Statement of the Case.

LAWDER v. STONE, COLLECTOR.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH

CIRCUIT.

No. 82. Submitted November 11, 1902.-Decided December 1, 1902.

Section 23 of the Customs Administrative Act of June 10, 1890, permitting importers to abandon imported articles to the United States and be relieved from the payment of duties thereon, provided the portion so abandoned amounts to at least ten per cent of the total value or quantity of the invoice, does not apply to a cargo of fruit, a portion whereof (which is less than ten per cent) decays on the voyage becoming utterly worthless, and necessarily dumped overboard under the sanitary regulations of the port after arrival of the vessel.

It would be unequitable and presumably not within the intention of Congress to assess duty upon articles which on a voyage to this country and before arrival within the limits of a port of entry had become utterly worthless by reason of casualty, decay or other natural causes, and which the importer might rightfully abandon and refuse to receive or enter for consumption.

Articles thus circumstanced are not in truth within the category of goods,

wares and merchandise imported into the United States, within the meaning of the tariff laws. (Marriott v. Brune, 9 Howard, 619, and cases since decided on the authority thereof, followed.)

Article 1236 of the Customs Regulations of 1899, which is based upon sec. 2984 Rev. Stat. relates to merchandise which is destroyed or deteriorates after actually having been entered and is not applicable where the merchandise, as in this case, was never actually entered because it was destroyed before it could be entered.

When Congress enacted the Customs Administrative Act of 1890, it must be presumed to have possessed knowledge of the decisions of this court and the consistent application made of the doctrine of those decisions by the officials charged with the execution of the tariff laws, and in the light of this fact it would require a clear expression by Congress of its intention to adopt a contrary policy before a court would be justified in holding that such was the purpose of the legislative branch of the government.

In the months of May, June and July, 1897, the petitioners, copartners, trading as S. M. Lawder & Sons, imported into the port of Baltimore from the British West Indies several cargoes of pineapples, invoiced as a specified number of dozens.

Upon the discharge of the cargo at Baltimore, after the pine

Counsel for Parties.

apples had been taken out of the vessels and their number estimated by the inspectors, there remained in the holds a quantity of what was described as "slush," consisting of decomposed. vegetable matter, mixed with bilge water and other débris of the cargo, some of it in a semi-liquid condition. This slush was brought up from the holds in baskets and included by the inspectors in their appraisement of the cargoes. The pineap ples alleged to be contained in the slush were uncountable, and their number was roughly estimated by the inspectors by counting the pineapple tops and butts contained in a number of baskets of the slush, striking an average of those baskets, and then calculating the number contained in the whole quantity of slush according to that average. The material thus removed from the vessels was commercially valueless, and under the sanitary regulations of the city of Baltimore was taken down the river on a scow and dumped overboard. The number of pineapples so estimated by the inspectors to be contained in the slush was less than ten per cent of the total invoice, and the collector treated the loss as a case of damage to the cargo within the meaning of section 23 of the customs administrative act of June 10, 1890, and assessed duty on the whole number of pineapples estimated by the inspectors to be contained in the cargoes, including this quantity of slush.

The board of general appraisers sustained a protest of the importers against the assessment of duties on the worthless and indistinguishable mass referred to, and this decision was affirmed, on appeal of the collector, by the Circuit Court of the United States for the District of Maryland. On a further appeal by the collector the Circuit Court of Appeals for the Fourth Circuit reversed the decisions which had been made in favor of the importers and sustained the action of the collector. 101 Fed. Rep. 710. The case was then brought to this court by writ of certiorari.

Mr. Edward S. Hatch for petitioners.

Mr. Assistant Attorney General Hoyt for respondent. Mr. James A. Finch was with him on the brief.

Opinion of the Court.

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

As mentioned in the preceding statement, the collector of customs for the district of Baltimore treated the loss arising from the worthless condition of the portion of the cargo in question as a case of damage to the entire cargoes, within the meaning of section 23 of the customs administrative act of June 10, 1890. That section reads as follows:

"That no allowance for damage to goods, wares, and merchandise imported into the United States shall hereafter be made in the estimation and liquidation of duties thereon; but the importer thereof may, within ten days after entry, abandon to the United States all or any portion of goods, wares, and merchandise included in any invoice, and be relieved from the payment of the duties on the portion so abandoned: Provided, That the portion so abandoned shall amount to ten per centum or over of the total value or quantity of the invoice; and the property so abandoned shall be sold by public auction, or otherwise disposed of for the account and credit of the United States under such regulations as the Secretary of the Treasury may prescribe."

Do pineapples, which, on the voyage to this country, become so decayed as to be utterly worthless, constitute, upon arrival within the limits of a port of entry of the United States, goods, wares and merchandise imported into the United States, within the meaning of this expression as employed in the section above quoted? is the question for decision.

In Marriott v. Brune, (1850) 9 How. 619, it was held that, under the eleventh section of the tariff act of July 30, 1846, where a portion of a cargo of sugar and molasses was lost by leakage on the voyage to this country, duty should be exacted only upon the quantity of sugar and molasses which arrived here and not upon the quantity which appeared to have been shipped. In the course of the opinion the court said (p. 632):

"The general principle applicable to such a case would seem to be, that revenue should be collected only from the quantity or weight which arrives here. That is, what is imported-for

Opinion of the Court.

nothing is imported till it comes within the limits of a port. See cases cited in Harrison v. Vose, 9 How. 372. And by express provision in all our revenue laws, duties are imposed only on imports from foreign countries; or the importation from them, or what is imported. 5 Stat. 548, 558. The very act of 1846 under consideration imposes the duty on what is 'imported from foreign countries.' (p. 68.) The Constitution uses like language on this subject. (Article 1, secs. 8, 9.) Indeed, the general definition of customs confirms this view; for, says McCulloch (vol. 1, p. 548), Customs are duties charged upon commodities on their being imported into or exported from a country.'

"As to imports, they therefore can cover nothing which is not actually brought into our limits. That is the whole amount which is entered at the custom-house; that is all which goes into the consumption of the country; that, and that alone, is what comes in competition with our domestic manufactures; and we are unable to see any principle of public policy which requires the words of the act of Congress to be extended so as to embrace more.

"When the duty was specific on this article, being a certain rate per pound, before the act of 1846, it could of course extend to no larger number of pounds than was actually entered. The change in the law has been merely in the rate and form of the duty, and not in the quantity on which it should be assessed.

"On looking a little further into the principles of the case, it will be seen that a deduction must be made from the quantity shipped abroad, whenever it does not all reach the United States, or we shall in truth assess here what does not exist here. The collection of revenue on an article not existing, and never coming into the country, would be an anomaly, a mere fiction of law, and is not to be countenanced where not expressed in acts of Congress, nor required to enforce just rights.

"It is also the quantity actually received here by which alone the importer is benefited. It is all he can sell again to customers. It is all he can consume. It is all he can reëxport for drawback. 1 Stat. 680-689; 4 Stat. 29."

After instancing certain cases provided for in a statute where

Opinion of the Court.

a fixed percentage was directed to be deducted for leakage and breakage and a reduction in weight for tare and draff, the court further said (p. 633):

"But beside these instances, in cases of an actual injury to an article arriving here in a damaged state, a reduction from the value is permitted expressly on account of the diminished value. 1 Stat. 41, 166, 665.

"The former cases, referred to for illustration, rest on their peculiar principles, and allowances in them are made by positive provisions in acts of Congress, even though the quantity and weight of the real article meant to be imported should arrive here. Because, knowing well that the whole is not likely to arrive, and being able to fix, by a general average, the ordinary loss in those cases with sufficient exactness, the matter has been legislated on expressly.

"Yet there are other cases of loss, from various causes, which may be very uncertain in amount, for which no fixed and inflexible rate of allowance can be prescribed, and which must, therefore, in each instance, be left to be regulated by the general provisions for assessing duties, and the general principles applicable to them, as before explained. Consequently, where a portion of the shipment in cases like these does not arrive here, and hence does not come under the possession and cognizance of the custom-house officers, it cannot, as heretofore shown, be taxed on any ground of law or of truth and propriety, and does not therefore require for its exemption any positive enactment by Congress.

"Such is the case of a portion being lost by perils of the sea, or by being thrown overboard to save the ship; or by fire, or piracy, or larceny, or barratry, or a sale and delivery on the voyage, or by natural decay. If there be a material loss, it can make no difference to the sufferer or the government whether it happened by natural or artificial causes. In either case, the article to that extent is not here to be assessed, nor to be of any value to the owner.

"To add to such unfortunate losses, the burden of a duty on them, imposed afterwards, would be an uncalled for aggravation, would be adding cruelty to misfortune, and would not be