
    HABICHT, BRAUN & CO. v. UNITED STATES.
    (Circuit Court, S. D. New York.
    May 4, 1909.)
    No. 5,190.
    1. Customs Duties (§ 78) — Abandonment—Goods Destroyed Before Importation.
    Where portions of an importation were so damaged by sea water on the voyage as to be entirely valueless, there was nothing left to abandon, under the provisions of Customs Administrative Act June 10, 1890, c. 407, § 23, 26 Stat. 140 (U. S. Comp. St. 1901, p. 1930).
    [Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 78.*]
    2. Customs Duties (§ 78*) — Bond for Return of Unexamined Packages— N ONIMPORTATION.
    Breach of a bond given under section 2899, Rev. St. (U. S. Comp. St. 1901, p. 3921), for the return of goods not examined by customs officials, does not affect the right of the importer to an allowance for damaged merchandise. No other or different penalty is contemplated by the bond or by said section than the damages provided by the bond.
    [Ed. Note. — For other eases, see Customs Duties, Dec. Dig. § 78.*]
    On Application for Review of a Decision by the Board of United States' General Appraisers.
    The decision below, reported as G. A. 6,700 (T. D. 28,651), affirmed the assessment of duty by the collector of customs at the port of New York.
    McLaughlin, Russell, Coe & Sprague (Edward P. Sharretts, of counsel), for importers.
    D. Frank Lloyd, Asst. U. S. Atty.
    
      
      For otter cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   LACOMBE, Circuit Judge.

The importation was of glacé fruit. The Board finds that there were 29, cases, and 59 boxes out of other cases, which were so damaged by sea water on the voyage as to be entirely valueless. These cases and boxes were condemned by the health officers and destroyed. The testimony sustains this finding. Upon this state of facts there was nothing left to “abandon” under section 23 of the customs administrative act (Act June 10, 1890, c. 407, 26 Stat. 140 |U. S. Comp. St. 1901, p. 1930]). The case is on all fours with Lawder v. Stone, 187 U. S. 281, 23 Sup. Ct. 79, 47 L. Ed. 178, where it was held that importations which have been so damaged on the voyage of importation as to be entirely worthless should be treated as if no importation of them had been made. No duty should be assessed upon them. I do not see how this rule can be affected by the circumstance that, as to the cases in question, there has been some breach of the bond given under section 2899, Rev. St. (U. S. Comp. St. 1901, p. 1921), assuming that there were such a breach. The bond itself provides what shall he the damages recoverable when a breach is proved (United States v. Dieckerhoff [C. C.] 103 Fed. 789); and no other or different penalty is contemplated by the bond or by the section under which it is, exacted.

The decision of the Board of General Appraisers and of the collector is reversed, and cause remanded, with instructions to remit the duty on the worthless cases and boxes.  