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§ 5550. (Act June 10, 1910, c. 283, § 1.) Custom-house brokers;

license.

Liability in general.-Where plaintiff delivered beer for export shipment to a company which issued its so-called through bill of lading to the Orient designating steamers, and the owner of the steamship line issued a shipping order naming defendant ocean brokerage company at Seattle as consignee, with directions to notify the collector of customs, and, when the beer was

unloaded there and subject to the order of the federal authorities, it was seized under the order of a justice of the peace and destroyed, the defendant held to be customs brokers, not bailees, and not negligent and not liable to the exporter for the price. Schmiegelow v. Ocean Brokerage Co. (Wash.) 197 P. 323.

CHAPTER FIVE-UNLADING

§§ 5555-5570. [Repealed.]

These sections (R. S. §§ 2867-2870, 2872-2879, and Act Feb. 13, 1911, c. 46, §§ 1-4, 36 Stat. 899, 900) were repealed by Act Sept. 21, 1922. c. 356, title IV, §§ 642, 643, post, §§ 5841i-1, 5841i-2. See, also, §§ 448, 450-455. 586, 587 of the "Tariff Act of 1922," post, & 5841e-17, 5841e-19 to 5841e-24, 5841h-5, 5841h-6.

DECISIONS APPLICABLE TO § 5555 Intoxicating liquor.-Intoxicating liquor is "merchandise" within Rev. St. § 2872 (Comp. St. § 5563), requiring a license or permit before unloading cargoes in the nighttime, this section, penalizing master for unloading without a permit, and section 2814 (Comp. St. § 5511), penalizing a master failing to give an account of the true destination of his vessel on demand by the collector of customs, in order to evade production of manifests, in view of section 2766 (Comp. St. § 5462). U. S. v. Santini (C. C. A. Fla.) 279 F. 534.

Unlading a vessel in the nighttime, in violation of Rev. St. §§ 2872, 2874 (Comp. St. §§ 5563, 5565), is no less an offense under said sections because, being without a permit, it is also an offense under this section. The Grace and Ruby (D. C. Mass.) 283 F. 475.

Cited without definite application, International Ry. Co. v. Davidson, 42 S. Ct. 179, 257 U. S. 506, 66 L. Ed. 341.

DECISIONS APPLICABLE TO §§ 5557, 5558

Cited without definite application, U. S. v. Cronkhite Co., 9 Ct. Cust. App. 129.

DECISIONS APPLICABLE TO 88 55595562

Cited without definite application, International Ry. Co. v. Davidson, 42 S. Ct. 179, 257 U. S. 506, 66 L. Ed. 341.

DECISIONS APPLICABLE TO § 5563 Scope of act in general.-Rev. St. § 3082 (Comp. St. § 5785), making it punishable to receive merchandise knowing it to have been imported contrary to law, applies to one who re

ceives merchandise landed from a foreign vessel without the permit of the collector required by this section, though section 2873 (section 5564) imposes a civil penalty for violation of this section. Goldman v. U. S. (C. C. A. La.) 263 F. 340.

"Merchandise”- -Intoxicating liquor. -Intoxicating liquor is "merchandise" within this section, requiring a license or permit before unloading cargoes in the nighttime, section 2867 (Comp. St. § 5555), penalizing master for unloading without a permit, and section 2814 (Comp. St. § 5511), penalizing a master failing to give an account of the true destination of his vessel on demand by the collector of customs, in order to evade production of manifests, in view of section 2766 (Comp. St. § 5462). U. S. v. Santini (C. C. A. Fla.) 279 F. 534.

Offenses.-Unlading a vessel in the nighttime, in violation of this section and Rev. St. § 2874 (Comp. St. § 5565), is no less an offense under said sections because, being without a permit, it is also an offense under section 2867 (section 5555). The Grace and Ruby (D. C. Mass.) 283 F. 475.

Cited without definite application, International Ry. Co. v. Davidson, 42 S. Ct. 179, 257 U. S. 506, 66 L. Ed. 341; U. S. v. Reed (D. C. N. Y.) 274 F. 724.

DECISIONS APPLICABLE TO § 5564

Construction in general. This section, subjecting the master of a vessel to a penalty for unloading merchandise from a foreign port without a permit from the collector, does not apply to an article importation of which is prohibited and for which a permit could Lot, therefore, be obtained. U. S. v. Reed (D. C. N. Y.) 274 F. 724.

Cited without definite application, Goldman v. U. S. (C. C. A. La.) 263 F. 340.

DECISIONS APPLICABLE TO § 5565 Forfeiture-Vessel beyond three-mile limit engaged in smuggling.-A foreign vessel, lying outside the three-mile limit, which delivered a part of her cargo of liquors, which were contraband, in the nighttime, to a motorboat, in which it was taken ashore with the assistance of her small boat and part of her crew, held subject to forfeiture under this section. The Grace and Ruby (D. C. Mass.) 283 F. 475.

Foreign vessels hovering always more

than three miles from shore for the purpose of smuggling, which have been in contact with the shore by their own boats and crews, and have thereby assisted in smuggling, are subject to seizure. Id.

Unlading a vessel in the nighttime, in violation of this section and of Rev. St. § 2872 (Comp. St. § 5563), is no less an offense under said sections because, being without a permit, it is also an offense under section 2867 (section 5555). Id.

Cited without definite application, Goldman v. U. S. (C. C. A. La.) 263 F. 340.

§ 5571. (Act Feb. 13, 1911, c. 46, § 5, as amended, Act Feb. 7, 1920, c. 61.) Compensation for overtime services; boarding officers may administer oaths; fixing working hours.

The Secretary of the Treasury shall fix a reasonable rate of extra compensation for overtime services of inspectors, store-keepers, weighers, and other customs officers and employees who may be required to remain on duty between the hours of five o'clock postmeridian and eight o'clock antemeridian, or on Sundays or holidays, to perform services in connection with the lading or unlading of cargo, or the lading of cargo or merchandise for transportation in bond or for exportation in bond or for exportation with benefit of drawback, or in connection with the receiving or delivery of cargo on or from the wharf, or in connection with the unlading, receiving, or examination of passengers' baggage, such rates to be fixed on the basis of one-half day's additional pay for each two hours or fraction thereof of at least one hour that the overtime extends beyond five o'clock postmeridian (but not to exceed two and one-half days' pay for the full period from five o'clock postmeridian to eight o'clock antemeridian), and two additional days' pay for Sunday or holiday duty. The said extra compensation shall be paid by the master, owner, agent, or consignee of such vessel or other conveyance whenever such special license or permit for immediate lading or unlading or for lading or unlading at night or on Sundays or holidays shall be granted. to the collector of customs, who shall pay the same to the several customs officers and employees entitled thereto according to the rates fixed therefor by the Secretary of the Treasury: Provided, That such extra compensation shall be paid if such officers or employees have been ordered to report for duty and have so reported, whether the actual lading, unlading, receiving, delivery, or examination takes place or not. Customs officers acting as boarding officers and any customs officer who may be designated for that purpose by the collector of customs are hereby authorized to administer the oath or affirmation herein provided for, and such boarding officers shall be allowed extra compensation for services in boarding vessels at night or on Sundays or holidays at the rates prescribed by the Secretary of the Treasury as herein provided, the said extra compensation to be paid by the master, owner, agent, or consignee of such vessel: Provided further, That in those ports where customary working hours are other than those hereinabove mentioned, the Collector of Customs is vested with authority to regulate the hours of customs employees so as to agree with prevailing working hours in said ports, but nothing contained in this proviso shall be construed in any manner to affect or alter the

length of a working day for customs employees or the overtime pay herein fixed. (36 Stat. 901. 41 Stat. 402.)

For this section prior to the amendment by Act Feb. 7, 1920, see U. S. Comp. St. 1916, § 5571.

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Notes of Decisions

Application to traffic over international toll-bridge.-This section requiring a special license for the immediate lading or unlading of any vessel or other conveyance at night or on Sundays or holidays, and the payment to the collector of customs of the extra compensation of customs officers employed therefor, and the giving of a bond to indemnify the United States against all losses, has no application to toll bridges over the Niagara river, over which passengers only pass on foot or in trolleys or automobiles, notwithstanding the provisions of section 5, including services in connection with the examination of passengers' baggage in the services for which extra compensation shall be paid, especially in view of the distinction heretofore made by statutes between passengers' baggage and personal effects and goods imported as merchandise. International Ry. Co. v. Davidson, 42 S. Ct. 179, 257 U. S. 506, 66 L. Ed. 341. Reversing decree (C. C. A. N. Y.) 273 F. 153 which affirms decree (D. C.) 271 F. 313.

Instructions from the Secretary of the Treasury to the collector of customs to discontinue inspection service at toll bridges over the Niagara river on Sundays and holidays, unless the owner of the bridge applied for a special license, under this section, cannot be sustained as a determination by the Secretary that the travel on Sundays and holidays did not justify the government in maintaining such service, where the travel was heavier on those

§§ 5572-5576. [Repealed.]

These sections (R. S. §§ 2880-2884) c. 356, title IV, § 642, post, § 5841i-1. 1922," post, § 5841e-26.

days than on any other, and the service had been maintained continuously for more than 20 years. Id.

The question as to the right of the Secretary of the Treasury, under this section, to discontinue customs inspection service on Sundays and holidays at toll bridges over the Niagara river, unless the owner of the bridges would apply for a special license and agree to pay the extra compensation of customs officers, etc., held of sufficient importance to require the Supreme Court to review the decision of the Circuit Court of Appeals on certiorari. Id.

Independent of this section, the Secretary of the Treasury had no power, under Rev. St. § 161 (Comp. St. § 235), to order the discontinuance of customs inspection service on Sundays and holidays at toll bridges over the Niagara river, where the travel was not sufficient to justify such service, unless the owner of the bridge would obtain a special license and pay the extra compensation of the customs officers and give a bond to indemnify the United States against losses, in view of Rev. St. §§ 1764 and 1790 (Comp. St. §§ 3233, 3265), and Act March 3, 1917, c. 163, § 1 (Comp. St. § 3231a), relative to compensation to officers or employees for extra services or from any private source, especially where he did not profess to act under section 161, but under the act of 1911, as amended by that of 1920. Id.

were repealed by Act Sept. 21, 1922, See, also, § 457 of the "Tariff Act of

DECISIONS APPLICABLE TO § 5574
Cited without definite application,
U. S. v. Cronkhite Co., 9 Ct. Cust.
App. 129.

S$ 5579-5588. [Repealed.]

These sections (R. S. §§ 2887-2894, 2896, 2898) were repealed by Act Sept. 21, 1922, c. 356, title IV, § 642, post, § 5841i-1. See, also, §§ 449, 506 of the "Tariff Act of 1922," post, §§ 5841e-18, 5841f-50.

DECISIONS APPLICABLE TO § 5588
See U. S. v. Hirsch, Stein & Co., 8

Ct. Cust. App. 121.

(R. S. § 2895. Repealed.)

Cited without definite application, U. S. v. Suzarte & Whitney, 8 Ct. Cust. App. 99.

This section of the Revised Statutes was repealed by Act Sept. 21, 1922, c. 356, title IV, § 642, post, § 5841i-1.

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5600-5602. [Repealed.]

5603. [Repealed.]

§§ 5589-5592. [Repealed.]

These sections (R. S. §§ 2899, 2901, and Act Oct. 3, 1913, c. 16, § III, K, L, 38 Stat. 185) were repealed by Act Sept. 21, 1922, c. 356, title IV, §§ 642, 643, post, §§ 5841i-1, 5841i-2. See, also, $$ 402, 486, 499 of the "Tariff Act of 1922," post, §§ 5841d-1 to 5841d-6, 5841f-23, 5841f-37.

DECISIONS APPLICABLE TO § 5591. 1. Appraisal in general.-Pineapples were prepared and canned in Bahama by the Johnson Company and shipped by them to themselves in New York. The merchandise concededly had no market value in Bahama. Appraisement by a board of general appraisers was nullified by a classification board. There was before the appraisement board evidence as to the cost of production and as to the sale price in this country of it and similar merchandise. Of this evidence and the weight to be given it or any part of it the appraisement board were the sole judges. Whatever method of appraisement prescribed by this and the next section, was adopted by them-cost of production, sale price of the identical merchandise, or sale price of similar merchandise-was supported by some substantial evidence. The decision of the Board of United States General Appraisers nullifying their appraisement is reversed. U. S. v. Johnson Co., 9 Ct. Cust. App. 258.

Books of wall paper samples, made up to illustrate the stock of wall paper purchased, were imported. These books were paid for by the importer at a price based upon the cost of production. They were not sold by the importer to his customers, but distributed free; their cost being recouped as a part of the overhead expense. It cannot be said that the action of the reappraisement board in refusing to hold them samples of no commercial value and in affirming their appraisement at the price paid for them was, in view of this section and Comp. St. §§ 5592, 5599, illegal and of no effect as proceeding upon a wrong principle of law. Lloyd Co. v. U. S., 9 Ct. Cust. App. 280.

A segregable mixture of linseed and screenings was assessed with duty as linseed. Upon appeal to the Board of United States General Appraisers, the parties stipulated that the screenings bore a dutiable value of $10.50 per ton.

The board found no value for the screenings and refused to the importers a rehearing asked for on this ground. There was no reversible error. Midland Linseed Products Co. v. U. S., 10 Ct. Cust. App. 101.

4.- Market value in general.Within the meaning of the term "market value," in this section and Comp. St. §§ 5592, 5599, a single actual buyer may be a market. Lloyd Co. v. U. S., 9 Ct. Cust. App. 280.

The price which importer paid for merchandise is lawful evidence as to its market value or wholesale price. Id.

DECISIONS APPLICABLE TO § 5592.

Cost of production in general.—Pineapples were prepared and canned in Bahama by the Johnson Company and shipped by them to themselves in New York. The merchandise concededly had no market value in Bahama. Appraisement by a board of general appraisers was nullified by a classification board. There was before the appraisement board evidence as to the cost of production and as to the sale price in this country of it and similar merchandise. Of this evidence and the weight to be given it or any part of it the appraisement board were the sole judges. Whatever method of appraisement prescribed by this section and Comp. St. § 5591, was adopted by them-cost of production, sale price of the identical merchandise, or sale price of similar merchandise-was supported by some substantial evidence. The decision of the Board of United States General Appraisers nullifying their appraisement is reversed. U. S. v. Johnson Co., 9 Ct. Cust. App. 258.

Market value.-Within the meaning of the term "market value," in this section and Comp. St. §§ 5591, 5599, a single actual buyer may be a market and the price paid evidence of market value. Lloyd Co. v. U. S., 9 Ct. Cust. App. 280.

Wholesale price.-Boo's of wall paper samples, made up to illustrate the stock of wall paper purchased, were imported. These books were paid for by the importer at a price based upon the cost of production. They were not sold by the importer to his customers, but distributed free; their cost being recouped as a part of the overhead expense. It cannot be said that the action of the reappraisement board in refusing to hold them samples of no commercial value and in affirming their' appraisement at the price paid for them was, in view of this section and Comp. St. §§ 5591, 5599, illegal and of no effect as proceeding upon a wrong principle of law. Lloyd Co. v. U. S., 9 Ct. Cust. App. 280.

The price which importer paid for merchandise is lawful evidence as to its market value or wholesale price. Id.

Charges, expenses and commissions.— Silk in the gray was purchased in the United States and shipped to France, there treated by certain preliminary manufacturing processes and returned to the United States to be used in the manufacture of fabrics. It was shown that there was no market for such processed silk in either France or the United States. Accompanying the merchandise were invoices showing the various items of charge made for the processing and preparing of the silk. Upon these invoices were items of general expenses and profits which were, however, less than 10 per cent. and 8 per cent., respectively, of the outlay of every nature incident to production, which are the minimum additions permitted by this section, to be made for such items. The claim that

the Board of United States General Appraisers proceeded upon a wrong principle of law in making additions, since these additions had already been made in the invoices, can not be sustained; and their decision adding 10 per cent. and 8 per cent. of the invoice values for general expenses and profits, respectively, is affirmed. Stirn v. U. S., 10 Ct. Cust. App. 17.

expres

"Consigned for sale."-The sion in this section "consigned for sale in the United States," does not have reference only to cases where the consignment was made to an "agent" of the consignor; it includes cases where the consignor in another country shipped the goods to himself in this country. U. S. v. Johnson Co., 9 Ct. Cust. App. 258.

"Such or similar imported merchandise."-In the language of this section "the wholesale price at which such or similar imported merchandise is actually sold or freely offered for sale in usual wholesale quantities in the United States in the open market," the word "such" means identical. The provision does not mean that the inquiry must be confined to the identical merchandise if possible and extended to similar merchandise only in the event of the absence of proof as to the identical merchandise. It means that appraising officers may take into consideration not only sales of the very merchandise imported, but also sales of similar merchandise. Since the word "such" means identical, the paragraph cannot be taken to mean that the inquiry as to market value in this country must be as of the time when the exportation was made. U. S. v. Johnson Co., 9 Ct. Cust. App. 258.

§ 5593. (Act June 10, 1890, c. 407, § 12, as amended, Act May 27, 1908, c. 205, § 3, and Act Aug. 5, 1909, c. 6, § 28.) General appraisers; appointment, tenure, salary, and powers.

Compare this section with § 518 of the "Tariff Act of 1922," post, § 5841f-65.

SS 5594-5599. [Repealed.]

These sections (Act Oct. 3, 1913, c. 16, § III, M, N, O, P, Q. R. 38 Stat. 186-189) were repealed by Act Sept. 21, 1922, c. 356, title IV, § 643, post, § 58411-2. See, also, $$ 500, 501, 503, 508, 509, 514, 515, 519, of the "Tariff Act of 1922," post, §§ 5841f-38 to 5841f-43, 5841f-47, 5841f-52, 5841f-53, 5841f-58, 5841f-59, 5841f-66.

DECISIONS AFFECTING § 5594

3. Notice, etc.-In this section, the provision that an appeal to reappraisement "shall be deemed to be finally abandoned and waived unless within two days from the date of filing thereof the person who filed such notice shall deposit with the collector of customs a fee of $1 for each entry," is mandatory, and the action of the Board of General Appraisers in dismissing such appeals for the reason that the fees were paid later than the prescribed two days is approved. Sugar Products Co. v. U. S., 10 Ct. Cust. App. 179.

11. Reappraisement-Conclusiveness. -The Board of General Appraisers denied an application, made on December 8, 1914, for a commission to take testimony in Bremen, Germany, of the manufacturers of the merchandise at bar as to their custom or general habit of putting certain ingredients into it. In view of the fact that several competent chemical analyses of the merchandise were in evidence and in view of the manifest difficulties in the way of the execution of such a commission, the action of the board is approved.

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