STROHMEYER & ARPE CO. v. UNITED STATES

STROHMEYER & ARPE CO. v. UNITED STATES. (Circuit Court, S. D. New York. May 21, 1909.) No. 5,393. Customs Doties (§ 30*) — Classification—Frsir in Large Tras — “Fisn in Other Packages.” Tariff Act July 24, 1897, c. 11, § 1, Schedule G. par. 258, 90 Stat. 171 (U. S. Comp. St. 1901, p. 1050), provides for anchovies, etc., in tins of various sizes, hut not larger than 70 cubic inches, with a further provision for (1) such fish “in other packages,” (2) “all other fish * * * in (in packages,” anil (8) “fish in packages containing less than one-half barrel.” field, that anchovies in tins containing more than 70 cubic inches and less than half a barrel are subject to the provision for fish “in other packages.” lEd. Note. — For other cases, see Customs Duties, Dec. Dig. § 30.] On Application for Review of a Decision by the Board of United States General Appraisers. The decision below affirmed the assessment of duty by the collector of customs at the port of New York. The case involves the construction of Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 258, 30 Stat. 171 (U. S. Comp. St. 1901, p. 1650), reading as follows: “258. Eish known or labeled as anchovies, sardines, sprats, brislings, sar-dels or sardellen, packed in oil or otherwise, in hollies, jars, tin boxes or cans, shall he dutiable as follows: When in packages containing seven and one-half cubic inches or less, one and one-half cents per bottle, jar, box or can; containing more than seven and one-half and not more than twenty-one cubic inches, two and one-half cents per bottle, jar, box or can; containing more than twenty-one and not more than thirty-three cubic inches, five cents per bottle, jar, box or can; containing more than thirty-three anil not more than seventy cubic inches, ten cents per bottle, jar, box or can; if in other packages, forty per centum ad valorem. All other fish (except shellfish), in tin packages, thirty per centum ad valorem; fish in packages containing less than one-lialf barrel, and not specially provided for in this act, thirty per centum ad valorem.” Brown & Gerry (Event Brown, of counsel), for importers. D. Frank Floyd, Asst. U. S. Atty. For other eases see same topic & § xc.mbur in Dec. & Am. Digs, 1907 to date, & Rep’r Indexes [MAJORITY — PLATT, District Judge.] PLATT, District Judge. The merchandise imported is salted anchovies and sardines, brought over in tin packages containing over TO cubic inches. The collector and the board agree that they should be classified under the language “if in other packages, forty per centum ad valorem,” contained in paragraph 258 of the tariff act of 1897. The importers insist that they should be classified under the phrase “all other fish (except shellfish) in tin packages,” or under the last phrase of said paragraph, “fish in packages, containing less than one-half barrel, and not specially provided for in this act.” It is too clear for discussion that the fish in these packages are of the kinds of fish specially mentioned in the early part of paragraph 258. They cannot, therefore, be covered by the expression “all other fish.” When Congress said “if in other packages,” it undoubtedly meant other packages than those just immediately before described; and the tin package in which the imported fish come is certainly another package from those. Being specially provided for in the phrase under which they were assessed, they cannot be placed under the final, phrase. Decision affirmed,