
    LINCOLN, WILLEY & CO. et al. v. UNITED STATES.
    (Circuit Court, D. Massachusetts.
    April 22, 1910.)
    No. 393 (1,995).
    
    ■Customs Duties (§ 78) — Dutiable Weight or Fish-Allowance fob Salt, etc. — “Bakbel.”
    It appeared that salted herring are dealt in by the barrel, that in wholesale trade a “barrel” means 200 pounds of net flsli, that it is usual to deliver 228 pounds of fish as taken from the hold of a vessel, in accordance with a long-standing custom to allow for salt, scale, and dirt, and that at no time does this extra 28 pounds enter into the marketable weight of the merchandise, field that, in assessing duty on the weight of such flsli under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 260, 30 Stat. 171 (II. S. Comp. St. 1901, p. 1651), a like allowance should be made.
    [Ed. Note. — For other cases, see Customs Duties, Cent. Dig. § 194 '; Dec. Dig. § 78
    
    For other definitions, see Words and Phrases, vol. 1, pp. 713, 714.)
    On Application for Review of a Decision by the Board of United States General Appraisers.
    Searle & Pillsbury (William E. Waterhouse, of counsel), for importers.
    D. Frank Lloyd, Asst. Atty. Gen. (Thomas M. Lane, of counsel), for the United States.
    
      
      Por other eases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexe*
    
   COLT, Circuit Judge.

The importation in this case consisted of three shipments of salted herrings, under which a duty was assessed of one-half of 1 cent per pound under paragraph 2G0 of the tariff act of 1897. The question involved relates to the dutiable weight of these fish; the importers claiming that a deduction should be made for salt, scale, and dirt. This claim is set out in the several protests as follows:

“That it is and always lias been tlie custom to sell these bulk herring ata price i>er barrel of 228 pounds; the 28 pounds being for shrinkage in weight due to salt, scales, etc., which necessarily have to be discharged with the fish. We claim that, for every 228 pounds weighed out, 28 pounds is unmer-chantable, and upon which we should not pay duty, on account of the waste. It is the custom to allow 228 pounds, whether it is an American or foreign cargo.”

The facts in support of the petitioners’ claim are fairly set forth in the testimony of Leo W. Pickert, an importer and dealer in salt fish;

“Int. 8. Mr. Pickert, will you describe the fish in the condition in which they are taken — how they come out of the hold of the ship and the condition they are in? Ans. As I understand it, before they are put in the hold of the ship, on the deck they are mixed with salt; that is to preserve them. They are then put in the hold of the vessel. More or less salt is added from time to time, simply to preserve tlie fish. When they come to the port of Boston, they are in the hold of the vessel, mixed with a large quantity of salt. When the fish are removed the men take their hands usually — take a handful of those fish, with considerable herring and salt, and throw them into a basket. These baskets prior to this have been weighed by the United States weigher. .He weighs the basket, so that, knowing the gross, of course he can get the net weight. The basket is filled up and put upon the scale. The scale is set for 114 pounds plus the weight of the basket. Then, of course, if there is too little fish in that basket, more is added; if too many, some are taken out to make weight. In other words, there is supposed to be 114 pounds of net weight outside of the basket.
“Int. 9. To represent what? Ans. To represent fish, scales, and salt.
“lilt. 10. How many pounds of clear fish — I mean tlie custom — -how many pounds? Ans. We figure two of those as a barrel of fish.
“Int. 11. That weighs how much clear fish? Ans. There having been some trouble, we took 50 barrels, so called, of 228 pounds, as they came from tlie vessel, and put them separate. When we sell these, it is customary to take these fish, immerse them in water to wash the adhering salt and dirt off of them, and then weigh by 200 pounds per barrel. It is customary to give a man 200 pounds of weight. We got 49 barrels and a little over of 200 pounds net fish out of 50 barrels of 228 pounds .as they came from the vessel.
“Int. 12. Mr. Pickert, what weight of these herring as they come from the hold of the ship is allowed in the trade for a barrel of 200 pounds of clear fish? Ans. They are not bought that way. Custom has made it that you get for a ibarrel 228 pounds as it comes from the hold of the vessel.”
“Int. 15. What is considered in the trade a barrel of fish.? Ans. 200 pounds of net clean fish.
“Int. 1G. How many pounds of these salted bulk herring are delivered in tlie trade for a barrel of 200 pounds of clear fish? Ans. I have told you we take 228 pounds.
“Int. 17. Is that the custom in the trade? Ans. It is. customary in the trade to weigh out 2.00 pounds of clear fish when you give a man a barrel of fish. I presume every man has made experiments similar to what we have.
“Int. 18. As you weigh the fish out from the vessel, is it customary, as you have stated here, to weigh out 228 pounds in order to get a barrel of 200 pounds of clear fish? Ans. It is not done that way.
“Int. 19. As these fish are weighed out of the schooner, how many pounds are considered in tlie trade as constituting a barrel of salted bulk herring? Ans. 228 pounds from the vessel.”
“Cross-Int. 37. What has to be done to these fish to clean them, after imported in this manner in the hold, mixed with salt, etc.? Ans. We put. them inio tubs, where they are soaked with water. The water dissolves the impurities. which are on the surface of the Ash; takes all that impurity off, at least the most of it — the salt and the loose scales.
“Cross-Int. 38. That is all you, do to them after they are imported in order to make them merchantable? Ans. As salt herring.
. “Cross-lnt. 39. After you have removed the surplus salt and impurities by soaking in water, do you put them into barrels? Ans. Barrels and packages.
“Gross-lilt. 40. That is the way in which they are sold in the trade, is it? Ans. Yes, sir; to the jobbing trade as sale herring.”

This testimony stands uncontradicted,' and is corroborated on material points by seven other witnesses called by the importers.

The evidence shows (1) that salted herring- are bought and sold by the barrel as they arrive in the hold of fishing vessels in the ports of Boston and Gloucester; (8) that a barrel of salted herring means in the wholesale trade 800 pounds of net fish; (3) that 288 pounds of fish as taken from the hold of the vessel are delivered to make a barrel, the extra 28 pounds being an allowance made to cover salt, scale, and dirt, which the evidence shows is not an excessive allowance; (4) that this custom has existed for many years; (5) that at no time does this 28 pounds enter into the marketable weight of the merchandise.

The decision of the Board of General Appraisers overruling these protests was based upon a previous decision (Abstract 11,506 [T. D. 27,38!]), in which the Board says:

“We ¡ire not satisfied that the rule of trade is, in selling and weighing salted herring, that. 228 pounds is sold for 200 pounds not, and we therefore find that the quantity of fish was duly ascertained by the United States weigher and collector.”

In my opinion the importers have fully met this objection in the present record by proofs which conclusively show that such a custom docs exist with respect to importations of the character now in question.

Since the fact is established that 38 pounds out of 238 pounds of these herring as imported never enter into their marketable weight in trade, this case falls within the settled principle that duty can only be assessed upon such merchandise as is brought into a port of entry and becomes a part of the body of the merchandise of the country. In re Di Cola, G. A. 6,894 (T. D. 29,689).

The decision of the Board of General Appraisers is reversed. ■  