¶1DISSENTING OPINION
¶2I dissent from the opinion and judgment of my colleagues for the reason that I am of the opinion that the record in this case is insufficient upon which a finding that the cartons, holding approximately 50 pounds each, were the “immediate containers” of the fish in issue.
¶3There were, according to the record, a number of slabs of frozen fish, each slab wrapped or contained in a polyethylene bag, in each carton. The record is vague to the point of being silent on the question of the weight of each slab, and nothing appears in the record as to whether the polyethylene bag had any function in the sale, use, or handling of the fish.
¶4The plaintiffs, seeking classification under a tariff enumeration providing for different rates upon fish “in immediate containers,” based upon the weight of the fish and the immediate containers, had the burden of establishing such facts as would enable the court to determine whether the polyethylene bags or the cartons were the immediate containers of the fish within the meaning of the term “immediate containers,” as used in paragraph 720(b), as modified. I do not believe that such facts are in this record, and, since the Herrm/mn case, the record in which was incorporated herein, related to fish that had no coverings on each block of fish, the record in that case could not supply the evidentiary deficiency in this case.