7 Ct. Cust. 442 | C.C.P.A. | 1917
delivered the opinion, of the court:
There is no issue of fact in this case, the sole question being whether six wireless telegraphy outfits hereinafter referred to are or are not dutiable.
Of just what a wireless apparatus consists, the record does not disclose. Whatever it muy be it was referred to in the protests as an “electrical apparatus;” in one answer thereto as a “complete wireless telegraph station composed in chief value of metal” and in the other as consisting “of receivers, electrical apparatus, and wireless outfit composed in chief value of metal,” and in both -answers said to be “suitable for the outfit and equipment of vessels.”
The reports of the collector submitting these protests to the board are identical except as to dates. One of the same is here inserted:
Respectfully referred to the Board of United States General Appraisers for decision.
The -wireless apparatus in question was reported by the United States special agent designated to investigate as having been installed on old boats and therefore excluded from the free privileges of paragraph J, subsections 5 and 6, section 4, act of 1913.
In vie v of said report duty was assessed at 20 per cent under paragraph 167 of said act. Note sections 5 and 6, and 7 of T. D. 34150, wherein free entry is limited to original outfit and equipment to vessels in course of construction.
The regulations prescribed by the Secretary of the Treasury have been complied with.
The dutiability of the merchandise depends upon the interpretation to be given subsections 5 or 6 of paragraph J of section 4 of the tariff act of 1913. They are as follows:
J. (Subsection 5.) That all materials of foreign production which may be necessary for the construction of naval vessels or other vessels of the United States, vessels built in the United States for foreign account and ownership, or for the purpose of being employed in the foreign or domestic trade, and all such materials necessary for the building of their machinery, and all articles necessary for their outfit and equipment, may be imported in bond under such regulations as the Secretary of the Treasury may prescribe; and upon proof that such materials have been used for such purposes no duties shall be paid thereon.
J. (Subsection 6.) That all articles of foreign production needed for the repair of naval vessels of, or other vessels owned or used by, the United States and vessels now or hereafter registered under the laws of the United States may be withdrawn from bonded warehouses free of duty, under such regulations as the Secretary of the Treasury may prescribe.
The case was proceeded with before and disposed-of by the Board of General Appraisers upon the theory that the regulations of the Secretary made under said subsections had been complied with, and we proceed upon the same theory, which renders it unnecessary to consider some questions referred to in the Government’s brief.-
The Board of General Appraisers upheld the claim for free entry and the Government brings the case here. Its contentions may be classified under two heads: (1) That the importations do not consist of outfit and equipment under subsection 5 above quoted; and (2) that they can not be deemed repairs under subsection 6.
We think it is unnecessary for the purposes of this case to consider the first point, as the provisions of subsection 6 justify the affirmance of the judgment below.
This subsection provides in substance that all articles of foreign production needed for the repair of vessels like those of the Panama Railroad Co. shall be entitled to free entry, and if the wireless apparatus was needed for and as used constitutes such a repair, it should receive that benefit. The statute of 1912 manifestly requires that such vessels shall constantly maintain an efficient apparatus for wireless communication capable of transmitting and receiving messages day or night over at least 100 miles. A penalty is provided for failure to maintain such equipment, and to carry out the purposes of the act it is provided that requisite operators shall be carried on the ships. Under this statute whenever a radio-communication equipment fails to be efficient within the meaning of the statute, it becomes the duty of the owner of the vessel to see that such outfit or apparatus or equipment — whatever it may be called — is put in condition to answer the statutory requirements.
The Board of General Appraisers found that the wireless apparatus earlier placed upon these steamships did not work well and that it was necessary to put in a new one. The undisputed evidence was that it was not satisfactory, was old-fashioned, and did not give good results. There is no claim or suggestion that the new apparatus does not conform to the statutory requirements and the customs officers seem to have assumed that it does.
Manifestly, in replacing this old apparatus with an efficient new one, the Panama Railroad Co. was complying with the law. By the
In Treasury regulations (T. D. 34150) it is said, referring to said subsection 6, that the term vessel therein referred to—
must be therefore taken as a whole with all the permanent attachments necessary or useful to accomplish the object for which it is designed. ⅜ * ⅜ All merchandise may therefore be admitted under this subsection which is suitable and intended for the repair of the hull, or for the repair or replacement of permanent attachments to the vessel, including its machinery, and which are necessary or useful in the navigation, operation, or maintenance of the vessel. This will include not only so-called raw materials, but, in general, completed articles, including machinery, either propelling or auxiliary, which are to be permanently attached to the hull of the vessel and which serve the purpose for which the vessel was designed.
We think this regulation, for the purposes of this case, correctly interprets the statute and that these wireless outfits are within the same. Clearly, from its very nature, a wireless apparatus is either a permanent attachment to the vessel or is a part of its machinery, and the necessary substitution of the new apparatus for the old is within the terms of the regulation a complete article used as a replacement either for a permanent attachment or for machinery already there and is necessary to the accomplishment of the vessel’s purpose.
We have no hesitation in saying that the judgment below was right and ought to be, and hei’eby is, affirmed.