, and was dismissed. The uncontradicted evidence establishes the fact that petitioner is an expert accountant. Upon the hearing counsel for petitioner expressed a wish to traverse the return, but it then appeared that it was not sought to dispute the accuracy of the return so far as it goes, but only to make further facts appear, which petitioner believed to be relevant. It was, therefore, stipulated by the counsel for immigration commissioner that it might be assumed, in disposing of the case, that petitioner had made proof before the board of the additional facts which are set forth in his petition. Briefly stated, these are: That he speaks and writes in Greek, French, German, and English, and speaks Italian; that the Greek Currant Company, a foreign corporation, is planning to establish an agency in New York for the purchase and sale of Greek currants; that he is a relative of the principal shareholder, and expects to act as chief accountant and assistant manager of such agency; his passage to this country was paid by the company; that it is necessary for the company to have a representative in New York capable of keeping accounts in Greek, and according to Greek methods, and familiar with the details of the currant business in Greece; that to an advertisement calling for an accountant capable of corresponding in Greek, and familiar with the currant business, the company received no response; that petitioner's relations with the company are, and are to be, of a purely personal and confidential nature. It appears affirmatively that Charalambis does not belong to the classes of aliens excluded by section 2 of the act of March 3, 1903, c. 1012, 32 Stat. 1214, to wit, idiots, insane persons, etc. Anderson, Pendleton & Anderson, for Ellis. LACOMBE, Circuit Judge (after stating the facts as above). It is contended that there is no law now existing under which these aliens, whose passage has been paid by others, and who come here under contract to perform labor or service, can be deported. The theory is that the act of March 3, 1903, c. 1012, 32 Stat. 1213, has repealed by implication all previous laws on the subject, and that it contains no provision for such deportation. When the act of 1903 was passed, the statute books contained the following provisions: The original act prohibiting the immigration of aliens under contract to perform labor in the United States was passed February 26, 1885 (Act Feb. 26, 1885, c. 164, 23 Stat. 332 [U. S. Comp. St. 1901, p. 1290]). It had been amended, and some of its provisions re-enacted, but had not been repealed. Its first section made it unlawful for any person, company, etc., to prepay the transportation, or in any way assist or encourage the importation or migration, of any alien into the United States, "under contract or agreement, parol or special, express or limited, made previous to the importation or migration, ** to perform labor or service of any kind in the United States." The third section (23 Stat. 333 [U. S. Comp. St. 1901, p. 1291]) imposed a penalty on the person importing an alien contrary to the provisions of section 1. The fourth section imposed a penalty on the master of the vessel which brought him here. The fifth section (23 Stat. 333 [U. S. Comp. St. 1901, p. 1292]) reads as follows: * "Sec. 5. That nothing in this act shall be so construed as to prevent any citizen or subject of any foreign country temporarily residing in the United States, either in private or official capacity, from engaging under contract or otherwise, persons not residents or citizens of the United States to act as private secretaries, servants or domestics for such foreigners temporarily residing in the United States as aforesaid; nor shall this act be so construed as to prevent any person from engaging under contract or agreement, skilled workmen in foreign countries to perform labor in the United States in or upon any new industry not at present established in the United States: provided that skilled labor for that purpose cannot be otherwise obtained; nor shall the provisions of this act apply to professional actors, artists, lecturers, or singers, nor to persons employed strictly as personal or domestic servants." It contained another proviso as to the relatives of persons already in this country, which is immaterial to the present discussion. This original act was amended by the act of February 23, 1887, c. 220, 24 Stat. 415 [U. S. Comp. St. 1901, pp. 1292, 1293], by adding three more sections, numbered 6, 7, and 8. The eighth section provides "That all persons included in the prohibition in this act, upon arrival, shall be sent back to the nations to which they belong and from whence they came," etc. Prior to this legislation as to contract laborers there was passed an act to regulate immigration, approved August 3, 1882 (Act Aug. 3, 1882, c. 376, 22 Stat. 214 [U. S. Comp. St. 1901, p. 1288]), which provided for an examination by the proper officers of immigrants arriving in any ship or vessel, and directed that "if on such examination there shall be found among such passengers any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge, they shall report the same in writing to the collector of such port, and such person shall not be permitted to land." On March 3, 1891, there was passed "An act in amendment to the various acts relative to immigration and the importation of aliens under contract or agreement to perform labor." Act March 3, 1891, c. 551, 26 Stat. 1084 [U. S. Comp. St. 1901, p. 1294]. The first section reads as follows: "Section 1. That the following classes of aliens shall be excluded from admission into the United States, in accordance with the existing acts regulating immigration, other than those concerning Chinese laborers: All idiots. insane persons, paupers, or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude, polygamists, and also any person whose ticket or passage is paid for with the money of another or who is assisted by others to come, unless it is affirmatively and satisfactorily shown on special inquiry that such person does not belong to one of the foregoing excluded classes, or to the class of contract laborers excluded by the act of February 6th, 1885." Two provisos not material here are omitted from this quotation. The fifth section amended section 5 of the act of February 26, 1885, by adding to the second proviso the words, "nor to ministers of any religious denomination, nor to persons belonging to any recognized profession, nor professors for colleges and seminaries." Act March 3, 1891, c. 551, 26 Stat. 1085 [U. S. Comp. St. 1901, p. 1292]. Further provisions as to examination of immigrants and the proceedings to deport them are found in the act of March 3, 1893 (chapter 206, § 6, 27 Stat. 570 [U. S. Comp. St. 1901, p. 1302]), but are not material to any point under discussion here. On March 3, 1903, there was passed an "Act to regulate the immigration of aliens into the United States." Act March 3, 1903, c. 1012, 32 Stat. 1213. It is largely a re-enactment of prior laws, but contains much new matter, and provides that "all acts and parts of acts inconsistent with this act are hereby repealed." The second section (32 Stat. 1214) reads as follows: "Sec. 2. That the following classes of aliens, shall be excluded from admission into the United States: All idiots, insane persons, epileptics, and persons who have been insane within five years previous; persons who have had two or more attacks of insanity at any time previously; paupers; persons likely to become a public charge; professional beggars; persons afflicted with a loathsome or with a dangerous contagious disease; persons who have been convicted of a felony or other crime or misdemeanor involving moral turpi tude; polygamists, anarchists, or persons who believe or advocate the overthrow by force or violence of the government of the United States, or of all government or all forms of law, or the assassination of public officials; prostitutes, and persons who procure or attempt to bring in prostitutes or women for the purpose of prostitution; those who have been, within one year from the date of the application for admission to the United States, deported as being under offers, solicitations, promises or agreements to perform labor or service of some kind therein; and also any person whose ticket or passage is paid for with the money of another, or who is assisted by others to come, unless it is affirmatively and satisfactorily shown that such person does not belong to one of the foregoing excluded classes; but this section shall not be held to prevent persons living in the United States from sending for a relative or friend who is not of the foregoing excluded classes: provided, that skilled labor may be imported, if labor of like kind cannot be found in this country: and provided further, that the provisions of this law applicable to contract labor shall not be held to exclude professional actors, artists. lecturers, singers, ministers of any religious denomination, professors for colleges or seminaries, persons belonging to any recognized learned profession, or persons employed strictly as personal or domestic servants." * This section is the only one in the act which expressly excludes aliens from admission to the United States. It contains a careful and exhaustive enumeration of excluded classes. It re-enumerates all the classes referred to in section 1 of the act of 1891, c. 551, 26 Stat. 1084 [U. S. Comp. St. 1901, p. 1294] (with some additions), but specifically omits the clause in that section relating to "contract laborers excluded under the act of February 26, 1885." As between two statutory enumerations of classes, both apparently exhaustive, the first may fairly be said to be inconsistent with the second as to all items wherein they differ. Had we only these two sections to deal with, there would be much force in the argument that contract laborers are no longer "excluded from admission into the United States." But, as was pointed out in Holy Trinity Church v. United States, 143 U. S. 459, 12 Sup. Ct. 511, 36 L. Ed. 226, in construing these statutes we are to get at the spirit of the statute and the intention of its makers, however inconsistent that may be with the words used. An examination of the act itself indicates that Congress did not suppose that by eliding the words last above quoted from the enumeration of excluded classes it was removing the barrier to the ingress of contract laborers. This very second section (Act March 3, 1903, c. io12, 32 Stat. 1214) provides that skilled labor may be imported if labor of the like kind unemployed cannot be found in this country. The natural implication is that, if such cannot be found here, the skilled labor is to be kept out. The clause excluding persons who have once been deported as being under contract to perform labor evidently contemplates that the existence of such a contract is ground for deportation. Section 4 re-enacts section I of the act of 1885, and enlarges its provisions making it "unlawful" to assist or encourage the importation of any alien not only under any contract or agreement, but also under any offer, solicitation, or promise to perform labor here; and the penalties imposed in the act of 1885 for violating that section are re-enacted in sections 6 and 7 of this act (32 Stat. 1214, 1215). Section 19 (page 1218) provides that "all aliens brought into this country in violation of law shall, if practicable, be immediately sent back to the countries whence they respec 124 F.-41 |