UNITED STATES v. ROSENSTEIN et al.

UNITED STATES v. ROSENSTEIN et al. (Circuit Court, S. D. New York. December 17, 1898.) No. 2,770. Customs Duties—Classification—Russian Sardines. Herrings, pickled and spiced, imported in small kegs, and commercially known as Russian sardines, hut which are not commercially known as sardines, and are not sardines in fact, are dutiable, under paragraph 260 of the tariff law of 1897, as “herring, pickled,” and not under paragraph 258, as “fish known or labeled as * * * sardines.” This was an appeal by the United States from the decision of the board of general appraisers sustaining the protest of Rosenstein Bros. as to the classification of certain imported fish. H. P. Disbecker, Asst. U. S. Atty. Albert Comstock, for importers. As to interpretation of commercial and trade terms in general, see note to Dennison Mfg. Co. v. U. S., 18 C. C. A. 545. [MAJORITY — TOWNSEND, District Judge] TOWNSEND, District Judge (orally). The fish herein, upon the testimony, and in view of the decision of Judge Coxe in Rosenstein v. U. S., 71 Fed. 949, and upon the evidence therein, which covered the same class of articles as are under consideration herein, are herrings, pickled and spiced, commercially known as Russian sardines, and imported in small kegs. Although they are commercially known as Eussian sardines, the evidence and the decision aforesaid show that they ar.e not commercially known as sardines, and are not sardines in fact. If it were necessary to the decision in this case, I should he inclined to support the further contention of the importers, based upon an examination of paragraph 258, and upon the consideration of such portion of the testimony in the other Rosenstein Case as I have heard, that the phrase in said paragraph 258, “if in other packages,” referred only to the packages of the classes stated, namely, bottles, jars, tin boxes, or cans, in the earlier portion of the paragraph. As I have not had an opportunity to fully examine said evidence, and as it is not necessary to the decision of the case, I prefer not to rest my opinion upon that ground. The decision of the board of general appraisers is affirmed, and the goods are properly dutiable, under paragraph 260 of said act, at one-half cent per pound.