SWAN & FINCH CO. v. UNITED STATES

SWAN & FINCH CO. v. UNITED STATES. (Circuit Court, S. D. New York. April 18, 1901.) No. 2,823. Customs Duties — Fish Oil — Cod Oii. Tlie term “fish oil,” as used in tlie revenue act of 1897, par. 42, proscribing the duty to be paid on imports of “seal, herring, whale and other fish oil, not specially provided for,” covers all oil made from any fish or any part thereof, including oil made from tlie. livers of cod anil other fish of the cod species. Appeal by the importers from a decision of the board of United Btates general appraisers, which affirmed the classification by tbe collector of customs as to the importations in question. Jacob Fromme, for appellants. D. Frank Lloyd, Asst. U. S. Atty. [MAJORITY — TOWNSEND, District Judge.] TOWNSEND, District Judge. The merchandise in question comprises oil made from the livers of the cod and other fish of the cod species. It was assessed for duty, under the provisions of paragraph 42 of the act of 1897, at eight cents per gallon, for “seal, herring, whale, and other fish oil, not specially provided for,” and claimed as free, under paragraph 568 of said act, as “oils (excepting fish oils), such as are commonly used in soap making or in wire drawing, or for stuffing or dressing leather, and which áre fit only for such uses, and not specially provided for.” It is unnecessary to consider the contention of counsel for the government that this oil is applied to, and is fit for, a great variety of uses other than those named in paragraph 568, or his further contention that this oil is commercially known as fish oil. Counsel for the importers has failed to show' any such use of the term “cod oil” to designate oil made only from the livers of cod fish as to constitute a trade designation. Apparently congress, in providing for fish oil, did not have in mind ány commercial designation such as is attempted to be shown herein. It provided for “seal, herring, whale, and other fish oil.” But tlie witnesses for the importers say that neither seal oil nor whale oil is a fish oil commercially, and that the only oil commercially known as “fish oil” is the oil of the menhaden and of the herring, where the oil is taken from the entire fish. Whale oil is made from blubber only, and halibut oil, another kind of fish oil, is made from the head and tlie bones of tbe fish. The meaning of the term “fish oil,” as a descriptive term and in its ordinary sense, is further shown by tbe witnesses for tbe importers, one of wbom, states that “fish oil is made from any cheap fish that produces au oil where oil enters into the construction of the fish or any part of the fish”; while another says that he would not undertake to say that the term “fish oil” did not include oil made from any part of any fish. If a poison orders fish oil, without specifying' what kind lie wants, he gets menhaden oil; but if he wishes any of the other kinds of fish oil, including cod oil, he orders them by tbe specific name, stating the kind wanted. “Fish oil,” then, is the generic term in trade and commerce. The specific term “fish oil” is generally applied to menhaden, because the greater quantity of fish oil is made from the menhaden. The term “fish .oil” has been used to cover cod oil in prior decisions of the board since 1892. See U. S. v. Welles, 23 C. C. A. 210, 77 Fed. 411.. Therefore congress must be presumed to have intended to use this term as it has been ordinarily employed and understood for many years to designate all oils made from the fish or from any part thereof, including therein cod oil. The decision of the board of general- appraisers is affirmed. 1