J. M. Ceballos & Co. v. United States

• Decision Date: 16 December 1904
• Docket Number: 3,607.
• Parties: J. M. CEBALLOS & CO. v. UNITED STATES.
• Court: U.S. District Court — Southern District of New York

139 F. 705

J. M. CEBALLOS & CO. v. UNITED STATES.

No. 3,607.

United States Circuit Court, S.D. New York.

December 16, 1904

On Application for Review of a Decision of the Board of United States General Appraisers.

These proceedings were brought by J. M. Ceballos & Co., and relate to a decision of the Board of General Appraiser which overruled their protests against the assessment of duty by the collector of customs at the port of New York. Said decision is reported as G.A. 5,701, T.D. 25,359, and reads as follows:

Waite General Appraiser. In these cases the collector has assessed duty upon olives in brine, contained in casks, at 15 cents per gallon, under paragraph 265, Tariff Act July 24, 1897, c 11, Sec. 1, Schedule G, 30 Stat. 171 (U.S. Comp. St. 1901, p 1651), the number of dutiable gallons having been ascertained upon the basis of the wine gallon, of 231 cubic inches capacity. The classification is not questioned, but the protestants contend that the use of the wine gallon in measurement is an error, and that the olives should be gauged by the dry gallon, of 268.8 cubic inches capacity. With this contention we are unable to agree. The customs gallon of the United States is the wine gallon, of 231 cubic inches, which is uniformly referred to by the authorities as the standard gallon of this country. Nichols v. Beard (C.C.) 15 F. 435. See, also, 16 Ops.Attys.Gen. 359, and 'gallon,' Standard and Century Dictionaries. The dry or corn gallon is an old English unit of measurement, which we should judge has fallen into practical disuse. 'Gallon,' Century Dictionary. We are not aware that it has any common employment in the commerce of this country. The protestants, in any event, have offered no proof of its general commercial use, which would be incumbent upon them since that fact is hardly within common knowledge. But were the use of the corn gallon as a unit of dry measurement notorious, it would still be open to serious doubt whether a commodity like olives in brine should be measured by it. It appears to be the practice to measure even dried olives by the liquid gallon. In its decision on the protest of Tai Hing (Abstract 35, T.D. 24,919), the board reversed the action of the collector at Honolulu in assessing dried olives at 2 cents per pound, as 'edible fruits * * * dried, ' under paragraph 262 of the present tariff (30 Stat. 171 (U.S Comp. St. 1901, p. 1651)), sustaining a claim that they were dutiable as 'olives' by the gallon, under said paragraph 264. The board said in part: 'The well-established practice at this port (New York) is to return dried olives under the specific provision for olives in paragraph 264, and assess duty upon them at 15 cents per gallon; the unit of measurement being the wine gallon, of 231 cubic inches, apparently the only gallon in common use in this country. Nichols v. Beard (C.C.) 15 F. 435. We are without any proof of trade usage or other evidence which would enable us to say...