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Leakage of Sake.-In the past there has been much contention over sake and the leakage of sake, but the tariff act of 1909 would seem, by providing in paragraph 307 for rice wine or sake expressly and forbidding any allowance should be made for breakage, leakage, or damage on wines, to have placed the question beyond doubt. It was properly held, as here, no such allowance should be made on sake.-Furuya & Co. v. U. S. (Ct. Cust. Appls.), T. D. 32095; (G. A. Ab. 25232) T. D. 31478 affirmed.

It appears there had been leakage in transitu from some of the tubs of this importation Bui paragraph 307 specifically provided that rice wine or sake should enjoy no constructive or other allowance for breakage, leakage, or damage during transportation. Furuya & Co. v. U. S. (2 Ct. Cust. Appls., 37 T. D. 32095).-S. Ban Co. et al. v. U. S. (Ct. Cust. Appls.), T. D. 34874 ; (G. A. Ab. 34745) T. D. 34165 affirmed.

Shortages—Wines--Liquors.-Lading inspectors should note on manifest all packages of wines, liquors, cordials, and distilled spirits in bad order, and reports should be made under T. D. 32280 of February 26, 1912, of all empty or broken bottles found in examination packages at destination.-Dept. Order (T. D. 33497).

Leakage of Vermuth.-The importers claimed that duty should have been assessed only upon the actual quantity of vermuth arriving in this country.

On authority of U. S. v. Wile (178 Fed. Rep., 269; T. D. 30449), the protests are sustained as to the vermuth.—Ab. 24873 (T. D. 31335).

Vouray.-French wine labeled “ Vouray” and classified as sparkling wine under paragraph 306, was claimed to be dutiable as still wine (par. 307). Protest sustained.-Ab. 27825 (T. D. 32297).

DECISIONS UNDER THE ACT OF 1897.

Allowance for Wantage upon Liquors in Barrels and Casks.-A wantage of 24 per cent of the capacity of barrels or casks in which imported will be allowed upon all liquors so imported.-Dept. Order (T. D. 26547).

No Duty on Bottles Not Imported.—Where certain whisky was imported contained in glass bottles, packed in cases of six bottles each, the whisky was properly assessed by the collector as if the packages each constructively contained 12 bottles, under the provisions of paragraph 296; but the additional duty on the bottles levied by said paragraph and assessable under paragraph 99 should be assessed only on such of the bottles as are actually imported, viz, six bottles to each package.—T. D. 29882 (G. A. 6917).

Bottles Containing Still Wine.—Under the provisions of paragraph 296 bottles of still wine containing less than a pint are dutiable as if they contained one pint, irrespective of the actual quantity of wine in them.

The fact that such bottles of wine were intended as samples is immaterial and does not relieve them from the payment of duty. Cavaroc v. Collector (1 Woods, 172; 5 Fed. Cas., 319) followed.-T. D. 26113 (G. A. 5958).

What Constitutes a Package Under Paragraph 296.-Four cases of French brandy, each containing six quart bottles, all tied together in one package by a strap, making 24 quart bottles inclosed in one strap, constitute a package of bottles within the meaning of paragraph 296 and are properly packed so as to evade any punitive or additional duties under said paragraph. Such merchandise is dutiable according to the number of gallons contained in the package.-T. D. 27871 (G. A. 6531).

Byrrh Wine.—The article imported from France known as byrrh wine, and the product of that country, is not dutiable as a inedicinal preparation under

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paragraph 67, but is a still wine, and is dutiable accordingly under paragraph 296 and the reciprocal commercial agreement with France.-T. D. 24052 (G. A. 5227).

Decorated Glass Decanters containing cordials, Held not to be glass bottles such as are required to be packed in packages containing not less than one dozen bottles in each package under the provisions of paragraph 296.—T. D. 29515 (G. A. 6862).

Decorated Earthenware Whisky Jugs.-Earthenware jugs imported filled with whisky, in packages each containing not less than one dozen jugs, as prescribed by paragraph 296, are entitled to free entry as the usual coverings for merchandise subject to specific duty, and not dutiable at 60 per cent ad valorem under paragraph 95. G. A. 5611 (T. D. 25106) modified.—T. D. 25534 (G. A. 5772).

Earthenware Vessels Not Jugs.-An earthenware vessel, of a capacity of luore than 8 gallons, about 21 inches high and 18 inches at its largest diameter, weighing about 33 pounds when empty, is not a * jug” within the meaning of the second proviso to paragraph 296, which requires spirituous liquors, imported in bottles or jugs, to be packed “in packages containing not less than one dozen bottles or jugs," or duty to be paid as if such packages contained at least one dozen bottles or jugs.”—T. D. 23556 (G, A, 5088).

Percentage of Alcohol.-The percentage of alcohol in wines and fruit juices is expressly required by paragraph 296 to be determined for dutiable purposes in such manner as the Secretary of the Treasury shall by regulation determine.

These regulations applicable to importations under the present tariff act of 1897 are prescribed in Circular 108, issued July 24, 1897, published in T. D. 18201 and T. D. 15763.-T. D. 28739 (G. A. 6716). Leakage.

The evidence shows apparently that the leakage here occurred before importation. Under paragraph 296 sake was held dutiable by similitude only as still wine; and, further, the provision in that paragraph that no allowance should be made for leakage of wine could be made to apply to this importation only by construction. To apply it by construction is to do violence to an accepted principle of law. The leakage of sake was not dutiable. U. S. v. Gonsalves (2 Haw. Rep., 354; T. D. 26737).-Peacock & Co. v. U. S. (Ct. Cust. Appls.), T. D. 32047; (G. A. Ab. 24628) T. D. 31236 reversed.

The second proviso to paragraph 296, prohibiting allowance for breakage, leakage, or damage on wines, liquors, cordials, or distilled spirits, does not include stout, and for this reason duty can be assessed only on the quantity of this article actually arriving in the United States. Following Hollander & Co., G. A. 5909 (T. D. 26008), and Hollender v. Magone (149 U. S., 586; 13 Sup. Ct. Rep., 932).-T. D. 30796 (G. A. 7072).

PARTIAL LEAKAGE.—Where the quantity of liquor shipped from abroad is shown by the invoice, entry, or otherwise, as required by section 2785 of the Revised Statutes, duty is assessable on such quantity, less the usual outage as established by the custom of trade, in view of the proviso to paragraph 296 forbidding an allowance for breakage, leakage, or damage on wines, liquors, cordials, or distilled spirits.

CONSTITUTIONALITY OF STATUTE.—The contention that the clause in said paragraph 296 forbidding “constructive or other allowance for leakage on wines," etc., contravenes the constitutional provision that duties shall be uniform and that property shall not be taken without due process of law, Held not to be tenable.-T. D. 29448 (G. A. 6851).

Under paragraph 296, forbidding “constructive or other allowance for leakage on wines," the collector may not make any reduction of duty for shortage where the arrival of less than the normal quantity is due to loss by leakage.

Section 3 provides that the President may, on the proclamation of reciprocal commercial agreements with foreign countries, “suspend the imposition and collection of the duties mentioned in this act" on wines, etc. Held that it is the intent of the law to reduce the duty on the articles covered by the agreements, and that such suspension does not relate to the proviso in paragraph 296, forbidding “ constructive or other allowance for leakage on wines."—Shaw v. U. S. (C. C.), T. D. 28517; Ab. 16973 (T. D. 28448) affirmed. Allowance for Leakage Under Paragraph 296.

LEAKAGE OF ENTIRE CONTENTS OF A CASK.-Where the entire contents of a cask of liquor leaks out in transitu before arrival in the United States, the case is one of nonimportation, and no duty is assessable.

PARTIAL LEAKAGE.—Where the quantity of liquor shipped from abroad is shown by the invoice, entry, or otherwise, as required by section 2785 of the Revised Statutes, duty is assessable on such quantity, less the usual outage as established by the custom of trade, in view of the proviso to paragraph 296, forbidding an allowance for breakage, leakage, or damage.

BREAKAGE OF BOTTLES.—Where liquors or wines are imported in bottles, packed as required by law, and a breakage of a portion of the bottles occurs in transitu, no deduction or allowance can be made.

CONSTRUCTIVE ALLOWANCE.-A “constructive allowance” for leakage would seem to imply an allowance for a leakage which may be presumed or implied, or which exists in contemplation of law, rather than for an actual leakage established by affirmative proof.—T. D. 27330 (G. A. 6362.)

PartiaL LEAKAGE.—Where the quantity of liquor shipped from abroad is shown by the invoice, entry, or otherwise, as required by section 2785 of the Revised Statutes (and is reduced by leakage), duty is assessable on such quantity, less the usual outage as established by the custom of trade, in view of the proviso to paragraph 296, forbidding an allowance for breakage, leakage, or damage.

CONSTITUTIONALITY OF STATUTE.—The constitutionality of paragraph 296, providing that there shall be no constructive or other allowance for breakage, leakage, or damage on wines, liquors, cordials, or distilled spirits, has been settled by the circuit court of appeals in U. S. v. Shaw (T. D. 27226).

CONSTITUTION OF THE UNITED STATES.—The uniformity referred to in Article I, section 8, of the United States Constitution, providing that duties, imposts, and excises shall be uniform throughout the United States, is not an intrinsic uniformity relating to the inherent character of the tax as respects its operations on individuals, but is merely a geographical uniformity requiring the same plan and the same method to be operative throughout the United States.--T. D. 27254 (G. A. 6329).

Mirin classified as still wine under paragraph 296 was claimed to be dutiable as beer, ale, or porter by similitude under paragraph 297. Protests overruled.-Ab. 19967 (T. D. 29348). Outage or Wantage of Wines in Casks.

ALLOWED BY SECRETARY OF THE TREASURY.—The allowance for normal outage or wantage authorized by the Treasury Department (T. D. 26347) of 24 per cent of the capacity of barrels or casks containing imported wines or liquors was intended only as approximately representing the usual amount of such outage or wantage in ordinary cases.

DEFINED.-Such outage or wantage is defined to be the difference between the capacity of the cask and the quantity of wine or liquor which is usually placed in it according to the custom of the trade, a certain vacancy being allowed for the expansion of such wines or liquors.

CAN NOT REDUCE AMOUNT ACTUALLY IMPORTED.—This regulation has no application to a case where such allowance would reduce the quantity of wines or liquors below that shown by the net gauge of such contents to have been actually imported and admitted to be correct, except for such allowance.

LEGAL AND ILLEGAL CONSTRUCTION OF REGULATION.-Where a statute or regulation is susceptible of two constructions, one of which would lead to legal results and the other to results unauthorized by law, the former construction will prevail. Nor in such case can it be assumed that the Secretary intended to promulgate a regulation inconsistent with law.–T. D. 31203 (G. A. 7150).

St. Lehon Wine, which was classified as a medicinal preparation under paragraph 67, was claimed to be dutiable under paragraph 296 as a still wine. Protest sustained. Ab. 2011 (T. D. 25411) followed.—Ab. 3045 (T. D. 25665).

Sake is subject to the duty on still wine provided by paragraph 296.

In questions of doubt as to the application of the similitude clause, the construction given by the department charged with the execution of the tariff acts is entitled to great weight.

Sake had been held dutiable as a still wine by similitude under the tariff act of 1890, and that rule had been followed eight years, during which two other tariff acts had been enacted, and while litigation was in progress Congress in terms put sake in the category of still wines. Held that the intent of Congress to make sake dutiable at the same rate as still wines was clearly mani. fested.

Consideration was given to the fact that while tariff litigation was in progress Congress in a new tariff act expressly put the contested article in the same category as that under which it had been previously assessed.

A doubtful tariff law may be construed favorably to the Government when such construction is in harmony with a long-continued customs practice.Komada v. U. S. (U. S.), T. D. 30253; T. D. 29105 (C. C. A.) affirmed ; T. D. 27514 (C. C.) and (G. A. 6182) T. D. 26810 reversed.

Shortage of Liquors in Bottles or Jugs.-From the evidence it is concluded the cases containing the liquors were packed at exportation with not less than a dozen bottles each, conforming so to the legal requirements as to packing, and it is further concluded that the shortage appearing was attributable to theft before importation. No allowance may be made for breakage, leakage, or damage in bottle shipments, but this punitive provision of paragraph 296 is not to be enlarged beyond its express terms. Such losses as might be allowed for in bulk shipments would be allowable for in bottle shipments, and a shortage in bottles, as here, that was due to theft was properly held to be nondutiable. De Bary v. Arthur (93 U. S., 420) distinguished.—U. S. v. Vignier et al. (Ct. Cust Appls.), T. D. 32380; (G. A. 6914) T. D. 30160 affirmed.

Shortage of Bottles of Liquors.-Allowance will not be made for the duty on missing bottles of liquors in instances where less than 12 bottles are found in the case.--Dept. Order (T. D. 29147).

Wine-Shortage by Theft a Nonimportation.—Where it is shown by satisfactory evidence that a certain quantity of wine contained in a cask has been abstracted by theft or otherwise while in transitu and before arrival in this country, such shortage constitutes a nonimportation and does not come within the limitations of paragraph 296, which provides that "there shall be no constructive or other allowance for breakage, leakage, or damage on wines, liquors,

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cordials, or distilled spirits," and in the liquidation of the duty allowance should be made by the collector by way of deduction for the quantity so abstracted. Following In re Morten, G. A. 6185 (T. D. 26813).-T. D. 28650 (G. A. 6699).

Shortage of Wine.—Under paragraph 296, prohibiting a constructive or other allowance for leakage or damage on wines," Held that no allowance should be made for leakage of part of the contents from a barrel of wine.U. S. v. Shaw (C. C. A.), T. D. 27226; T. D. 26488 (C. C.) reversed and (G. A. 5939) T. D. 26086 affirmed.

NO ALLOWANCE WHEN ANY PORTION OF CASE ARRIVES.—Where a case of wine invoiced as containing 50 bottles is found on arrival to contain only 1 bottle and some broken glass, and an allowance is claimed by the importer on the ground that as to the broken bottles there is a nonimportation, Held that the proviso to paragraph 296 prohibiting any allowance for "breakage, leakage, or damage, on wines," is mandatory and that there can be no allowance so long as any portion of the case arrives. In re Montague & Sons, G. A. 5939 (T. D. 26086), affirmed in Shaw v. U. S. (reported in T. D. 26488), followed ; In re Gilmore, G. A. 3692 (T. D. 17644).

HARDSHIP-Its EFFECT ON CONSTRUCTION OF STATUTE.-Circumstances of hardship may properly exert an influence in giving a construction to a statute when its language is ambiguous or uncertain and doubtful; the contrary prevails where the statute is plain and explicit. Sutherland on Statutory Construction (sec. 324).-T. D. 26648 (G. A. 6129).

Shortage of Vermuth in Bottles.-In the case of U. S. v. Wile (178 Fed. Rep., 269; T. D. 30449 the circuit court of appeals held that vermuth was not a wine, cordial, or liquor within the meaning of paragraph 296 prohibiting any allowance for leakage of wines, liquors, cordials, etc. For this reason section 2921 of the Revised Statutes would apply, as interpreted by the court in the case of U. S. v. Park (77 Fed. Rep., 608). We therefore sustain the protest and reverse the collector's decision, with instructions to reliquidate the entry so as to make allowance in duty for the bottles of vermuth reported by the appraiser as found missing. Note also In re Vignier, G. A. 6944 (T. D. 30160) and T. D. 30180.-Ab. 24870.

Vermuth is not a wine, cordial, or liqueur within the meaning of paragraph 296 prohibiting allowance for leakage of “ wines, liquors, cordials," etc.-U. S. v. Wile (C. C. A.), T. D. 30449; T. D. 29778 (C. C.) affirmed and (G. A. 5939) T. D. 26086 reversed.

Excess in Bottles.—Paragraph 296 provides as to vermuth in pint and quart bottles that any excess beyond 1 pint or 1 quart “found in such bottles shall be subject to a duty of 5 cents per pint or fractional part thereof." Held that the law contemplates that the additional duty should be assessed on each bottle containing an excessive quantity, and not according to the total excess per case or per importation.—De Fremery v. U. S. (C. C.), T. D. 29729 ; Abs. 278, 280 (T. D. 25000), and 363 (T. D. 25023) affirmed.

Vino Chinato.-The beverage known as “vino chinato," produced in and exported from Italy in bottles, held to be dutiable at $1.25 per case as a still wine under paragraph 296, and under the Italian reciprocity agreement of July 18, 1900, and not at $1.75 per gallon under the said treaty and paragraph 292 as spirituous bitters (T. D. 22373; 31 U. S. Stat., 1979). In re Bustanoby Bros., G. A. 5227 (T. D. 25868), noted.—T. D. 26237 (G. A. 5998). Whisky Reimported Under Section 27.

REIMPORTATIONS.-A reimportation of exported merchandise is ordinarily to be considered for dutiable purposes as a new importation,

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