Holler v. United States

2 Cust. Ct. 196, 1939 Cust. Ct. LEXIS 51

• Court: United States Customs Court
• Decided: March 10, 1939
• Docket: C. D. 123
• Status: Published

Opinions

Keefe, Judge:

The merchandise here involved consists of fresh cabrilla and pinta fish caught in the Gulf of California. It was assessed for duty at 1 cent per pound under paragraph 717 (a) of the Tariff Act of 1930. The plaintiff claims that the fish are entitled to free entry under paragraph 1730 (a) as the product of American fisheries. The protests were consolidated and it was stipulated between counsel that the evidence produced in protest 919886-G would apply to all of the other protests appearing in the above caption.

The paragraphs in controversy, insofar as they are pertinent, provide as follows:

Pab. 717 (a). Fish, fresh or frozen (whether or not packed in ice.), whole, or beheaded or eviscerated or both, but not further advanced (except that the fins may be removed): Halibut, salmon, mackerel, and swordfish, 2 cents per pound; other fish, not specially provided for, 1 cent per pound.

Pab. 1730 (a). All products of American fisheries (including fish, shellfish, and other marine animals, and spermaceti, whale, fish, and other marine animal oils), which have not been landed in a foreign country or which, if so landed, have been landed solely for transshipment without change in condition: Provided, That fish the product of American fisheries (except cod, haddock, hake, pollock, cusk, mackerel, and swordfish), landed in a foreign country and there not further advanced than beheaded, eviscerated, packed in ice, frozen, and with fins removed, shall be exempt from duty: Provided further, That products of American fisheries, prepared or preserved by an American fishery, on the treaty coasts of Newfoundland, Magdalen Islands, and Labrador, as such coasts are defined in the Convention of 1818 between the United States and Great Britain, shall be exempt from duty.

At the trial D. B. Almond, the owner of the Sonora Fish Co. and of the fishing boat Mabel; his brother, L. C. Almond, the master of the Mabel; and Raul Garcia, the truckman who transported the fish from Mexico, testified for the plaintiff and presented facts substantially as follows upon which the plaintiff relies to prove that the fish in question are the product of American fisheries.

The fish in question were caught in Kino Bay in the Gulf of California by fishermen from the deck of the fishing boat Mabel, a vessel flying the American flag and documented at San Pedro, Calif., as an American vessel. The boat was owned by David B. Almond, an American citizen, who conducted a fish business in Tucson, Ariz., under the name of the Sonora Fish Co. His brother, Lathan C. Almond, also an American citizen, was the master of the vessel having a crew which consisted of three members, an engineer and two deck hands. The crew were all Mexicans. The fish were caught under the jurisdiction of the Cooperativa Pescadora Cardenas, a cooperative society of native fishermen, who supplied extra fishermen to fishing boats upon application of masters of vessels. The fishermen were paid for their labor at a certain price per kilo of fish caught as agreed upon between the individual fishermen and the master of the ship. The master was obliged to take all of the fish caught by these employees. The crew and the master also fished, and the crew, who were paid by the day for their labor upon the boat, were paid extra for the fish they caught, but at a lesser price per kilo than the fishermen assigned by the Cooperativa. The master of the Mabel segregated the fish caught by the hired fishermen, his crew, and himself. Certain dues or tribute were paid by the master to the Cooperativa, amounting to 1 centavo per kilo of all the fish caught, the master keeping a record of the catch and paying the sum due to the Cooperativa. Under the Mexican law no one was allowed to fish unless a member of the Cooperativa.

The fish caught during the summer months were taken to Mexico where the Cooperativa is located and there weighed by a truckman hired by the Sonora Fish Co., and engaged in trucking between Mexico and Tucson, Ariz. The truckman had sole charge of the weighing, which was usually performed in the presence of the fishermen and a member of the Cooperativa. The Cooperativa representative, however, had nothing to do with the weighing, nor did he keep an account of the amount of fish caught by the respective fishermen. The truckman was also the financial man who transported the money from the Sonora Fish Co. to the master of the Mabel, and payments were made by him to the master of the Mabel for the fish he trucked to Tucson. The amount paid to the master for the fish by the truckman was greatly in excess of that received by the fishermen. The difference between the amount paid to the master for the fish and the cost of catching the same covered the operating expenses and profit of the Mabel.

The truck of the Sonora Fish Co. had a capacity of 3,600 kilos. It was the practice of the truckman to transport only the entire catch of the Mabel even though it did not equal the capacity of the truck. When the catch was greater than the capacity, the extra quantity was sold to the Cooperativa or to some other truckman. In a few instances where the truckman had purchased additional fish from other truckmen or from the Cooperativa, he kept such fish separate from the catch of the Mabel and entered it as dutiable fish and paid the duty thereon, as shown by the entries with protests 928836-G and 928838-G.

A memorandum made out by the truck driver as he weighed the fish covered by protest 919886-G was admitted in evidence as Exhibit 3. This memorandum noted the quantities of each kind of fish caught by the members of the crew of the Mabel; by the members of the Cooperativa hired by the master to fish for him; and by the master of the vessel himself. This memorandum also noted a total of 1,147 kilos of cabrilla and 1,140 kilos of pintos. The cabrilla fish were, figured at 19 cents per kilo and the pintos at 17 cents per kilo, making a total of $411.73. Against the payment of the sum to the fishermen were advances of merchandise and cash amounting to $148.60, leaving a total to be paid of $263.13. It was taken to a representative of the Cooperativa, who, without the payment of any money, handed the truck driver a bill of sale, called a “factura,” which recited the number of kilos of fish of each land, the cabrillas at 25 centavos per kilo and the pintos at 23 centavos per kilo, total value $548.95. The “factura” also showed that the Sonora Fish Co. of Tucson, Ariz., had purchased for cash from the Cooperativa Fishing Co. of Kino Bay “Lazaro Cardenas” the fish described therein. It was necessary for the truckman to obtain this bill of sale or “factura” from the Cooperativa in order to be permitted to transport the fish from Mexico to the United States.

The only evidence offered on the part of the Government was Exhibit 1, a bill of sale or “factura”; Exhibit 2, an official receipt for the payment of $20, authorized by the Government of the United Mexican States to the Cooperativa Fishing Co. “Lazaro Cardenas” for the registry fee of the Mabel in accordance with the Mexican law, and which constitutes a license granted to the Cooperativa, allowing the Mabel to engage in fishing; Exhibit 4, the official decree issued by the Mexican Government controlling its fishing interests; and Exhibit 5, an amendment of the law to take effect on August 30, 1938, excluding foreigners from membership in Mexican fishing societies.

Under the Mexican law in force at the time of the importations herein, it was decreed that the catching of fish, especially cabrilla, was reserved to the Cooperativa Society of Fishermen organized by the regional fishermen, on the understanding that in that cooperative there shall be admitted as associates any who wish to join, natives and foreigners alike, provided that they deliver their entire production to the cooperative society for the sale thereof, either for internal consumption or for exportation through the .agency of the cooperative. Under the law as amended, Exhibit 5, the right of belonging to the cooperative society was denied to foreigners. . It will be noted that all of the shipments involved herein were made in the year 1937 and the amended portions of the law do not apply thereto.

The captain of the Mabel testified that Exhibit 3 was merely a fishing license issued by the Mexican Government, allowing him to use his boat for fishing, and that, as he was a member of the Coopera-tiva, he took out the license in the name of the society rather than in, his own name.

At the trial counsel for the Government moved to strike out as hearsay the evidence of D. B. Almond. Decision on the motion was reserved and the evidence adduced by this witness was permitted by the trial judge, upon the promise of counsel for the plaintiff that it. would be connected by other witnesses so as to show that the fish about which ho testified were the same as that at issue herein. This witness testified at length under examination by counsel on both sides. Some of the statements made by him under examination and cross-examination were not based upon his personal knowledge, but whatever was stated was fully covered by plaintiff’s subsequent witnesses and the merchandise imported was clearly shown to be the product and industry of the fishing boat Mabel. Motion to strike out the testimony of D. B. Almond is denied, and exception granted the Government.

In Government brief counsel moved to dismiss all of the protests except 919886-G for failure of proof, because the conditions at the time the fish in the incorporated protests were caught were not shown to be the same as upon the date governing the fish covered by protest 919886-G. In this connection it will be noted that the Government stipulated and agreed with counsel for the plaintiff that the testimony introduced in protest 919886-G would apply to all of the cases herein-before enumerated. The period covered by said protests is from May 24, 1937, to September 11, 1937. As the Government has expressly agreed that the testimony and evidence in the test case shall apply to the protests incorporated the motion is denied.

The plaintiff contends: First, that fish taken by an American vessel with the assistance of foreign fishermen as members of the crew or under the supervision of the master of the vessel are products of American fisheries under article 489 of the Customs Regulations of 1937; second, that under the doctrine of noscitur ab origine the fish in question are products of American fisheries for customs purposes, irrespective of Mexican laws attempting to create a different status, and third, that fish caught upon a vessel of American registry, commanded by an American captain, are products of American fisheries and entitled to free entry even though sold in a foreign country to foreign citizens.

The Government, on the other hand, contends that the vessel was not of American registry and was owned and operated by the Coop-erativa Fishing Co. “Lazero Cardenas”; that under the Mexican law the right to catch fish was reserved exclusively to the Cooperativa; and that to admit the fish as the product of American fisheries would approve of a conspiracy to defraud the Mexican Government out of its revenue and sanction the flaunting of Mexican laws.

American fisheries have long been the subject of decision by this and the appellate courts. In United States v. Reading, 1 Ct. Cust. Appls. 515, T. D. 31534, American fisheries was defined as an enterprise conducted by an American fishing vessel, flying the American flag, manned by American sailors. In United States v. Burdett, 24 Fed. Cas. 1300, fish of American fisheries were characterized by their first taking and take their character from their origin. In Robbins v. United States, G. A. 8952, T. D. 40728, it was held immaterial whether the fish pass into the hands of others or what their ownership may have been, if they enter the United States without being changed in character. See also New England Fish Co. v. United States, 15 Ct. Cust. Appls. 34, T. D. 42137. In the case of In re Winsor, G. A. 5453, T. D. 24738, it was held immaterial whether the fishing vessel is licensed to fish by a foreign government, and it was also held immaterial whether or not the fish were caught with the assistance of men, boats, and gear hired in the foreign country for that purpose.

The question before us is whether these fish caught from a boat of American registry, having an American captain, can be regarded as exempt from duty as the product of American fisheries, when landed in a foreign country and there not further advanced than beheaded, the fins removed, eviscerated, and packed in ice, and so landed solely for transshipment to the United States. Under the ruling of the courts and the customs regulations, article 489, Customs Regulations of 1937, fish that are caught from a ship of American registry by foreign fishermen hired--by the master of the ship for that purpose, without doubt, remain the product of American fisheries. See United States v. Reading, supra, and United States v. Post, 5 Ct. Cust. Appls. 130, T. D. 34188. That the fish were landed in Mexico and from there transshipped to the United States is immaterial because of the fact that the fish were not further advanced than permitted by the statute. The courts have held that the exemption from duty upon fish the product 'of American fisheries is derived from the character of the fish at the time of their taking under the doctrine of noscitur ab origine. That being true, then the fact that a foreign law requires fish taken under its jurisdiction to be sold to certain foreign societies for resale is also immaterial when it has been clearly proven that the fish taken by the American fishery were actually shipped to the United States without any advancement beyond that allowed by the statute. Here it has been proven that the fish were not sold to the foreign society or changed in condition. In the case of Bush v. United States, T. D. 40725, the halibut there in question was a product of American fisheries even though it was sold in the foreign country, frozen by Canadian workmen, and thereafter shipped to the United States. As stated by counsel for the plaintiff in his brief, “if this fishery meets the requirements laid down by American law, its products are entitled to free entry, even though, under Mexican law, it would be consid--ered as a Mexican fishery.” The privilege sought to be exercised is one granted by the United States to its own citizens and such privilege cannot be circumscribed by any foreign statute.

For the reasons stated we hold that the fish in question are entitled to free entry as the products of an American fishery under paragraph 1730 (a), Tariff Act of 1930, and judgment will be entered directing the collector of customs to reliquidate the entries and to make refund accordingly.