United States v. Hawley & Letzerich

160 F. 734, 1908 U.S. App. LEXIS 5082

• Court: U.S. Circuit Court for the District of Texas
• Decided: February 4, 1908
• Docket: No. 2,040 (1,981)
• Status: Published

Opinion

BURNS, District Judge.

This suit is upon a petition to review the decision of the Board of Appraisers sustaining the protest filed by Hawley & Letzerich, growing out of a transfer of coal from the Ansel-ma to the Mercedes, said vessels being steamships of the Larrinaga Line, while the vessels were lying alongside of each other in the port of Galveston. The collector of customs assessed a duty of 67 cents per ton upon the coal so transferred, to which action the respondents excepted, and in their original protest contend that 47 per cent, of said coal is what is commonly known as “slack” or “culm,” and under the second clause of paragraph 415 of the tariff act (Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 190 [U. S. Comp. St. 1901, p. 1674]), subject to a duty of 15 cents per ton.

A second protest was filed with the collector claiming the coal so transferred as aforesaid was free of duty in that it was a part of “the legitimate equipment” under section 17 of the act “to amend the laws relating to navigation,” approved March 3, 1897 (29 Stat. 687, 691, c. 389 [U. S. Comp. St. 1901, p. 1871]). See section 2797, Rev. St. (U. S. Comp. St. 1901, p. 1871), as amended. That portion of said section relied upon is as follows:

“Sea-stores and the legitimate equipment of vessels belonging to regular lines plying between foreign ports and the United States delayed in port for any cause may be transferred * * * from one vessel to another vessel of the same owner without payment of duties, but duties must be paid on such stores or equipments landed for consumption, except American products.”

The first contention was overruled by the General Appraisers, and the same has been waived and is not here insisted upon, for the very substantial reason that respondents are relieved from the payment of all duties by the decision of the board. It may be observed that the second protest, based upon the theory or contention that the coal is exempt from duty upon the ground that it is within the designation of “the legitimate equipment of the vessel so delayed,” is not sustained by the board; but the holding is there made that the respondents intended by their protest to urge that the Coal in quéstion was a part of the “sea stores” of the vessel, and the board finds by a majority opinion that this last contention is sound, and thereupon dismisses the first protest, affirms the second, holding the coal so transferred not subject to duty, with directions to the collector of customs to reliquidate the entry in accordance with said finding, to which action of the board one of the members thereof dissents, and files his opinion as a part of the record brought here for review.

The sole question for review as disclosed by the pleadings and relied upon in the argument is whether or not “coal” is a part of the sea stores of the vessel. “Sea stores” are defined in Commercial Navigation as “the supplies of different articles provided for the subsistence and accommodation of the ship’s crew and passengers.”

It follows, therefore, that coal being no part of the vessel’s sea stores the petition for review should be sustained, the decision of the board reversed, and the action of the collector of customs in all things affirmed.