United States v. Dearberg Bros.

U.S. Circuit Court for the District of Southern New York

United States v. Dearberg Bros.

135 F. 245, 1904 U.S. App. LEXIS 5193

CourtU.S. Circuit Court for the District of Southern New York

DecidedNovember 11, 1904

DocketNo. 3,527

StatusPublished

Cited by2 cases

This text of 135 F. 245 (United States v. Dearberg Bros.) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Dearberg Bros., 135 F. 245, 1904 U.S. App. LEXIS 5193 (circtsdny 1904).

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Opinion

HAZEL, District Judge.

The decision of the Board of General Appraisers holding the protest filed by the importers as sufficient is affirmed. This conclusion finds support in a recent decision of the Circuit Court of Appeals for the Third Circuit in Re Guggenheim Smelting Co., 112 Fed. 517, 50 C. C. A. 374. It was stated at the hearing that the Guggenheim Case was in conflict with a decision of the Circuit Court of Appeals for this circuit in Hahn v. Erhardt, 78 Fed. 620, 24 C. C. A. 265, where it was broadly held that an importer who intends to object to the action of the collector on the ground that due effect has not been given to the similitude clause of the tariff act is obliged by statute to specifically and distinctly state such objection in his protest. From the protest submitted by the importers it appears that they intended to rely upon other provisions of the tariff act for reduction of the duty assessed by the collector, but in the judgment of the Board of General Appraisers, by reason of a prior decision rendered by this court (Donat v. United States, 134 Fed. 1023), the merchandise in question is similar to silk braids or cotton braids, and accordingly is dutiable under the similitude provision of the act. The facts here would seem to be precisely like those in the Guggenheim Case. In United States v. Salambier, 170 U. S. 621, 18 Sup. Ct. 771, 42 L. Ed. 1167, it was held that a protest need not be made with technical precision, and that the statute is sufficiently complied with if the collector is advised of the importer’s objection in order to secure “to the government the practical advantages which the statute was designed to secure.” The Circuit Court of Appeals for this Circuit in Shaw v. The United States, 122 Fed. 443, 58 C. C. A. 425, held that a protest claiming free entry under a certain paragraph was sufficient to advise the collector that a claim for exemption from duty was in fact asserted under another paragraph. True, the court found in that case that there was a mistake in the protest, but the nub of the decision indicates a liberal construction of the provisions of the statute, and therefore does not require the importer to make his protest with exactitude and absolute precision. See United States v. Fleitmann & Co., 131 Fed. 396. Such being the holding of the cases, the Board of General Appraisers correctly decided that the protests were sufficient.

An order of affirmance may be entered.

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HAZEL, District Judge.

The decision of the Board of General Appraisers holding the protest filed by the importers as sufficient is affirmed. This conclusion finds support in a recent decision of the Circuit Court of Appeals for the Third Circuit in Re Guggenheim Smelting Co., 112 Fed. 517, 50 C. C. A. 374. It was stated at the hearing that the Guggenheim Case was in conflict with a decision of the Circuit Court of Appeals for this circuit in Hahn v. Erhardt, 78 Fed. 620, 24 C. C. A. 265, where it was broadly held that an importer who intends to object to the action of the collector on the ground that due effect has not been given to the similitude clause of the tariff act is obliged by statute to specifically and distinctly state such objection in his protest. From the protest submitted by the importers it appears that they intended to rely upon other provisions of the tariff act for reduction of the duty assessed by the collector, but in the judgment of the Board of General Appraisers, by reason of a prior decision rendered by this court (Donat v. United States, 134 Fed. 1023), the merchandise in question is similar to silk braids or cotton braids, and accordingly is dutiable under the similitude provision of the act. The facts here would seem to be precisely like those in the Guggenheim Case. In United States v. Salambier, 170 U. S. 621, 18 Sup. Ct. 771, 42 L. Ed. 1167, it was held that a protest need not be made with technical precision, and that the statute is sufficiently complied with if the collector is advised of the importer’s objection in order to secure “to the government the practical advantages which the statute was designed to secure.” The Circuit Court of Appeals for this Circuit in Shaw v. The United States, 122 Fed. 443, 58 C. C. A. 425, held that a protest claiming free entry under a certain paragraph was sufficient to advise the collector that a claim for exemption from duty was in fact asserted under another paragraph. True, the court found in that case that there was a mistake in the protest, but the nub of the decision indicates a liberal construction of the provisions of the statute, and therefore does not require the importer to make his protest with exactitude and absolute precision. See United States v. Fleitmann & Co., 131 Fed. 396. Such being the holding of the cases, the Board of General Appraisers correctly decided that the protests were sufficient.

An order of affirmance may be entered.

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135 F. 245, 1904 U.S. App. LEXIS 5193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dearberg-bros-circtsdny-1904.

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