IN BE WHITE.
At Law. Appeal by importers from decision of United States general appraisers. Affirmed. .
The Standard Varnish Works imported by the steamer California on May 18, 1891, certain merchandise known as "candle tar" or "palm pitch," which was classilled and assessed for duty by the collector of customs at New York as a nonenumerated manufactured article, at 20 per cent. ad valorem, under se()tion 4 of the act of October 1, 1890. The Impol1:ers duly claiming the sallie to be dutiable at 10 per cent. ad valorem, as "waste," under paragraph 472 of said act. The board of United States general appraisers affirmed the assessment of the collector, and an appeal was taken by the importers to the United States circuit court, under the provisions of the act of June 10, subject of the importation was produced by subjecting tallow, 1890. animal grease, and palm oil to treatment in closed retorts or boilers to superheated steam, whereby the stearine and the candle tar were separated, the stearine carried out of the retort by distillation, and the candle tar remainiug in the retort. 'Ibis manufacture resulted in the two products,-stearine and candle tar; the latter of which is used for waterproofing barrels, covering roofs, and also for increasing the body of varnish. The importers claimed it to be mere waste, and not a biproduct.
Edward Mit.chell, U. S. Atty., and Henry C. Platt, Asst. U. S. Atty., for collector. W. Wickham Smith, for importers.
con, District Judge, (orally.) The merchandise in this case is a manufactured article, and is imported, bought, sold and used, as an article of trade and commerce. It is liot a natural product, and there is no evidence in t.he record to show that it can be made, except by the process described. The decision of the United States general appraisers is affirmed.
In re WIDTE et al.
(Circuit Court, S. D. New York. January 5,1893.)
The decisions of the board of Unit,.'d States general appraisers on disputed evidence as to the facts will not be disturbed by the court. chiefiy in purposes. cents per at 40 per
Paddings or canVIl.S, from 18 to 24 inches in width, and used the clotbing trade, and for making small bags, and for similar are dutiable, under the act of October, 1890, as "burlaps," at 1% pound, under paragraph 364, and not as "manufactures of jute," centum ad valorem, under paragraph 374 of said act.
OF ACTS. .
'The act of March 3, 1883, provided specially for a duty upon "paddings" and "canYas" (paragraph 334) different from "burlaps," (paragraph 338,) but the act of October 1, 1890, omitted llUY special mention of paddings or canvas in any paragraph. Held that, as jute paddings or canvas are a species of "burlaps," they are now dutiable, as such, under the latter act.
At Law.. Appeal from decision of the United St.ates generaJ appraisers. Affirmed.
imPQrted merchandise in this suit consisted. of jute goods woven, from 18 to .24 inches in widfu, commonly known in thc trade as "paddings" or "ClUl,llS," which were classified by the collector as "manufactures of jute,"' dutiable at 40per cent. ad valorem, under paragraph 314, of the tariff act ot October 1, J890. The importers duly protested, elaitning:said .merchandise to
bo'prol'Ct'ly dutiable as "burlaps,"'ofjute. not 6O,inches in width, at cents per pounel, undH paragraph 364 of said act. The board of United 8t1;Lt.es general appraisers sustained the protest of im;porters, that the gOPas '1Jl controvetsy were burlapS, and reversed the decision ·)f the collector. 'rhecollectol' apPfaled from their decision to the United States circuit court, under the pro'\1sions' of the act of June 10, 1890. It was contended, on behnlf of tne collector, that the merchandise in suit was of that character and make which had always Deen known, prior to passage of the act of October 1, 1890, in trade and commerce, as paddings or canvas, and was chiefly used in the clothing trade; that congress in the tariff act of March 3, 1883, had ditrerentlated canvas and puddings from burlaplS and placed a different rate of duty (quoting paragraphs 334 and 338 of the tariff act ,of March 3, 1883;) that prior tariff acts had also made the same distinction between the two articles; that the decisions of the treasury departJUent had for many years made his distinction; that under the act of 1883 several cases had b&,r. tried in the United States circuit court wherein juries had Cound that paddings and canvas, under the act of 1883, were a different article from the burlaps of commerce; that congreslil, in the net of 1890, must be preof the prior decisions of the department and sumed to have legislated in the courts, and of the distinction always made in prior legislation; that as conhad seen fit in ,the act of October 1, 1890, to omit the paddings and can· 'vas paragJ.·aph of the actot i883, and 'had not provided specifically for a duty thereon, they intE-nded such articles to fall under paragraph 374, and to be included within the terms "all manufactures of jute," and under the principles of construction laid down by the supreme court in the case of Robertson 132 U. S. 460, 10 Sup. Ct. Rep. 120, paddings and canvas, such v. as those in suit, were not relegated to the burlap clause (paragraph 364) ot the act of Octoberl, 1890; It'\.VM contended, on behalf of the importers, that "burlaps" was a general name tor a class of goods that were, used by various trades, such as the upholstery bagging, oil cloth, clothing trades, etc., and that the different trades used different width8 and makes of the same articles of "burlaps;" that in the olotnfug trade the narrow burlap. was known as canvas or padding, and as congress had seen fit to omit any special mention of canvas or paddings, by name, in the act of October, 1890, the most specific description thereof to be tolind in that act was the term "burlaps" in paragraph 364, which more described and designated the articles in suit thau the more general term "manufactures of jute."
Edward Mitchell, U. S. Atty., and Henry C. Platt, Asst. U. S. Atty., for collector. Stephen G. Clarke, for importers. COXE,District Judge, (orally.) The only question in this cause is one of fact. It is conceded on all sides that the term "burlaps," (parab'1'aph 364,) found in the act of 1890, is a more specific designation of the imported goods than the term, "manufactures of jute or other vegetable fibre, etc., not specially provided for in this act," (paragraph 374.) Are they burlaps? This question of fact was. thoroughly tried out before the board of appraisers, and the board has reported that all of the articles in controversy are burlaps. Giving to their decision only the weight which would be given to report of a master in chancery,. it does l\ot seem to me that this court, sitting in review, would be justified in reversing their finding upon this question of fact. They have advantages which an appell!ttetribunal cannot have. They see and hear witnesses and can better determine what weight should be given to their testimony. Witness after witness called by the importer testified that these articles were commercially known as "burlaps;" and, stating
FACIJRI '!'. MAGONE.
the case as favorably for the appellant as the facts warrant, there was simply a dispute upon the evidence before the board. They having reached a conclusion, which I think was amply sustained by the proof, it seems to me that their decision should be undisturbed.. The decision of the board is affirmed.
FACHRI v. MAGONE. (Circuit Court, S. D. New York. November 22, 1892.)
CUSTOMS DUTIES-ALLOWANCE OF TARE-JUTE IN BALES.
Under section 2898, Rev. St. U. S., which provides that "actual tare shall be allowed," an allowance must be made, in estimating the duty on jute in bales, for the weight of jute tie ropes with which the bales are bound up; it appearing that between buyer and seller these ropes are regarded as tare, and are never charged for, a deduction equal to their weight being made from the total weight of the bale, and only the net weight being billed.
At Law. Action to recover dutieS paid. Verdict directed for plaintiff.
Plaintiff imported at the p(}rt of New York, in 1886 and 1887, certain bales of jute secured by tie bands or ropes, also of jute, but so tangled, knotted, and broken as to be worthless except for paper stock. The bales were invoiced at prices per bale of 400 pounds; and the United States weigher reported to the collector of custums their gross weight only, omitting to report the weight of the tie bands and the net weight of jute in each bale. Duty was assessed by the defendant, as collector of customs, at 20 per cent. ad valorem on the value stated in the invoices, under the pIOvisiOJ1 for "jute" contained In paragraph 333, Scheduie J, Heyl, (Act March 3, 1883; 22 St. at Large, p. 507;) and the importer, having duly protested and appealed, as required by law, brought this action to recover the same percentage of the duty exacted which the weight of the tie bands represented of the total weight of the bales. The importer cited Rev. St. § 2898, which provides that in certain cases invoice tare, or an agreed tare, may be allowed, and then that "in all other cases the actuai tare should be allowed." Upon the trial evidence was given. and not contradicted, that the tie bands weighed, invariably, six pounds per bale of jute; that they were useless except as paper stock,-for which the tariff act then in force provided free entry, (paragraph 754, Heyl;) that they were regarded by all weighers as "tare," and also by dealers in jute, who, selling it by the pound, always made an allowance of six pounds from the total weight of each bale, and charged only for the remainder. Defendant's counsel then moved for a direction of verdict for defendant, and plaintiff's couusel made a similar motion in his behalf.
Comstock & Brown, for plaintiff. Edward Mitchell, U. S. Atty., and Thomas Greenwood, Asst. U. S. Atty., for defendant.
tiff for the amount of duty exacted on these tie bands.
LACOMBE, Circuit Judge, (orally.) I direct a verdict for the plain.