When barrels are manufactured in the United States and shipped
empty to Cuba, there filled with molasses, and brought back to the
United States, the duty must be levied upon the value of the
barrels, as well as upon the molasses. This conclusion rests upon
the following reasons: molasses barrels, under such circumstances,
have been applied to the commercial use for which they were
manufactured, and on their reimportation here, even if fit for a
second voyage, seldom or never have the same value as when new.
When filled in the foreign market, reimported here, and offered at
the custom house for entry, they have then acquired a new character
within the meaning of the revenue laws. With their contents they
are then denominated packages, from which one in ten must be
selected and ordered to the public stores for appraisement, and as
such constitute a part of the charges of importation.
The acts of Congress, and the uniform interpretation placed on
them by the Treasury Department, require this to be done.
The question was, whether barrels manufactured in the United
States and exported empty to Cuba, and afterwards brought back to
the United States filled with molasses purchased in Cuba, were
brought back "in the same condition as when exported," according to
the true intent and meaning of the acts of Congress in that
behalf.
On which question the opinions of the judges were opposed.
Wherefore, on motion of the plaintiffs' counsel, at the same
term, it is ordered that the point on which the disagreement hath
happened be stated, under the direction of the judges, and
certified under the seal of this Court to the supreme court to be
finally decided, and that the foregoing state of the pleadings,
Page 65 U. S. 527
and the following statement of facts, which is made under the
direction of the judges, be certified according to the request of
the defendant, by his counsel, and the law in that case made and
provided.
It was proved on the trial that the plaintiffs, in the year
1859, imported from Matanzas 728 barrels of molasses by the brig
Irene; 301 barrels of molasses by a vessel called the
Yumuri; and 120 barrels of molasses by a vessel called the
Trovatore; that the barrels containing the molasses were
manufactured by the plaintiffs at Newburg, in the State of New
York, and shipped from the port of New York empty to Matanzas,
where they were filled with molasses, and returned in the three
vessels above named to the port of New York; that said barrels were
made up and completed in every respect before they were shipped to
Cuba. They were returned, most of them, in the same vessels that
carried them out from New York, and all of them in the same
condition in which they were shipped or carried out from New York,
except being filled with molasses.
They were filled with molasses at Cuba. When these barrels were
brought back from Cuba filled with molasses in the vessels above
referred to, the collector claimed that the barrels themselves were
dutiable, and that they were not entitled to entry duty free. He
claimed a duty upon them at the rate of 24 percentum of their value
at Cuba, and refused to allow them to be entered unless such duty
was paid; that the plaintiffs paid to the defendant that portion of
the said duties which was upon the separate value of said barrels
under protest, claiming that said barrels were not legally subject
to the payment of any duty, but were exempt from duty by virtue of
the provisions of the 47th section of the act of Congress of March
2, 1799, and of Schedule I of the existing tariff.
The plaintiffs thereupon, having complied in all respects with
the provisions of section fifth of the Act of March 3, 1857,
entitled "An act reducing the duties on imports, and for other
purposes," brought this action to recover back the sum so paid
under protest, as duties upon said separate value of said
barrels,
Page 65 U. S. 528
within the time prescribed in said act for bringing the
same.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
This case comes before the Court on a certificate of division of
opinion from the Circuit Court of the United States for the
Southern District of New York. It was an action of assumpsit,
brought by the present plaintiffs against the defendant, as the
collector of the port of New York, to recover back certain duties
paid by the plaintiffs under protest, upon certain barrels, in
which molasses was imported into the United States from
Matanzas.
It was proved, on the trial, that the plaintiffs, in the year
1859, imported from Matanzas 728 barrels of molasses by the brig
Irene, 120 barrels of molasses by a vessel called the
Yumuri, and 120 barrels of molasses by a vessel called the
Trovatore; that the barrels containing the molasses were
manufactured by the plaintiffs at Newburg, in the State of New
York, and shipped from the port of New York empty to Matanzas,
where they were filled with molasses, and returned in the three
vessels above named to the port of New York; that the barrels were
made up and completed in every respect before they were shipped to
Cuba. They were returned, most of them, in the same vessels that
carried them out from New York, and all of them in the same
condition in which they were shipped or carried out from New York,
except being filled with molasses.
They were filled with molasses at Cuba. When the barrels were
brought back from Cuba filled with molasses, in the vessels above
referred to, the collector claimed that the barrels themselves were
dutiable, and that they were not entitled to entry duty free. He
claimed a duty upon them at the rate of 24 percentum of their value
at Cuba, and refused to allow them to be entered, unless such duty
was paid; that the
Page 65 U. S. 529
plaintiffs paid to the defendant that portion of the duties
which was upon the separate value of the barrels under protest,
claiming that the barrels were not legally subject to the payment
of any duty, but were exempt from duty by virtue of the provisions
of the 47th section of the Act of Congress of March 2, 1799, and of
Schedule I of the existing tariff.
The plaintiffs thereupon, having complied in all respects with
the provisions of section fifth of the act of March 3, 1857,
entitled "An act reducing the duties on imports, and for other
purposes," brought this action to recover back the sum so paid
under protest, as duties upon the separate value of the barrels,
within the time prescribed in said act for bringing the same.
Upon the foregoing facts, the question arose whether barrels
manufactured in the United States, and exported empty, and
afterwards brought back to the United States filled with molasses
purchased in Cuba, were brought back "in the same condition as when
exported," according to the true intent and meaning of the acts of
Congress in that behalf; and the opinion of the judges being
opposed on that question, it was certified to this Court for
decision. By the Act of the second of March, 1799, it is provided,
that on any goods, wares, or merchandise, of the growth or
manufacture of the United States, which may have been exported to
some foreign port or place, and brought back to the United States,
and upon which no drawback bounty or allowance has been made, no
duty shall be demanded. 1 Stat. 662. Among other things, the ninth
section of the act of the 30th of August, 1842, provides that all
goods, wares, and merchandise, the growth, produce, or manufacture
of the United States, exported to a foreign country, and brought
back to the United States, shall be exempt from duty, 5 Stat. 560.
Dutiable articles, and those exempt from duty, are arranged in
schedules by the act of the 30th of July, 1846, and the schedule of
the latter class embraces goods, wares, and merchandise, the
growth, produce, or manufacture of the United States, exported to a
foreign country, and brought back to the United States
in the
same condition as when exported. 9 Stat. 49. To entitle the
article to entry free
Page 65 U. S. 530
of duty, it must also appear that it is one on which no drawback
or bounty has been allowed. It will be observed, that the prior
acts of Congress did not require that the goods should be brought
back in the same condition as when exported, in order to entitle
the importer to claim that they should be admitted to entry as
included in the free list. That language is retained in the Act of
the third of March 1857, without any alteration or amendment; so
that although it may appear that the goods were the growth,
produce, or manufacture of the United States; that they were
exported to a foreign country, and brought back to the United
States; still, unless it also appears they were so brought back in
the same condition as when exported, the collector of the port is
not authorized to admit them to entry free of duty.
Molasses barrels exported empty, when new, to Matanzas, and
there filled, and, with their contents, brought back to the United
States, cannot truly be said to be in the same condition as when
they were exported. Oftentimes, when emptied of their contents,
they are unfit for a second voyage, and seldom or never afterwards
have the same market value as when they were new. When filled in
the foreign port, the barrels have been applied to the commercial
use for which they were manufactured; and when shipped with their
contents, brought back to the United States, and are offered with
their contents by the importer for entry at the custom house, they
have then, in respect to the revenue laws of the United States,
acquired a new character. For all the purposes of appraisement,
with a view to ascertain the dutiable value of the importation, the
barrels, if filled, are regarded with their contents as packages;
and it is the duty of the collector, by the express words of the
statute, to order one in ten of the packages to the public store.
Examination of the selected packages is then made by the local
appraisers; and in case of appeal, the same packages are required
to remain in the public store, and frequently constitute the only
attainable basis of the subsequent adjudication by the merchant
appraisers. Such packages are ordered to the public store in the
same condition as when imported, and it is not possible to
doubt
Page 65 U. S. 531
that Congress intended to include, in the words one in ten of
the packages, the covering of the importation, if belonging to the
merchant, as well as the contents within it. Confirmation of these
views, if any be needed, may be found in the almost unbroken
practice of the Treasury Department. Take, for example, the
Treasury circular of the twenty-sixth of November, 1846, and it
will be found that it fully justifies the conclusion to which we
have come.
By that circular the several collectors were informed that:
"The principle upon which the appraisement is based is this:
that the actual value of articles on shipboard at the last place of
shipment to the United States, including all preceding expenses,
duties, costs, charges, and transportation, is the foreign value
upon which the duty is to be assessed. The costs and charges that
are to be embraced in fixing the valuation, over and above the
value of the article at the place of growth, production, or
manufacture, are:"
"The transportation, shipment, and transshipment, with all the
expenses included, from the place of growth, production, or
manufacture, whether by land or water carriage, to the vessel in
which shipment is made to the United States. Included in these
estimates is the value of the sack,
package, box, crate,
hogshead, barrel, bale, cask, can, and covering of all kinds,
bottles, jars, vessels, and demijohns."
Mayo Comp. 350, 351.
Casks, including barrels, as well as hogsheads, exported from
the United States empty, and returned filled, have almost
invariably, since the passage of the Tariff Act of the twentieth of
July, 1846, been included among the dutiable charges, although of
American manufacture, on the ground that, when so filled and
brought back, they were not in the same condition as when exported,
within the meaning of the provision of that act. Mayo Comp., 407.
That construction has been affirmed by the Treasury Department,
since the passage of the appraisement act of the third of March,
1851, as will appear by reference to the Treasury circular adopted
shortly after its passage. By that circular the Department declares
that:
Page 65 U. S. 532
"The law enjoins that there shall be added 'all costs and
charges, except insurance, and including, in every case, a charge
for commissions at the usual rates.' These charges are as follows,
to-wit:"
"They must include 'purchasing, carriages, dyeing, bleaching,
dressing, finishing, putting up, and packing,'
together with
the value of the sack, package, box, crate, hogshead, barrel, bale,
cask, can, and covering of all kinds, bottles, jars, vessels, and
demijohns."
Without pursuing the discussion further, suffice it to say, that
we are all of the opinion that the question under consideration
must be answered in the negative, and we accordingly direct that it
be certified to the court below, as the opinion of this Court, that
barrels manufactured in the United States, and exported empty to
Cuba, and afterwards brought back to the United States filled with
molasses purchased in Cuba, were not brought back "in the same
condition as when exported," within the true intent and meaning of
the acts of Congress in that behalf.
ORDER
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of New York, and on the point or question upon which the
judges of the said circuit court were opposed in opinion, and which
was certified to this Court for its opinion, agreeably to the act
of Congress in such case made and provided, and was argued by
counsel. On consideration whereof, it is the opinion of this Court
that barrels manufactured in the United States, and exported empty
to Cuba, and afterwards brought back to the United States filled
with molasses purchased in Cuba, are not brought back in the same
condition as when exported, according to the true intent and
meaning of the acts of Congress in that behalf. Therefore it is now
here ordered by the court that it be so certified to the said
circuit court.
