United States v. Catz American Co.

53 F.2d 425, 1931 U.S. App. LEXIS 2678

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 2, 1931
• Docket: 6498
• Status: Published

Opinions

JAMES, District Judge.

Appellant brought its libel in the District Court seeking a decree condemning approximately 2,000 sacks of “Cull” dried figs which were found at the dock in San Francisco ready to be loaded aboard ship, with initial destination Trieste, Italy. It was charged in the libel that the shipment consisted partly of “filthy, decomposed or putrid vegetable matter,” and was subject to seizure under the Food and Drugs Act.

The answer of appellee admitted that the figs were “culls,” and that without further segregation or processing they were not fit to be used as food. It was further alleged in the answer that the figs had actually been placed in transit, consigned to a buyer in Austria.

Trial was had, and there was no conflict in the evidence as to matters material to the issues. In brief,- appellee, a dealer in dried figs, had prepared the fruit to meet an order for that particular kind and quality of figs; the order being received from an Austrian manufacturer who processed like fruit to make a coffee flavoring'. The figs were wormy in part. Appellee had made shipments of many tons of the same kind of figs to the same buyer during the preceding four years. The District Court found that the facts, under the law appealed to, did not show a cause for the decree demanded. This decision, we believe, was right.

The Food and Drugs Act (21 USCA §§ 1-25) contains many provisions respecting adulteration and misbranding of articles of food and drugs, and the shipment of the same in interstate commerce. Section 2 forbids the introduction into any state or territory from another stale or territory, or from a foreign country, or the shipment to a foreign country, of any article of food or drugs adulterated or misbranded within the meaning of the law. This section provides that the offender shall be guilty of a misdemeanor and subject to a fine for the first offense and fine or imprisonment, or both, for a subsequent offense. The concluding portion of the section reads as follows: “No article shall he deemed misbranded or adulterated within the provisions of said sections when intended for export to any foreign country and prepared or packed according to the specifications or directions of the foreign purchaser when no substance is used in the preparation or packing thereof in conflict with the laws of the foreign country to which said article is intended to be shipped; but if said article shall be in fact sold or offered for sale for domestic use 'or consumption, then this proviso shall not exempt said article from the operation of any of the other provisions of the sections hereinbefore ■ enumerated.”

Section 8 provides that: “For the purposes of sections 1 to 15, inclusive, of this title, an article shall be deemed to be adulterated : * * * Sixth. If it consists in whole or in part of a filthy, decomposed,- or putrid animal or vegetable substance. “ * * ”

Section 8, in the part quoted, furnishes the definition of an “adulterated” article of food. The exception is, as is specified in that portion of section 2 quoted, that articles of food shall not be deemed “adulterated”' when intended for export to- a foreign country, and prepared or packed according to directions of the foreign purchaser, and where no substance is used in the preparation or packing which is in conflict with the laws of the country to which the article is intended to be shipped. Construed together, these provisions seem intended to allow the shipment to a foreign country of products which are not up to the requirements imposed upon interstate shipments where the foreign purchaser has ordered the precise kind and quality which the exporter designs to send to him, so long as the law of the country to which they are being sent does not impose similar restrictions as to substances “used in the preparation or packing thereof.” The words “prepared or packed” should be held to mean any condition or grade of the merchandise, including any deteriorated state of the goods, considering the class 'to which they belong. The law thus interpreted (and we feel that the language' used is fairly expressive to the intent indicated), the libel did not show that the merchandise seized was subject to forfeiture.

The certificate introduced by appellant in the trial court, showing the provisions of an Austrian law as prohibiting certain impure materials being used in coffee admixtures and coffee substitutes, could not have the effect to put the shipper here out of the excepted class, as showing that he had used a substance in the preparation and packing of the fruit “in conflict with the laws of-;the foreign country to which said article is intended to be shipped.” Section 2 above cited. The manufacturer, upon receiving the figs, might well free them from all the deleterious' matter before converting them into coffee flavoring, or he might divert them to other proper uses if they were unfit for such purpose. In the absence of evidence to the contrary, it will he assumed that he will comply with the law of Austria.

The decree is affirmed.