LEGUMES UNITED STATES v. KWONG YUEN SHING (No. 8).1 YAMS. A leguminous plant of the genus Pueraria, grown in China; though occasionally designated a "yam" in commerce, such designation is not definite, uniform, and general. The plant is not a yam, and was dutiable under paragraph 257, tariff act of 1897. United States Court of Customs Appeals, June 22, 1910. TRANSFERRED from the United States Circuit Court of Appeals, Second Circuit (T. D. 30145). [Affirmed.] D. Frank Lloyd, Assistant Attorney General (Thomas M. Lane on the brief), for the United States. Joseph G. Kammerlohr (John Giblon Duffy on the brief) for appellee. Before MONTGOMERY, HUNT, SMITH, BARBER, and DE VRIES, Judges. BARBER, Judge, delivered the opinion of the court: This is an appeal from the judgment of the Circuit Court of the Southern District of New York, reversing the decision of the Board of General Appraisers, and is transferred to this court from the United States Circuit Court of Appeals for the Second Circuit. The Board of General Appraisers held that the merchandise, which was invoiced as "yams" and is a vegetable, was properly assessed by the collector at 25 per cent ad valorem under paragraph 257 of the tariff act of 1897, which reads: 257. Vegetables in their natural state, not specially provided for in this act, twentyfive per centum ad valorem. The importer claims these vegetables are entitled to free entry as "yams" as specifically exempted under paragraph 704 of the tariff act, and the circuit court upon the evidence given before the board so held. The evidence shows that scientifically speaking the vegetable in question is not a yam, but is a leguminous plant of the genus Pueraria, while a yam, as scientifically described, generally belongs to the genus Dioscoreacea. Some authorities, however, classify it under the genus Convolvulaceae. Neither of these classifications is synonymous with the genus Pueraria. It also appears that by transference the term "yam" is sometimes applied to a variety of sweet potato, but this would not include the vegetable under consideration. The importer claims that, although this vegetable it not a true yam, yet by a long and general commercial designation it is a yam within the meaning of the act, and as such entitled to be admitted free of duty. 1 Reported in T. D. 30773 (19 Treas. Dec., 778). The article being a vegetable in its natural state, it is, unless otherwise specially provided for, prima facie dutiable under paragraph 257, and the burden of showing that it is not dutiable is cast upon the importer. United States v. Rosenwald (67 Fed. Rep., 323); Arthur v. Unkart (96 U. S., 118); Erhardt v. Schroeder (155 U. S., 124); United States v. Ranlett and Stone (172 U. S., 133). The burden, therefore, is upon him to show that by commercial designation the term yam as used in the tariff law includes the merchandise in question. It is pertinent, then, to inquire what is a commercial designation in a legal sense. This is aptly defined by the Supreme Court of the United States to be "the result of established commercial usage in commerce and trade" and that the commercial usage "must be definite, uniform, and general and not partial, local, or personal." Maddock v. Magone (152 U. S., 368); Berbecker v. Robertson (152 U. S., 373). Tested by the above rule, does the importer establish his case by the record here? Two witnesses testified on behalf of the importer. Both had been importers of foods, including vegetables like the merchandise in question, from China for from 14 to 16 years, and had sold such importations all over the States, although the business of one was more generally confined to New York City and vicinity. One expressly said that he sold only to Chinese, and the fair inference from the testimony of the other witness is to the same effect. These vegetables were customarily described on the importer's original invoices by a Chinese character which is properly translated by the words "Fun got," which means a flower or a root out of which flour is made. Both witnesses agreed that in the transaction of sale and purchase of this vegetable amongst the Chinese it was ordinarily referred to by the said Chinese character or name, although sometimes referred to as "yam." From the most favorable construction to be given it we think the evidence does not establish the commercial designation within the rule set forth in Maddock v. Magone (supra). We are of the opinion that the commercial usage, so far as any is proven, is not definite, uniform, and general. It is limited, so far as it exists at all, to one class-the Chinese-and as to them it is neither uniform nor general. A consideration of the evidence on the part of the Government, which we think it unnecessary to discuss, only serves to emphasize this conclusion. The case of Dieckerhoff v. Robertson (44 Fed. Rep., 160), relied upon by the importer to sustain his argument that the trade and commerce of this country is the trade which buys and sells the particular article, is not opposed to our conclusion, because, as pointed out, the record here wholly fails to establish the proposition that the Chinese dealers themselves either uniformly or generally designate this vegetable as a "yam." In our opinion, the circuit court was not warranted, upon the evidence, in holding that the merchandise was entitled to free entry. The judgment of the circuit court is reversed, and the decision of the Board of General Appraisers is affirmed. KWONG YUEN SHING v. UNITED STATES (No. 16).1 DUCK MEAT, PREPARED-POULTRY. The meat of ducks, salted, dried, and packed in tins, with or without peanut oil, is dutiable not as poultry dressed, nor as a nonenumerated raw or unmanufactured article, but under paragraph 275, tariff act of 1897, as meats prepared or preserved, and not specially provided for. United States Court of Customs Appeals, June 22, 1910. TRANSFERRED from the United States Circuit Court of Appeals, Second Circuit (T. D. 30166). [Affirmed.] Joseph G. Kammerlohr (John Giblon Duffy on the brief) for appellant. D. Frank Lloyd, Assistant Attorney General (William A. Robertson on the brief), for the United States. Before MONTGOMERY, HUNT, SMITH, BARBER, and DE VRIES, Judges. SMITH, Judge, delivered the opinion of the court: This is an appeal to the United States Circuit Court of Appeals from a decision of the United States Circuit Court for the Southern District of New York affirming a decision of the Board of General Appraisers, which appeal, under the tariff act of August 5, 1909, has been certified to this court for determination. The appeal raises the question as to whether the flesh of ducks salted, dried, packed in tins, and in some instances packed in peanut oil, is assessable for duty at 25 per cent ad valorem as prepared or preserved meats under paragraph 275, as decided by the Board of General Appraisers and the United States Circuit Court for the Southern District of New York, or at 5 cents per pound as "poultry dressed" under paragraph 278, or at 10 per cent ad valorem as a nonenumerated raw or unmanufactured article, under section 6 of the tariff act of 1897, as contended by the importer. From the evidence it appears that the ducks are killed in China; that after removing the feathers, head, feet, and entrails that part of the duck which remains is, either as a whole or in pieces, salted and 1 Reported in T. D. 30774 (19 Treas. Dec., 780). dried in the sun. After being dried the meat is packed in tins, sometimes in peanut oil and sometimes without it. The object and purpose of salting and drying the meat, and also of packing it in oil, is to preserve it, or, as one of the importer's witnesses testifies, "to keep it in good condition for a long time." The sample of the merchandise submitted to the Board of General Appraisers was not put up in oil, yet it was in a state of preservation, although at the time it was submitted it had been out of the tin in which it was originally packed for four or five weeks. This would seem to indicate that the salting and sun drying of the duck had effected something more than its mere temporary preservation for transit. The sample submitted during the oral argument on appeal strengthens and confirms our opinion that ducks' flesh, salted and sun dried, as was that sample, is perfectly preserved, and so prepared will keep indefinitely. Every competent witness who testified on the subject agrees that ducks dressed, drawn, salted, and dried as above described would not pass in the trade or be accepted by it in the course of business as "poultry dressed." The merchandise clearly and unmistakably comes within the category of "meats prepared or preserved and not specially provided for," and was properly assessed for duty at 25 per cent ad valorem. The decision of the circuit court is affirmed. SUN KWONG ON v. UNITED STATES (No. 17).1 CUT CABBAGES, PARTIALLY DRIED AND SALTED-PREPARED VEGETABLES. Cabbages cut, partially dried, salted, and rolled into balls or put up in hanks or bundles are dutiable as prepared or preserved vegetables under paragraph 241 of the tariff act of 1897.—United States v. Strohmeyer & Arpe Co. (167 Fed. Rep., 533) distinguished. United States Court of Customs Appeals, June 22, 1910. TRANSFERRED from the United States Circuit Court of Appeals, Second Circuit (T. D. 30128). [Affirmed.] Joseph G. Kammerlohr (John Giblon Duffy of counsel) for appellant. D. Frank Lloyd, Assistant Attorney General (W. A. Robertson, special attorney, on the brief), for the United States. Before MONTGOMERY, HUNT, SMITH, BARBER, and DE VRIES, Judges. BARBER, Judge, delivered the opinion of the court: This cause was transferred from the United States Circuit Court of Appeals for the Second Circuit, and is an appeal from the judgment 'Reported in T. D. 30775 (19 Treas. Dec., 781) 92477-VOL 1-11-2 of the United States Circuit Court for the Southern District of New York. The circuit court affirmed the decision of the Board of General Appraisers so far as it relates to any issue before this court. The merchandise in question is a cabbage grown in China, which, after having there been treated as hereinafter stated, is rolled into ball form or tied up in hanks or bundles and imported. This cabbage was assessed at 40 per cent ad valorem under paragraph 241 of the act of July 24, 1897, the material part of which is as follows: 241. * * * All vegetables, prepared or preserved, including pickles and sauces of all kinds, not specially provided for in this act, and fish paste or sauce, forty per centum ad valorem. The importer claims it dutiable only under paragraph 257 of the same act, which is as follows: 257. Vegetables in their natural state, not specially provided for in this act, twentyfive per centum ad valorem. The question here is whether this cabbage is, within the meaning of the statute, a vegetable prepared or preserved, or in its natural state. The Board of General Appraisers and the circuit court both found upon the same evidence against the importer. We think the evidence incorporated in this record fully warrants this finding. Therefrom it appears that before importation these cabbages are cut, dried partially at least, salted, and then rolled into balls or put up in hanks or bundles. The salt is applied for the purpose of seasoning the cabbage for cooking purposes, and also, and as we conclude, mainly for the purpose of preserving it, and the testimony of the witnesses, as well as the exhibit itself, seems to justify the conclusion that by reason of this salting the cabbage is indefinitely preserved and for a time much longer than that required for transportation. The importer relies largely upon the authority of United States v. Strohmeyer & Arpe Co. (167 Fed. Rep., 533) to support his contention. that this cabbage should be classified as vegetables in their natural state. With reference to that case, it is sufficient to observe that it there appeared that the merchandise, cauliflower in its natural state, would not keep more than two or three days in warm weather, and that, for the purpose of preserving it during transportation and allowing it to retain the form nature gave it, the cauliflower was immersed in a weak brine which was not capable of preventing decay for any appreciable length of time. Such is not the case at bar. The judgment of the circuit court is affirmed. |