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(Act of March 3, 1887, ch. 359, 24 Stat. L. exactions of whatever character (except duties 505, 2 Fed. Stat. Annot. 80). Gulbenkian v. on tonnage).” U. S., v. Geo. Hall Coal Co., U. S., (1909) 175 Fed. 860.
(1905) 134 Fed. 1003, affirmed (C. C. A. What constitutes record. — Reappraisement 1906) 142 Fed. 1039. proceedings under section 13 are separate and Duty of collector to reliquidate. — Where, distinct from protest proceedings under sec. under this section, the Board of General Aption 14, and where the legality of a re praisers sustains an importer's protest against appraisement is challenged by proceedings un the assessment of duty by a collector of cusder the latter section, the entire reappraise toms, it becomes the duty of the collector to ment record does not become a part of the reliquidate the entry in accordance with the record in the latter proceedings, unless ex board's decision. U. S. v. Dickson, (C. C. A. pressly admitted. Harris r. V. S., (1910) 1905) 139 Fed. 251, affirming (1904) 131 177 Fed. 475.
Fed. 573. Custom house error. — In U. S. v. Wyman, Finality of assessment. — In an action by (1907) 156 Fed. 97, 84 C. C. A. 123, it ap- a collector of customs against an importer peared that by a custom house error the date for a balance of duties found due on reliquiof liquidation was stated in an entry as being dation of an entry, it was held that the imlater than it was in fact, and a representative porter could not defend on the ground that of the importer was thereby misled; but the the assessment was incorrect, because section correct date was given in both a notice serit 14 provides that the decision of the collector to the importer and the liquidation bulletin shall be final and conclusive against the imposted for inspection by importers. It was porter, unless reviewed by the Board of Genheld that the error did not have the effect of eral Appraisers. The importer could seek extending the period for filing protests, pre- bis remedy for erroneous assessment only scribed by section 14.
through the method prescribed in said section, Conclusiveness of findings. — Findings of which requires that the duties shall be paid the Board of General Appraisers, unless un under protest and the matter brought before supported or against the weight of evidence, the Board of General Appraisers for decision. or additional evidence has been taken, will Louisville Pillow Co. v. U. S., (C. C. A. 1906) not be disturbed by the courts on appeal. 144 Fed. 386. Vandiver v. U. S., (1907) 156 Fed. 961, 84 A reliquidation has all the validity of the C. C. A. 522.
original liquidation, and, when made, becomes Conclusiveness of reliquidation. — A re the liquidation in lieu of the original, and liquidation of duties by a collector, like an must be treated as such, under this section, original liquidation, is conclusive on the providing that protests against the assessowner or importer under section 14, unless ment of duty must be filed within ten days notice of objection is given within ten days. after “ liquidation.” Louisville Pillow Co. v. U. S. v. Mexican International R. Co., (1907) U. S., (C. C. A. 1906) 144 Fed. 386. 151 Fed. 545, 81 C. C. A. 61.
Action in court for recovery bars appeal Illegal appraisement not conclusive. — To to general appraisers. — In an action by imthe general rule that an appraisement by the porters against the collector of customs, in a local appraiser is final and conclusive, unless Circuit Court, for the recovery of excessive revived by reappraisement proceedings, there duties, a verdict was directed for the imis an exception in case the appraiser pro porters for a part of the claims made, and ceeded on a wrong principle, as by advancing against them for the remainder, judgment the value of merchandise not examined by being rendered and satisfied on that basis. It him. In such case the importer may pursue was held that the entire matter thus became the remedy prescribed in this section. U. S. res ad judicata, and the importers could not v. Beer, ic. c. A. 1906) 150 Fed. 566, af- by subsequent proceedings before the Board firming (1905) 142 Fed. 199.
of United States General Appraisers have a Mandamus of general appraisers. - In the further recovery on the merchandise as to event that a Board of General Appraisers,
which said verdict had been adverse. U. S. after acquiring jurisdiction of a case under t'. Johnson, (1906) 145 Fed. 1018. this section, refuses to "examine and de Voluntary satisfaction of protest by colcide," as prescribed in said section, an im- lector. - In Gulbenkian t. Stranahan, (1907) porter would be entitled to apply to the 158 Fed. 836, it appeared that a collector of proper court for a mandamus to require the customs sustained an importer's protest board to exercise its jurisdiction. Prosser v. against the assessment of duty, instead of U. S., (C. C. A. 1907) 158 Fed. 971, reversing transmitting the protest to the Board of Gen154 Fed. 721.
eral Appraisers for decision, under section Duty on repairs — review of assessment by 14. It was held that the provisions of the general appraisers. - The action of a col. Act were as well complied with by this action lector of customs in assessing duty on the as they would have been by transmission of cost of repairs of vessels, as provided in R. the case to the board. S., sec. 3114, 2 Fed. Stat. Annot. 768, is Protest against tentative liquidation. — subject to review by the Board of General Wherc an importer filed a protest against a Appraisers, under the provisions of this sec tentative liquidation of an entry, it was held tion giving said board jurisdiction to review that this action did not preclude him from decisions of collectors of customs “as to the filing another protest against the final liqui. rate and amount of duties chargeable upon dation subsequently, regardless of whether at imported merchandise, including all dutiable the time of making the first protest he recosts and charges, and as to all fees and garded the first liquidation as final, and not tentative. U. S. v. Franklin Sugar Refining Co., (1905) 137 Fed. 677.
Review of finding of fact. - In Neresheimer 0. U. S., (1904) 136 Fed. 86, 68 C. C. A. 654, reversing (1903) 131 Fed. 977, findings of fact by a Board of General Appraisers were
reviewed by the court on appeal, where it appeared that the decision was made by general appraisers who did not hear the testi. mony, which was all taken before another general appraiser, who did not himself sign the decision.
Vol. II, p. 627, sec. 15.
Amendment. - This section was amended decisions of the Board of General Appraisers by Act of May 27, 1908, ch. 205, 35 Stat. L. shall contain " a concise statement of the er. 403, 1909 Supp. Fed. Stat. Annot. 109. rors of law and fact complained of,” a peti.
Time for filing applications for review. tion alleging that imported merchandise The provision in this paragraph that applica should have been held to be covered by a tions for review of decisions of the Board of certain paragraph of the free list of a Tariff General Appraisers should be filed “within. Act is not sufficient when in fact the mer. thirty days next after such decision, and not chandise comes within another paragraph of afterwards," is mandatory; and a delay of such list. Vandegrift v. U. S., (1907) 154 one day beyond the period prescribed is as Fed. 923. fatal as a longer period. An application Evidence - Competency. - Though this filed after thirty days must be dismissed for section makes competent evidence admitted want of jurisdiction. Carriere v. U. S., by the board, the court may attach very (1908) 163 Fed. 1009.
slight weight to such evidence. Knauth v. Finding of fact. -- On appeal from the U. S., (1907) 155 Fed. 144. Board of General Appraisers the Circuit Ex parte evidence. - There is no provision Court should not disturb the board's findings for any relaxation of the ordinary rules of on doubtful questions of fact, especially as to evidence in taking proofs before United questions which turn upon the intelligence States general appraisers, and ex parte affi. and credibility of witnesses produced before davits are not admissible before a general the board. Balaban v. U. S., (1909) 174 Fed. appraiser sitting as referee for the intro832. Compare U. S. v. Proctor, (C. C. A. duction of evidence in the Circuit Court as 1906) 145 Fed. 126, affirming (1905) 139 Fed. provided in section 15. White v. U. S., 586.
(1896) 154 Fed. 175; U. S. v. Zucca, (1909) Where, on appeal from a classification for 175 Fed. 578. duty, the testimony as to the commercial Additional evidence. — Where importers designation of the article was not only con appeared before the Board of General Apflicting, but so closely balanced as to render praisers and submitted their protests, withit difficult to say on which side the weight out introducing any evidence in support of of evidence lay, it was held that the finding their allegations, it was held that on appeal of the board of appraisers on such issue to the Circuit Court they would not be allowed would not be disturbed. Gabriel v. U. S., to introduce any evidence. Allen 1. U. S., (C. C. A. 1903) 123 Fed. 296.
(1904) 127 Fed. 777; Plummer v. U. S., (C. The rule that, in reviewing decisions of C. A. 1908) 166 Fed. 730, affirming (1907) the Board of General Appraisers under sec 160 Fe tion 15, courts should not disturb the board's The rule that no evidence may be introfindings on doubtful questions of fact, does duced on appeal from the Board of General not extend to a case where there is no ex Appraisers by the importer, where he offered press evidence or express finding on the sub none before the board, has been held to apply ject. Gallenkamp . Wyman, (1906) 178 even though he failed to receive the board's Fed. 460.
notice of hearing, where the failure was due A finding of the Board of General Ap- to his own fault. Maurer v. U. S., (1907) praisers upon legitimate evidence will not 160 Fed. 228. be reversed, where the sole substantial state The court will permit the importer to inment relied upon for reversal consists of an troduce evidence on the appeal, if it appears informal acknowledgment made by a foreign that it was not the importer's fault that the merchant. Baldwin 1. U. S., (1905) 139 evidence was not presented to the board. Fed. 1005.
Cowl 1. U. S., (1900) 124 Fed. 475. Effect of failure to give evidence before An importer is not precluded from introappraisers. — The importers, in a protest case ducing new evidence in the Circuit Court, on pending before the Board of General Ap- appeal from the Board of General Appraisers, praisers, having failed, after due notice, to if he introduced some new evidence before the introduce the evidence necessary to sustain board. Mendelson 1. U. S., (C. C. A. 1907) their contention, the board thereupon over- 154 Fed. 33, reversing (1906) 146 Fed. 78; ruled the protest, and the importers appealed Wolff v. U. S., (1909) 168 Fed. 970. to the Circuit Court. It was held that the Where a decision of a collector of customs decision of the board should be affirmed, as to the dutiability of imported merchandise though it appeared that the contention of the is under review by the Board of General Apimporters was correct. Donat 1. U. S., praisers or the courts, his findings of fact, (1900) 124 Fed. 463.
when based on no other evidence than that Sufficiency of petition. Under this sec. afforded by the articles themselves, may be tion prescribing that petitions for review of reversed without any further evidence. The collector, the board, and the courts are all “in not sustaining the protests.” It was equally entitled to avail themselves of such held that as the protests did not contain the information as may be derived from an in point relied upon, there had been a sufficient spection of the articles in connection with the compliance with the requirement in section facts of common knowledge and experience, of 15, of “a concise statement of the errors of which judicial notice may be taken. U. S. law and fact complained of.” U. S. v. Loew. v. Strauss, (C. C. A. 1905) 136 Fed. 185. enthal, (1909) 175 Fed. 777, 99 C. C.' A. 349.
Objection to additional evidence – when In U. S. t. Hatters' Fur Exch., (1907) 153 taken. - On appeal from the Board of Gen Fed. 595, it appeared that the board sustained eral Appraisers, under this section, the im the more favorable of the two alternative conporters had taken some evidence in the Cir. tentions made in an importer's protest. The cuit Court, when the government objected to government appealed to the Circuit Court, the introduction of further evidence because asserting in the assignment of errors that none had been offered before the board. It the board's decision was erroneous, and that was held that the fact that this objection the merchandise should have been held to might have been raised at an earlier stage have been properly assessed. It was held of the proceedings did not estop the govern that the court might decide the merchandise ment from relying on it when raised. Plum to be dutiable in accordance with the immer v. U. S., (C. C. A. 1908) 166 Fed. 730, porter's alternative contention, notwithstand. affirming (1907) 160 Fed. 284.
ing the absence of a specific assignment on Further cumulative evidence. — Importers that point by the government. should present to the Board of General Ap In making the assignments of error, on appraisers all the evidence which they can peal from a decision of the Board of General produce, and on appeal to the Circuit Court Appraisers, under section 15, an importer little weight should be given additional cumu omitted from his specific assignments a referlative evidence which could easily have been ence to the provision of law under which his laid before the board. Bromley v. U. S., merchandise should have been classified, (1907) 154 Fed. 399.
though such provision had been referred to in Excluded evidence. - Under Section 15, his protest, which was passed on by the where it is desired that evidence excluded board; but he added a general assignment by the Board of General Appraisers should, that “the protest should be sustained and the on appeal to the Circuit Court, be passed on collector's decision reversed.” It was held by the court, it is requisite either that an that said general assignment did not raise exception should be taken to the board's any questions additional to those raised by ruling excluding the evidence, and the mat. the specific assignments, and that it did not, ter brought before the court in the assign- by referring to the protest, have the effect of ments of error, or that the evidence should making the protest a part of the petition be offered as additional evidence in the man so as to remedy the omission of the correct ner provided in said section. Harris v. contention, Vandegrift c. U, S., (1907) 154 U. S., (1910) 177 Fed. 475.
Fed. 923, Hearing de novo. — Under this section & In U. S. v. Brown, (1903) 127 Fed. 793, 62 Circuit Court has power, on appeal from a C. C. A. 473, affirming 121 Fed. 605, it ap. decision of the Board of General Appraisers, peared that on an appeal from a decision of to direct additional testimony to be taken the Board of General Appraisers, a state. and to hear the case de novo; and this may ment of twenty-one errors was made, nineteen be done notwithstanding the entry of a de of them relating to the merits, while the last fault against the importers, who were the two were general, alleging only that the appellants, by the Board of Appraisers, where “board erred as a matter of law." It was such default has been waived. In re Myers, held that these two assignments should be (1903) 123 Fed. 952.
construed with reference to the preceding Assignments of error. - On appeal from nineteen, and not as raising the question of the Board of General Appraisers the Circuit the validity of the protest on which the proCourt will not consider whether a protest ceedings before the board were based; it was decided by the board was sufficient, unless the held also that statements so general in form question of insufficiency is raised by the as were not in compliance with the requirements signment of errors. U. S. v. Hempstead, for appeals under this section wherein "a (1910) 180 Fed. 956.
concise statement of the errors of law and In U. S. v. Hempstead, (1910) 180 Fed. fact complained of” is prescribed. . 956, on an appeal from the Board of General Amendment of assignments or error. - On Appraisers, error was assigned on the point appeal from a decision of the Board of Genthat the board had erred in holding the eral Appraisers under this section, in which merchandise in question to be free of duty. the time for taking further evidence has exIt was held that this assignment related to pired and which has come to trial in the the merits, and was not sufficiently compre. Circuit Court, the assignments of error may hensive to include the point of the sufficiency not be amended. Vandegrift v. U. S., (1907) of the protest passed on by the board.
154 Fed. 923. On appeal from the Board of General Ap. Shifting membership in board of general praisers an importer made eight assignments, appraisers. — On review of a decision of the in none of which was the point ultimately Board of General Appraisers the regularity of relied upon referred to more specifically than the board's procedure may not properly be by two general assignments -- that the board challenged on the ground of the presence or had erred “in overruling the protests ” and absence of different general appraisers while the testimony is being taken. U. S. 1. Pierce, (1905) 140 Fed. 962, affirmed (C. C. A. 1906) 147 Fed. 199.
No evidence against classification of appraisers. — Where, on appeal from the deci. sion of the Board of General Appraisers affirming the collectors' classification of imported merchandise, there is no evidence to overthrow the classification, the decision of the board must stand, Bailey v. U. S., (1903) 122 Fed. 751.
Taking testimony beyond jurisdiction of court. -- Where a referee has been appointed by the Circuit Court to take further testi mony on appeal from the Board of General Appraisers, under this section, the court is without authority to direct the referee to take testimony beyond its territorial limits, irrespective of the referee's willingness to go. Nordlinger v. U, S., (1900) 174 Fed. 833.
Return of record. — The provision in this section that on appeal to the Circuit Court the Board of General Appraisers shall return "the record and the evidence taken by them," does not require the return of evidence which was excluded. Harris v. U. S., (1910) 177
Rulings in other circuits. -- In suits of the character of customs litigation, uniformity in the judgments of the courts of first instance, as well as in those of the appellate tribunals, is desirable, and where no direct attack has been made upon a prior adjudication by a Circuit Court of the questions subsequently sought to be raised in a similar suit in the Court of Appeals in another circuit, such prior adjudication should be followed, unless clearly erroneous. Hill 0. Francklyn, (1908) 162 Fed. 880, 89 C. C. A. 570.
Burden of proof. - Where an importer chal. lenges by legal proceedings the correctness of the assessment of duty by a collector of customs, the question to be decided is not whether the collector was wrong, but whether the importer is right, and therefore the burden is on him to establish the correctness of his contention. Legg 1. U. S., (C. C. A. 1908) 163 Fed. 1006, affirming (1907) 154 Fed. 858.
Review of findings when record incomplete. - Where, on review by a Circuit Court of a decision of the Board of General Appraisers, under this section, the record returned by the board was defective by reason of the loss of the evidence on which the board's findings were based, it was held that no other evidence being presented, it must be conclusively presumed that the findings by the board were proper and justifiable. Schoellkopf v. U. S., (1906) 147 Fed. 855.
Weight given opinions of general appraisers. - The opinions of experts like the General Appraisers, who are especially familiar with such controversies, should in close cases be given considerable weight by the courts in reviewing decisions of the Board of General Appraisers. C. S. v. Leigh, (1908) 159 Fed. 314.
Vol. II, p. 630, sec. 19.
Remedies are exclusive. — Under this and occupied about the same space, the cost of the the preceding sections, containing a system cases should be distributed among the differfor the correction of errors in the exaction ent lots according to the number of dozens of import duties, and providing that when of the hosiery, and not according to value. the duty on imported merchandise is based Under this section it has been held as to on the value thereof the duty shall be as. importations of goods in bottles, which are sessed on the actual market value or whole dutiable under one provision of the Tariff Act sale price in the principal markets of the and the bottles under another, that the value country from whence imported, an importer of the cases containing the goods should be of wool subject to a duty under Schedule K, distributed between the bottles and their condividing wool into classes and fixing a duty tents according to the value of each, the based on valuation, must conform to the value of the bottles for this purpose being instatutory method, on the appraiser's increas- clusive of the cost of their fittings, consisting ing the valuation over the amount stated in of corks, caps, capsules, labels, and wiring. the invoice, and thereby subjecting the im. Leggett u. U. S., (1905) 138 Fed. 970. porter to a higher duty, and where he fails Presumption as to inclusion of coverings. to take the requisite steps to secure a cor - A reappraisement return by a Board of rection of the errors, if any, the decisions of General Appraisers as to the value of imthe appraisers and collector as to value, ported chocolate failed to state whether the classification, rate, and amount are final, and value of the coverings was included in the the importer may not recover excessive value stated in the return. It was held that duties paid. Gulbenkian 1. U. S., (C. C. A. under this section it should be presumed that 1911) 186 Fed. 133, affirming (1909) 175 such value was included, notwithstanding that Fed. 860.
paragraph 281 provides that the dutiable Apportionment of cost of coverings. — This value of chocolate shall not include the value section provides no method for apportioning of plain wooden coverings. U. S. v. Leeming, the cost of the coverings when they contain (1907) 153 Fed. 489. merchandise of different kinds. In Rice v. Converters' commissions. — Under this secU. S., (1892) 123 Fed. 195, it was held that tion requiring appraised value to include, besuch method of apportionment must be sides coverings, etc., “all other costs, charges, adopted as seems most equitable and just, and expenses incident to placing the merchanand that with regard to hosiery in lots of dise in condition, packed ready for shipment different values, contained in the same out to the United States," an invoice item deside cases, where each dozen of the hosiery scribed as a “converter's commission” was so included. It was held that this inclusion States," under section 19 both kinds of wool was proper, so far as it covered converters should be appraised at the same price, in acservices in having the goods dyed and fin- cordance with the manner of purchase, withished, and in the absence of evidence to the out regard to any difference in value which contrary it would be presumed to be correct may attach to each kind in any other country. as to any other elements of the item. Er. Unusual coverings — Duties additional. langer v. U. S., (C. C. A. 1907) 154 Fed. 949, The "additional duty” provided for in this affirming 152 Fed. 576.
section for unusual coverings is not a substi. Excessive invoice value. — The provisions tute for the usual duty on coverings which in sections 7, 19, that “duty shall not ... accrues by including their cost in the dutiable be assessed ... upon less than the invoice value of their contents, as also provided in ... value," and that “duty shall be as. this section; but both duties should be im. scssed upon the actual market value ... posed, the latter because the coverings subat the time of exportation," when construed serve a use in transportation, and the former together, mean that the dutiable value shall because they subserve an additional use after in no case be fixed at less than the purchase transportation. U. S. v. Park, (C. C. A. price of the goods; and where subsequently 1907) 152 Fed. 142, reversing (1905) 142 to the purchase of goods for import to the Fed. 202. United States the market value of such goods Tea caddies. — Certain patent tin cases or decreases, the goods are nevertheless dutiable chests known as “Toohey's Patent Excelsior on the basis of the price paid. Ullmann V. Tea Caddies,” which are used as coverings in U. S., (1910) 177 Fed. 567.
the transportation of tea, and which, after Market value.-In U. S. v. Downing, (1904) having subserved that purpose, are used, and 131 Fed. 653, affirmed (C. C. A. 1905) 139 are designed to be used, for other purposes, Fed. 1, 3, it was held in regard to merchan- are subject to the additional duty provided in dise imported from France, that its “ market section 19, “ for any unusual article or form value," as defined in this section, does not designed for use otherwise than in the bona include the amount of certain internal reve- fide transportation" of merchandise to the nue imposts of that country known as the United States. Jackson v. Siegfried, (1901) “ octroi tax” and the “ droit de ville,” which 126 Fed. 837. are not general in their application, but vary Needle cases. - Furnished needle cases, with the locality, and which are not collected consisting of books or cases for holding if the merchandise is exported.
needles during transportation and while the “ Condition.” — Where 'practically all the needles in them are being used, are not usual output of a china manufacturer was sold to coverings, being used otherwise than in bona the United States, it was held that special fide transportation of the needles, within the classes manufactured for European trade meaning of this section. Guthman v. U. S., could not be said to be in "condition” to (1906 ) 148 Fed. 332; U. S. v. Dieckerhoff, supply the American trade, within the mean (C. C. A. 1908) 160 Fed. 449, affirming ing of section 19, providing that dutiable (1907) 151 Fed. 957. value shall be determined according to the Cases and similar coverings. — The provi. "condition in which ... merchandise is vision in this paragraph that the value of there bought and sold for exportation to the "cases ... and similar coverings " shall United States." U. S. v. Haviland, (1909) be added to the dutiable value of their con167 Fed. 414, affirmed (1910) 177 Fed. 175, tents, includes tin cans and stoneware re100 C. C. A. 637.
ceptacles. Austin v. U. S., (C. C. A. 1909) Principal market. - In U. S. v. Haviland, 171 Fed. 79. (1909) 167 Fed. 414, affirmed (1910) 177 Filled bottles. — That part of this section Fed. 175, 100 C. C. A. 637, it appeared that which prescribes that the dutiable value of the entire output of a china manufacturer in imported goods subject to an ad valorem Limoges was exported to the United States rate of duty shall include the cost of the coydirectly from Limoges, except a small amount erings, and other expenses incident to preof special classes, which was disposed of in paring the goods for exportation, does not Paris to European trade; the wholesale busi apply to filled bottles containing olive oil, ness in Paris being less than four per cent. of which is subject to a specific duty though said exportations to the United States. It filled bottles are specifically enumerated as was held that for the goods shipped to Amer. subject to an ad valorem duty in paragraph ica, Limoges, and not Paris, was the " prin 99. Hayes v. U. S., (C.C. A. 1906) 150 Fed. 63. cipal market,” within the meaning of section Gelatin capsules containing a medicine are
not “coverings," within the meaning of the Mixed wools purchased at same price. - In tariff laws, not being for transportation, but Gulbenkian v. U. S., (1907) 153 Fed. 858, 83 an essential part of the article. U. S. r. C. C. A. 40, it appeared that white and col- Lehn, (1909) 172 Fed. 171. ored wools were sold together in the Bagdad Stone bottles. — The value of stone bottles market at one price, without any distinction filled with ad valorem goods (ink) should as to color; this being in accord with im" not be added to the dutiable value of their memorial practice in that market. It was contents, to make up the dutiable value of held that in finding “the actual market the imported merchandise, under section 19, value... in the principal markets of the such bottles not being “coverings," within country whence imported, and in the condition the meaning of the Act. Kimpton 1. U. S., in which such merchandise is there bought (C. C. A. 1909) 171 Fed. 78, reversing (1908) and sold for exportation to the United 165 Fed. 236.