
    
      In re APPEAL OF H. HAMANO FROM DECISION OF BOARD OF GENERAL APPRAISERS AT NEW YORK.
    Decided: January 6, 1903.
    U. Upon an appeal to this court under Section 15 of the Customs Administrative Aot of June 10, 1890 (26 U. S. Stats. 137), by an importer of certain articles of merchandise known as Japanese shoes or slippers, where it appeared that the only ground of protest Stated by the protestant in his notice of protest to the Collector ( under the provisions of Section 14 of the said Customs Administrative Act, and on the hearing had by the Board of General Appraisers at New York, upon appeal from the decision of the said Collector, was error in the classification and assessment of the said articles by the Collector, in t'hait the saime should have been classified as ‘“boots and shoes made of leather,” under Paragraph 438 of the Tariff .Act of 1897 (Vol. 30, U. S. Stats. 193), instead of “manufactures of leather,” under Paragraph 450 of said Act; and where the decision ■of the Board of General Appraisers overruled the protest, but classified the said merchandise as dutiable under Paragraph 93 of said ‘Tariff Act, Held, that protestant cannot on appeal to this court from the decision of the Board of General Appraisers at New York, ■allege as error on the part of said Board the fact that it disregarded the provisions of Section 7 of the Tariff Act, the so-called “‘similitude clause.” It wtas not possible under the language of the «original protest to do this. The protestant is confined to the allegations of his protest made to the Collector of the Customs and upon which the Board of General Appraisers acted.
    .'2. An importer must stand on the objections raised in the original protest, and cannot vary from nor enlarge them in his petition for review or on the trial.
    ‘.3. It is prescribed by Section 14 of the Customs Administrative Act, that the person dissatisfied with the decision of the Collector ot Customs, shall give notice to the Collector setting forth therein •“specifically and distinctly........the reasons for his objections thereto.” That was done by the importer in this case; and that must stand as the alleged error appealed from.
    4. While a protest is not required to be made with technical precision, yet it must show that the objections afterwards made at the trial were in the mind of the party, and were brought to the knowledge of the Collector at the time of making them.
    
      5. Where no evidence was offered on the part of protestant at the hearing before the Board of General Appraisers, the said protestant not appearing at said 'hearing, although due notice had been given him thereof,- and the only finding of fact by said Board is as- to the materials of which the articles of -merchandise -are composed, based upon an analysis made by the analyst in charge of the analysis of textile fabrics in the Appraisers’ office, the component material of chief value being found to be, not leather, but rawhide; and where said analysis showed that one of the -component parts of the said merchandise was iron, Held, that as manufactures of rawhide are nowhere provided for in the Tariff Act of 1897, and there is no other component part of chief value, that the classification of the Board of General Appraisers as “articles or wares not specially provided for, composed wholly or in part of iron” (Par. 93, Tariff ’Act), is the correct one, and the decision of the said Board is affirmed.
    C The Board of General Appraisers was established to determine controversies in relation to the proper classification of articles under the Tariff Act of 1897, and the decision of such Board should not be overruled, unless clearly against the weight of the evidence.
    Appeal erom Decision oe Board oe General Appraisers Under Section 15, Customs Administrative Act oe June 10, 1890, (U. S. Stats. Yol. 26, P. 131.)
    
      R. W. Breckons, U. S. District Attorney, for the govemment.
    
      Thomas Fitoh ■& Henry E. Highton, attorneys for appellant.
   Estee, J.

H. Hamano is a Japanese merchant, engaged in business in Honolulu, in the importation and sale of Japanese shoes and slippers.

On the 31st day of December, 1900, certain of these so-called shoes or slippers arriving he-re from Japan, were classified by the Collector of Customs at Honolulu as “manufactures of leather,” and assessed as dutiable at the rate of 35% ad valorem, under the provisions of Section 450 of the Tariff Act o'f 1897 (Vol. 30, U. S. Statutes, paige 193), which reads as follows:

“Manufactures of leather, finished or unfinished,......or of which these substances, or either of them, is the component mar terial of chief value, not especially provided for in this Act. . . . thirty-five per cent, ad valorem."

Within the statutory time:, the said IT. Hamano filed, his notice of protest and appeal against said classification and duty, with the Collector of the Customs at Honolulu. He appealed pursuant to the terms of Section 14 of the: Customs Administrative Act of June 10, 1890, (Yol. 26, H. 8. Statutes), and the importer claimed that the articles known, as leather shoes or slippers were dutiable under the provisions of paragraph 438 of the Tariff Act of 1897, which reads in part as follows:

“Paragraph 438........Boots and shoes made of leather, twenty-five per centum nd valorem.....”

Upon receipt of the said protest and notice of appeal, the Collector of Customs transmitted to the Board of General Appraisers of New York, the protest, invoice, and all the papers connected with the matter of said appraisement.

On the third day of September, 1901, a, decision was rendered by the said Board of General Appraisers in New York, in which they state, among other -things, that:

“The merchandise in question consists of Japanese slippers, composed of raw hide, cotton, straw, silk, iron, etc.; that they were classified as dutiable as manufactures of leather under paragraph 450 of the Tariff Act of 1897, at 35 per cent, ad valorem, and are claimed by the protestamt to be: dutiable as leather shoes under paragraph 438 at 25 per cent, ad valorem. As there is no leather in the articles, raw hide not being leather, it seems that neither of said provisions includes these slippers.”

Then follows an analysis, which shows that:

“Rawhide is the component part of chief value, namely, 40.32, while the other* proportions of materials are as follows: Straw . .. .25.407, cotton. . . .,16.599, silk.-. . .11.395, iron. . . .2.123, and other materials 4.157.”

The decision further stating that: “It would appear from this analysis that there being no provision for the manufactures of rawhide, and none of the other materials being tbe component .of chief.-value, the particular articles covered by said protest axe properly dutiable under paragraph 193, at the rate of 45 Jo ad valorem, as ‘articles or wares not specially provided for or composed wholly or in part of iron”

“Articles or wares-not specially. provided for in this Act, composed wholly or in part of iron * * * or other metal, and whether partly or wholly manufactured, 45 per cent, ad valorem.” Par. 93; page 167, 30 U. S. Statutes.

The decision finally overrules the protest and affirms the decision of the collector, “without, however, approving the classification complained of by the protestant.”

Upon the appeal taken to-this Court, the appellant alleges as error on the part of the. Board of General Appraisers; the following:

“That said board.erred in overruling or disregarding the provisions of Section 7 of the Tariff Act of 1897, in that the untanned leather, or rawhide, which is the component of. chief value in said, shoes, is1 similar in material, in quality, in texture and in the use to which it may be and was- applied, to leather.”

This was the first time that protestant raised any question of similitude, or intimated any reliance upon the so-called similitude clause of the Act (Section 7 thereof), Yol. 30 U. S. State. 205. . •• -

• In accordance with the petition on -appeal to this court, an order was issued out of this court on October 2, 1901, directed to the Board of three General Appraisers1-at New York, ordering the said board to return to this court the record of said matter, and the evidence taken by them therein, together with a certified statement of the facte involved ifi said -case; and their cl&cision thereon. On November 14, T901, the said Board of three General Appraisers made a return to this Court, consisting of the letter of the Collector of Customs at this port sent to the. said Board of General Appraisers, the origina]. protest of the importer; and "the. decision of the1 Board thereon.

Thereafter, upon application of counsel for the importer, this court madia an- order reciting that, as the original return made to the first order -did- not contain all the evidence taken by them; that the said Board were directed to return to this Court all the evidence taken in the matter; and also made a further order, at the same time, towit: January 21, 1902, referring the whole subject to Ií. M. Somerville, one of the said Board of General Appraisers, for the talcing of such further evidence in the matter as might be offered by the petitioner or by the United States.

Thereafter, on February 25, 1902, there was returned to this Court a supplemental return from the said Board of General Appraisers at New York, in, the same terms as the original return with an additional exhibit 'in the form of the original analysis of the merchandise in controversy, and stating that, “The importer failed to appear at the hearing, either in person or by counsel, and that no evidence was offered by him, as under the ruling of the Court he was required to do.”

A return was also made to the Court on November 25, 1902, by FI. M. Somerville, the special appraiser appointed by the Court, to take further' testimony, in which he states: “That upon the day set for the taking of the testimony and after the formal notice of the time and place of the hearing had been given to counsel for appellant, naming him, the said counsel failed to appear, or to offer any further evidence.”

It appears -that in the written notice of protest filed with the Collector of the Customs, and forwarded to the Board of General Appraisers, but one ground of objection was relied upon by the importer, the following being the language of that protest:

“The grounds of our objections are that the said shoes were classified and duty assessed under paragraph 450, Tariff Act of 1897, as manufactures of leather, N. S. P. F., dutiable at the rate of thirty-five per centum (35) ad valorem; we claim the said articles to b© either a leather shoe or slipper, the same being properly dutiable as specially provided for under paragraph 438, Tariff Act 1897, at the rate of twenty-five per centum (25%) ad valorem.”

Upon the hearing and in the application for the order to issue to the Board of General Appraisers, it appears that protestant now bases his case on appeal toi this Court mainly on the alleged error" of the Board of General Appraisers.in failing to consider the similitude clause of the Act, so-called, namely, Section. 7 thereof.

It was not possible under the language of the original protest for appellant to do this. He is confined to thei allegations of his protest made to the Collector of thei Port, and upon which the Board of General Appraisers acted. As was said by the Supreme Court of the United States in the case of Davies v. Arthur, 96 U. S. 148:

“Technical precision is not required, but the objections must be so ‘distinct and specific as when fairly construed, to show that the objection taken at the trial, was at that time in the mind of the importer, and that it was sufficient to notify the Collector of its true nature and character, to the end that he might ascertain the precise facts and have an opportunity to correct the mistake and cure the defect, if it was one which could be thus obviated.”

That was an action under tbe provisions of the Act of 1864, which provided for a suit against the Collector personally to recover duties illegally collected, but which provided that the importer, if dissatisfied with the decision of the Collector, should give notice in writing, setting forth “distinctly and specifically the ground of his objection.” This is the law to-day. See Sec. 14, Act of Congress of June 10, 1890, Yol. 1, Supplement of the Bevised Statutes, page 571. It is prescribed by Section 14 that the person dissatisfied with such decision (of the Collector of Customs) shall give notice to the Collector setting forth therein “distinctly and specifically......the reasons for his objections thereto.” That was done by the importer in this case, and that must stand as the alleged error appealed from.

See the case of In re Collector (Sherman et al., Importers), 55 Fed. 276, 278, where the Circuit Court of Appeals says:

“Congress reproduced in the Customs Administrative Act the identical language as to the terms of the protest used in the previous Acts, and declared as explicitly as could be done by language, that in the absence of such notice, the decision of the Collector should be final and conclusive. It must be presumed that this was done with the full understanding of the settled judicial construction of tbe provision under the previous Acts of Congress, and, therefore, that Congress intended that the importer should'be bound by his own statement of the o-bjecttions to the Collector’s decision, and should not be'permitted to depart from it, by alleging subsequently any error of fact or of law, not substantially brought to the collector’s attention by the terms of the' notice!”

The Court further saying:

“Congress might have relieved the importer-of any such conditions as a! prerequisite to his recovery if it had seen fit; but 'it is plain that it intended only to change the nature of his remedy without enlarging the previously ’existing conditions pr&cedent to his right of recovery.”

See also Hahn v. Erhardt, 78 Fed. 620-621 (C. C. A.), where the Court says:

“The similitude provision is intended to: prescribe the duty to which articles are to be subjected that have been omitted in the enumeration of dutiable articles in the schedules’ of the tariff laws. It has no application when the imported articles can be identified with any of those articles described in any of the schedules. If the importer asserts in his protest that his merchandise belongs to the category of enumerated articles, he asserts by implication that its dutiable character is not to- be a's'certained by reference to the similitude provision.”

In this case the importer does claim the dutiable character 'of the imports to be under paragraph 438 of the tariff law.

See In re Sherman et al., 49 Fed. Rep. 224; In re Guggenheim Smelting Co., 112 Fed. Rep. 517; Battle & Co. Chemists’ Corp. v. U. S., 108 Fed. Rep. 216.

To repeat,, as to- the question of similitude, an importer must stand on the objections made in the original protest, and cannot vary from nor enlarge them in his petition for review or on the trial. Battle & Co., etc., v. United States, 108 Fed. Rep. 216; Arthur v. Morgan, 112 U. S. 495; Herman v. Robertson, 152 U. S. 521; Heinze v. Arthur’s Executors, 144 U. S. 28; Presson v. Russell, 152 U. S. 577 ; Hahm v. Erhardt, 78 Fed. Rep. 620-621; Davies v. Arthur, 96 U. S. 148.

So it was held in In re Guggenheim Smelting Co., 112 Fed. 517, that the protest in that' case was insufficient in failing to point out the provision under which the Collector should have acted. The Collector’s decision must therefore stand.

While a protest is not required to be made with technical precision, yet it must show that the objections -afterwards made at the. trial were in the 'minds of the party, and were brought to the knowledge of the Collector at the time of making them.

Arthur v. Morgan, 112 U. S. 495; U. S. v. Salambier, 170 U. S. 621, 627; Shell’s Executors v. Fauche, 138 U. S. 562; Heinze v. Arthur’s Executors, 144 U. S. 28; Herman v. Robertson, 152 U. S. 521.

It seems clear’ to this Court that if the importer had intended in this case from the beginning to rely' upon the similitude clause of the Customs Administrative Act for the purpose of identifying his merchandise, he ' should havei “distinctly and specifically set forth” that fact in his protest toi the Collector, as one of the specific objections to the Collector’s rulingp. It is not possible for this court to now consider on appeal, any ground of protest, unless made tOi the Collector at the time the classification was made.

Again in this case, the only finding of fact is as to the materials of which the merchandise is composed. No evidence of any character was offered on the part of the protestan!. It appears that an analysis was made by Rudolph ' Streuli, upon which the decision of the "Board was based, he being’ the analyst in charge of the bureau for the analysis of textile fabrics of the Appraisers’ office; which original analysis is attached to the supplemental return filed in this ease:, and which has been examined by the Court. In this analysis rawhide is declared to be 'the component of chief value. There is nothing in the record, so far as the Court can'find, attempting to show that the rawhide, of which these articles are largely composed, is leather. Even if it be conceded that the protestan!'had- the power under his original protest to show that rawhide, such as is used in the manufacture of these 'articles, is'leather, he made no1 effort to' ■do so. But' under the definition popularly accepted of leather, rawhide is not included. The Century Dictionary, a recognized authority, defines leather to b'a “the tanned, tawed or otherwise dressed skin of an animal......the peculiar character of leather is due to the chemical combination of tannin in the process of tanning, or of tannin and vegetable 'extractive matter (or else of some mineral or earthy base) with gelatin as contained in animal skin. Its physical characteristics, such as flexibility, tensile strength, color and durability, are more or less modified by the processes subsequent to the use of the chemical named, and included in the various operations of currying and dressing.”

While the same dictionary defines rawhide to be “the material of untanned skins of cattle, very hard and tough when twisted, in strips for' ropes or the like', and dried......”

The distinction evidently being in the tanning or lack of tanning of thei skin.

In the absence of any evidence to the contrary, the finding of the fact by the Board of General Appraisers will not be disturbed. Meyers v. U. S., 110 Fed. Rep. 940; Page et al. v. U. S., 113 Fed. Rep. 1006.

While it is true that the amount of iron in these articles is veiy small, being only 2.122 per cent, of the value of the entire article, as shown by the aforesaid analysis, yet it is sufficient to affect their classification in the event that the samei are not otherwise provided for or specially enumerated in the Act. See the cases of Seeberger v. Farwell, 139 U. S. 608; Magone v. Luckemeyer, 139 U. S., 612; in the latter case it was held that woolen goods, having in the warp quantities of cotton varying from 1.99 to 6 per cent., were sufficient to have that effect.

And in this case, the component part of chief value is not leather, but rawhide, which is nowhere provided for in the Act, and as there is no other component material of chief value, then the classification of the Board of General Appraisers as “articles or wares not specially provided for, composed wholly or in part, of iron,” (Paragraph 193 of the Tariff Act of 1897) would seem to be the correct one.

The Board of General Appraisers was established to determine controversies in relation to the proper classification of articles under the Tariff Act of 1897, and the decision of such Board should not be over-ruled unless clearly against the weight of evidence. Bader v. U. S., 116 U. S. 541, 548. There is no conflict of evidence in this case, because the importer has presented no- testimony.

An importer after appealing to> the Board of General Appraisers must appear at the hearing or the action of the Collector will be affirmed.

See the case of the United States v. China and Japan Trailing Co., 71 Fed Rep. 864, where it was held that if an importer who has appealed to the Board of General Appraisers from the decision of the Collector as to the classification of merchandise, fail’s to appear pursuant to- such Board’s notification to. show cause why the action of the Collector should not be affirmed, the- Board is -entirely justified in affirming the Collector’s dee cisión, without regard to. its correctness.

In this case, although it carne before the General Appraisers twice,- notice being given the attorney for the importer each time, the importer never introduced one word of testimony.

It is now1 over two years since this appeal was first taken, and during all that time petitioner has taken no apparent- interest in the cas'ei

It has been held tha-t the burden is on the importer on appeal t-o prove that the Collector’s action was wrong, and if he fails in sustaining this burden, the action of the Collector stands, even though it appeal’s that the Collector has setlect-ed the wrong paragraph. Tiffany v. U. S., 105 Fed. 766.

There is no controverted question of fact in this case-, because the importer at no time appeared before the General Board of Appraisers to- controvert the action of the Collector. Bader & Co. v. United States, 116 Fed. Rep. 541. For the following, among other reasons, the action of the general appraisers is confirmed, with costs:

1st. That the similitude statute- does not apply in this case., and

2nd. That thei importer did not appear before: the Board of General Appraisers at the: trial.  