Fruit Destroyed by Health Officers-Nonimportation.-The rotten portions of imported fruit, which are condemned by local health authorities after the issuance of a tropical permit of delivery, but while the merchandise is being unloaded, Held not dutiable. The law is complied with if the Government receives duty on the entire amount of fruit which comes into the country as such.-U. S. v. Courtin (C. C.), T. D. 27970.

ROTTEN FRUIT IN PACKAGES-ALLOWANCE.-In assessing the duty per pound provided on oranges by the tariff act of 1897, allowance should be made for the weight of rotten fruit found on arrival of the merchandise, and it is immaterial whether the importation is in packages rather than in bulk.

The general doctrine regarding the assessment of duty upon importations is that it can be levied upon such articles only as are made dutiable by Congress and are actually imported into the United States. Such portions of imported fruit as arrived in a worthless condition are not dutiable within this rule.Stone v. Shallus (C. C. A.), T. D. 27133; T. D. 26315 (C. C.) affirmed.

Rotten Fruit--Bad Fruit Mixed With Sound.-Imported fruit which has so far decayed as to be absolutely unfit for commerce, and which would be nondutiable if separated from the sound fruit in the same package, does not become dutiable because it is kept with the good fruit and sold with it instead of being separated. If the importer is able to show by satisfactory evidence the quantity which has become valueless through decay, he is entitled to an allowance therefor in the duty.

In ascertaining the allowance which should be made for decay in an importation of fruit in packages, the importer examined at least 1 package out of every 10 in each consignment, and assumed the percentage of loss in that package to prevail through all the other packages. Held, that this is a reasonable way of arriving at the percentage of decayed fruit, and that proof of such percentage would justify an allowance on that basis.-Courtin v. U. S. (C. C.), T. D. 26998.

Notice of Abandonment of Merchandise.

A controversy growing out of an attempted abandonment of merchandise under section 23, act of June 10, 1890, as amended by the act of May 17, 1898, presents a proper subject of protest.

The proper administration of section 23 requires that the abandonment of merchandise under it must be in writing, and the regulations of the Treasury Department contemplate that it should take the form of a written notice.

HOLDING.-Held, that papers and testimony both fail to show that the merchandise was abandoned to the United States within 10 days after entry, as is required by section 23.-T. D. 26308 (G. A. 6022).

Potatoes, Rotten-Nonimportation.-Where, out of an importation of 200 bags of potatoes, 4 bags were shown to have arrived in the United States in a rotten, worthless, and unmerchantable condition, Held, that these 4 bags should be treated as a nonimportation, and no duty should be assessed on them, following the principle settled by the Supreme Court in Lawder v. Stone (187 U. S., 281; 23 Sup. Ct. Rep., 79); contra as to bags of potatoes shown merely to have been partially damaged.-T. D. 26004 (G. A. 5905).

Damaged Fruit-Allowance for Shortage.-To constitute a nonimportation, or shortage, of imported fruit which will justify a pro rata abatement of duties, the merchandise must be rendered valueless and unmerchantable, so as not to be a proper subject for abandonment and sale under the provisions of section 23 of the customs administrative act, providing for the abandonment of damaged goods.

In a case relating to imported fruit claimed to be rotten or decayed, the onus is on the importer to show with sufficient certainty, and by satisfactory evidence, the percentage of the merchandise which is destroyed so as to have become valueless. Vague estimates of such percentages, made upon superficial examination, are not sufficient to justify an abatement of duties. A fortiori, no allowance will be made when it is shown that the original packages of such goods were sold in the market without separating the decayed fruit from that which was sound.-T. D. 25552 (G. A. 5779).

Spoiled Fruit—Nonimportation.-Fruit, damaged while in transit to the United States, so as to become utterly worthless and of no pecuniary value, is not to be treated as a dutiable importation, but allowance may be made as if such goods have never arrived at all.

Such allowance, being one not for damage but for short shipment, is to be made irrespective of [the fact] whether the fruit thus decayed amounts to 10 per cent of the entire invoice, so as to allow of abandonment proceedings under section 23, act of June 10, 1890. Lawder v. Stone (23 Sup. Ct. Rep., 79), reversing Stone v. Lawder (101 Fed. Rep., 710; 41 C. C. A., 621) and affirming G. A. 4222 (T. D. 19774).-T. D. 24444 (G. A. 5344).

Allowance for Decayed Fruit.

SHORTAGE. The loss of fruit through decay in course of transportation does not constitute a shortage for which an allowance may be made on the ground of nonimportation.

ABANDONMENT.-When such loss amounts to less than 10 per cent, no allowance for damage may be made, being expressly prohibited by section 23, customs administrative act of June 10, 1890. An importation in bulk, included in a single invoice, must be considered as a whole, and the importer is entitled to no allowance for damage to or deterioration concerning the same, and must pay duty on the entire invoice, unless an appropriate portion is abandoned by him under the provisions of said section 23.

RULE OF ABANDONMENT.-When abandonment is made by an importer, on account of damage, under said section 23, the portion abandoned must amount to at least 10 per cent of the total value or quantity of the invoice, and not of the goods, wares, or merchandise as discharged at the port of entry. Stone v. Lawder (101 Fed. Rep., 710) and U. S. v. Bache (59 id., 762) followed. In re Schall (G. A. 656), In re Dix (G. A. 3078). In re Dix (G. A. 3453), and In re Lawder (G. A. 4222) and Shaw v. Dix (72 Fed. Rep., 166) reversed directly or impliedly.-T. D. 22520 (G. A. 4776); note T. D. 24444 (G. A. 5344), supra.

Shortage and Damage.—The destruction of 101 bags of quebracho extract out of a shipment of 491 bags, caused by "heating, running, and adhering to the skin of the ship," is not damage, within the meaning of section 23, act of June 10, 1890.

Duty should be assessed only on the quantity of merchandise actually landed and coming into the possession and control of the customs officials. Marriott v. Brune (9 How., 619) followed.-T. D. 21761 (G. A. 4601).

Fruit Condemned by Board of Health.-Damaged fruit seized and condemned by board of health as unfit for food may be abandoned to Government under section 23, act of June 10, 1890, without its actual delivery to collector.T. D. 17954 (G. A. 3829).

Rotten Fruit, Allowance For.-Cocoanuts and pineapples imported in bulk, when certain specified portions, less than 10 per cent of the cargoes, were rotten and totally worthless. Section 23, act of June 10, 1890, contemplates a case where there remains something to be abandoned in the sense of being impaired

in value, and is not applicable where there is no value attached to the items to be abandoned.-T. D. 17072 (G. A. 3453).

Total Destruction is Not Damage.-Where merchandise has its value totally destroyed, allowance may be made as shortage, not as damage.-T. D. 16114 (G. A. 3078).

Damage Allowance-Broken Knitting Machine.-Knitting machine imported in four separate cases when it was found that the contents of one case was damaged by breakage. Held, that no allowance can be made.-T. D. 14757 (G. A. 2479).

Abandonment of Damaged Goods (Anchovies).-Dried fish and anchovies were imported, the value being separately stated on the invoice. More than 10 per cent of the anchovies were damaged and worthless, but the damaged goods constituted less than 10 per cent of the total of the invoice. Held, that to entitle the importer to abandon the merchandise it must constitute 10 per cent or more of the total amount of the invoice.-T. D. 12448 (G. A. 1186).

Decayed Fruit.-Oranges imported and duty paid on 288,000. When the oranges were discharged it was found that 35,700 had decayed and were worthless, being in a mass and in such condition that they could not be abandoned (sec. 23, act of June 10, 1890, and art. 609 of the regulations). Held, that it being shown to the satisfaction of the collector and naval officer that oranges originally shipped were destroyed by accident during the voyage the collector is authorized to make an allowance.-T. D. 11373 (G. A. 656).

Damage Allowance on Goods Entered Prior to August 1, 1890.-Window and polished plate glass imported and entry completed prior to July 31, 1890. Held, that this section has no application and damage should be allowed under R. S. 2927.-T. D. 10750 (G. A. 303).

Goods Not Damaged Can Not Be Abandoned.-The act of May 17, 1898, applies only to an invoice of goods imported in such condition as would have entitled the importer, under Revised Statute 2927, to claim an allowance for damaged goods; and an importer of goods not damaged can not, by an abandonment of such goods, after they have been seized by the Government for an attempted violation of the customs laws, relieve himself from liability for the duty thereon or recover the duty paid.-U. S. v. One Case of Paintings, Engravings, and Manufactures of Metal, 99 Fed. Rep., 426.

DECISIONS UNDER EARLIER STATUTES PERTAINING TO DAMAGED GOODS.

Allowance for Damage. The provisions of section 8, act of July 30, 1846 (9 Stat., 42), did not repeal the previous law which authorized allowance for deficiencies and damages incurred during the voyage; it applies to the value merely and not to the quantity of the articles imported.-Brune v. Marriott, Taney, 132; 4 Fed. Cas., 475.

It is not necessary, in order to obtain an allowance for damage to part of a consignment of merchandise, that the claimant should make an affidavit that the entire importation was taken.-U. S. v. 661 Bales of Tobacco, 24 Int. Rev. Rec., 77; 27 Fed. Cas., 1092.

Appraisement of Damaged Goods.-No act of Congress having (1843) designated any form or mode of proof to be made of damage to goods on the voyage, to lay the foundation for an appraisement, the collector is bound to order it on reasonable evidence of such damage. If he does not object to the form of proof when presented, he can not raise such objection at the time when sued for not calling such appraisement.

A request to the collector to have an appraisement by merchants appointed pursuant to the act of 1799, section 52, is to be regarded as an application under the existing law (act of 1823).

Section 52 of the act of 1799 does not require a survey of the goods damaged on the voyage to be made previous to an appraisement of damages for the purpose of an abatement of duties. If such survey is necessary, the master and wardens of the port are not "the proper officers" within the meaning of the act to make it.

After a collector has ordered goods to a public store, because of damage on the voyage of importation, he has no authority to require a survey of such goods in order to their appraisement.

When an appraisement is refused, the deterioration of the goods may be proved by witnesses; and the collector is liable, in an action for damages, to pay the difference between the duties exacted by him and those the goods ought to have been charged with.-Wight v. Curtis, 11 Hunt, Mer. Mag., 553; 29 Fed. Cas., 1170.

Appraisement of Damaged Goods Before Entry.—If goods have received damage in the course of the voyage, the importer, in order to obtain a reduction of duties, must demand an appraisal before entry.

If damaged goods are entered before an appraisal is demanded, the importer must pay duties assessed according to the invoice price and he is entitled to no reduction on account of damage to the goods in the course of the voyage.— Shelton v. Austin, 1 Cliff., 388; 21 Fed. Cas., 1247.

The damages must be ascertained before the goods are entered (act of Mar. 1, 1823).

Where merchandise received damage during a voyage, proof to ascertain the damage must be lodged at the customhouse of the port where the goods are landed within 10 days after the landing (act of Mar. 2, 1799, 1 Stat., 665, 666).— Shelton v. The Collector, 5 Wall., 113.

Claim for Damage Allowance After Duties Have Been Paid.—A claim for the appraisement of goods and the reduction of duty thereon by reason of the damage which they sustained during the voyage of importation may be allowed although not made until after they were entered at the customhouse at their full invoice value and the estimated duties paid thereon. R. S. 2928 has exclusive reference to goods taken from a wreck and does not affect the proceedings under R. S. 2927, a reenactment of section 52, act of 1799. Shelton v. The Collector (5 Wall., 113), so far as it conflicts with this ruling, is overruled. U. S. v. Phelps (20 Blatchf., 129; 27 Fed. Cas., 523), reversed.-U. S. v. Phelps, 107 U. S., 320.

One entry was made of fruit imported in a vessel, which fruit belonged to several owners and was embraced in several invoices. The duties were estimated at $4,648, and deposited and the goods delivered. Afterwards a damage allowance for loss by decay on the voyage was applied for. The report showed that the damage sustained by various lots of fruit was more than 25 per cent of the quantities in such lots but that the damage on all the fruit imported by the vessel was less than 25 per cent. The collector, by allowing the damage on the lots which were damaged more than 25 per cent liquidated the duties at $270.40 less than amount deposited and refunded the $270.40. Afterwards the collector reliquidated the duties at $4,648, refusing to allow any damage because it did not exceed 25 per cent of all the fruit covered by the entry. Suit brought for the $270.40. Verdict in the district court for the defendants. On writ of error held that under R. S. 2931 the first liquidation was not conclusive as to the United States.

The United States are entitled to recover according to the last liquidation. The defendants could not be allowed to give evidence to show that the decision of the collector in the last liquidation was erroneous.-U. S. v. Phelps, 17 Blatchf., 312; 27 Fed. Cas., 521.

Y. That whenever it shall be shown to the satisfaction of the Secretary of the Treasury that, in any case of unascertained or estimated duties, or payments made upon appeal, more money has been paid to or deposited with a collector of customs than, as has been ascertained by final liquidation thereof, the law required to be paid or deposited, the Secretary of the Treasury shall direct the Treasurer to refund and pay the same out of any money in the Treasury not otherwise appropriated. The necessary moneys therefor are hereby appropriated, and this appro1913 priation shall be deemed a permanent indefinite appropriation; and the Secretary of the Treasury is hereby authorized to correct manifest clerical errors in any entry or liquidation for or against the United States, at any time within one year of the date of such entry, but not afterwards: Provided, That the Secretary of the Treasury shall, in his annual report to Congress, give a detailed statement of the various sums of money refunded under the provisions of this Act or of any other Act of Congress relating to the revenue, together with copies of the rulings under which repayments were made.

1909

SEC. 28.

Subsec. 32: That whenever it shall be shown to the satisfaction of the Secretary of the Treasury that, in any case of unascertained or estimated duties, or payments made upon appeal, more money has been paid to or deposited with a collector of customs than, as has been ascertained by final liquidation thereof, the law required to be paid or deposited, the Secretary of the Treasury shall direct the Treasurer to refund and pay the same out of any money in the Treasury not otherwise appropriated. The necessary moneys therefor are hereby appropriated, and this appropriation shall be deemed a permanent indefinite appropriation; and the Secretary of the Treasury is hereby authorized to correct manifest clerical errors in any entry or liquidation for or against the United States, at any time within one year of the date of such entry, but not afterwards: Provided, That the Secretary of the Treasury shall, in his annual report to Congress, give a detailed statement of the various sums of money refunded under the provisions of this Act or of any other Act of Congress relating to the revenue, together with copies of the rulings under which repayments were made.

SEC. 24. That whenever it shall be shown to the satisfaction of the Secretary of the Treasury that, in any case of unascertained or estimated duties, or payments made upon appeal, more money has been paid to or deposited with a collector of customs than, as has been ascertained by final liquidation thereof, the law required to be paid or deposited, the Secretary of the Treasury shall direct the Treasurer to refund and pay the same out of any money in the Treasury not otherwise appropriated. The necessary moneys therefor are hereby appropriated, and this appro1890 priation shall be deemed a permanent indefinite appropriation; and the Secretary of the Treasury is hereby authorized to correct manifest clerical errors in any entry or liquidation for or against the United States, at any time within one year of the date of such entry, but not afterwards: Provided, That the Secretary of the Treasury shall, in his annual report to Congress, give a detailed statement of the various sums of money refunded under the provisions of this Act or of any other Act of Congress relating to the revenue, together with copies of the rulings under which repayments were made.

Mar.

3,

1875

*

SEC. 1. * And provided also, That this Act shall not affect the refund of excess of deposits based on estimated duties nor prevent the correction of errors in liquidation, whether for or against the Government, arising solely upon errors of fact discovered within one year from the date of payment, and, when in favor of the Government, brought to the notice of the collector within ten days from the date of discovery.