No. 25664.-Protest 373139-G of Home Supply Co. (New York).

WATERPROOF CLOTH-Waterproof cloth classified at 5 cents per square yard and 30 percent ad valorem under paragraph 907, Tariff Act of 1922, is claimed dutiable under the provision in the same paragraph for filled or coated cotton cloth at 3 cents per square yard and 20 percent ad valorem.

Opinion by KINCHELOE, J. In accordance with stipulation of counsel and on the authority of United States v. Hudson Forwarding Co. (18 C.C.P.A. 258, T.D. 44427) the claim at 3 cents per square yard and 20 percent ad valorem under paragraph 907 was sustained.

No. 25665.-Protests 163229-G, etc., of American Shipping Co. et al. (New York). PROTESTS ABANDONED. These protests were abandoned by the plaintiffs. Opinion by KINCHELOE, J. Following Abstract 15400 the court dismissed the protests.

No. 25666.-Protests 472587-G, etc., of Hamburg American Lines (New York). BOOKS OF FOREIGN AUTHORSHIP.-Books and pamphlets classified at 25 percent ad valorem are claimed to be of bona fide foreign authorship, dutiable at only 15 percent under the provisions of paragraph 1310, Tariff Act of 1922.

Opinion by DALLINGER, J. Books and pamphlets invoiced as "Industrial and Commercial Germany", "Prospekte Motor Trips through Germany", "Through Germany", "Prospectus 'Your Next Trip", and "Prospecte 'Motoring through Germany'", which were stipulated to be of foreign authorship, were held dutiable at 15 percent under paragraph 1310 as claimed.

No. 25667.-Protest 500676-G of Fred'k Loeser & Co., Inc. (New York).

SALT AND PEPPER SHAKERS-TABLE UTENSILS. - Salt and pepper shakers classified at 45 percent ad valorem under paragraph 397, Tariff Act of 1930, are claimed dutiable at 40 percent under paragraph 339.

Opinion by DALLINGER, J. On the agreed facts the salt and pepper shakers were held dutiable as table utensils at 40 percent under paragraph 339 as claimed. No. 25668.-Protest 548877-G of New York Merchandise Co., Inc. (New York). NUT DISHES-FINGER BOWLS-TEA STRAINERS. - Merchandise classified at 45 percent ad valorem under paragraph 397, Tariff Act of 1930, is claimed dutiable as table or kitchen utensils at 40 percent under paragraph 339.

Opinion by DALLINGER, J. It was stipulated that the articles in question consist of nut dishes, finger bowls, cake stands, tea strainers, and similar merchandise chiefly used on the table or in the kitchen. The claim at 40 percent under paragraph 339 was therefore sustained.

No. 25669.-Protests 557170-G, etc., of General Steamship Corp. (Los Angeles). STEEL PLATES. - Merchandise classified as manufactures of metal at 45 percent ad valorem under paragraph 397, Tariff Act of 1930, is claimed dutiable under paragraph 372, 304, or 312.

Opinion by DALLINGER, J. The appraiser described the merchandise as "two large sheets of plate steel punched and bent and ready to be attached to hull of vessel near the rudder post." No proof was offered in support of any of the claims made. The protests were therefore overruled.

No. 25670.- Protests 596011-G, etc., of Abercrombie & Fitch Co. et al. (New York).

TABLE UTENSILS. - Merchandise classified as manufactures of metal at 45 percent ad valorem under paragraph 397, Tariff Act of 1930, is claimed dutiable as table or kitchen utensils at 40 percent under paragraph 339.

Opinion by DALLINGER, J. It was stipulated that the merchandise consists of flasks, corkscrews, can openers, and similar articles composed of metal, chiefly used in the kitchen or on the table. The claim at 40 percent under paragraph 339 was therefore sustained.

No. 25671. Protest 596075-G of Bessie K. Packard (New York).

TABLE UTENSILS. - Merchandise classified at 45 percent ad valorem under paragraph 397, Tariff Act of 1930, is claimed dutiable as table or kitchen utensils at 40 percent under paragraph 339.

Opinion by DALLINGER, J. Copper finger bowls, coffee set, and a brass coffee grinder stipulated to be similar to the merchandise the subject of United States v. Friedlaender (21 C.C.P.A., T.D. 46445) were held dutiable as table or kitchen utensils at 40 percent under paragraph 339.

No. 25672.-Protest 640628-G of Heller Machine Co. (New York).

METAL TEETH FOR CIRCULAR SAWS-MACHINE TOOL PARTS. - Metal teeth for circular saws are claimed duitable as parts of machine tools at 30 percent under paragraph 372, Tariff Act of 1930.

Opinion by DALLINGER, J. It was stipulated that the merchandise is the same as that the subject of Abstract 24063. The claim at 30 percent under paragraph 372 was therefore sustained.

No. 25673.- Protest 520729-G of Spiegel Bros. (New York).

DOOR CHECKS MACHINES. - Door checks classified as manufactures of metal at 45 percent ad valorem under paragraph 397, Tariff Act of 1930, are claimed duitable as machines at 271⁄2 percent under paragraph 372.

Opinion by DALLINGER, J. It was stipulated that the door checks in question are similar to those the subject of Globe Shipping Co. v. United States (T.D. 45190). The claim at 271⁄2 percent under paragraph 372 was therefore sustained.

BEFORE THE THIRD DIVISION, OCTOBER 23, 1933

No. 25674.-Protest 502841-G of States Steamship Co. (San Francisco).
SHIPS' REPAIRS.

KEEFE, Judge: This is a suit against the United States, arising at the port of San Francisco, brought to recover certain customs duties alleged to have been illegally exacted by the collector on certain scaling and cleaning upon the American steamer California. Duty was assessed upon the cost of the work done, including labor and materials, at the rate of 50 percent ad valorem under section 466, Tariff Act of 1922. The plaintiff claims that the work performed is not a repair to the vessel and not dutiable under R.S. 3114 as amended by section 466, Tariff Act of 1922.

Section 466, Tariff Act of 1922, reads as follows:

SEC. 466. That sections 3114 and 3115 of the Revised Statutes are amended to read as follows:

"SEC. 3114. The equipments, or any part thereof, including boats, purchased for, or the repair parts or materials to be used, or the expenses of repairs made in a foreign country upon a vessel documented under the laws of the United States to engage in the foreign or coasting trade, or a vessel intended to be employed in such trade, shall, on the first arrival of such vessel in any port of the United States, be liable to entry and the payment of an ad valorem duty of 50 per centum on the cost thereof in such foreign country; and if the owner or master of such vessel shall willfully and knowingly neglect or fail to report, make entry, and pay duties as herein required, such vessel, with her tackle, apparel, and furniture, shall be seized and forfeited.

"SEC. 3115. If the owner or master of such vessel, however, furnishes good and sufficient evidence that such vessel, while in the regular course of her voyage, was compelled, by stress of weather or other casualty, to put into such foreign port and purchase such equipments, or make such repairs, to secure the safety of the vessel to enable her to reach her port of destination, then the Secretary of the Treasury is authorized to remit or refund such duties, and such vessel shall not be liable to forfeiture, and no license or enrollment and license, or renewal of either, shall hereafter be issued to any such vessel until the collector to whom application is made for the same shall be satisfied, from the oath of the owner or master, that all such equipments and repairs made within the year immediately preceding such application have been duly accounted for under the provisions of this and the preceding sections, and the duties accruing thereon duly paid; and if such owner or master shall refuse to take such oath, or take it falsely, the vessel shall be seized and forfeited."

At the trial the protest was limited by the plaintiff to the assessment of duty on the cost of cleaning the deep tanks of the American steamer California in preparation for a cargo of vegetable oil, and the assessment of duty on the cost of any other work covered by the entry was not challenged.

The record in the case of States Steamship Co. v. United States (T.D. 45001), insofar as it relates to the testimony of Walter L. Martignoni in respect to the cleaning of the deep tanks there in question and their preparation for the carrying of vegetable oil, shows that in order to carry bean oil in the deep tanks a preparation would be necessary because most of the ships operating in the Orient carry fuel oil in their deep tanks and they would have to be cleaned. In other words, a vessel departing from this country carrying fuel oil in its deep tanks would have to be cleaned in order to return with a cargo of vegetable oil in them.

The court held in that case that the plaintiff failed to establish that the cleaning of the deep tanks of the steamer constituted a repair as it was not shown whether the cleaning process was simply the removal of accumulated dirt or whether it was a restoration of the inner portion of the tanks to a good condition after deterioration.

H. H. Pierson, a traffic manager for about three years and familiar with the construction and type of vessels operated by the States Steamship Co., testified in the case at bar on behalf of the plaintiff that, in order to prepare deep tanks used for handling fuel oil so that they may carry vegetable oil, they would have to be cleaned, because the fuel oil would contaminate the vegetable oil; that leaky rivets would have to be replaced or loose ones tightened and that work can only be done when all of the fuel oil is drained out; and that, on account of the value of the vegetable oil, leaks from the deep tanks must be prevented. On cross-examination he stated that the deep tanks could not have been cleaned and any loose rivets tightened or replaced before the steamer left for the Orient because they were full of fuel oil; that it would not be possible to carry the fuel oil in some other places on the vessel; that the reason the deep tanks are used to carry the fuel oil is that every possible space on the vessel is utilized because of the price; and that the steamer would have been able to proceed to China without utilizing the fuel oil placed in the deep tanks. The witness also testified that the cleaning of the deep tanks and the repairing or tightening or fixing of the rivets would have no bearing upon the seaworthiness of the vessel.

From the evidence now before the court we are of the opinion that the picking up of fuel oil and dirt, the scraping and cleaning with kerosene oil, the washing down with oakite, and then with fresh water, and the drying out with cotton waste of the deep tanks in the steamer California, in order that they become suitable to contain a cargo of vegetable oil for transportation, do not constitute a repair, as provided for in paragraph 466, but that the cost of blanking off section pipes with new iron blanks, to plug up ventilators, or to caulk rivets do constitute such a repair as is provided for in paragraph 466 of the tariff act in question.

Judgment will issue in favor of the plaintiff insofar as the assessment of 50percent duty relates to that part of the preparation of the deep tanks found by the court not to constitute a repair, and the collector is directed to reliquidate the entry, refunding the duty taken in excess of such cost.

No. 25675.-Protest 459867-G of Walter Pilz (Los Angeles).

EARTHENWARE-MACHINE PARTS.

KEEFE, Judge: This is a suit against the United States, arising at the port of Los Angeles, brought to recover certain customs duties alleged to have been illegally exacted upon certain merchandise invoiced as electrolysers which were assessed for duty by the collector at the rate of 45 percent ad valorem under paragraph 211, Tariff Act of 1922, as manufactures in chief value of plain brown earthenware. The plaintiff claims that the merchandise is properly dutiable at the rate of 30 percent ad valorem under paragraph 372 as parts of machines.

The evidence shows that the merchandise consists of brown earthenware tubs which contain a cathode and anode for the reception of electricity and about 50 immovable plates composed of glass and of coal, which act as a resistance to the electric current. The tubs are one foot high and one foot wide and of different lengths, some being two and others from three to five feet long. The apparatus is described as an electrolyser and is a medium through which electric energy is applied to a solution of salt and water in order to produce sodium hypochlorides, a lye for bleaching and other purposes. The apparatus is operated by placing water in a tank with salt where the salt solution is mixed to a certain density. From this tank it is drawn off into the tank or electrolyser in question, and the solution by means of an electric current is broken up into sodium hypochlorides.

The question at issue is whether such an apparatus is a machine and the earthen tank an essential part thereof. The importer contends that the apparatus utilizes an electric current to change one chemical solution into another, placing it directly within the definition of a machine. The Government contends that inasmuch as the articles have no movable parts and exert no energy, they do not come within the definition of a machine as laid down by the United States Court of Customs Appeals in Simon, Buhler & Baumann, Inc., v. United States (8 Ct. Cust. Appls. 273, T.D. 37537).

To sustain their contention the importers cite the case of Agfa Ansco Corp. v. United States (T.D. 45432) and United States v. Van Bourgondien (16 Ct. Cust. Appls. 420, T.D. 43135). The Government relies upon the cases of Simon, Buhler & Baumann, Inc., supra, and United States v. William Goldenblum & Co. (18 C.C.P.A. 367, T.D. 44616).

The case of Agfa Ansco Corp. involved the classification of a so-called Ados apparatus used in connection with the manufacture of photographic films. Its purpose was to make a continuous analysis of a gas, composed of air, nitrogen, and solvent vapors, which is present in the film-manufacturing machinery, in order to avoid explosions and to keep the gas in the machine in such condition that the best results are obtainable. The Ados apparatus is operated mechanically by water power and air pressure in making such analyses, and it was testified to be an automatic instrument for analyzing gases and not a producer of anything. The court said, in holding that such apparatus was a part of a machine, that

Inasmuch as this apparatus performs its functions automatically and mechanically, it seems to us it is a machine.

In the Van Bourgondien case, the apparatus was actuated by a flow of steam, which was generated in the boiler, and consisted of a metal sterilizing apparatus comprising a steam boiler, a large vat containing a metal coil, and a lead, to which are attached regulating valves, extending from the boiler to the coil in the vat, and was used to sterilize flower bulbs. The court, in holding the apparatus to be a machine, said:

We are of the opinion that the article in question comes within the definition of a machine. It not only generates energy, but it modifies, utilizes, and applies it.

We are unable to agree with the contention of counsel for the Government that, in order to come within the definition of a machine, an article must have wheels and gears.

Inasmuch as there are no moving parts in the apparatus in question herein the Government contends that it does not come within the definition of a machine in the Simon, Buhler & Baumann case. The definition in that case reads as follows:

A machine is a mechanical contrivance for utilizing, applying, or modifying energy or force, or for the transmission of motion.

As the court of appeals said in the Van Bourgondien case, it is not necessary that an apparatus must have wheels and gears to come within the definition of a machine. The sterilizer in that case had no moving parts.

In the Goldenblum case, relied upon by the Government, it was contended that carpenters' braces were machines. The braces were operated wholly by hand power and were conceded to be tools that furnished increased power solely by virtue of leverage, but the court held that such tools do not utilize, apply or modify energy or force or transmit motion within the meaning of the definition of machines. The holding in the Goldenblum case is inapplicable to the merchandise involved herein. The power furnished therein was actuated by hand while in the case at bar it is mechanical.

It is our opinion that the apparatus in question herein comes directly within the definition of a machine as set forth in the decision of the Court of Customs Appeals in the case of Simon, Buhler & Baumann, supra. It is mechanical in its operation. It utilizes electric energy to perform a chemical change in the character of water and of salt. Water, composed of two parts of hydrogen and one part of oxygen, and salt, composed of one part of sodium and one part of chloride, are broken up into their constituent elements or atoms and the elements are recombined into a substance composed of one part of sodium, one part of oxygen, and one part of chloride, the hydrogen in the water being released. Thus electricity is utilized to destroy the molecules of salt and of water and to apply a chemical force to the released elements to form a new compound differing in properties from either of its consitutent bodies.

For the reasons stated we hold the electrolysers in question to be parts of machines, and judgment will be rendered directing the collector to reliquidate the entries and assess duty thereon at the rate of 30 percent ad valorem under paragraph 372 of the Tariff Act of 1922 as parts of machines and to refund the excess duty taken.

No. 25676.-Protests 528698-G, etc., of the Friedlaender Co. (New York).

HOUSEHOLD UTENSILS.-Earthenware and metal articles classified at 50 percent ad valorem and 10 cents per dozen pieces under paragraph 211, Tariff Act of 1930, are claimed dutiable at 40 percent ad valorem under paragraph 339 or at 45 percent under paragraph 397.

Opinion by KEEFE, J. There was testimony that the articles in question are used to contain sweetmeats and that they are made of earthenware and metal. It was stipulated that the value of the metal work or mountings is greater than the earthenware or china, and it was clear from the evidence that the articles are used for utilitarian purposes in the home. On the authority of Friedlaender v. United States (T.D. 45814) the claim at 40 percent under paragraph 339 was sustained as to certain items.

BEFORE THE SECOND DIVISION, OCTOBER 24, 1933

No. 25677.- Protests 279339-G, etc., of A. D. Cohen Co. (New York).

CELLULOSE HATS.-Hats, hoods, or other articles are claimed dutiable at 60 percent ad valorem under paragraph 31, Tariff Act of 1922.