CASES ADJUDGED IN THE UNITED STATES COURT OF CUSTOMS APPEALS.

HANSEN. UNITED STATES (No. 18). WEBER v. UNITED STATES (No. 123).1

STURGEON ROE "PREPARED FOR PRESERVATION" NOT "PRESERVED."

Fresh roe of the sturgeon rubbed through a sieve, dropping thence into a solution of brine, the brine drawn off and the roe packed for shipment in tins and transported in a refrigerated state, does not constitute "fish roe preserved for food purposes," as excepted by paragraph 549, tariff act of 1897, and was not dutiable under paragraphs 258 and 261 of said act, but as eggs of fish under paragraph 549.

United States Court of Customs Appeals, June 22, 1910.

APPEALS from Circuit Court of the United States for Southern District of New York (T. D. 29914).

[Reversed.]

John Giblon Duffy (Joseph G. Kammerlohr of counsel), for appellants.

D. Frank Lloyd, Assistant Attorney General (Charles D. Baker on the brief), for the United States.

Before MONTGOMERY, HUNT, SMITH, BARBER, and DE VRIES, Judges.

DE VRIES, Judge, delivered the opinion of the court:

These are appeals from the Circuit Court of the United States for the Southern District of New York. The decision of the circuit court affirmed the decision of the Board of United States General Appraisers, G. A. 6922 (T. D. 29914), which had affirmed the assessment of duty by the collector of customs at the port of New York on goods imported by the appellants. The goods consisted of so-called "fresh caviar." The importations were in part in barrels and in part in tins. The barrels contained about 100 pounds each, whilst the tins were in from 1 to 3 pound packages. The collector imposed a duty upon the merchandise in the barrels at the rate of three-fourths of 1 cent per pound under the provisions of paragraph 261 of the tariff act of 1897, and upon the caviar in tins at the rate of 30 per cent ad valorem under the provisions of paragraph 258 of the same act. The pertinent provisions of said paragraphs are as follows:

258. Fish * * *. All other fish (except shellfish), in tin packages, thirty per centum ad valorem ;

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261. Fish, fresh, smoked, dried, salted, pickled, frozen, packed in ice or otherwise prepared for preservation, not specially provided for in this act, three-fourths of one cent per pound;

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Counsel for the Government maintained that while the merchandise was not directly dutiable under the provisions of either of the quoted paragraphs, nevertheless it was properly dutiable thereunder by virtue of the similitude clause and the familiar provisions of section 7 of the tariff act of 1897. Counsel for the importer, among other things which are deemed unimportant, claim that the merchandise was entitled to free entry under the provisions of paragraph 549, free list of the tariff act of 1897, which, in so far as pertinent, reads:

549. Eggs of birds, fish, and insects: Provided, however, That this shall not be held to include * * fish roe preserved for food purposes.

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The Board of General Appraisers affirmed the assessment of duty by the collector, and the Circuit Court for the Southern District of New York affirmed the decision of the board. The board found upon the facts that the merchandise was "fish roe preserved for food purposes," and that it was therefore excluded from the provisions of paragraph 549 by reason of the exception thereto quoted. Much testimony was introduced at the hearing, so that the production, preparation, and methods of treating the roe from the time it is taken from the fish abroad until the time it reaches and is served upon the table in this country is fully developed. The record presents no controversy as to the facts of the case, and in that view the question for determination by this court is essentially one of law, upon an agreed statement of facts, as to whether or not the undisputed condition and treatment of this merchandise brings it within the terms of paragraph 549 of the free list of the tariff act of 1897, or requires that it be excluded therefrom perforce the proviso thereto and held dutiable under the pertinent provisions of paragraphs 261 and 258, respectively.

It appears from the record that the merchandise is made from the roe of the sturgeon. In the particular case the sturgeon were taken from the Caspian Sea; they were then cut open, the roe taken out and cut into so-called blocks. Thereupon these blocks of roe were rubbed in a sieve, so as to separate the individual fish eggs one from the other, and the whole from the other matter, consisting of tissue and blood, which held them together, as taken from the body of the fish. They were rubbed through a sieve, and as they passed through dropped into a solution of brine 10 or 12 per cent strong. The testimony discloses, without controversy, that the brine, as there used, is for the purpose of hardening the eggs, which otherwise, by reason of their soft and frangible condition, could not be successfully packed in either barrels or tins. After the application of the brine for the hardening purpose stated the latter is drawn away, the eggs dried by heat, and then packed with only those remaining particles of brine about it which naturally adhere. In this condition they are ready for shipment. They are immediately put into refrigerators and shipped to this country in refrigerated transportation facilities. It appears

that in transit the merchandise in tins is repacked in London. It is undisputed from the evidence that transportation of the merchandise other than in a refrigerated condition could not be successfully accomplished. There is no agency of preservation accomplished by the use of the salt sufficient even for the purpose of transportation, which fact would seem to conclusively indicate that if the salt were intended as a preservative it signally fails in that office. However, while it would be insufficient for a preservative in transit without the application of the refrigerating processes, the application of the refrigerating processes alone without the salt would be a sufficient preservative, not alone for the purpose of transportation, but until the merchandise enters into consumption. The real and potent agency of preservation is refrigeration, and not the salt or brine.

Upon arrival in this country and being taken from the vessel, the so-called caviar or fish roe is immediately placed in cold storage, and without that it would in a very brief space of time decay. It appears from the record that at least 80 per cent of the merchandise is then taken out of the large casks and tins and subjected to a so-called pasteurizing process. To do so it is put into small glass jars, holding not more than one or two wineglasses of the material, hermetically sealed, and then subjected to a steam bath up to 150 F. for a period of approximately 10 minutes. In this condition it is guaranteed, under the language of the label of the containers, to keep in any climate, and the testimony amply supports the verity of that warranty. In this condition no refrigeration or other processing is necessary to maintain a sound condition. The remaining percentage finds its way into commerce and consumption in the tin containers. Usually the tins, or always, in order to keep the same from decay, are subjected to a refrigeration process close to freezing, to wit, 32 F., as is the degree of refrigeration required from the time it leaves the point of production.

The sole issue for determination by this court is one of law, upon a given state of facts, and that whether or not this merchandise as imported can be held to be "preserved" for food purposes within the proviso of paragraph 549.

Some light is thrown upon the import to be given the word "preserved" in paragraph 549 by reading it in connection with paragraph 261. It will be noted that paragraph 261 enumerates various methods of preparation for and preservation of fish, within which term roe is included for dutiable purposes by similitude (Menzel v. United States, 142 Fed. Rep., 1038), and then generalizes upon these methods in the following language, “packed in ice or otherwise prepared for preservation."

Manifestly, Congress used the words "or otherwise prepared for preservation" as coextensive with the words "packed in ice," and