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1899.

THE NEW YORK.

must be quite exceptional to justify a differ-
ent course. The failure of the Conemaugh's
maneuver in this case only emphasizes her
original fault in failing to come to a stand-
still when her two first signals to the New
York were disregarded.

garded her signals, or whose position or performed by porting the wheel and passing movements are uncertain, she is bound to under the stern of the preferred vessel. But, stop until her course be ascertained with irrespective of this rule, prudent seamanship certainty. The Louisiana v. Fisher, 21 How. ordinarily requires that the obligated vessel 1, 16 L. ed. 29; Chamberlain v. Ward, 21 shall take a course which, if the preferred How. 548, 16 L. ed. 211; Nelson v. Leland, 22 vessel perform her own duty, will certainly How. 48, 16 L. ed. 269; The Martello, 153 U. void a collision, viz., port and go astern. S. 64, 71, sub nom. The Martello v. Willey, If, upon the other hand, she elects to star38 L. ed. 637, 640, 14 Sup. Ct. Rep. 723; The board and cross the *bows of the other vessel,[203] Teutonia, 23 Wall. 77, sub nom. Sieward v. he incurs the manifest danger of not passThe Teutonia, 23 L. ed. 44; The James Watt,ing the point of intersection before the pre2 W. Rob. 271; The Birkenhead, 3 W. Rob ferred vessel strikes her, and is justly con75; The Hermann, 4 Blatchf. 441, Fed. Cas. No. sidered as assuming the responsibility for The E. A. 6,408; The Huntsville, 8 Blatchf. 228, Fed. the success of her manœuver. Cas. No. 6,915; The Hammonia, 4 Ben. 515, Packer, 140 U. S. 360, 366, sub nom. The E. Fed. Cas. No. 6,005; The Mary Sandford, A. Packer v. New Jersey Lighterage Co. 35 L. 3 Ben. 100, Fed. Cas. No. 9,225; The|ed. 453, 457, 11 Sup. Ct. Rep. 794; The Nor, Arabian, 2 Stuart. Vice Adm. 72. There 2 Asp. M. L. Cas. 264. Of course, there may was peculiar necessity for such action in be such conduct on the part of the favored this case. These vessels were about to vessel as would show that she was alone meet upon crossing courses, and to pass each guilty of fault, but the greater safety of portother in the narrowest part of the channeling is so manifest that the circumstances The Conemaugh had three times signaled her wish to take the Canadian side, and pass starboard to starboard. The New York had three times neglected to give her assent to [2]this arrangement. The Conemaugh *had construed her failure to reply as an acquiescence The conduct of the Conemaugh, as we shall in her own signals. The New York might have construed such failure as a refusal thereafter show in the navigation of the New acquiesce. In such a case it was clearly in cumbent upon the Conemaugh to stop until the mystery of her silence was explained. and in failing so to do she was guilty of fault. Instead of that, while running under check and under a port helm, she steadied and almost immediately lost the green light of the New York, whereupon she sounded an alarm whistle, put her helm hard-a-starboard, and endeavored to shoot across the bows of the New York. The two steamers were then upon converging courses and about a quarter of a mile apart. Even then, if the Conemaugh had put her helm hard-a-port and reversed her engines she would probably 3. Inasmuch as no witnesses were sworn have avoided a collision, although her final error, being apparently in extremis, perhaps from the New York we are compelled to judge ought not to be attributed to her as a fault. of the propriety of her maneuvers from the But she kept on her course at full speed, admissions in her answer and from the other From these it apwith her helm hard-a-starboard, while the testimony in the case. New York came up the river, under a port pears that the propeller, a vessel of 1,700 wheel and at full speed, displaying her mast- tons, was bound up the river, and, when nearhead and red light to the Conemaugh. Just ing the point below where the river Rouge before the collision the wheel of the New empties into the Detroit just above Smith's York was starboarded, but too late to avert Coal Dock, she descried the Burlington and the blow. She struck the Conemaugh on her starboard side near the gangway, and sank her within ten minutes. The place of the collision seems to have been very near the Canadian bank, and about 1,000 feet from and a little upon the port quarter of the Furguson, the stern barge of the Burling

ton's tow.

York, was not even consistent with her own
theory, which was that she would cross the
course of the New York and pass down be-
tween her and the Canadian bank. Instead
of doing so, however, as soon as she had
"picked up" the stern barges and ascertained
their exact location, she ported her helm
sufficiently to display to these barges a
glimmer of her red light, and as the New
York was about the same time starboarding
to clear these barges, the result was that
neither gave the other sufficient room to pass.
These circumstances were most favorable to
the collision which almost immediately en-
sued.

her tow beginning to round to from the Cana-
dian side of the river to the coal dock on the
American side, exhibiting to the New York
her masthead and red lights as well as the red
side lights of the barges in tow. The answer
avers that thereupon "the New York blew a
passing signal of one blast, at the same time
checking her engine and reducing her speed
to about 4 miles an hour, and then porting
her helm so as to pass under the stern of the[204]
last barge. When the New York had arrived

The fault of the Conemaugh appears the
more flagrant from the fact that the two
steamers were crossing vessels within the
meaning of rule 19 (Rev. Stat. § 4233), and at a point abreast of the last barge in tow, a
that the Conemaugh, having the New York
upon her starboard side, was bound to keep
out of her way. The supervising inspectors'
rules require that this maneuver shall be

signal of two whistles was heard, but being unable to see any vessel, and noticing only a white light close on the Canadian bank of the river, the signal of two blasts was not

133

answered, as it seemed to be intended for some other vessel, the New York being then close to the Canadian bank, and there not being room enough for any vessel to safely pass between her and the bank."

wise determine the identity and course of the
approaching vessel.

“Cases arise in navigation where a stubborn
adherence to a general rule is a culpable
fault, for the reason that every navigator
ought to know that rules of navigation are
save life and property by preventing such
disasters." See also The Delaware, 161 U.

Her only excuse for her omission is that she was the preferred vessel within the 19th American and 16th Canadian rule, and that If there were no other evidence in the case by the 23d American and 22d Canadian rule than these allegations, and the uncontra- it was her duty to keep her course. But the dicted testimony of the Conemaugh that she fact that a steamer is entitled to hold her blew three signals to the New York, none of course does not excuse her from inattention which were answered, it is sufficient to show to signals, from answering where an anthe latter to have been guilty of a grievous swer is required, or from adopting such prefault. The night was clear, and there ap-cautions as may be necessary to prevent pears to have been no difliculty in seeing the collision, in case there be a distinct indicawhite and colored lights of the Burlington tion that the obligated steamer is about to and her tow, and should have been none in fail in her duty. As was said in the case of seeing the lights of the Conemaugh. No reaThe Sunnyside, 91 U. S. 208, 222, sub nom. son is given why the signals of the Cone-iner v. The Sunnyside, 23 L. ed. 302, 307: maugh were not heard, and as the New York was not more than a mile distant from her when her first signal was blown, and considerable less than that when the second signal was blown, her inability to hear them is in-ordained, not to promote collisions, but to explicable, except upon the theory that no sullicient lookout was maintained, or that such lookout did not attend properly to his 459, 40 L. ed. 771, 16 Sup. Ct. Rep. 516; The Maria Martin, 12 Wall. 47, sub nom. duties. Her officers failed conspicuously to Martin v. Northern Transp. Co. 20 L. ed. see what they ought to have seen or to hear 255. Both the Canadian and American what they ought to have heard. This, un- Codes provide that in construing and obeyexplained, is conclusive evidence of a defect- ing these rules due regard must be had to ive lookout. The Sea Gull, 23 Wall. 165, all dangers of navigation and to any special sub nom. The Sarah Watson v. The Sea Gull, circumstance which may exist in any par23 L. ed. 90; The James Adger, 3 Blatchf. ticular case, rendering a departure from 515, Fed. Cas. No. 7,188; The Fanita, 14 them necessary in order to avoid *immedi-[206} Blatchf. 545, Fed. Cas. No. 4,636; The Sun-ate danger. There is another rule pertinent nyside, 91 U. S. 208, sub nom. Miner v. The in this connection, namely, rule 21 AmeriSunnyside, 23 L. ed. 302; Spencer, Collisions, can, and article 18 Canadian, that every $ 175. vessel when approaching another vessel so The force of this presumption of a defec- as to involve risk of collision, shall slacken tive lookout is greatly strengthened by the her speed, or, if necessary, stop and reverse. fact that the claimant did not see fit to put That the obligation to observe this rule atupon the stand the officers and crew of the tached to the New York under the peculiar New York, who certainly would have been circumstances of this case is entirely clear. able to explain, if any explanation were pos- Her attention had been called to the fact sible, why the lights of the Conemaugh were that a steamer was coming down the river not seen and distinguished or her signals between the rear barge and the Canadian heard. It was said by this court in the case bank. The channel was narrow, and the of Clifton v. United States, 4 How. 242, 246, descending vessel had signified her intention 11 L. ed. 957, that "to withhold testimony to starboard her helm and pass the New [205]which it was in the power of the party to York to the left. The New York avers in produce, in order to rebut a charge against her answer that there was not room enough him, where it is not supplied by other equiva- for any vessel to safely pass between her and lent testimony, might be as fatal as positive this, she kept her course toward that bank, the Canadian bank, but, notwithstanding testimony in support or confirmation of the charge." If the New York heard the signals, channel through which the Conemaugh sig and was thus constantly narrowing the it was her duty to answer them. Beyond nified her intention of passing. She averred this, however, the answer admits that a sig that her speed in passing the tow was about nal of two whistles was heard, and a white | 4 miles an hour, but the District Judge was light close on the Canadian bank of the river was noticed, but the signal was not answered,

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of opinion that she maintained double that speed until the vessels came together. Howas it seemed to be intended for some other ever this may be, her failure to answer the vessel. However, the white light in connec- whistles of the Conemaugh, or to stop and tion with the whistles could only have been reverse, after her white light was seen, was the masthead light of a steam vessel, and as wholly inexcusable, and, under the particu there is no evidence that there was any other lar circumstances, cannot be justified by her vessel coming up the river, the signal could general duty as a favored vessel to keep her only have been intended for the New York. course or by anything that was said by this If she were unable to see the colored lights court in The Britannia, 153 U. S. 130, sub of the approaching steamer, it was her duty nom. The Britannia v. Cleugh, 38 L. ed. 660, to stop until she made them out, or other-14 Sup. Ct. Rep. 795. The master of a pre

ferred steamer cannot, by blindly adhering she was bound to keep her course, under rule
to his course, atone for the neglect of other
precautions.

We do not wish to say that the New York was under any obligation to assent to the proposed arrangement, although in starboarding and passing close to the two rear barges she did in fact take the exact course she would have taken if she had assented. If she had blown one whistle she would have indicated her intention of pursuing her course under her port wheel as the privileged vessel; while if she had blown two whistles she would have starboarded, as she did starboard, and keep as near the rear barges as she safely could. What we do decide is that the duty to answer a signal is as im[207]perative as the duty to give one. Not only does the 2d rule of the supervising inspectors require of crossing steamers that “signals by whistles shall be given and answered promptly," but ordinary prudence demands that an obligated steamer proposing by whistle to deviate from the customary course shall receive an immediate reply, that her wheel may be at once put to starboard or port, as the exigencies of the case may require. A delay of even a few seconds may seriously embarrass her as to the intention of the preferred vessel. This is now made obligatory upon vessels navigating the Great Lakes by the act of February 8, 1895 (28 Stat. at L. 645), the 23d rule of which declares that "every steam vessel receiving a signal from another shall promptly respond with the same signal, or as provided in rule 26." If the New York had promptly answered the Conemaugh's signals, probably no collision would have occurred.

The comments we have made upon the failure of the Conemaugh to stop and reverse are equally pertinent to the case of the New York. If she did not hear the whistles of

the Conemaugh, she ought to have heard them; but irrespective of this, there was enough to apprise her of her danger in pursuing her course with unabated speed. She knew that she was about to meet in a narrow channel a steam vessel coming down upon her with the added speed given by a current of 2 to 21⁄2 miles an hour. She heard her final signal of two blasts as she was passing the last barge, and should have known that if she continued her course a collision would be inevitable, and yet she did not stop or reverse. Her conduct was inexcusable. The lesson that steam vessels must stop their engines in the presence of danger, or even of anticipated danger, is a hard one to learn, but the failure to do so has been the cause of the condemnation of so many vessels that it would seem that these repeated admonitions must ultimately have some effect. We cannot impress upon the masters of steam vessels too insistently the necessity of caution in passing or crossing the course of other vessels in constricted channels.

But, assuming the theory of the New York [208] to be true, and that as the preferred vessel 175 U. S.

19, the fulfilment of her duty in that re-
gard undoubtedly added to the embarrass-
ments of the Conemaugh. It is averred in
her answer that after making the white
light of the Conemaugh she continued on
her course so as to go around close to the
last barge, and when abreast of her quarter
starboarded, so as to go close under her
stern. For this change in her course she
relies upon the case of The John L. Has-
brouck, 93 U. S. 405, sub nom. Lyman v.
The John L. Hasbrouck, 23 L. ed. 962, in
which we held that the obligation of a priv
ileged vessel to keep her course does not for-
bid such necessary variations in her course
as will enable her to avoid immediate danger
arising from natural obstructions to naviga
tion. In that case a sailing vessel descend-
ing the Hudson river at West Point was
held to have been excused in changing her
course to round a projection at that place,
but in this case the New York had still from
500 to 800 feet before her before reaching the
Canadian bank. Her original porting was
undoubtedly to avoid the tow, but there
seems to have been no immediate necessity
for her starboarding to pass so close to the
rear barges, though we should not condemn
her upon this ground. See discussion of
this in The Velocity, L. R. 3 P. C. 44; The
Banshee, 6 Asp. M. L. Cas. 221. While the
presence of the tow undoubtedly rendered it
necessary for the New York to port, and thus
to become a crossing vessel, and a preferred
vessel under rule 19, there was no obstruc-
tion to her continuing under her port wheel
until she had approached so near the Cana-
dian bank as to make it necessary to turn.

The theory of the New York is an incon-
sistent one-as inconsistent as that of the
Conemaugh. She argues that she was under
no obligation to assent to the signals of the
Conemaugh by starboarding her helm. But
she did in fact starboard her helm, and now
insists that she did this in discharge of her
duty as a preferred vessel to resume her
course after she had cleared the obstruction.
But without deciding that she was in fault
for starboarding, her conduct in so doing
adds another to the many reasons why she
should have indicated to the descending
steamer her proposed course. If the Cone-
maugh *recognized the fact that she were tho[209]
preferred vessel and bound to hold her
course it would naturally confuse her to see
the New York suddenly starboarding, exhib-
it both her colored lights, and point directly
toward her, as she must have done. The
probable explanation of the course of the
New York is that the officer of her deck was
so intent upon watching the lights of the
barges that he omitted to notice the lights
of the Conemaugh until the vessels had ap-
proached so near that a collision became ex-
tremely probable. The fact that her lights
were seen and her signals heard by the crews
of the Burlington and her barges and by per-
sons standing upon the coal dock, at

135

et al., Appts.,

v.

greater distance from the Conemaugh than | ADDYSTON PIPE & STEEL COMPANY[211] was the New York, only indicates more clearly that her lookout was either insufficient or incompetent. If he actually saw her and reported her to the officers of the deck, the responsibility is only shifted from the lookout to them.

Our conclusions are that the Conemaugh was in fault:

For not stopping when the New York failed to answer her signals;

For porting and then starboarding in order to cross the bow of the New York; -and the New York:

For an inefficient lookout;

For failing to answer the repeated signals of the Conemaugh; and—

For failure to stop, after she made the white light of the Conemaugh, until her course and movements had been satisfactorily ascertained.

UNITED STATES.

(See S. C. Reporter's ed. 211-248.)

Power of Congress to restrict contracts in restraint of interstate commerce-constitutional guaranty of liberty of contractcombination to prevent competition and enhance prices-interference with combination affecting commerce within a state.

1.

2.

3.

4.

5.

The power of Congress to regulate interstate or foreign commerce includes the power to legislate upon the subject of private contracts in respect to such commerce.

The constitutional guaranty of liberty of the individual to enter into private contracts does not limit the power of Congress so as to prevent it from legislating upon the subject of contracts in restraint of interstate or foreign commerce.

An agreement or combination between corporations engaged in the manufacture, sale, and transportation of iron pipe, under which they enter into public bidding for contracts, not in truth as competitors, but under an arrangement which eliminates all competition between them for the contract, and permits one of their number to make his own bid, while the others are required to bid over him, is in violation of the anti-trust act of Congress. passed July 2. 1890, so far as it applies to sales for delivery beyond the state in which the sale is made.

A combination may illegally restrain trade by preventing competition for contracts and enhancing prices, although It does not prevent the letting of any particular contract.

A combination to restrain competition in proposals for contracts for the sale of certain articles which are to be delivered in the state in which some of the parties to the combination reside and carry on business is not, so far as those members are concerned, in violation of the anti-trust law of Congress, although the contract may be awarded to some party outside the state as the lowest bidder.

[No. 51.]

4. The final question arises upon the insistence of the underwriters of the Conemaugh's cargo, that they are entitled to a recovery to the full amount of their damages against the New York, notwithstanding the Conemaugh may also be in fault for the collision. They are correct in this contention. Indeed, this court has already so decided in the case of The Atlas, 93 U. S. 302, sub nom. Phoenix Ins. Co. v. The Atlas, 23 L. ed. 863. This was a libel against the Atlas by an insurer of the cargo of a canal boat in tow of the steam tug Kate, whereby the canal boat [219]and her cargo were lost. It was insisted by the claimant that, as the libellant had failed to make the Kate a party, and as both vessels were found to be in fault for the collision, there could be a recovery of only a moiety of the damages. The case of The Milan, Lush. 388, was confidently relied upon as an authority. This court, however, was of opinion that a plaintiff who has suffered a loss by the negligence of two parties, was at liberty, both at common law and in admiralty, to sue both wrongdoers or either one of them at his election, and "it is equally clear that, if he did not contribute to the disaster, he is entitled to judgment in either case for the full amount of his loss. He may proceed against all the wrongdoers jointly, or he may sue them all or any one of them separately. Co-wrongdoers, not parties to the suit, cannot be decreed to pay any portion of the damage adjudged to the libellant, nor is it a question in this case whether the party served may have process to compel the other wrongdoers to For other cases applying the act of Congress appear and respond to the alleged wrongful of July 2, 1890, prohibiting conspiracies in rcact." A like ruling was made in The Ju-straint of trade and commerce, and cases of niata, 93 U. S. 337, sub nom. United States combinations to regulate prices or prevent competition, see also United States v. Jellico Moun▼. Juniata, 23 L. ed. 930, in which a libel tain Coke & Coal Co. (C. C. M. D. Tenn.) 12 L. was filed by the United States as owner of R. A. 753; United States v. Trans-Missouri the cargo of a flatboat in tow of one of two Freight Asso. 166 U. S. 290, 41 L. ed. 1007, 17 vessels. Sup. Ct. Rep. 540, Reversing 53 Fed. Rep. 440, 24 L. R. A. 73: Lowry v. Tile, Mantel, & Grate Asso. 98 Fed. Rep. 817; United States v. Coal Dealers' Asso. 85 Fed. Rep. 252; United States 15 Sup. Ct. Rep. 249: Anderson v. United States, 171 U. S. 604, 43 L. ed. 300, 19 Sup. Ct. Rep. 50.

The decree of the Court of Appeals is therefore reversed, and the case remanded to the District Court for the Eastern District of Michigan for further proceedings in consonance with this opinion. Costs will be divided equally.

NOTE. As to power of Congress to regulate commerce, see notes to Gibbons v. Ogden, 6 L. ed. U. S. 23; Brown v. Maryland, 6 L. ed. U. S. 678; Gloucester Ferry Co. v. Pennsylvania, 29 L. ed. U. S. 158; Harmon v. Chicago, 37 L.

ed. U. S. 216.

As to illegal contracts; monopolies; restraint of trade; trade combinations; corporate trusts

and combinations; stock-holding corporations,see note to United States V. Trans-Missouri Freight Asso. 41 L. ed. U. S. 1007.

v. E. C. Knight Co. 156 U. S. 1, 39 L. ed. 325,

Argued April 26, 27, 1899. Decided Decem- Jof such other states and territories. There

A

ber 4, 1899.

was to be a "bonus" charged against the manufacture of the pipe, to the extent set PPEAL from the judgment of the Circuit forth in the agreements and to be paid as Court of Appeals for the Sixth Circuit therein stated. The whole agreement was reversing a decision of the Circuit Court charged to have been entered into in order which dismissed a petition under the anti- to enhance the price for the iron pipe dealt trust act of Congress of July 2, 1890. Modi- in by the defendants. fied and affirmed.

See same case below, 54 U. S. App. 723, 85 Fed. Rep. 271, 29 C. C. A. 141, 46 L. R. A.

122.

Statement by Mr. Justice Peckham: [212] *This proceeding was commenced in behalf of the United States, under the so-called anti-trust act of Congress, passed July 2, 1890. 26 Stat. at L. 209, chap. 647. It was undertaken for the purpose of obtaining an injunction perpetually enjoining the six corporations, who were made defendants, and who were engaged in the manufacture, sale, and transportation of iron pipe at their respective places of business in the states of their residence, from further acting under or carrying on the combination alleged in the petition to have been entered into between them, and which was stated to be an illegal and unlawful one, under the act above mentioned, because it was in restraint of trade and commerce among the states, etc.

The petition prayed that all pipe sold and transported from one state to another, under the combination and conspiracy described therein, be forfeited to the petitioner and be seized and confiscated in the manner prodissolving the unlawful conspiracy of devided by law, and that a decree be entered fendants and perpetually enjoining them from operating under the same and from therewith to be transported from one state selling said cast-iron pipe in accordance

into another.

The defendants filed a joint and separate demurrer to the petition in so far as it prayed for the confiscation of goods in transit, on the ground that such proceedings under the anti-trust act are not to be had in a court of equity, but in a court of law. In addition to the demurrer, the defendants filed a joint and separate answer, in which they admitted the existence of an associa-[214] tion between them for the purpose of avoidThe trial court dismissed the petition (78 ing the great losses they would otherwise susFed. Rep. 712), but upon appeal to the cir- tain, due to ruinous competition between decuit court of appeals the judgment of the fendants, but denied that their association court below was reversed, with instructions was in restraint of trade, state or interstate, to enter a decree for the United States per- or that it was organized to create a monopopetually enjoining defendants from mainly, and denied it was a violation of the antitaining the combination in cast-iron pipe as trust act of Congress. described in the petition, and from doing Testimony in the form of affidavits was any business under such combination. 54 U. S. App. 723, 85 Fed. Rep. 271, 29 C. C. A. submitted by petitioner and defendants, and 141, 46 L. R. A. 122. The six defendants are by stipulation it was agreed that the final the Addyston Pipe & Steel Company, of Cin-hearing might be had thereon.

cinnati, Ohio; Dennis Long & Company, of From the minutes of the association, a Louisville, Kentucky; the Howard-Harrison copy of which was put in evidence by the peIron Company, of Bessemer, Alabama; the titioner, it appeared that, prior to December Anniston Pipe & Foundry Company, of An-28, 1894, the Anniston Company, the Howard[213]niston, Alabama; the South Pittsburg Pipe Works, of South Pittsburg, Tennessee; and the Chattanooga Foundry & Pipe Works, of Chattanooga, Tennessee; one company being in the state of Ohio, one in Kentucky, two in Alabama, and two in Tennessee.

The following are in substance the facts upon which the judgment of the circuit court of appeals rested, as stated in the record:

It was charged in the petition that on the 28th of December, 1894, the defendants entered into a combination and conspiracy among themselves, by which they agreed that there should be no competition between them in any of the states or territories mentioned in the agreement (comprising some thirty-six in all), in regard to the manufacture and sale of cast-iron pipe, and that in obedience to such agreement and combination, and to carry out the same, the defendants had since that time operated their shops and had been selling and shipping the pipe manufactured by them into other states and territories, under contracts for the manufacture and sale of such pipe with citizens

Harrison Company, the Chattanooga Com-
pany, and the South Pittsburg Company had
been associated as the Southern Associated
Pipe Works. Upon that date the Addyston
Company and Dennis Long & Co. were ad-
mitted to membership, and the following
plan was then adopted:

"First. The bonuses on the first 90,000 smaller, shall be divided equally among six tons of pipe secured in any territory, 16" and shops.

"Second. The bonuses on the next 75.000

tons, 30" and smaller, sizes to be divided
among five shops, South Pittsburg not par-
ticipating.

"Third. The bonuses of the next 40,000

tons, 36" and smaller, sizes to be divided
among four shops, Anniston and South Pitts-
burg not participating.

"Fourth. The bonus on the next 15,000
tons, consisting of all sizes of pipe, shall be
divided among three shops, Chattanooga,
South Pittsburg, and Anniston not partici-
pating.

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