
    Sakai et al. v. United States
    (No. 1264).
    
    Umeboshi.
    The evidence does not warrant the conclusion that the merchandise is fruit packed in its own juice. It does justify the contention of the importers that the umeboshi imported should be classified as fruits in brine. They were entitled to free entry under the tariff act of 1909.
    United States Court of Customs Appeals,
    February 10, 1914.
    Appeal from Board of United States General Appraisers, Abstract 33522 (T. D. 33732).
    [Reversed.]
    
      William Hayward for appellants.
    
      William L. Wemple, Assistant Attorney General (Charles E. McNabb, assistant attorney, of counsel; Samuel Isenschmid, special attorney, on the brief), for the United States.
    Before Montgomery, Smith, Barber, De Vries, and Martin, Judges.
    
      
       Reported in T. D. 34196 (26 Treas. Dee., 290).
    
   Smith, Judge,

delivered the opinion of the court:

Japanese fruits resembling plums, imported in kits, were classified by the collector of customs at the port of San Francisco as “fruits * * * preserved or packed in * * * their own juices.” The goods were accordingly assessed for duty at 1 cent per pound and 35 per cent ad valorem under that part of paragraph 274 of the tariff act of 1909 which reads as follows:

274. * * * Comfits, sweetmeats, and fruits of all kinds preserved or packed in sugar, or having sugar added thereto, or preserved or packed in molasses, spirits, or their own juices, if containing no alcohol, or containing not over ten per centum of alcohol, one cent per pound and thirty-five per centum ad valorem; * * *.

The importers protested that the goods were fruits in brine and therefore entitled to free entry under the provisions of paragraph 571, which paragraph reads as follows:

FREE LIST.
571. Fruits or berries, green, ripe or dried, andfruits in brine, not specially provided for in this section.

Tlie Board of General Appraisers overruled tbe protest and the importers appealed.

The merchandise in controversy bears the name of “umeboshi” or “umezuke,” and is imported from Japan. The fruit from which the umeboshi or umezuke here involved is made, is called “ume,” and in color, size, and the seed which it contains, closely resembles a very small olive. The ume is picked before it is ripe and, without seeding or peeling, the fruit is packed whole in tubs or barrels with salt in the proportion of about three-fourths of a gallon of salt to a gallon of fruit. Some water is put in to dissolve the salt, but how much none of the witnesses was able to state definitely. After the fruit has been in the salt and water under pressure for 10 or 20 days, it is removed from the tubs or barrels and dried in the sun for some days. Why the ume is put under pressure does not appear, but as the fruit is not crushed or its form changed, it is reasonable to infer that the pressure imposed is not beyond that required to keep the fruit immersed in the salt and water. When dried the fruit is ready for domestic consumption, and need not be further processed. If, however, the umeboshi is intended for shipment or export, it is repacked in the original salty solution, to which additional water and salt is sometimes added.

There appears to be at least two kinds of umeboshi or umezuke, one of which is uncolored and the other colored red by packing with the fruit a leaf called shiso or sage. The umeboshi which is colored is of a larger size than that which is uncolored. With the exception that one is artificially colored and the other not, both classes of umeboshi appear to be subjected to the same packing processes.

The finding of the board that the fruit is packed in its own juices seems to have been based on the following testimony offered by the importers in support of their protest:

Witness Kagawa.

By Mr. Bly: Q. Is there any liquid in the tubs besides the ume? — A. When we ■open the kit, you know it comes some liquid; when we prepare, we just use salt.
Q. How much salt is put in the water? — A. Well, just-
Mr. Baldwin. Ho didn’t say there was any water at all.
Q. How is it put in the tubs or kits? — A. How to put in?
Q. Yes; how is the ume put in the kits? — A. With the salt, so as just to keep it preserved.
Q. Is there any water in there? — A. Sometimes they use some water, but I don’t know what the exact quantity is — according to the size of the ume they use differently. * * *
By Mr. Baldwin: Q. When you have imported these kegs of fruit into this country, and you have opened the keg, have you found any juice or liquid? — A. We generally see some liquid in it.
Q. About how deep is the liquid generally? — A. Sometimes they come in full; sometimes they don’t, because they may leak during transportation.
Q. If there is no leakage,' then the juice stands level with the top? — A. Not to the top; nearly to the top. * * *

By Mr. Bly: Q. When, you state that the juice is in the kit, what do you mean by juice? — A. Juice? The juice is the liquid, you know. I think it comes out from the salt.

Q. Lots of it? — -A. Salt and watel•.

Witness Obasbi.

By Mr. Bly: Q. Will you state how it is produced (umeboshi)? — A. * * * After they get salted they take the ume out from the salty juice and dry it in the sunshine for five days to take all the wet out, make it dry, and then they pack in little kegs — some 5-gallon, some 10-gallon, and so on — and they ship all over the country; and they use it for purposes of exportation to America. If they haven’t got any juice, I mean salt water, they may dry too much; that is why they put the water in — they put the water back again, you see. In umezuke or ume they are once dry, and when they ship it out they put the salt water in again. * * *
By Mr. Baldwin: Q. Do you understand that this sample was placed in a barrel with some salt, was left there a while, then taken out and dried, and was then put back into similar containers with salt water? — A. Yes.
Q. With additional salt, or just with some water? — A. No. I mean the juice as it is after that. The salt is melted, leaving water, and they put that back again. ,
Q. The same juice ? — A. The same juice.
Q. They don’t put any water in? — A. They do sometimes; sure.
Q. What is it that forms this liquid with the salt? Is it just the juice that comes from the fruit itself? — A. No, no. To 1 gallon of fruit they give 1 gallon of salt.
Q. And when they put them in together that way the salt becomes liquid?— A. Yes, sir.
Q. What is it that makes it liquid? Is it the juice from the fruit that makes the salt in the form of liquid? — A. No; I don’t say juice from the fruit.
Q. But the fruit has juice ? — A. Yes, sir.
Q. Doesn’t that get into the salt? — A. I don’t think so.
Q. Are you sure? — A. I don’t think so.
Q. Are you sure? — -A. I am not sure. Anyway, they mix the salt and the juice together; it is mixed and made wet you see.
Q. The juice is the liquid that comes from the fruit, isn’t it? — A. Juice?
Q. Yes. — A. Mostly from salt.
Q. Isn’t there some juice that comes from the fruit itself? — A. Some of it, of course.
By Mr. Bly: Q. This liquid that is put in the second kit before you ship; where do you get that liquid? — A. The liquid?
Q. The liquid. — A. That is the salt and the water.
Q. How do you get your liquid — the first liquid? You say it is salt and water. How do you get that together? You call that the juice? — A. Yes, sir; the juice.
By General Appraiser Howell: Q. Let me see if I understand you. You first put the fruit in the barrel with the salt? — A. Yes, sir.
Q. Anything else? — A. Yes, sir; a little water to melt the salt.
Q. You do put water in? — A. Yes, sir; a little to melt the salt.

Witness Miwa.

By Mr. Baldwin: Q. Do they ever put any salt in without water? — A. Yes, sir; sometimes.
Q. Sometimes? — A. Yes, sir.
Q. When they do that, does the juice that comes out from the fruit itself make the salt into liquid? — A. The salty water is to keep the umeboshi, to maintain the shape of the umeboshi itself; to protect the juice in coming out; to keep the juice from getting out.
Q. Do you think that the juice comes out and makes liquid of the salt? — A. You mean the juice from the umeboshi?
Q. Yes. — A. I don’t think so.
Q. Are you sure about that? — -A. I am quite -sure about that.

We think that this evidence does not warrant the conclusion that the merchandise is fruit packed in its own juices, and that it does justify the contention of the importers that the umeboshi imported should be classified as fruits in brine. The witnesses were Japanese with no great command of the English language, and it seems to us that some of the questions put to them were unwittingly propounded in a form which gave them the impression that liquid and juice were synonymous terms. But however that may be, the witnesses, when submitted to a careful examination as to what they really meant by juice, made it reasonably clear that they used the term as the equivalent of liquid and as a designation for the salt and water solution in which the umeboshi was packed for shipment.

Pressure or any other practical process for the extraction of the fruit juices would have either crushed the fruit or broken the skin or at all events altered, if it did not completely destroy, its form. That the ume was subjected to no such treatment and that no appreciable quantity of its juices was extracted is evidenced by the un-crushed, unbroken samples of the merchandise submitted to the board at the hearing, and by the fact that the sample of the fruit still retains the form which it had when plucked from the tree. It is entirely possible that some of the fruity juices not held fast by the cellular tissue or the meat of the fruit may have escaped by osmosis, but that any considerable quantity escaped in that manner is fully rebutted by the fact that the liquor in which the fruit is packed has the flavor of salt and water and not that of fruit juices. The suggestion that the fruits were simply packed in salt and that their own juices dissolved the salt and made the liquor in which they were preserved we must decline to accept, because at best very little of the fruit juices could have come in contact with the salt and because if every drop of juice had been squeezed out of the ume it would have been wholly insufficient to dissolve the salt used to pack the fruit, considering that it takes, according to common knowledge, nearly 2-¿-parts of water to dissolve 1 part of salt.

In addition to all this, it does not seem that there could have been any sound reason for using the juices of the fruit to dissolve the salt in order to produce a liquor which was wholly unfit for human consumption and apparently of no commercial value whatever as a fruit juice. All the witnesses for the importers agree, and their testimony is undisputed, that the fruits after their first treatment with salt and water are ready for domestic consumption, but that if they are intended for exportation they must be put back into the solution of salt and water in order to preserve them, and certainly to achieve that object a solution of salt and water would be far more effective than would a solution of salt and fruit juice, which by reason of the juice would contain in itself elements tending to promote decomposition and not preservation of tbe commodity.

There may be kinds of umeboshi or umezuke packed in their own juices, but we are convinced that the importation represented by the sample submitted to us is not a fruit packed in its own juice, but a fruit in brine and therefore entitled to free entry.

The decision of the Board of General Appraisers is reversed.  