
    JAMES P. SMITH & CO. v. UNITED STATES.
    (Circuit Court of Appeals, Second Circuit.
    March 11, 1904.)
    No. 161.
    1. Customs Duties — Classification—Pilled Bottles.
    Paragraph 258, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1650], relating to “anchovies * * * in bottles,” and paragraph 276 of said act, 30 Stat. 172 [U. S. Comp. St. 1901, p. 1652], relating to extract of meat, and providing that “the dutiable weight of the fluid extract of meat shall not include the weight of the package in which the same is imported,” are not to be construed as removing bottles containing the merchandise enumerated in said paragraphs from the provision in paragraph 99 of said act (Schedule B, 30 Stat. 156 [U. S. Comp. St 1901, p. 1632]), for “bottles * * * filled or unfilled, not otherwise specially provided for, and whether their contents be dutiable or free.”
    Appeal from the Circuit Court of the United States for the Southern District of New York..
    This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York (124 Fed. 291), which affirmed a decision of the Board of General Appraisers sustaining the collector of the port of New York in his assessment of certain articles for duty purposes.
    F. W. Brooks, for appellant.
    Chas. F. Baker, for the United States.
    Before WABBACE, EACOMBE, and TOWNSEND, Circuit Judges.
   PER CURIAM.

The articles in question are anchovies in glass bottles, and fluid extract of meat in glass bottles. No question is made as to the duty imposed on the anchovies and the extract of meat, but the importers protested against exaction of duty on the bottles. The importations are under the tariff act of 1897, and the relevant portions are:

“99. Plain green or colored, molded or pressed, and flint, lime, or lead glass bottles, vials, jars, and covered or uncovered demijohns and carboys, any of the foregoing, filled or unfilled, not otherwise specially provided for, and whether their contents be dutiable or free (except such as contain merchandise subject to an ad valorem rate of duty, or to a rate of duty based in whole or in part upon the value thereof, which shall be dutiable at the rate applicable to their contents) shall pay duty as follows: If holding more than one pint,” etc.: “provided, that none of the above articles shall pay a less rate of duty than forty per centum ad valorem.” Act July 24, 1897, c. 11, § 1, Schedule B, 30 Stat. 156 [U. S. Comp. St. 1901, p. 1633].
“258. Fish known or labeled as anchovies, sardines, sprats, brislings, sardels, or sardellen, packed in oil or otherwise, in bottles, jars, tin boxes or cans, shall be dutiable as follows: When in packages containing seven and one-half cubic inches or less, one and one-half cents per bottle, jar, box or can; containing inore than seven and one-half,” etc., “* * * if in other packages, forty per centum ad valorem. All other fish (except shell-fish), in tin packages, thirty per centum ad valorem,” etc. Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1650].
“276. * * * Fluid extract of meat, fifteen cents per pound, but the dutiable weight of * * * the fluid extract of meat, shall not include the weight of the package in which the same is imported.” Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 172 [U. S. Comp. St. 1901, p. 1652],

We are clearly of the opinion that there is nothing in paragraphs 258 and 276 to take the bottles containing the articles therein specified out of the operation of the comprehensive language of paragraph 99, which calls for duty on the bottles, whether they be empty, filled with free merchandise, or filled with merchandise which is dutiable otherwise than ad valorem. Paragraph 276 expressly provides that the dutiable weight of the fluid extract shall not include the weight of the package in which it is imported, thus leaving the bottles .to be assessed elsewhere. This is the more significant since the act, in some other portions (e. g., paragraph 241), provides that the dutiable weight of the contents shall include the weight of all tins, jars, and other immediate coverings.” Paragraph 258 does not lay an ad valorem duty on the contents of the bottles, and certainly does not include them with the dutiable measurement of contents. They must therefore find their place under paragraph 99.

The decision is affirmed.  