Reiss v. Magone

39 F. 105 | U.S. Circuit Court for the District of Southern New York | 1889

Lacombe, J.,

(orally.) The importer has to pay duty only upon what he imports. If his importation weighs 100 pounds when it leaves the other side, and 80 pounds only when it comes here, he pays on the 80 pounds which enters into the commerce of this country, and not upon the 100' pounds he bought on the other side. It may happen, however, that the shrinkage in weight has added a percentage of value, and that the 80 pounds which arrives is in its then condition worth more per pound in the markets of the country from which it came than the original 100 pounds was worth per pound. To illustrate, there may be a difference in the foreign market between 80 per cent, soap and 60 per cent. soap. If what reaches this country is in fact 80 per cent, soap, it should in fairness be appraised at its value as 80 per cent, soap in the foreign markets at the time of exportation, although the invoice may describe it as 60 per cent, soap at a lower value. But of course duty should be assessed only upon the amount actually imported. Such a method of appraisement seems to be in accordance with the provisions of the statute. In order, however, to warrant such an assessment of duty, the appraiser must first find that the 80 pounds imported was worth per pound such a sum as would warrant the particular amount of duty assessed. In this case there is no evidence that the appraiser has so found, and, on the contrary, the evidence is that the per pound value of the article imported was the same as that stated in the invoice, which would make the per pound value of the 80 pounds no greater than the per pound value of the 100 pounds. In view of the state of the evidence, therefore, I shall, as to the soap, instruct the jury that their verdict must be for the plaintiffs.

The only question of fact for the jury, therefore, is whether the fish covered by the other entries are dutiable under the 280th or the 28lst paragraph of the tariff act of 1883. These fish are caught in foreign waters. They are salted or pickled. ' They are imported here in ankers weighing about 80 pounds or less, and not in barrels, which weigh about 200 pounds, or in half barrels, which weigh 100 pounds. So far they are within the description of the 280th paragraph,—“foreign-caught fish, imported otherwise than in barrels or in half barrels, whether fresh, smoked, dried, salted, or pickled.” That is where the plaintiffs claim that they should be classified, and they fall-within that description, unless they are found specially enumerated or provided for elsewhere in the tariff act. The only other place where it is contended that they are specifically provided for is in the next paragraph, which lays a duty upon anchovies and sardines packed in oil or otherwise, and imported either in boxes or in any other form. The only question, then, for you to determine is whether or not these articles are anchovies or sardines. If you find them to be anchovies or sardines, your verdict must be for the defendant; otherwise your verdict must be for the plaintiffs. These tariff acts are intended, of course, for the community at large, and mainly for that part of the community which deal in the articles,covered by the tariff acts., Therefore, in determining the meaning of the words used by congress, it is appropriate to go to the particular trade which handles the article and deals in it, and learn from those in that trade how the particular article is known in the trade and commerce of this country. For that reason witnesses in the trade have been called to the stand by the plaintiffs and the defendant, and you have heard their evidence. Taking into consideration what they have tpld you with regard to the trade understanding touching these particular articles (Exhibit S-n) imported by the plaintiffs, it is for you to determine whether they are sardines or anchovies or not. If you find that they are sardines or anchovies, your verdict must be for the defendant; otherwise your verdict must be ior the plaintiffs. Upon that question the burden of proof is upon the plaintiffs, for the case comes into court after a finding by the collector that they are sardines or anchovies, and that finding, which makes out a 'prima facie case, is to be overthrown by the plaintiffs by a fair preponderance of proof.

The jury rendered a verdict for the plaintiffs.