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September 15, 1894, certain fish, upon which duty was assessed at onehalf of 1 cent per pound, the rate provided in paragraph 210, act of August 28, 1894, for salt-water fish frozen or packed in ice. The importer claims that the same are entitled to free entry under the provisions of paragraph 481 of said act as fish frozen or packed in ice fresh.

(2) That said fish are salmon which were caught in the fresh waters of the Fraser River, in British Columbia, and packed in ice fresh.

(3) That the species of salmon to which these fish belong are migratory fish spawned in fresh water, where they remain from one to two years, when they migrate to salt water, where they grow to maturity and later return to spawning beds in fresh waters. They are caught in salt, brackish, and fresh waters and are not distinctively salt-water fish. Paragraph 210 provides for salt-water fish, but as salmon are not distinctively salt-water fish, and it appearing that these are fish frozen or packed in ice fresh, we hold that they are entitled to free entry under the provisions of paragraph 481, and sustain the protest.

(15678-G. A. 2859.)

Weight of Calcined Plaster-Barrels not Included in.

Before the U. S. General Appraisers at New York, January 17, 1895.

In the matter of the protest, 24397 b, of Warner Moore & Co., against the decision of the collector of customs at Richmond, Va., as to the rate and amount of duties chargeable on certain merchandise, imported per Arcot, and entered September 27, 1894.

Opinion by SOMERVILLE, General Appraiser.

The merchandise is invoiced and entered as "1,000 bbls. of calcined plaster," and was imported in the month of September, 1894. Duty was assessed on the goods at the rate of $1.25 per ton under paragraph 81 of the tariff act of 1894. In making the assessment, the weight of the barrels was included in the dutiable weight of the merchandise, and the protest is directed against this action of the collector as not authorized by law, the importers' contention being that the barrels or packages, being the usual coverings of such merchandise, are not dutiable.

The duties imposed by the tariff act of 1894 on cement, lime, and plaster are all specific, except in a single instance, as will appear from the following paragraphs of said act:

79. Roman, Portland, and other hydraulic cement, in barrels, sacks, or other packages, eight cents per one hundred pounds, including weight of barrel or package; in bulk, seven cents per one hundred pounds; other cement, ten per centum ad valorem.

80. Lime, five cents per one hundred pounds, including weight of barrel or package.

81. Plaster of Paris, or gypsum, ground, one dollar per ton; calcined, one dollar and twenty-five cents per ton.

These provisions are substantially the same as those contained in paragraphs 95, 96, and 97 of the tariff act of 1890, with a change only in some of the rates of duty. The tariff act of 1883 levied only an ad valorem and not a specific duty on the same kinds of imported merchandise.

The Board is of opinion that paragraph 81 of the tariff act of 1894 must be construed to exempt from duty the barrels or packages containing the calcined plaster in question, which we find to be the usual coverings in which such merchandise was commonly imported in this country long prior to the enactment of the present tariff act of 1894, and that the weight of the barrels should be deducted in making the assessment of the specific duties provided for in said paragraphs. We base this construction on the fact that each of the two preceding paragraphs relating to cement and lime expressly provides that on importations of such merchandise the weight of the barrel or package shall be included, and this provision is not attached to paragraph 81 relating to importations of plaster of Paris and calcined plaster.

It was decided by the courts, as far back as 1885, that under the tariff act of 1883 the barrels containing Portland cement were not dutiable, and this decision was acquiesced in by the Treasury Department on July 20, 1885, Synopsis 7030. The attention of Congress was called to this decision, through the Ways and Means Committee having charge of the revision of the tariff, in January, 1890, and the committee was requested to recommend specifically a change in the law, which they declined to do. (Tariff Hearings, 1889-90, pp. 479–489.)

Section 19 of the Customs Administrative Act (of June 10, 1890) applies only to imported merchandise which is subject to an ad valorem duty, and not to such as is subject only to specific duties. It can, therefore, have no application to this case. (In re Goodwin, G. A. 2812.) The protest, in this view of the law, must be sustained, and the collector's decision reversed, which is accordingly ordered.

(15679-G. A. 2860.)

Product of American Fisheries-Fish Caught on Scow in Foreign Waters not. Before the U. S. General Appraisers at New York, January 17, 1895. In the matter of the protest, 24502 b, etc., of A. F. Rich et al., against the decision of the collector of customs at Burlington, Vt., as to the rate and amount of duties chargeable on certain merchandise, not product of American fisheries, imported per the vessels and entered on the dates named in annexed schedule.

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(1) That the protestants imported into the port of Burlington, Vt., since October 1, 1894, and at the dates as shown in the schedule annexed, certain fresh halibut, packed in large boxes and placed in ice

in refrigerator cars. Duty was assessed thereon at one-half of 1 cent per pound under the provisions of paragraph 210, act of August 28, 1894. The importers claim free entry for the same under paragraph 528, act of August 28, 1894, as the product of American fisheries.

(2) That the said fish are salt-water fish, caught in the waters known as Queen Charlotte Sound, also as Vancouver Strait, and are not the product of American fisheries.

(3) That the same were invoiced from Vancouver, British Columbia, and shipped thence by rail, and no manifest or other documentary evidence accompanied said importations, and no manifest or other evidence was produced to the collector to establish the claim that the same are the product of American fisheries.

It appears from statements made to the Board by a representative of the parties in interest that an association or partnership, chiefly or entirely of American citizens, built a scow or barge in British Columbia of a size and shape suitable for the shelter and quarters of fishermen and for the handling and packing of the fish which are caught by said fishermen from dories or small boats; that the fishermen live upon the scow, and the fish are there packed and the scow or barge is towed from place to place by a British steamer and moored in convenient harbors in British Columbia, from whence the fishing operations are conducted. From the statements so made it further appears that all the supplies are procured in British Columbia; that the business is not conducted in or by any vessel under the flag of the United States, and, in the opinion of the Board, the facts are not such as to constitute this business a part of the fishing industry of the United States, and so the product of American fisheries.

In protest 24502b it is claimed that duty was assessed upon an excessive weight. The collector reports that he assessed duty upon the invoice weight; that the fish were so packed that they could not be unpacked and weighed without undue expense and injury to the same. There is no evidence before the Board that the invoiced weight upon which the fish were transported was not the correct weight of the fish. The protests are overruled.

(15680-G. A. 2861.)

Cod Liver Oil-"Oleo Fegato Merluzzo Ferruginoso" not.

Before the U. S. General Appraisers at New York, January 17, 1895.

In the matter of the protest, 25206b-3847, of Granucci Bros., against the decision of the collector of customs at San Francisco, Cal., as to the rate and amount of duties chargeable on certain merchandise, imported per Saturn, and entered October 30, 1894.

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(1) That Messrs. Granucci Bros. imported into the port of San Francisco,

October 30, 1894, certain merchandise, which was assessed for duty at 25 per cent ad valorem under the provisions of paragraph 59, act of August 28, 1894, as a medicinal preparation, and which is claimed to be dutiable at 20 per cent ad valorem under paragraph 28 as cod liver oil.

(2) That the same is a nonalcoholic medicinal preparation, labeled "Oleo Fegato Merluzzo Ferruginoso," composed of cod liver oil and other substances, and is not the cod liver oil of commerce.

The protest is overruled and the decision of the collector affirmed.

(15681-G. A. 2862.)

Oil Colors in Tubes-Flake White.

Before the U. S. General Appraisers at New York, January 18, 1895.

In the matter of the protest, 24183b-3802, of Sanborn, Vail & Co., against the decision of the collector of customs at San Francisco as to the rate and amount of duties chargeable on certain merchandise, imported per Progresso. Date of withdrawal entry, September 4, 1894.

Opinion by WILKINSON, General Appraiser.

The merchandise is invoiced as "oil colors in tubes, flake white." It was assessed with duty at 25 per cent under, paragraph 48, act of August 28, 1894, and is claimed to be dutiable as white lead at 14 cents a pound under paragraph 52.

The appellants allege that white is not commercially known as a color and that enumeration under paragraph 52 is more specific than under paragraph 48.

We are of the opinion that popularly, technically, and commercially the term color as employed in the tariff means a pigment used by painters.

We find

(1) The merchandise is white lead ground in oil.

(2) It consists of colors in tubes.

Paragraph 61 of the tariff of 1890 provided for artists' colors of all kinds, in tubes or otherwise. The United States circuit court of appeals for the second circuit decided (61 Fed. Rep., 502) that this provision was more specific than the special enumeration of the various materials of the color schedule.

Paragraph 48 of the present act provides for "all colors in tubes." We can not see that the change in phraseology alters the case.

The protest is overruled accordingly. Reference is made to G. A. 1250 and to 56 Fed. Rep., 822, in which it was held that fish in cans made of tin is a more specific enumeration than pickled herrings.

(15682-G. A. 2863.)

Printed Tissue-Paper Napkins.

Before the U. S. General Appraisers at New York, January 18, 1895.

In the matter of the protest, 24563b-12150, of Messrs. Swayne & Hoyt, against the decision of the collector of customs at San Francisco, Cal., as to the rate and amount of duties chargeable on certain merchandise, imported per Umatilla, and entered October 6, 1894.

Opinion by SHARRETTS, General Appraiser.

The merchandise in question consists of napkins composed wholly of "creped" tissue paper about 14 inches square. These napkins were ornamented with colored representations of vines, flowers, and figures stamped or printed thereon from blocks of wood.

The collector, following G. A. 282, classified the merchandise as printed matter and assessed duty thereon at 25 per cent ad valorem under paragraph 311, act of August 28, 1894. The appellants in their protest claim that the napkins in question are dutiable at 20 per cent ad valorem under paragraph 313 of said act as manufactures of paper.

The Board is of opinion that the merchandise is not dutiable as printed matter (Forbes Lithograph Company v. Worthington, 132 U. S. Rep., 655), and but for the fact that there is a specific provision in the present act for tissue paper printed, we would hold the napkins in question to be dutiable as manufactures of paper on the authority of the decision of the circuit court, southern district of New York, In re American Trading Company v. Magone, not reported. We do not think, however, that under the act of August 28, 1894, the merchandise is dutiable as a manufacture of paper.

Paragraph 307 is in part as follows:

* * * Tissue paper, white, printed, or colored, made up in copying books, reams, or in any other form, thirty-five per centum ad valorem.

We find as a matter of fact that the merchandise in question is tissue paper in the form of napkins, and that the same is printed, and hold that said merchandise is excluded from entry under paragraph 313, which paragraph covers only manufactures of paper not specially provided for, whereas the merchandise in question, would seem to be specially provided for without qualifications in paragraph 307.

In accordance with the views hereinbefore set forth we overrule the protest. The collector is authorized to reliquidate the entry and assess duty on the merchandise at 35 per cent ad valorem under paragraph 307.

(15683-G. A. 2864.)

Brandy Cherries.

Before the U. S. General Appraisers at New York, January 21, 1895.

In the matter of the protest, 24520 b-1, of Messrs. Tuller & Foth, against the decision of the collector of customs at Galveston, Tex., as to the rate and amount of duties chargeable on certain merchandise, imported per Zanzibar, and entered October 2, 1894.

Opinion by WILKINSON, General Appraiser.

The goods are 2,925 cases of brandy cherries, costing about 7 francs per case. The cases contain 12 whole or 24 half bottles each.

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