
    Patrikiadis Sons v. United States
    (No. 2202).
    
    Evidence, Sufficiency.
    Salmon eggs, salted and packed in sealed tins, were classified by the collector under paragraph 216, tariff act of 1913, as “preserved roe of fish,” and claimed to he free of duty under paragraph 478 as “eggs of * * * fish * * * (except fish roe preserved for food purposes).” The testimony of one of the importing firms that he did not know how much salt was used or whether the eggs had been sterilized, that he kept them in a refrigerator, and that they would spoil in about 15 days outside of the refrigerator in warm weather, and that he did not know whether or not they were kept in a refrigerator on the ship is not sufficient to overcome the presumed correctness of the collector’s finding that they were preserved.
    United States Court of Customs Appeals,
    May 7, 1923.
    Appeal from Board of United States General Appraisers, Abstract 45112.
    [Affirmed.]
    
      Allan R. Brown for appellants.
    
      William W. Hoppin, Assistant Attorney General (Samuel M. Richardson and Bernard Hahn, special attorneys, of counsel), for the United States.
    [Oral argument March 20, 1923, by Mr. Brown, and Mr. Richardson.]
    Before Mahtin, Presiding Judge, and Smith, Barber, Bland, and Hatfield, Associate Judges.
    
      
       T.D. 39633.
    
   Babbeb, Judge,

delivered the opinion of the court:

The only question here is whether salmon eggs imported in tins and used for food purposes are classifiable under paragraph 216 of the act of 1913 as “caviar and other preserved roe of fish” or under paragraph 478 as “eggs of * * * fish * * * (except fish roe preserved for food purposes) * * It was classified and assessed under the former paragraph and is claimed to be classifiable and free of duty under the latter.

The Board of- General Appraisers sustained tbe action of tbe collector.

Of course, it was tbe duty of tbe importers to establish by a fair balance of tbe testimony tbat tbe classification of tbe collector was wrong, and, therefore, passing tbe question of whether these salmon eggs were caviar it was bis duty to show they were not preserved roe . of fish. Of course, they were roe of .fish. Were they preserved? Tbat is tbe only question. Prima facie at least they were so because of tbe collector’s classification. Tbe only evidence tending to impeach bis classification was given by tbe importers, and in order to reverse tbe judgment of tbe Board of General Appraisers we must find tbat their decision sustaining tbe collector’s classification either was not supported by or was contrary to tbe evidence. We are unable to reach tbat conclusion.

Tbe substance of importers’ testimony on this point, and there was no other evidence relating thereto, was tbat tbe fish eggs were salted. To what extent tbe witness did not know. He did say they were put in tins; tbat tbe tins were sealed; tbat whether they were heated or boiled be did not know; tbat they were shipped from tbe country of exportation in tbe winter time and when they arrived in this country be kept them in a refrigerator. How long they would keep if taken out of tbe refrigerator be did not know. If tbe air was very warm not more than 15 days; tbat it all depended upon tbe quantity of salt, of course, and bow much salt was put in the cans in question be did not know; tbat be could not say whether these cans of fish eggs were sterilized or not, but supposed they were not because be bad seen some tbat bad fermented; and tbat be did not know whether or not they were placed in an ice box on tbe importing vessel.'

We agree with tbe Board of General Appraisers tbat this evidence was not sufficient to overcome tbe presumption of tbe correctness of tbe collector’s classification.

In tbe case of Moscbalades Bros. v. United States (6 Ct. Cust. Appls. 399; T. D. 35973), much rebed on by tbe importers here,' tbe merchandise was similar to or like tbat here. It was imported in barrels and bad been treated, as stated in tbe opinion, with salt and with salt water sufficiently to effect at least a stage of preservation. It was held tbat neither cold storage nor natural freezing was a preservation within tbe provisions of paragraph 216, and tbat a preservation by any agency tbat only arrested decomposition so long as applied could hardly be held to be a preservative within tbe paragraph.

It is quite obvious, however, tbat a sufficient quantity of salt could be applied to tbe merchandise to constitute a preservative and that sealing the cans in the manner shown in this record might also be such a preserving process as the paragraph contemplates.

The judgment of the Board of General Appraisers is affirmed.  