Volume 4 — Customs Court Reports

<p>Appeal from Board of United States General Appraisers, G. A. 7355 (T. D. 32452).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 28475 (T. D. 32507).</p>

<p>Battery Rods Made op Carbon.</p> <p>The rods of the importation, when fitted with brass caps, make poles of a galvanic battery of a kind, though not completed poles. Reviewing the legislative history of paragraph 95, tariff act of 1909, and the construction it has received by the coiuts, the intention is manifest that articles like those described are not subject to the duties imposed by that paragraph upon articles and wares composed of earthy or mineral substances. The merchandise is a manufacture of carbon and is classifiable and dutiable as a nonenumerated manufacture under paragraph 480, tariff act of 1909.</p>

<p>Paeasols — Toys.</p> <p>According to the definition of “toy,” Illfelder v. United States (1 Ct. Oust. Appls.f 109; T. D. 31115), the articles of the importation are not toys either within the letter or intendment of that definition; and the evidence of a commercial designation is not such under all the facts as to warrant the board’s finding being disturbed. The merchandise was properly assessed as parasols covered with other material than paper, under paragraph 462, tariff act of 1897, and the corresponding paragraph in the tariff act of 1909. — Pacific Mail Steamship Co. v. United States (3 Ct. Cust. Appls., 102; T. D. 32361).</p>

<p>Paper -with Decorated Surface, not Lithographed.</p> <p>The paper of the importation has been subjected to processes by which, after a finished design in colors had been imprinted on it, it was saturated with linseed oil and no varnish or other substance was applied to . produce an added surface. This is not a surface-coatcd paper. It is dutiable as a “paper with the surface decorated or covered with a design, fancy effect, pattern, or character, * * * but not by lithographic process, ” under paragraph 411, tariff act of 1909.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29825 (T. D. 32830).</p>

<p>Analysis without Sample op the Merchandise.</p> <p>There was a chemical analysis of the glycerin of the importation. Proof of this was excluded because a sample of the glycerin analyzed was not produced. To make the production of a sample a condition precedent to the admission of proof of the analysis was error. The failure to produce a sample might affect the weight, but not the competency of the evidence offered.</p>

<p>Bent Disks oe Glass not Ooqtjill Glasses.</p> <p>These unpolished and unground glasses had not been so far advanced by processes of manufacture as to acquire a name, character, and use different from common window glass; they remained window glass, bent; that is to say, material not yet advanced to the stage of a new manufacture. They were dutiable accordingly under paragraphs 99 and 104, tariff act of 1909.</p>

<p>Filing Claim foe Allowance on Condemned Goods.</p> <p>From the record it appears that certain fruit was condemned on August 12. The claim for an allowance on the fruit so condemned was made prior thereto, on August 11. But the statute requires notice shall be given by the importer in such cases, after, not before condemnation. The notice was insufficient.</p>

<p>Thehmos Bottles of Blown Glass.</p> <p>It is not shown that the goods consist of the ordinary articles recognized as containers for holding or transporting merchandise. They are a product which, while still known as bottles, and while blown, are in a class by themselves, and, so far as the record discloses, fall without the provisions of paragraph 97, tariff act of 1909, and within those of paragraph 98, there being an entire absence of proof to overcome the presumption arising in favor of the action of the collector.</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7383 (T. D. 32734).</p>

<p>Marble Products not Sculptures.</p> <p>The Board of General Appraisers found these marble products were not the pro» ductions of a sculptor. The record sustains this finding.</p>

<p>Automatic Lighters.</p> <p>The question for determination was whether the goods of the importation were in their chief use smokers’ articles. They were so assessed and the hoard so found them. ■ From the evidence, while it appears the articles may have other occasional uses, their chief use is as cigar lighters, and they were properly assessed as smokers’ articles. — Knauth v. United States (1 Ot. Cust. Appls., 334; T. D. 31432); Dale v. United States (2 Ct. Oust. Appls., 384; T. D. 32111).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29881 (T. D. 32842).</p>

<p>Appeal from Board of United States General Appraisers, Abstracts 28475 and 28493 (T. D. 32507).</p>

<p>LITHOGRAPHICALLY PRINTED PAPERS — CHARTS.</p> <p>The question here is whether the articles of the importation are “charts” within the meaning of paragraph 416, tariff act of 1909. Reviewing the various pertinent decisions affecting this question it seems clear that the meaning of the word “chart” has been broadened since the first use of the term in tariff legislation and that the term was employed in the present law with this accepted broader meaning. “Charts” in paragraph 416 eo nomine describes the importation.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29098 (T. D. 32681).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 28370 (T. D. 32488),</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7329 (T. D. 32273).</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7346 (T. D. 32378).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29047 (T. D. 32681).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 28826 "(T. D. 32618).</p>

<p>Tools Operated by Hand Power Not Machine Tools.</p> <p>It satisfactorily appears that these machines are operated by hand power. They can not, accordingly, be deemed machine tools.- — Sears, Roebuck & Co. v. United' States (2 Ot. Oust. Appls., 329; T. D. 32055).</p>

<p>Hams, When Not Prepared or Preserved Meat.</p> <p>These hams have not lost their name or their character by reason of any process to which they were subjected before importation; and the eo nomine provision for hams in paragraph 284, tariff act of 1909, being more specific than that for prepared or preserved meats in paragraph 286, paragraph 284 controls.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 28911 (T. D. 32645), Abstract 28971 (T. D. 32655), and Abstract 29212 (T. D. 32681).</p>

<p>Herrins or Mackerel, Pickled or Salted.</p> <p>The processes to which the fish of the importation had been subjected put them in a class apart from “ fish in tin packages,” as provided for in paragraph 270, tariff act of 1909. The evidence sustains the finding that the merchandise here consisted of herring or mackerel, pickled or sailed, and these were dutiable as such under the eo nomine provisions of paragraphs 272 and 273, respectively.</p>

<p>Tomato Paste — Vegetables Prepared.</p> <p>The form of the tomato has been destroyed by the processes to which it has been subjected, it is true, but the elements that make the vegetable valuable as a food, namely, a part of the juice and most of the pulp, remain, and the paste resulting is a prepared vegetable, dutiable under paragraph 252, tariff act of 1909.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 28343 (T. D. 32455).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29841 (T.D. 32830).</p>

<p>Nickel-Plated Steel Strips in Coils.</p> <p>When these steel strips were plated with nickel, they became something more than steel strips, and not being specifically enumerated in their advanced condition they fall properly within the general provisions of paragraph 199, tariff act of 1909, as manufafctures of metal not provided for. — Victor v. United States (128 Fed., 472); Eckstein v. United States (140 Fed., 94).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 30983 (T. I). 33055).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 27809 (T. D. 32297), Abstracts 27846 and 27848 (T. D. 32302).</p>

<p>Imitation Meerschaum Pipes.</p> <p>The importer was bound to show by a preponderance of evidence in support of his protest that the pipes here were made of clay; but there appears in the conflicting testimony a preponderance of proof in favor of the Government’s contention that the pipes were not made of clay.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29427 (T. D. 32751).</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7382 (T. D. 32733').</p>

<p>1. CONSTRUCTION.</p> <p>In tariff statutes words describing merchandise are to be taken as used in their commercial sense, but the common and the commercial meanings are presumed to be the same. If a difference in meaning is attempted to be shown, the party seeking to show a difference has the burden of proof.</p> <p>2. Tares and Ladder Tapes.</p> <p>To bring these articles within the commercial designation of “tapes” it would be necessary to show that they are known as such. This is not here shown. On the contrary, the evidence discloses that, instead of being known commercially as tapes, they are commercially known as ladder tapes. Tapes and ladder tapes are not the same thing.</p>

<p>Cherries in Brine.</p> <p>A saline solution used in packing fruit is used as a preservative simply and fruit of the kind is “in brine” in the language of paragraph 559, tariff act of 1909. Without undertaking to fix what percentage of salt in a solution will make that solution brine, the evidence here does not warrant the conclusion that the fruit of this importation was “in brine.”</p>

<p>Manufactures of Rubber and Fountain Pens.</p> <p>The legislative history oí paragraph 187, tariff act of 1909, shows that the several parts of fountain pens are to bo distinguished on assessment from fountain pens themselves; that a fountain pen is an ink-holding writing instrument with a pen and complete for use. The goods hero were not fountain pens and were properly assessed under paragraph 4G4, tariff act of 1909.</p>

<p>Appeal horn Board of United States General Appraisers, Abstract 31006 (T. D. 33055).</p>

<p>Water oe Ayr 'Whetstones.</p> <p>The stone is smooth, and its chief use is to smooth the rough surfaces of engraved rollers. It was dutiable as an article of earthy or mineral substance under paragraph D5, tariff act of 1909. — Waddell & Co. v. United States (3 Ct. Cust. Appls., 406; T. D. 32989); Manufacturers’ Paper Co. v. United States (3 Ct. Cust. Appls., 72; T. I). 32353); United States v. Tamm (2 Ct. (hist. Appls’., 425; T. D. 32173).</p>

<p>Gases Containing Watchmen’s Time Detectors.</p> <p>Under the act of 1897 it was held that “watch movements” included “time-detector movements,” and tlie insertion in'paragraph 192, tariff act of 1909, after “watch movements,” the words “including time-detectors,” plainly adopts that construction. Accordingly the merchandise was not dutiable as entireties, but as assessed under paragraphs 192 and 199 of the later act.</p>

<p>Essential Oils — Drugs.</p> <p>All these oils are obtained by processes of distillation and a specific description of them appears in paragraph 3, tariff act of 1909. They are dutiable co nomine under that paragraph.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 28967 (T. D. 32655).</p>

<p>Dyes Produced prom Carbazol.</p> <p>Carbazol is a chemical compound distinct from anthracin, having a different chemical formula, and it is used to produce different dyes from those derived from anthracin. The fact that carbazol is found in association with anthracin does not leave it open to say that a product derived solely from carbazol, not including anthracin, is derived from anthracin. The dyes here are a product of coal tar, some elements being eliminated, but none added, to produce carbazol. They were dutiable at 30 per cent ad valorem under paragraph 15, tariff act of 1909.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 28947 (T. D. 32655).</p>

<p>Wooden Tray Boxes Containing Harmonicas.</p> <p>These tray boxes are used as well to display as to contain harmonicas. The law does not contemplate that these coverings, whose only design, purpose, or use other than ior transportation is for displaying the harmonicas, should pay the additional duty imposed by subsection 18 of section 28, tariff act of 1909. That provision must be taken to be intended to prevent the importation, under the guise of coverings or containers, of unusual articles having a substantial, material, and valuable use for other purposes than merely holding or covering merchandise in the bona fide transportation thereof.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29661 (T. D. 32801)-.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 30402 (T. D. 32926).</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7351 (T. D. 32420)!</p>

<p>Olive Oil in Tins.</p> <p>The evidence is not sufficient to establish a commercial designation. The case is ruled by United States v. Palma (4 Ct. Oust,. Appls., 140; T. D. 33412, infra).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 30243 (T. D. 32884).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 30673 (T. D. 32997) and Abstract 30988 (T. D. 33055). " .</p>

<p>Appeal from Board of United States General Appraisers, Abstract 30673 (T. D. 32997) and Abstract 30988 (T. D. 33055).</p>

<p>Free Importation is claimed for certain chemical wood pulp and sulphide wood pulp from Norway, Russia, Austria-Hungary, and Germany. The claim is made on the ground that by virtue of the favored-nalion clause in existing treaties, when that clause is construed in connection with section 2 (wood-pulp section) of the act of July 26, 1911, entitled “An act to promote reciprocal trade relations with the Dominion of Canada and for other purposes,” the merchandise appears as entitled to free entry.</p> <p>It was conceded at the hearing that Canada is a nation for treaty purposes; that there is nothing in the language of the several treaties in question with the several countries to call for any distinctions to be made between the countries represented1 in the protest; and it was further conceded that said section 2 of the act of 1911 is operative, though Canada refused to avail itself of the option to establish reciprocity as to any other possible importations provided for in other sections of the act.</p> <p>1. Treaties and the Courts.</p> <p>By the Constitution a treaty is binding as a law of the land, and since it is the function of the courts to construe and apply the law, it becomes a court’s duty whenever conditions arise, making a treaty applicable, to declare the force and effect of that treaty. — Foster v. Neilson, 27 U. S. (2 Pet.), 253.</p> <p>2. Same.</p> <p>Courts may. not seek to enforce a treaty which is executory in its character, for legislation is needed to give effect to executory provisions; but courts will as to a self-executing provision in a treaty enforce this whenever the occasion and conditions arise that attach the self-executing provision to existing facts. — Taylor v. Morton (2 Curtis, 453); Bartram v. Robertson (122 U. S., 116); Whitney v. Robertson (124 U. S., 190).</p> <p>3. A Self-Executing Agreement.</p> <p>The provision of the favored-nation clause is, “if either party shall hereafter grant to any other nation any particular favor in navigation or commerce, it shall immediately become common to the other party.” This provisionis self-executing, for the privilege could not “immediately become common” to the other party to the agreement if it depended upon some future act by another or upon legislation to make the provision effective.</p> <p>4. Section 2, Act op July 26, 1911.</p> <p>Section 2 (wood-pulp section) of the act of July 26, 1911, was enacted with a full understanding that under that section there would be a question for determination whether the provisions of existing treaties with favored nations would attach, and whether by the very force of section 2 like commodities from other nations having the favored-nation clause in treaties are to be admitted on the same terms with the given commodities brought in from Canada. It must be recognized that the favored-nation clause has for its field of operation precisely that of cases where and when the lawful authority has granted a new privilege to some other nation.</p> <p>5. Same. — Question op a Consideration.</p> <p>Section 2 is a provision of the act standing by itself. There is nothing contained in it to indicate a consideration passing, nor is there a suggestion of aliunde evidence of the existence of a consideration. It stands wholly independent of the reciprocity provision of the act.</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7423 (T. D. 33141).</p>

<p>1. “Amended Decision.”</p> <p>At an earlier stage of this litigation an application for a rehearing was filed and the board, responding to this without a hearing, directed, by a letter there termed “an amended decision,” that the matter omission of which had been urged as a ground for granting a rehearing should be incorporated in'the formal decision of the case. The application for a rehearing being thereupon withdrawn, the protestant could not be later heard in objection to the proceeding as irregular. — King Collar Button Co. v. United States (3 Ct. Oust. Appls., 174; T. D. 32461).</p> <p>2. Requirements in Measuring Merchandise.</p> <p>The law contemplates that the true amount or rate of duty should be paid on imported merchandise and nothing more. There is.a doubthere, however, whether the proper method of measuring the merchandise of the importation was employed.. The appeal was seasonably taken and a further hearing in the circumstances is reasonably required.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29501 (T. D. 32760).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29721 (T. D. 32823).</p>

<p>Impukities in Raisins.</p> <p>In order for impurities to be allowed for as tare, the importer must establish by a preponderance of evidence that, at the time the law was passed, the impurities claimed as demanding an allowance were other than the ordinary impurities commonly found in that kind of merchandise as traded in; and that it was the general, uniform, and definite custom of the trade not to regard such impurities as pari of the goods and to make an allowance therefor. No such case is here presented.</p>

<p>Elastic Cords and Webbings.</p> <p>The question is one of the sufficiency of a protest. An examination of the language employed shows this to be broad enough, and specific enough as well, to cover all kinds and classes of thegoodstlie duty on which was protested as excessive.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 26335 (T. D. 31813).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29228 (T. I). 32081').</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29184 (T. D. 32681).</p>

<p>CONTAINERS ÜXDER PARAGRAPH 195, TARIFF Act OP 1909.</p> <p>The legislative history oí this paragraph makes it clear that containers under paragraph 195, tariff act of 1909, are such as are ordinarily employed in the transportation of merchandise. The goods of the importation are not containers in that sense.</p>

<p>1. Sheets.</p> <p>The term “sheets” is ordinarily applied to a broad general surface, and in paragraph 172, tariff act of 1909, may fairly be said to mean the sheet of the metal made in that form as one of "the developments in the process of manufacture, and not intended to Include the articles made from such sheets.</p> <p>2. Aluminum Sheets Advanced in Condition.</p> <p>The articles here are not sheets of aluminum within the meaning of paragraph 172, hut have been advanced beyond that state and must be held to be articles or wares composed wholly of aluminum, partly manufactured, and dutiable under paragraph 199 of that act.</p>

<p>Subsection 22 or Section 28, Customs Administrative Law.</p> <p>Tlio importation was of dates and a part of the cargo was condemned and destroyed at the port of entry. Regardless of the regulations promulgated by the Secretary of the Treasury under tins subsection and putting aside the question of the validity or of the application here of these regulations, the importer is without remedy for the reason there was a failure to comply with the mandatory requirements of the statute itself. — Lauricella et al. v. United States (4 Ct. Oust. Appls., 253; T. D. 33482), infra.-</p>

<p>Nails in Chief Value of Leather.</p> <p>The evidence does not show the nails of the importation are wrought iron or steel, and the return of the appraiser shows them to be in chief value of leather. They are dutiable under paragraph 452, tariff act of 1909. — Vantine v. United States (T. D. 33124).</p>

<p>1. Rearranging Language in a Statute.</p> <p>It is a familiar principle of statutory construction that for the determination of legislative intent courts may assemble provisions of a statute in accord with that intent.</p> <p>2. Subsection 22, Section 28, Tariff Act of 1909.</p> <p>Nonimportation of a part of the cargo of lemons was claimed. The provision of the statute is that “proof” of destruction or nonimportation “shall be lodged with the collector of customs,” etc. There is no limitation in the language of the statute of the kind of proof or otherwise save as to time when this proof may be made by the importer. The statute allows ten days to introduce such proof; to limit this to five, as is sought in the Treasury regulation, is in excess of statutory power. — Vande-grift v. United States (3 Ct. Oust. Appls., 198; T. D. 32470) distinguished.</p>

<p>Cape rs — Pickles .</p> <p>The imporfation is oí capers, but these- capers possess certain qualities and characteristics that bring them within the class of pickles. This applies to those that are washed and treated with fresh vinegar after importation as well as to those that do not require such treatment.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 30230 (T. D. S288¿).</p>

<p>Appeal from Board oí United States General Appraisers, Abstract 31113 (T. D. 33106).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31312 (T. D. 33194).</p>

<p>Creosote Oil, What Not.</p> <p>In paragraph. 536, tariff act of 1909, it was the evident intention to restrict the grade of oil admissible free of duty under that paragraph to that known as dead oil. It is not shown here that the importation is in any sense dead oil; the record shows, on the contrary, that the importation was not at the date of the enactment of the tariff act of 1909 known as creosote oil, but was in fact an oil of much greater value.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29162 (T. D. 32681).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29847 (T. D. 32842).</p>

<p>Appeal horn Board of United States General Appraisers, G. A. 7389 (T. D. 32779).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29796 (T.D. 32830).</p>

<p>Motion for rehearing.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 30415 (T. D. 32926).</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7402 (T. D. 32957).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 27434 (T. D. 32126).</p>

<p>Hand-Power Machines.</p> <p>These appliances for sharpening pencils are admittedly hand-power machines, and they are not commonly or popularly regarded as machine tools. They were dutiable as manufactures of metal not specially provided for under paragraph 199, tariff act of 1909.</p>

<p>HEARING BY ONE BOARD, DETERMINATION BY ANOTHER.</p> <p>The powers and duties of the board of appraisers and the law affecting these are stated and discussed. The record in this case shows there was a hearing by Board 1, to whom the case had been lawfully committed for hearing and determination and the jurisdiction of which is not challenged. The decision here complained of, however, was rendered by another board, having no appellate jurisdiction over Board 1 and the assumed jurisdiction of which is directly challenged. The judgment of the second board is void and the case is still pending before Board 1 for determination and decision.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29941 (T. D. 32847).</p>

<p>Machines for Manufacturing Jute Yarns.</p> <p>The squeezers, doublers, spreaders, drawing frames, roving frames, and spinning frames of the importation operate directly on the jute and are all suitable, necessary, and are actually used for the making of jute yarns of the accepted and recognized commercial sizes. They are to be classified as jute manufacturing machinery, and are dutiable as such under paragraph 197, tariff act of 1909.</p>

<p>1. “To Make Up.”</p> <p>“To make up ” invariably expresses a process of aggregating or assembling different units into a composite entirety. A made-up article is one which, has been composed by uniting together various parts.</p> <p>2. Cast-Iron Repair or Replacement Parts.</p> <p>These parts of textile machinery were made ready for immediate attachment to the machines for which they had been severally designed. They are iron castings advanced in condition as defined by paragraph 147, tariff act of 1909. — Jackson Co. et al. v. United States (2 Ot. Oust. Appls., 475; T. D. 32227).</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7411 (T. D. 33030)</p>

<p>Appeal from Board of United States General Appraisers, Abstract 30800 (T. D. 33031).</p>

<p>Additional Duty.</p> <p>The importers were embarrassed in stating the actual market value of their merchandise, but they elected to enter the woolens and cottons here with the additions of a penny a yard for dampage and 10 per cent for shrinking. A notation that this was done under duress does not make a case of duress. No unlawful demand was made on the importers, and what they did was done freely and voluntarily to fix the entered value of the goods.</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7415 (T. D. 33086).</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7421 (T. D. 33118).</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7429 (T. D. 33189).</p>

<p>MANXJFACTURES OF WOOD' — BltOOMS AND BRUSHES.</p> <p>An examination of the samples shows that these articles could not he used as ■brooms or brushes. They were properly held dutiable as manufactures of wood under paragraph 215, tariff act of 1909.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31031 (T. D. 33088) and Abstract 31380 (T. D. 33217).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31260 (T. D. 33194).</p>

<p>Polish as a Manufactured Article.</p> <p>This polish appears to be composed of pulverized silica, alumina, and lime saturated and mixed with petroleum oil and fat. This combination of materials is not fairly to be described as a chemical compound or mixture. It was properly held dutiable as an unenumerated manufacture under paragraph 480, tariff act of 1909.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29215 (T. D. 32681).</p>

<p>WATERPROOF CLOTH IN OlIIEF VALUE OF RUBBER.</p> <p>The samples and the record disclose that rubber is the chief component material of value in these articles, and the board so found. They are excluded from the terms of paragraph 347, tariff act of 1909, and they fall, for dutiable purposes, under paragraph 463 of that act.- — United States v. Vandegrift (3 Ct. Oust. Appls., 161; T. D. 32457); United States v. Zinn (2 Ct. Oust. Appls., 419; T. D. 32171).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29613 (T. D. 32780).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29613 (T. D. 32780).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 29810 (T. D. 32830.)</p>

<p>“Rajah” Porcelain Spark Plugs.</p> <p>Neither the tariff act nor the trade-mark statute contains any express provision according to which the employment of “Rajah” printed on a porcelain spark plug can be taken to fix an exemption in favor of such a ware as against similar ware printed with similar names in common use. The spark plugs are dutiable as assessed under paragraph 93, tariff act of 1909.</p>

<p>1. Evidence op a Party in Interest.</p> <p>It is presumed a collector in a given instance is acting within the law, hut this is not a conclusive presumption, and there is no rule of law that deprives a party in interest of his right to have his testimony weighed and considered in opposition to that presumption of correctness.</p> <p>2. Overcharge por Drayage.</p> <p>The importer here was compelled to pay drayage charges on his merchandise (matches) of 18 cents per case. The proof goes to show the regular rate for the haul was 6 cents per case. The law is that the rate “shall not exceed in any case the regular rates for such objects at the port in question.”</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31012 (T. D. 33055).</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7424 (T. D. 33142).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31585 (T. D. 33263).</p>

<p>Gold-Plated Lace Pins.</p> <p>This case is ruled by United States v. Plory (4 Ot. Oust. Appls. 87; T. D. 33367), and this merchandise as there determined was properly dutiable as jewelry under the last clause of paragraph 448, tariff act of 1909.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31319 (T. D. 33194).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31435 (T. D. 33217).</p>

<p>Locust Beans Chopped into Coarse Pieces.</p> <p>The locust pods had been chopped into coarse pieces, the pith and seed being indiscriminately mixed together, but relatively few of the seed being broken in the process and nothing being taken away. The importation is accordingly not to bo deemed a manufacture, but rather as by its collective name it is designated “St. John’s bread.” It was entitled to free entry.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31345 (T. D. 33217).</p>

<p>Appeal- from Board of United States General Appraisers, Abstract 31676 (T. D-. 33280); Abstract 31816 (T. D. 33304).</p>

<p>1. Provision eor Nonenumerated Articles.</p> <p>Before the nonenumerated provision can be resorted to it must be found that the article is not fairly included within any of the enumerating clauses of the act.</p> <p>2. Substitute Platinum Wire.</p> <p>The governing rules of construction here are well settled. This substitute for platinum wire is not platinum in wire.' It is composed of two materials and is rather wirenn platinum. It is not entitled to free entry.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 32339 (T. D. 33409).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 33187 (T. D. 33660).</p>

<p>Reappraisement — Waiver.</p> <p>Any question of the regularity of the reappraisement proceedings in this cause might have been waived. (Maddaus v. United States, 3 Ct. Cust. Appls., 330; T. D. 32023.) The former decision was rested upon the unmistakably clear waiver in writing filed by the appellants, and this as construed in the light of a uniform current of decisions of this court.</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7452 (T. D. 33303).</p>

<p>Embossed Paper Ornaments.</p> <p>Paragraph 415, tariff act of 1909, applies only to papers, plain or printed, but not lithographed. The merchandise here — embossed paper ornaments composed in chief value of metal-coated paper — are clearly subject to the terms of paragraph 411 of that act and are dutiable thereunder. — Knauth v. United States (3 Ot. Oust. Appls., 183; T. D. 32465) ; United States v. Euld (4 Ot. Oust. Appls., 234; T. D. 33476) distinguished.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31498 (T. D. 33242).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31384 (T. D. 33217).</p>

<p>Appeal from Board of United States General Appraisers, G. A.7443 (T.D.33260)</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31712 (T. D. 33280), Abstract 31975 (T. D. 33338).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31519 (T. D. 33242).</p>

<p>Cedar Telephone Poles, Peeled but not Notched.</p> <p>The decision setting aside the collector’s action was without evidence to support it. These poles were unnotched, but it can not be considered a matter of law that such a pole is an unfinished telephone pole. It is a matter of common knowledge that such poles are used in stringing telephone or telegraph wires.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 33222 (T. D. 33668).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31825 (T. D. 33304).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 30931 (T. D. 33055).</p>

<p>ScRAPs of New or Worn Rubber.</p> <p>There is no basis in the record for segregating the worn and the new scrap rubber of the importation. The new scrap rubber here is not a manufactured article with a changed texture; it is still rubber and “ rubber, crude.” Since 1800 rubber of this description had been entitled to free entry, and the act of 1909, which still relates the scrap there dealt with to the articles of which it had once been composed, does not withdraw from the term “ rubber, crude ” anything that had theretofore fallen within the clause. The merchandise was entitled to free entry. — United States v. Miehelin Tire Co. (1 Ct. Oust. Appls., 518; T. D. 31544).</p>

<p>Appeal from Board of United- States General Appraisers, Abstract 31381 (T. D. 33217).</p>

<p>Sawed Lumber — When not Cabinet Wood.</p> <p>Tlie issue as made here was one of fact, whether the wood of the importation is or is not cabinet wood as described in paragraph 203, tariff act of 1909. The board found that oak, poplar, and ash are not cabinet woods and the evidence supports this finding. Paragraph 201 applies.</p>

<p>Paratine Oh, with Less Than 50 Per Cent of Castor Oil.</p> <p>Prom the testimony the analysis made by the chemist employed by the appellees must be assumed correct; and there is no proof to the effect that castor oil may have been used in the manufacture of the alizarin assistant which would not be revealed by the analysis. As the oil contained less than 50 per cent of castor oil, it was dutiable under paragraph 32, tariff act of 1009.</p>

<p>Immortelles Dyed in Colors.</p> <p>Tie dyeing process to which these flowers were subjected wns designed lo beautify them with new and sometimes brilliant colorings, thereby improving, and advancing rather than preserving their condition. They are not preserved cut flowers, but are ornamental flowers within the meaning of paragraph 43S, tariff act of 1909. — Bayersdorfer & Co. v. United States (4 Ct. Oust. Appls., 446; T. D. 33875, supra).</p>

<p>Books Gratuitously and Privately Circulated.</p> <p>These books appear to have been printed by tbe Brusse Publishing House, of Rotterdam, for the Holla nd-Ameriean Line. This shipping company circulates the Dooks gratuitously to excite interest ia foreign travel and so secure patronage for its steamers. The mere size of the circulation of these books, an edition of 40,000 being printed, does not negative the importer’s contention that they were gratuitously privately circulated. — Uinted States v. Badische Co. (3 Ct. Oust. Appls., 528; T. D. 33170).</p>

<p>Porcelain and Earthenware.</p> <p>Porcelain is a highly finished translucent pottery, usually glazed, while earthenware is a cruder and inferior product. They are both earthenware, it is true, but the statute distinguishes them, and under the statute these crucibles of porcelain are not earthenware. They were dutiable under paragraph 94, tariff act of 1909.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31921 (T. D. 33338).</p>

<p>Fish Balls oh Fish Pudding in Tins.</p> <p>The merchandise consists of haddock and other material combined, fish being conceded to be the article of- chief value in the compound. The mixed-material clause of paragraph 481, tariff act of 1909, applies. It must be taken to be a manufacture in which fish constitutes the material of chief value and it is one not specially enumerated. It was dutiable as if wholly composed of fish and at the rate assessed by the board. — Murphy v. Arnson (96 U. S., 181) ; American Express Oo. v. United States (2 Ct. Oust. Appls., 39; T. D. 31591).</p>

<p>Appeal from Board of United States General Appraisers, G. A. 7459 (T. D. 33405).</p>

<p>Appeal from Board of United States General Appraisers, G. A. 74S5 (T. D. 33659).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 32815 (T. D. 33578).</p>

<p>SegeR Cones.</p> <p>These articles are used as a rough test of the temperature of ovens, and take their name from the man who invented them. The proof does not sustain the importer’s contention that the articles are dutiable under paragraph 92, tariff act of 1909. On the other point raised the board predicated its decision upon an earlier decision. The record of this former case was not before this court, and the record here supports beyond serious question the decision of the collector that the merchandise is properly dutiable as articles of earthy or mineral substances.</p>

<p>Appeal from Board of United States, General Appraisers, G. A. 7481 (T. D. 33642).</p>

<p>Knitted Silk Mufflers and Paragraph 400, Tariff Act of 1909.</p> <p>The issue upon which the case was tried and decided below has been determined here in a previous case — ICaskel v. United States (4 Ct. Oust. Appls., 38; T. I). 33204) — and the views there expressed are adhered to. A fuller record might work a reversal of those views, but the present record, taken ns a whole in connection with the exhibits, sufficiently establishes the importers’ contention that these mufflers were dutiable under paragraph 400, tariff act of 1909.</p>

<p>Appraisement When Clerical Error was not Manifest.</p> <p>Importers claim they overstated tlie value oí the merchandise in a pro forma invoice, being misled by an error in the transmission of a cable message from their London office. The appraiser appraised the merchandise at the value stated in the pro forma invoice, and the collector liquidated thereon. It is held that this is not manifest error in the appraisement or assessment, and can not be reviewed upon protest to the board of classification.</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31592 (T. D. 33263):</p>

<p>Apreal from Board of United States General Appraisers, G. A. 7441 (T. D. 83241).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31S54 (T. D. 33304).</p>

<p>Rubber Mouthpieces foe Pipes.</p> <p>These mouthpieces for pipes are finished. They are not, it is true, designed to be used in any particular pipe or pipestem, but are made to he inserted in any pipe or stem so constructed as to receive the same, and seem to be of a size and shape commonly in use. They clearly fall within the description of “ all smokers’ articles whatsoever ” in paragraph 475, tariff act of 1909.— United States v. Bytinge (4 Ct. Oust. Appls., 266; T. D. 33486).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 32313 (T. D. 33409).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 32618 (T. D. 33511).</p>

<p>Makble Figtjke with Capital and Base.</p> <p>Tbe importation was a winged figure of a woman, concededly a sculpture, upon a pedestal made of a square shaft with a carved capital and base. The testimony shows that the monument was ordered, designed, and made as an entirety. It was dutiable as an entirety under paragraph 470, tariff act of 1909.</p>

<p>1. A Brominated Derivative of Indigo.</p> <p>Sulphonated indigo and ‘brominated indigo are alike pastes in point of consistency and are alike extracts of the same parent substance.</p> <p>2. “ Indigo Extracts or Pastes.”</p> <p>These terms do not possess a definite, uniform, and general trade usage in this country such as would exclude the article here therefrom; nor has the article here itself been given by tlie trade a definite, uniform, and general title or designation such as to compel another classification. It was dutiable as an indigo extract or paste under paragraph 25, tariff act of 1900.</p>

<p>Appeal from Board of United States General Appraisers, Abstract'31800 (T. D. 33291).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 31640 (T. B¡ 33263).</p>

<p>Appeal from Board of United States General Appraisers, Abstract 320S5 (T. D. 33362).</p>