(C. D. 396)

#### William J. Oberle, Inc. *v.*United States

United States Customs Court, First Division

(Decided November 14, 1940)

*Tompkins & Tompkins (J. Stuart Tompkins*of counsel) for the plaintiff.

*Webster J. Oliver,*Assistant Attorney General *(John J. McDermott*and *Joseph E. Weil,*special attorneys), for the defendant.

Before Brown and Walker, Judges

Walkeb, Judge:

This suit is before us on rehearing granted after decision by this Division of the court on October 14, 1939 (3 Cust. Ct. 185, C. D. 228). The claim of the plaintiff herein is that merchandise described on the invoice as “whiting” which was assessed with duty by the collector of customs at the rate of %o of 1 cent per pound under the provision in paragraph 20 of the Tariff Act of 1930 as amended by the Belgian Trade Agreement, T. D. 47600, for ground whiting should have been classified as precipitated whiting under the same paragraph and act, carrying assessment of duty at the rate of 25 per centum ad valorem.

In the original decision of this Division it was held that the whiting in issue had not been precipitated since it had never entered into a solution from which it could have been precipitated. No further evidence was offered on rehearing, but it is urged by counsel for the plaintiff in the brief in support of the motion for rehearing that the whiting in issue was “precipitated” within the common and ordinary meaning of the word, citing the following dictionary definitions:

> Precipitate *Chem.*To separate as a precipitate; as, water precipitates camphor from its alcoholic solution.

> —Webster’s New International Dictionary.

> *179Precipitate n. 1. *Chem,.*A substance separated from a solution in a concrete state in consequence of some chemical or physical change, as by the action of a reagent, of cold, etc., usually a solid, separated in an amorphous, or minutely crystalline form. The precipitate may fall to the bottom (whence the name), may be diffused through the solution, or may float at or near the top.

> ■ — -Webster’s New International Dictionary.

> Precipitate v. I 3. *Physics*To cause to fall or to gather upon surfaces by condensation; as, cold precipitates moisture in vapor, dew or rain.

> 4. *Chem.*To separate (a constituent) in solid form, as from a solution, usually by means of a reagent or heat.

> II 1. *Chem.*To separate and fall, as a salt or substance which is held in solution.

> —Standard Dictionary.

> Precipitate, n. 1. A substance separated from a solution by chemical or other force not mechanical; as, a precipitate of silver chlorid.

> —Standard Dictionary.

> Precipitate, v. 2. To cause to fall as a solid to the bottom of a liquid; reduce from a state of solution to a solid form, by means of a reagent or change of solvent.

> —Century Dictionary.

> Precipitate, n. In chem., any substance which separates in the solid state when two liquids are mixed, either because such substance is less soluble in the mixed liquids, or because a chemical reaction has taken place between the constituents of the liquids. Precipitates may be pulverulent, floeculent, gelatinous, or finely chrystalline in character.

> —Century Dictionary.

It will be observed that in every definition thus cited by tbe plaintiff tbe word “solution” appears, or tbe idea of a dissolved solid is conveyed, tbat is to say, tbe solid wbicb was precipitated bad been dissolved in a solution. It is clear from tbe record in tbe case at bar tbat tbe whiting in issue was not dissolved in tbe water in wbicb it settled; it was suspended in it, and we cannot say, as a matter of judicial notice of tbe common meaning of words, tbat in common and ordinary usage particles of solid matter wbicb settle from a suspension are known as precipitates or are considered to bave been precipitated.

“Solution” is-defined in Funk& Wagnalls New Standard Dictionary as follows:

> n. 1. *Phys. Sci.*(1) The change of matter from the solid or gaseous into the liquid state by its combination with a liquid; when unaccompanied by chemical change, called a physical solution; otherwise, chemical s.

> (2) The result of such change; a liquid combination of a liquid and a non-liquid substance.

and “suspension” as follows:

> A floating in the body of a fluid, as of fine particles.

Tbe transitive and intransitive verb “to precipitate”, from wbicb tbe participial adjective “precipitated” is derived, is apparently commonly used in two senses. Tbe first sense is shown by the following from Funk *&*Wagnalls:

> *180As a transitive verb:

> 1. To throw down from a height; hurl headlong; as he *•precipitated*himself from the housetop. 2. To urge onward rashly; force forward prematurely; hasten.

> As an intransitive verb:

> 3. To fall headlong from a height; gravitate. 4. [Rare] To act without consideration; rush headlong; move or act with great haste or rashness.

Tbe second sense is in connection with natural phenomena, as shown by the following from the same source:

> As a transitive verb:

> 3. Physics. To cause to fall or to gather upon surfaces by condensation; as, cold *precipitates*moisture in vapor, dew, or rain. 4. *Chem.*To separate (a constituent) in solid form, as from a solution, usually by means of a reagent or heat. As an intransitive verb:

> 1. *Chem.*To separate and fall, as a salt or substance which is held in solution.

> 2. *Meteor. Physics.*To fall as condensed vapor.

It is at once manifest that the first sense can have no application to the case at bar. There was no headlong or rapid action involved in the settling of the particles of whiting in the water, and it is equally manifest that the second sense has been incorporated into common usage so that there is no difference between the so-called technical meaning of the word and the common meaning when used in connection with the separation of solids from liquids.

For the foregoing reasons the original decision of this Division is adhered to, and judgment will therefore issue in favor of the defendant.