Volume 1 — Customs Court Reports

<p>STURGEON RoE “PREPARED FOR PRESERVATION” NOT “PRESERVED.”</p> <p>Fresh, roe of the sturgeon rubbed through a sieve, dropping thence into a solution of brine, the brine drawn off and the roe packed for shipment in tins and transported in a refrigerated state, does not constitute “fish roe preserved for food purposes,” as excepted by paragraph 549, tariff act of 1897, and was not dutiable under paragraphs 258 and 261 of said act, but as eggs of fish under paragraph 549.</p>

<p>Transferred from United States Circuit Court for Southern District of New York (T. D. 29610).</p>

<p>Motion to dismiss appeals taken from Board of United States General Appraisers.</p>

<p>Strawberry and Apricot Pulp.</p> <p>Strawberries and apricots reduced to a pulp, cooked without sugar, and inclosed in hermetically sealed tins are dutiable under paragraph 263 and not paragraph 262, tariff act of 1897.</p>

<p>Legumes — Yams.</p> <p>A leguminous plant of the genus Pueraria, grown in China; though occasionally designated a “yam” in commerce, such designation is not definite, uniform, and general. The plant is not a yam, and was dutiable under paragraph 257, tariff act of 1897.</p>

<p>Duck Meat, Prepared — Poultry.</p> <p>The meat of ducks, salted, dried, and'packed in tins, with or without peanut oil, is dutiable not as poultry dressed, nor as a nonenumerated raw or unmanufactured article, but under paragraph 275, tariff act of 1897, as meats prepared or preserved, and not specially provided for.</p>

<p>Transferred from the United States Circuit Court of Appeals, Second Circuit . (T. D. 30128).</p>

<p>Appeal from a decision of the Board of United States General Appraisers, Abstract 21396 (T. D. 29834).</p>

<p>Appeal from a decision of the United States Board of General Appraisers, G. A. 6193 (T. D. 26835), T. D. 27493.</p>

<p>Hauteville, Istrian and the Like Stones, Marble.</p> <p>1. Where there is a later importation of merchandise identical in kind with a former importation and a new and different issue is presented as to the true character of the importation, this court will, in reaching a decision, review all the testimony (declining to follow Bockmann v. United States, 158 Fed. Rep., 807; T. D. 28784).</p> <p>2. Hauteville, Istrian, and other like stones being a granular substance, capable of a high degree of polish and susceptible of use for decorative purposes, are not limestones, but marble, and were dutiable under paragraph 114, tariff act of 1897 and not under paragraph 117 of that act.</p>

<p>Cast-Iron Disks.</p> <p>Cast-iron disks, when subjected to processes of manufacture and made thinner on one edge than the other and with an irregular surface, are not “plates” within the meaning of‘ paragraph 148, tariff act of 1897, and were dutiable under paragraph 193 of that act.</p>

<p>Appeal from United States Circuit Court, Southern District of New York, to the United States Circuit Court of Appeals and transferred to this court, Abstract 18995 (T. D. 29031).</p>

<p>Transferred from the United States Circuit Court, Southern District of New York, G. A. 6794 (T. D. 29192).</p>

<p>Transferred from United States Circuit Court, Southern District of New York, G. A. 6742 (T. D. 28886).</p>

<p>Transferred from the United States Circuit Court, Southern District of New York, Abstract 22034 (T. D. 30086).</p>

<p>Transferred from the United States Circuit Court, Southern District of New York, G. A. 6941 (T. D. 30121).</p>

<p>Moving Picture Films — -Photographs.</p> <p>Cinematograph, or moving picture, films are photographs and were dutiable under paragraph 403, tariff act of 1897.</p>

<p>Appeal from the Board of United Slates General Appraisers, G. A. 6700 (T. D. 28651), to the United States Circuit Court for the Southern District of New York (T. D. 29768); thence to United States Circuit Court of Appeals and transferred.</p>

<p>Appeal from Board of United States General Appraisers, G. A. 6918 (T. D. 29883), to United States Circuit Court, Southern District of New York (T. D. 30298); appeal thence to United States Circuit Court of Appeals and transferred.</p>

<p>1. Cotton Cloths — Etamines.</p> <p>Where the importer protests against the rate assessed on his importation and points out the provisions of law under which he contends the articles in question are properly dutiable and indicates these with sufficient clearness for the collector by mere computation or examination of the goods to determine their classification, he has in all essential respects complied with section 14 of the customs administrative act of 1890 relative to protests of a collector’s decision.</p> <p>2. “Reasons” and “Grounds.”</p> <p>The substitution of the word “reasons” for “grounds” in the customs administrative act of June 10, 1890, held not to exact a more specific protest than formerly on the part of the importer (declining to follow Hygienic Wood Wool, T. D. 27328); Boker v. United States (T. D. 25892, 140 Fed. Rep., 115) distinguished.</p>

<p>Entry Sought to be Made After Office Hours.</p> <p>" In June, 1909, certain liquors were withdrawn from warehouse at the port of New York, transported to Chicago, and entered for warehouse there July 29 following. On August 5 following, at about 5.30 o’clock p. m., the owners sought to withdraw these liquors, paying duty as of that date. Held, the collector properly refused the duties so tendered after office hours and properly, on August 6 ensuing, assessed the duties under the tariff act, August 5, 1909, effective that day.</p>

<p>Appeal from a decision of the Board of United States General Appraisers, G. A. 7000 (T. D. 30467).</p>

<p>Blanket Protest, Insufficiency oe.</p> <p>A protest, blanket in form, covering various classes of articles, not included in the importation or importations in question, fails to state the importer’s claim with, such clearness and certainty as to acquaint the collector with the real grounds of the complaint, and is insufficient. Protests are to be construed liberally and alternative claims are allowable, but the requirement of law that the importer shall set forth in the protest distinctly and specifically and in respect to each entry or payment the reason for his objection thereto may not be ignored.</p>

<p>Transferred from the United States Circuit Court for Southern District of New York, G. A. 6587 (T. D. 28158).</p>

<p>Transferred from United States Circuit Court for Southern District of New York, G. A. 6718 (T. D. 28759).</p>

<p>Appeal from a decision of the Board of United States General Appraisers (T. D. 28921).</p>

<p>Bolero Jackets fob Women.</p> <p>■ Garments designed to be worn about the shoulders by women, if made in network or openwork design and of silk cord and braid, taking a shape like that of bolero jackets, were dutiable as articles of wearing apparel wholly or in chief value of silk, under paragraph 390, tariff act 1897.</p>

<p>Magnesia Articles or. the Character op Bis.que and other Earthenware.</p> <p>Bisque rings, insusceptible to decoration and designed for incandescent burners were not dutiable as bisque under section 96, tariff act of 1897, but under section 6-of that act, as an unenumerated manufacture. — -Schoenmann v. United States (119 Fed. Rep., 584) followed.</p>

<p>Figured or Plain, or Inlaid Linoleum.</p> <p>A plastic material composed of cork and linseed oil when placed on a stencil over a burlap foundation and forced by pressure into separate and distinct bodies, in separate, and distinct colors, in separate and distinct positions, and through to the base, constitutes inlaid linoleum and was dutiable as such under paragraph 337, tariff act of 1897.</p>

<p>Appeal from a decision of the Board of United States General Appraisers, G. A. 6624 (T. D. 28253).</p>

<p>Substitute eor Corree.</p> <p>An article represented to be and sold as a substance not alone for coloring coffee, but as a substitute for a portion of each drawing of coffee, adding, it being claimed, to the quality, purity, and wholesomeness of the beverage as served, was dutiable under paragraph 283, tariff act of 1897, as a substitute for coffee.</p>

<p>Appeal from a decision of the Board of United States General Appraisers, G. A. 6945 (T.D. 30161).</p>

<p>Transferred from the United States Circiut Court for the Southern District of New York, G. A. 6885 (T. D. 29625.)</p>

<p>Stem and Cargo Ginger — Sweetmeats.'</p> <p>Stem and cargo ginger does not lose its character as a sweetmeat when imported in hullc in casks, and when so imported was dutiable under paragraph 263, tariff act of 1897.</p>

<p>Transferred from the United States Circuit Court for the Northern District of California (T.-D. 28910).</p>

<p>Aepeal from a decision of the Board of United States General Appraisers, G. A. 7022 (T. D. 30634).</p>

<p>Appeal from a decision of the Board of United States General Appraisers, G. A. 7025 (T. D. 30642.)</p>

<p>Birch-Tar Oil Distilled From Wood.</p> <p>It appearing from the evidence that the article imported was birch-tar oil distilled from the wood and used in dressing russia leather, to give an odor to the leather, the mere possible but undisclosed use of this oil for other purposes did not remove it from the operation of paragraph 568, tariff act, 1897, and it was non-dutiable under that paragraph.</p>

<p>Concrete Muguet de Mai — Eneleurage Grease.</p> <p>Muguet de Mai, shown by a preponderance of testimony to contain no essential oil, is not fluorescence valley lily, but enfleurage grease, and as such by paragraph 626, tariS act of 1897, was not dutiable. — United States v. Ungerer (T. D. 28210) distinguished.</p>

<p>Appeal from a decision of the Board of United States General Appraisers (T. D. 29848).</p>

<p>Appeal from a decision of the Board of United States General Appraisers, Abstract 23265 (T. D. 30601).</p>

<p>Appeal from a decision of the Board of United States General Appraisers, Abstract 23479 (T. D. 30691).</p>

<p>Tapelike Belting fob, Cigarette-Making Machines.</p> <p>A tapelike article made of cotton or other vegetable fiber and used as a belt running over the wheels of a cigarette-making machine is not dutiable under paragraph 349, tariff act of 1909, but is dutiable under paragraph 330 of that act. Morrison et al. v. United States, 107 Fed. Rep., 113.</p>

<p>Marmalade and Jams.</p> <p>Marmalade and berry jam are not jellies but sweetmeats, and were dutiable as si ch under paragraph 263, tariff act of 1897.</p>

<p>Transferred from United States Circuit Court for Southern District of New York (T. D. 29690).</p>

<p>Transferred from United States Circuit Court, District of Maryland (T. D. 29278).</p>

<p>Appeal from a decision of the United States Board of General Appraisers, G. A. 7027 (T.D. 30644).</p>

<p>1. “Unwrought,” Meaning oí?.</p> <p>Words and phrases in customs laws are employed in view of a lay understanding and are accordingly assumed to be used with their natural signification; so construed “unwrought” in the phrase “metals unwrought” can not be taken to mean the presence of specific attributes in the metal — of malleability in the metal, for example.</p> <p>2. Legislative Interpretation.</p> <p>The Congress by tariff act of 1909, having placed rhodium specifically on the free list, must be taken inferentially to have intended theretofore to declare rhodium a dutiable article.</p> <p>3. Rhodium.</p> <p>Rhodium is a metal and unwrought and as such was dutiable under paragraph 183, tariff act, 1897.</p>

<p>Transferred horn United States Circuit Court for Southern District of New York (T. D. 29727).</p>

<p>1. Appliquéd Collarettes.</p> <p>Whether collarettes designed to be sewn on women’s dresses and intended for wear about the necks of women have been in fact appliquéd or not may b.e determined by actual inspection, and the court will take judicial notice of the facts in common knowledge and experience that show these articles to have been appliquéd.</p> <p>2. How Dutiable.</p> <p>Appliquéd collarettes, whether in chief value of silk or of cotton, were dutiable, silk collarettes at 60 per cent ad valorem under paragraph 390, tariff act of 1897, and cotton collarettes at the same rate under paragraph 339 of that act.</p>

<p>“Rats” — -Haie Rolls.</p> <p>“Wearing apparel of every description” includes hair rolls or “rats” composed of cotton, wool, and metal, metal being the component material of chief value, and as such these were dutiable under paragraph 370, tariff act of 1897.</p>

<p>1. Pbactice in Classifications.</p> <p>The rule that long-continued practice in customs cases should control in the classification of commodities is based on sound reason, but practice can not establish an arbitrary or wholly conclusive classification.</p> <p>2. Capers.</p> <p>A review of tariff legislation from 1790 and of the pertinent decisions of courts fails to disclose any legislative purpose or uniform customs practice indicating an intent to classify capers as either pickles or as vegetables prepared or preserved; and capers being a condiment used to flavor vegetables and meats rather than an edible vegetable, they were not dutiable under paragraph 241, tariff act of 1897, but were dutiable as an unenumerated article in whole or in part manufactured, under the provisions of section 6 of that act.</p>

<p>1. Samples.</p> <p>The official sample of the goods made the subject of controversy being selected by a customs officer charged with the duty of making a selection it will be presumed the sample so chosen is fairly representative of the merchandise.</p> <p>2. Jacquard Figured Goods.</p> <p>The sample exhibited showed the merchandise to have been Jacquard figured goods, in the piece, made of silk and cotton, silk being the component of chief value, two colors in the filling and the fabric dyed in the yarn; it was dutiable under paragraph 391, tariff act of 1897. ></p>

<p>1. Final Appraisement.</p> <p>The customs laws contemplate finality at some point in all appraisement proceedings and finality is bylaw attached on appeal to an appraisement by the Board of General Appraisers, when the appeal comes to the board from a finding of a general appraiser, and a decision of that board on the actual market value of the merchandise in question is conclusive against all parties interested therein.</p> <p>2. Matting Reappraised.</p> <p>And, without inquiring into the objections urged against the reappraisement of matting by a local appraiser as erroneous, or as unsupported by the evidence, or as founded on irrelevant considerations, the Board of General Appraisers on appeal having found that appraisal correct, this finding can not be disturbed.</p>

<p>DeliveRY Permit as to the Bulk and a Part Designated for Examination.</p> <p>The goods had been entered for consumption, 10 per cent of them designated for examination, a proper bond for the return of the delivered goods executed, a delivery-permit as to those issued, all on August 5, 1909. On August 6 a delivery permit was issued for the goods designated and detained for examination: Held, the entire importation was dutiable under-paragraph 250, tariff act of 1897.</p>

<p>Appeal from a decision of the United States Board of General Appraisers (T. D. 29442; T. D. 29644).</p>

<p>Transferred from United States Circuit Court of Appeals, for Second Circuit, Abstract 16813 (T. D. 28429).</p>

<p>Motion for Return of a Complete Copy of Evidence.</p> <p>Where testimony was offered before a classification board and excluded by order of the board over objection taken, for this court to determine the propriety of the exclusion, all the testimony so excluded should be incorporated in the record on appeal. — Harris v. United States (177 Fed. Rep., 475) distinguished.</p>

<p>Transferred horn United States Circuit Court for Southern District of New York (T. D. 27550).</p>

<p>Appeal from decision of the United States Board of General Appraisers (T. D. 30828, post-card views).</p>

<p>Transferred from United States Circuit Court for Southern District of New York, Abstract 20183 (T. D. 29442).</p>

<p>1. Statutory Interpretation.</p> <p>Any provision of a law must be read in the light of all the other provisions of that law, and in a tariff law the language used must be interpreted in view of the conditions of commerce existing when the statute was enacted.</p> <p>2. Ibid.</p> <p>But where the essential words that support a construction contended for have been in a later enactment expressly omitted by the Congress, the omitted words may not be, by any rule or method of construction, restored in the terms of the law.</p> <p>3. Enamel or Ceramic Colors.</p> <p>Enamel or ceramic colors containing no quicksilver were dutiable at 5 cents the pound, under paragraph 54, tariff act of 1897.</p>

<p>Transferred from United States Circuit Court for Southern District of New York, G. A. 6426 (T. D. 27576).</p>

<p>Cotton Cloth with Silk Selvage.</p> <p>Cotton cloth with selvage of silk, the selvage ordinary in kind and not' designed to form a material and essential part of the goods as these might enter into consumption, was dutiable as cotton cloth under paragraph 306, tariff act of 1897.</p>

<p>Appeal from decision of. the Board of United States General Appraisers, G. A. 7032 (T. D. 30666).</p>

<p>Transferred from United States Circuit Court for Southern District of New York (T. D. 30130).</p>

<p>Transferred from United States Circuit Court for Southern District of New York, Abstract 21572 (T. D. 29906).</p>

<p>Maraschino Cherries.</p> <p>There is an acknowledged difficulty in determining the precise percentage of alcohol that is necessary to constitute a preservative of cherries in maraschino, when these are packed in hermetically sealed bottles or tins; but where alcohol in amounts from 3.10 per cent to 5.45 per cent appears to have been used, and the evidence showing that alcohol in such proportions retards fermentation when the fruit is exposed to air, it is held this amount serves a purpose in preserving the fruit for use; the fruit was so preserved in spirits and was dutiable under paragraph 263, tariff act of 1897. — United States-y. Reiss (166 Fed. Rep., 746) distinguished.</p>

<p>Computing a Countervailing Duty.</p> <p>Under the tariff act of 1897 the Secretary of the Treasury possessed full authority . to assess and collect duties imposed by law to countervail foreign-paid bounties, and his determination, as of the date of the importation itself, of the amount of bounty granted on an exportation of raw beet sugar from Germany and imported here is not open to collateral attack and is final. — Cramer v. Arthur (102 U. S., 612) cited and approved.</p>

<p>1. Language in Commercial Usage.</p> <p>Language will be presumed to be used in commerce as in ordinary life and to establish that a term is used in commerce with a signification differing from that of the same term when ordinarily employed, its use in commerce must be shown to be general, uniform, and definite.</p> <p>2. Cotton Linters.</p> <p>Short bits of lint that adhere to the seed of cotton in the ordinary process of ginning and are later stripped from the seed by a specially constructed gin, becoming then what are commonly known as “linters, ” are not waste, but cotton, and under paragraph 548, tariff act of 1909, are free of duty; and this, irrespective of a cleansing process to which the linters may have been subjected before importation.</p>

<p>1. Beltings.</p> <p>“Beltings” as used in paragraph 320, tariff act of 1897, denotes beltings as articles of dress.</p> <p>2. Balata Beltings.</p> <p>Without determining balata to be india rubber in the commercial sense, balata is in similitude, india rubber, and was dutiable under paragraph 449, tariff act of 1897.</p>

<p>Deer-Foot Handled Knives.</p> <p>A 6-inch knife, with a 5-inch folding blade that when opened fastens with a spring lock, blade and handle measuring 10 inches in length, is a “hunting knife” in the commercial sense of the term, and was dutiable under paragraph 155, tariff act of 1897.</p>

<p>Appeal from decision of the Board of United States General Appraisers, G. A. 6989 (T. D. 30421.)</p>

<p>Appeals from United States Circuit 'Court for Southern District of New York (T. D. 29388; T. D. 30188).</p>

<p>Fur. Sheepskins Not Wool.</p> <p>Paragraph 360, tariff act of 1897, must be taken to refer to skins with wool upon them of such character and quantity that it would be profitable to remove thig wool from the skins; and there being no question here that the importation of raw sheepskins was not of that kind, but was of skins the wool upon which could not be removed with profit, following the rule established by a long-continued practice in the customs administrative service, these were free of duty under paragraph 562, tariff act of 1897. — United States v. Bennett (66 Fed. Kep., 299), approved; Lawrence Johnson & Co. v. United States (124 Fed. Rep., 1000), and other cases distinguished.</p>

<p>Power op Board or General Appraisers to Issue Commissions to Take Testimony.</p> <p>Without considering the judicial nature of the Board of United States General Appraisers or the power that might be found to inhere in the board as a tribunal to issue commissions to take testimony, it would plainly appear that the statute under the authority of which it was established empowers the board to issue such a commission; and that a rule adopted by the board empowering one of its members to issue such a commission is well within the scope of the board’s authority.</p>

<p>Unstitched Gloves.</p> <p>The question being one of fact simply, and only one witness being called, who testified the gloves of the importation were not stitched or embroidered with more than three single strands or cords, and the Board of Appraisers having found this to be the fact, this finding will not be disturbed.</p>

<p>Transperred from United States Circuit Court for the Southern District of New York (T. D. 29613-T. D. 29673).</p>

<p>Transferred from United States Circuit Court for Southern District of New York (T. D. 30099).</p>

<p>(Order entered.)</p>

<p>Dutiable Value on Date of Exportation.</p> <p>A shipment of goods from one point to another within a country for transshipment beyond that country is not, then, a true exportation, and such a shipment becomes a true exportation only and takes its valuation as of the date the vessel with these goods on board is cleared for the United States. — Almy v. State of California (24 ' How., 169) distinguished.</p>

<p>Appeals from decisions of the Board of United States General Appraisers (T. D. 30164 and Abstract 22512, T. D. 30234).</p>

<p>Transferred from United States Circuit Coiut for Southern District of New York, G. A. 6979-(T. D. 30337).</p>

<p>Spark Plugs op an Undecorated Porcelain-Like Eartiiern or Stone Substance.</p> <p>A substance made of waste melilite or lava that has been pulverized, and after an addition made of oxide of magnesia and alkalies has been molded in the fashion of porcelain and then fired, was for dutiable purposes properly within paragraph 96, tariff act of 1897; and from the evidence submitted and from an inspection of the substance itself, it appearing to be susceptible of decoration, it was rightly assessed by the collector under paragraph 96 of that act.</p>

<p>1. Finding of Facts by the Court, When.</p> <p>Where there has been no authoritative finding of fact concurred in by a majority of the sitting members of the Board of General Appraisers, the question of fact is deemed open for determination here.</p> <p>■ 2. Kippered Herring in TrN Cans.</p> <p>The words “herrings, kippered,” in paragraph 272, tariff act of 1909, are construed with reference to the commercial meaning of those words at the time of the statute’s enactment, and while it would appear there may have been occasional importations of kippered herring not in tins, the decided preponderance of the testimony here is that kippered herring are commonly imported in tins and can only be so imported during all seasons of the year, and “herrings, kippered,” must be taken to refer to the fish in tin containers, and as such these are dutiable under paragraph 272 of said act.</p>

<p>1. STATUTORY CONSTRUCTION.</p> <p>An importer is entitled to the benefit of the rule that revenue laws imposing taxes and like burdens should receive a reasonably strict construction.</p> <p>2. Same — A Proviso.</p> <p>Unless the intent of the Congress is manifest that a proviso to a paragraph was meant to have a larger scope than the paragraph itself, and so to include something more within its operation, a recognized rule is to be applied and the proviso is to be construed with reference to the subject matter of the paragraph to which it is appended.</p> <p>3. Same — A Negative. '</p> <p>A negative may have, if the legislative intent is clear, the force of an affirmative; but a negative will not be given the force of an affirmative if there be a different field for its operation where, unless this negative should be treated as a negative proper, another provision of the same statute would be thereby modified or destroyed.</p> <p>4. Same — Proviso to Paragraph 195 and Subsection 18 oe Section 28, Tariee Act oe 1909.</p> <p>The proviso to paragraph 195, tariff act of 1909, is perhaps broader than it was necessary to make it, but it is apt nevertheless, and it is held to have been intended, to save for operation subsection 18 of section 28 of that act making dutiable other containers than those enumerated in paragraph 195.</p> <p>5. Paragraph 195, Tariee Act oe 1909, and Its Last Proviso.</p> <p>The clause “shall not be dutiable unless their contents are dutiable” in a proviso to paragraph 195,'tariff act of 1909, does.not affirmatively or otherwise impose any duties.</p>

<p>Appeal from decision of the Board of United States General Appraisers, Abstract 22760 (T. D. 30364).</p>

<p>Appeal from decision of the Board of United States General Appraisers, Abstract 23068 (T. D. 30547).</p>

<p>Application for a rehearing (T. D. 31258).</p>

<p>Appeal from United States Circuit Court for Southern District of New York (T. D. 30122, T. D. 30806).</p>

<p>1. Power or Board of Appraisers to Review Facts.</p> <p>The power of a Board of General Appraisers to review on appeal a finding of facts is not limited in its exercise to cases where new and additional facts or exhibits are there submitted, but embraces the case in its entirety, with or without new and additional facts or exhibits appearing; and so the finding of a collector is not conclusive against an importer when, on appeal to a Board of General Appraisers, precisely the same case is there presented for decision that was presented at the port of entry.</p> <p>2. Gloves.</p> <p>The Board of General Appraisers having found the gloves in this consignment were not embroidered with more than three single strands or cords, and the Government relying here solely on a contention that the board exceeded its authority in not adhering to a different finding by the collector, the board on the contrary possessing the authority so denied, its finding is affirmed.</p>

<p>Appeal from United States Circuit Court for Southern District of New York, Abstract 22211 (T. D. 30142).</p>

<p>Transferred from United States Circuit Court for .Southern District of New York, Abstract 22155 (T. D. 30111); Abstract 22273 (T. D. 30165).</p>

<p>Appeal from a decision of the Board of United States General Appraisers, Abstract 22697 (T. D. 30356).</p>

<p>Appeal horn a decision of the Board of United States General Appraisers, Abstract 23470. (T. D. 30691).</p>

<p>Appeal from United States Circuit Court for Western District of Washington, Abstracts 7521-7522 (T. D. 26637) and T. D. 30317.</p>

<p>Teansferred from United States Circuit Court for Southern District of New York, G. A. 6911 (T. D. 29789).</p>

<p>Transferred from United States Circuit Court for Western District of Washington, Northern Division, G. A. 6923 (T. D. 29915).</p>

<p>1. A Sellee’s Declaration as to the Character of Goods Sold by Him.</p> <p>An attested declaration by a foreign dealer in the goods that the merchandise was manufactured from an article produced in the United States will not be admitted to control a case presented by the evidence.</p> <p>2. Value in Chief — Alizarin Assistant.</p> <p>Where no proper conclusion can be drawn from the evidence as to what in fact was the component of chief value in an article, no attempt to classify the article according to its component of value in chief will be made, and the finding of the Board of General Appraisers will be affirmed.</p>

<p>Transferred from United States Circuit Court of Appeals, Ninth Circuit, Abstract 13152 (T. D. 27674) and Abstract 14032 (T. D. 27824); 175 Red. Rep., 125, 128 (T. D. 30341).</p>

<p>Appeal from decision of the Board of United-States General Appraisers, G. A. 7020 (T. D. 30613).</p>

<p>Appeal from decision of the Board of United States General Appraisers, G. A. 7021 (T. D. 30614).</p>

<p>Appeal from decision of the Bqard of United States General Appraisers, Abstract 23575 (T. D. 30733).</p>

<p>Appeal from decisions of the Board of United States General Appraisers, G. A. 7042 (T. D. 30720) and Abstract 23746 (T. D. 30828).</p>

<p>1. Examination by Board of Thebe Geneeal AppeaiseRS Required.</p> <p>The changes made in the law govering appraisements of merchandise at ports of entry, as these changes appear in sections 12 and 13, customs administrative act of 1890, do not warrant the inference that it is unnecessary in reappraisement proceedings for a board of three general appraisers to examine the samples of the merchandise when reappraised.</p> <p>2. Samples in Public Stoebs.</p> <p>Packages or samples selected by the collector and deposited in public stores are to be deemed as under the immediate continuing control and in the continuing physical custody of the appraiser, the general appraiser, or Board of General Appraisers, respectively, before whom a case may be pending in which these samples have been selected and detached for the purpose of an examination or of inspection and appraisement.</p> <p>3. Same — Examination Necessary..</p> <p>Irrespective of the particular designation of the official or officials to whom “a case” is submitted in proceedings to appraise merchandise, it can not be said “the case ” has been examined when the exhibits or samples deposited as a part of the case have not been examined; and the statute is mandatory that on appraisement or reappraisement the exhibits or samples shall be examined. — Erhardt v. Schroeder (155 U. S., 124; United States v. Ranlett, 172 U. S., 132) distinguished.</p> <p>4. When it Appears All Samples Weee Examined.</p> <p>In the case at bar, it being fairly established by the evidence that the number of packages required by law were sent to the public stores for examination and that these were in due course examined by the reappraisement board, their finding must be here affirmed. . . ,</p>

<p>Westrumite Asphalt — Asphaltum or Bitumen Advanced in Condition.</p> <p>In the composition of the merchandise, it appears from the record that the original substances employed in the making are different kinds of asphalt or bitumen and that certain chemicals and water are added solely for the purpose of combining the different kinds of asphalt and bitumen and so to perfect the material resulting for use as paving material: Held, the material is not to be classified as a chemical compound or mixture, but rather as asphaltum or bitumen advanced in condition, and as such dutiable under paragraph 90, tariff act of 1909.</p>

<p>1. Country of Actual Exportation.</p> <p>Champagne produced in France, exported from that country to Great Britain without a then existing intent on the part of either party to the transaction to export from France to the United States, followed by storage of the goods, assumed to he in a bonded warehouse in London, and by the owner there subsequently sold to importers in the United States to fill an order, the compliance with which did not specify or require champagne produced in France, and without any intent on the part of the importer in this country to import from France here, is not an importation from France to the United States under the provisions of the reciprocity agreement concluded between that country and this January 28, 1908.</p> <p>2. Ex Parte Affidavits.</p> <p>It seems that an ex parte affidavit taken abroad for the purpose of introducing the same before the Board of General Appraisers may not be competent evidence before this court.</p>

<p>'Reappraisement by Board oj? General Appraisers.</p> <p>On an admittedly imperfect record it appears a Board of General Appraisers reappraised a consignment of goods; yet even if it be assumed the board erred in excluding relevant evidence or in admitting irrelevant evidence; or that it assigned an undue weight to the evidence before it, still, there being evidence that the board acted upon evidence, and there being no evidence here that the board exceeded its authority, it will be presumed to have made its finding within the scope of its authority, and its decision must stand. — Wolff v. United States (T. D. 31217) cited and approved.</p>

<p>Appeal from a decision of the Board of United States General Appraisers, G. A. 7089 (T. D. 30890).</p>

<p>Wall Pockets. — Manufactubes of Paper.</p> <p>Plat cardboards, of different sizes and shapes, upon which lithographic prints have been mounted, and that have been imported in a “knocked-down” condition, but complete in themselves and ready to be assembled and used as wall pockets, are not to be deemed lithographic prints and dutiable as such; they have a new name and new use and were dutiable under paragraph 407, tariff act of 1897, as manufactures of paper.</p>

<p>Application of Favored-Nation Clause to Teade Conventions.</p> <p>By a convention of December 22, 1815, the terms of which, through subsequent agreements, remain in full force and. effect, it was stipulated by and between the United States and His Britannic Majesty that “no higher or other duties shall be imposed on the importation into the United States of any article the growth, produce, or manufacture of His Britannic Majesty’s territories in Europe * * * than are or shall be payable on the like articles being the growth, produce, or manufacture of any other foreign country.” In pursuance of a provision contained in the tariff act of 1897, looking to the arrangement of commercial agreements in which reciprocal and equivalent concessions might be secured in favor of the products and manufactures of the United States, a commercial agreement between the United States and the Republic of Prance was negotiated and proclaimed June 1, 1898, in which it was reciprocally agreed that during the life of the agreement certain articles named therein should be admitted at designated rates on importation from one of the countries to the other. Among the articles so designated brandies or other spirits manufactured or distilled from grain or other materials were to be subject to a duty of SI. 75 per gallon. The appellants subsequent to the date of this trade agreement with Prance imported into the United States from England certain whiskies and other spirituous liquors, and assert here that the favored-nation clause in the existing convention between this country and Great Britain, applies and that they are entitled'to an allowance on their importation from England of the same rate of duty they would be entitled to if their importation had been brought in from Prance, namely, $1.75 per gallon. The goods were assessed at the port'of New York at $2.25 per proof gallon, under paragraph 292, tariff act of 1897. Held, a reciprocity agreement is based on reciprocal considerations moving from each party thereto to the other, separate obligations being assumed in return for benefits granted; and other countries, not parties to the agreement, bearing in no sense the burden of the obligations, can not properly be taken to share in the accruing benefits. It would be, in the case at bar, to concede to Great Britain without a consideration what was conceded to "Prance only on a consideration if these goods were permitted entry at the rate fixed in the French agreement; and the consignment was dutiable as assessed under paragraph 292, tariff act of 1897. — Bertram v. Robertson (122 U. S., 116) and Whitney v. Robertson (124 U. S., 190).</p>

<p>Transferred from United States Circuit Court for Southern District of New York, Abstract 22161 (T. D. 30122).</p>

<p>1. Wheat That Has Been Boiled, Dried, and Ground or Otherwise Broken.</p> <p>Wheat that has been boiled, dried, and ground or otherwise broken, constituting thereby a food product, has lost its character as a grain and takes on a form, nature, appearance, and use differing distinctly from those it had before being subjected to the described treatment, and it can not be properly classified as wheat, or by similitude as wheat.</p> <p>2. Same — I-Iow Dutiable.</p> <p>It would seem this commodity has no commercial designation, but it is manifestly a foodstuff manufactured from wheat, and as such was dutiable under section 6, tariff act of 1897.</p>

<p>Appeal from a decision of the Board of United States General Appraisers, Abstract 23284 (T. D. 30615).</p>

<p>Appeal from a decision of the Board of United States General Appraisers, G. A.'7013 (T. D. 30569).</p>

<p>Philippine Cigars Transshipped at Hongkong, a Direct Shipment.</p> <p>In the enactment of the provisions of the tariff act of 1909 that relate to commerce between the United States proper and the Philippine Islands, the Congress will be presumed to have had i-n mind the actual requirements of trade in the Philippines, as these may call for transshipmentof merchandise; and having in view, too, the recognized benevolent intent of legislation affecting the archipelago, that shipment must be deemed a direct shipment from the Philippines to the United States when the consignment was forwarded on a through bill of lading from Manila to New York, but by reason of a trade requirement was transshipped at Hongkong; and so the goods fell within section 5, tariff act of 1909, making them free of duty.</p>

<p>Appeal from a decision of the Board of United States General Appraisers, G. A. 7019 (T. D. 30612).</p>

<p>Appeal from a decision of the Board of United States General Appraisers, Abstract 23354 (T. D. 30645).</p>

<p>1. Covemngs — Section 19, Customs Administrative Act of 1890.</p> <p>In the construction of section 19, customs administrative act of 1890, following the rule ejusdem generis laid clown in United States v. Nichols (186 U. S., 298), the words “coverings of any kind,” appearing in that section, must be taken to include coverings previously named therein, or coverings similar in kind, and used only to convey solids.</p> <p>2. Same — Containers oe Liquids and Semiliquids.</p> <p>Containers of liquids or semiiiquids do not come within the descriptive language “Cartons, cases, crates, boxes, sacks, and coverings of any kind” as these words stand in said section 19, customs administrative act of 1890.</p>

<p>]. Tampf Hearings, Relevancy of Proceedings at. ■</p> <p>In determining the intention with which language has been employed in a paragraph of a tariff act some ambiguity therein must be apparent to warrant a resort to the “side lights” obtainable from tariff hearings.</p> <p>2. Lead-Bearing and Zino-Bearing Ores.</p> <p>A commodity, it is true, is properly assessable in its condition as imported, but where ore, as here, is shown to have contained, as imported, both lead and zinc, the zinc appearing in a quantity exceeding 10 per cent, the metal content in both is dutiable, the lead under paragraph 181, the zinc under paragraph 193, tariff act of 1909.</p>

<p>Appeal from a decision of the Board of United States General Appraisers, G. A. 7083 (T. D. 30873).</p>

<p>Transferred from United States Circuit Court for Southern District of New York G. A. 6742 (T. D. 28886).</p>

<p>Transferred from United States Circuit Court for Southern District of New York, G. A. 6788 (T. D. 29144).</p>

<p>Reliquidation on Order of Board Followed by a New Protest.</p> <p>Where an importer’s protest against the inclusion of certain bottle charges in an assessed valuation had been sustained and a reliquidation by the collector ordered, the importer interposed a new protest with the collector, asserting his right to a new assessment on the contents themselves of the bottles and at a lower rate than that which had been originally fixed: Held, in the proceedings that ensued on reliquidation the collector made no “decision” from which an appeal would lie; he was acting ministerially, and the importer having failed within the time prescribed by law to protest against the original assessment as to the value of the contents of the bottles and to appeal therefrom, that assessment is res adjudicata.</p>

<p>1. Fiat Pieces of Steel not Wire Rods.</p> <p>Flat pieces of steel, 3 inches by one-eighth of an inch in thickness, and 30 or more feet in length, and known commercially as “flat rods, ” are not flat wire rods and were dutiable not as flat wire rods, but under the clause “steel in all forms and shapes not specially provided for,” paragraph 135, tariff act of 1897.</p> <p>2. Designation Covering Ultimate Use.</p> <p>To bring a manufacturing material within a particular designation in a tariff law that covers one of the ultimate uses of that material, it should be found to be so far advanced by the processes applied to it in fitting it for that ultimate use that either on an examination per se its ultimate use is clear or it is found.so far advanced that its utility for another possible use has been destroyed.</p>

<p>Appeal from a decision of the Board of United States General Appraisers, Abstract 23519 (T. D. 30710), Abstract 23642 (T. D. 30754).</p>

<p>Pears’ Unscented Soap a Fancy Toilet Soap.</p> <p>Where there are irreconcilable differences in the testimony as to .the use of the term “fancy soap” in commerce, it can not be said to have a commercial meaning that is definite, uniform, and general; but since the importation in question consists of cakes of soap, oval in form, translucent, attractive in appearance, agreeable in odor, and appealing to a fastidious taste, it is properly to be regarded as a fancy toilet soap, and was dutiable as such under paragraph 69, tariff act of 1897, and this regardless of whether or not it was perfumed.</p>

<p>1. Minerals — New Name for Process Product not Essential.</p> <p>To exclude minerals from the provisions of paragraph 614 covering “minerals crude and not advanced in value or condition by refining, grinding, or other process of manufacture,” it is not essential that the product of such process be given a new name.</p> <p>2. Corundum Ore Concentrates, by Similitude, Emery.</p> <p>Corundum ore obtained from rocks that have been quarried and crushed fine enough to be passed through the meshes of sieves and, after being washed, graded according to size, can not be regarded as either crude or manufactured sand, or as a crude mineral, but must be taken rather to be a mineral extracted by process from a crude mass of matter; it differs from emery only in being substantially free from impurities, and so was dutiable by similitude as emery, ground, under paragraph 419, tariff act of 1897, — Myers v. United States (163 Fed. Rep., 63), Rossman v. United States (T. D. 31321); Hartranft v. Wiegman (121 U. S., 609) distinguished.</p>

<p>Transferred from United States Circuit Court for Southern District of New York, Abstract 14687 (T. D. 27999), Abstract 14832 (T. D. 28036).</p>

<p>1. “Fit Only por Such Use ” Defined.</p> <p>The phrase “fit only for such use” means fit in a commercial sense; but whether an article must be held fit for a certain use, if when blended with other articles it becomes so fit, is a question now reserved.</p> <p>2. Dressing Oil Distilled prom Grease.</p> <p>A dressing oil distilled from grease or degras being found by the Board of General Appraisers to be fit for other purposes than for dressing or stuffing leather, the evidence being conflicting, this finding will not be disturbed, and the importation was dutiable under paragraph 3, tariff act of 1897. — McKerrow Co., Abstract 6179 (T. D. 26312).</p>

<p>Fish, not this Products or American Fisheries.</p> <p>The American fishing vessel took no part in the fishing operations in question here except to convey from the United States to Newfoundland certain fishing supplies^ A portion of the fishing tackle so conveyed was used under the supervision and by employees of an American citizen temporarily at Bonne Bay, Newfoundland; but the fishermen engaged there for service apparently used their own boats and presumably obtained there their supplies. The fish so caught were cured on British soil and shipped to the United States in a British vessel: Held, the importation was not entitled to free entry as the product of American fisheries under paragraph 567, tariff act of 1909.</p>

<p>1. India Rubber Recovered prom Scrap or Repose.</p> <p>Chopping old scrap or crude rubber, separating therefrom particles of iron, such as rivets, valves, etc., grinding the rubber into smaller particles, chemically treating, washing, riffling, and blowing these, are all done to separate the rubber from the other component materials of the scrap or refuse. — in short, to recover or reclaim the rubber in a shape suitable for transportation and marketing; and it has not thus been manufactured, in whole or in part, becoming a particular manufactured article; it has rather been made fit as a single material to be manufactured anew.</p> <p>2. Same — Under Paragraph 579, Tariff Act op 1897.</p> <p>Paragraph 579, tariff act of 1897, to be given its duo and proper effect, must be taken to have placed on the free list all india rubber, whatever its condition, imported as a material for manufacturing india-rubber articles; and it applied to old scrap and refuse rubber, whether imported after separation or as the content of, or associated with, other materials as a part of articles formerly useful.</p> <p>3. Same — Doubt as to Construction, ITow Resolved.</p> <p>The changed phraseology in the tariff act of 1909 relative to india rubber suggests a question at least in the mind of the Congress as to what is a proper construction of the similar clause in tariff act of 1897, but in the presence of doubt the importer' should have the doubt resolved in his favor, and this importation was properly held by the board to bo entitled to free entry under paragraph 579, tariff act of 1897.</p>

<p>1. Substitution or Records on Hearing Before Board.</p> <p>Where a rule had been promulgated by the Board of General Appraisers providing that in classification proceedings the record and testimonyin one case might be admitted as the record and testimony in another, if a like case, but providing, too, for a reexamination and cross-examination of witnesses if moved for, proceedings on such a substituted record could only be proper after due notice, so that witnesses might be reexamined or cross-examined as might or might not be desired.</p> <p>2. Commercial Designation, Insufficient Evidence of.</p> <p>Where only one witness has testified to the commercial designation of an article, this is insufficient evidence to prove an accepted use of the term in commerce.</p> <p>3. Review of Questions of Fact.</p> <p>This court may review questions of fact, but when a decision by a board is made to rest on a record that is not a part of the record here, there is not here sufficient testimony to warrant the finding of the board being sustained.</p>

<p>Appeal from a decision of the Board of United States General Appraisers, Abstract 23431 (T. D. 30667).</p>

<p>1. Baskets Made op Bamboo Splits.</p> <p>Baskets made of flat-looking narrow strips of split bamboo and so thin as to be flexible and capable of being woven, into a desired form are manufactures of cbip and were dutiable under paragraph 449, tariff act of 1897.</p> <p>2. Bags and Baskets Made of "Wistaria ok Rattan.</p> <p>Both wistaria, a vine-like shrub with a bark, and rattan, which belongs to the palm family, have the appearance and general qualities of wood; and bags and baskets made of either were dutiable under paragraph 208, tariff act of 1897.</p>

<p>Appeal from a decision of the Board of United States General Appraisers, G. A. 7069 (T. D. 30793).</p>

<p>Fancy Brass-Plated Vest Buttons Set with Imitation Stones.</p> <p>The importation was of buttons made of brass, plated, and some of these were studded with imitation precious stones. To bring these buttons within the provisions of paragraph 448, tariff act of 1909, they should be found to be either dress buttons set with imitation precious stones composed of glass or paste, or brass should compose their value in chief, or they should be designed for personal adornment, and in any of these cases be valued in addition at not less than 20 cents per. dozen. This importation on examination appears to fall within the provisions of paragraph 448, tariff act of 1909, and giving the collector’s decision the benefit of the presumption of correctness to which it is entitled, the goods are dutiable under that paragraph.</p>

<p>1. Dressed Lambskins.</p> <p>Dressed lamb and kid skins finished so as to be suitable for making gloves might be designated as either “lambskins dressed and finished” or as “glove leather”i but as the last is the more specific designation it must prevail, and the more certainly since otherwise it would be to deny any significance to “glove leather ” in the law. The importation is not dutiable as sheep and goat skins (including lamb and kid skins) dressed and finished under paragraph 451, tariff act of 1909, nor as grain, split, or buff leather under paragraph 450 of that act, but is dutiable as glove leather under paragraph 451.</p> <p>2. Error Without Injury.</p> <p>It was error for the board to predicate an opinion on testimony taken in a former case, but as the error relates to a question of fact not essential to the decision of this case, it is error without injury.</p>

<p>Appeal from United States Circuit Court for Southern District of New York (177 Fed. Rep., 569; T. D. 30340).</p>

<p>1. Statutory Construction.</p> <p>It is true the latest clear expression of legislative intention controls in construction, but it is true also that reasonable effect should be given to all parts of the statute under consideration and regard will be had for the presumption that where a law has received an executive and a judicial interpretation, and is later reenacted, this interpretation was in view on reenactment.</p> <p>2. Cotton Cloth, Filled or Coated.</p> <p>It would appear that Congress intended paragraph 321, tariff act of 1909, reenacting and enlarging paragraph 311, tariff act of 1897, to take the construction theretofore given it so far as it applied to the same merchandise named in each paragraph and that certain window shades and filled cloths formerly held dutiable thereunder should so continue regardless of the fact that it is possible to count the number of warp and filling threads of the basic fabric, which might, but for the specific provisions of paragraph 321, render the merchandise dutiable under paragraph 315.</p> <p>3. “Cotton Cloth” in Paragraph 32Í), Tariee Act oe 1909, Defined.</p> <p>The words cotton cloth or cloth, wherever used in paragraph 320, tariff act of 1909, have the same meaning the first clause of that paragraph declares they shall have when applied to other paragraphs, Schedule I of that act.</p>