(C. D. 347)

#### Canton Florist Shops *v.*United States

United States Customs Court, Third Division

(Decided June 4, 1940)

*Harper & Harper (Walter I. Carpeneti*of counsel) for the plaintiff.

*Webster J. Oliver,*Assistant Attorney General *(Richard F. Weeks,*special attorney) , for the defendant.

Before Cline, Evans, and Keefe, Judges

Evans, Judge:

This is an action against the United States wherein the plaintiff seeks to recover certain sums of money claimed to have been illegally exacted upon an importation of merchandise entered at the port of San Francisco and imported from China, described on the consumption entry as “3 Tubs LIVE FISH, other WATERDOGS.” The collector classified the water dogs as newts and held them dutiable as live animals at 15 per centum under paragraph 715 of the Tariff Act of 1930. The protest claims the importation to be dutiable at 1 cent per pound under paragraph 717 of the same act. The respective paragraphs, so far as applicable, read as follows:

> Par. 715. Live animals, vertebrate and invertebrate, not specially provided for, 15 per centum ad valorem.

> Par. 717. * * * other fish, not specially provided for, 1 cent per pound.

At the hearing it was stipulated that the merchandise covered by the instant protest consisted of water dogs known as newts. In the brief filed by the importer he states that plaintiff's sole case is based, not upon the biological differentiations between animals and fishes but upon the fact that these newts are found in water and are fishes. He quotes Webster’s International Dictionary’s definition of a salamander as follows and invites the court’s attention to an article on newts which appeared in the science section of the magazine Time of March 18, 1940, Volume XXXV, Number 12.

> Any of numerous amphibians of the order caudata, which superficially resemble lizards, but are scaleless, being covered with a soft, moist skin. Most of them are small, and somewhat terrestrial when adult, living in moist, dark places, but the *299majority pass through an aquatic larval stage during which they breathe by gills. Certain small chiefly aquatic forms are called newts * * *.

The Government relies on the definition in Webster’s New International Dictionary and calls attention to the fact that from that definition it appears that newts are amphibious, that to some extent they are terrestrial animals and consequently cannot be classified as fish. He quotes from the Encyclopaedia Brittannica the following description of newts:

> * * * Later in the season the males lose their nuptial ornaments, and the two sexes are more alike; they then retire on land, concealing themselves under stones, logs of wood, or in holes in damp earth, but leaving their retreat at night or in wet weather to search for earthworms and slugs. In the water they eat tadpoles, insect larvae and crustaceans.

The New International Encyclopaedia, under the name newts, states, among other things:

> * * * The young hatch in a fortnight or so and remain in the water, wearing a dull-green coat, until the end of the season, when, having completed their first metamorphosis, their gills disappear, the throat and lungs become adapted to breathing air, and they leave the water. Their color now changes to a rich uniform vermilion with fiery button-like spots along the sides. They are then only 2 or 3 inches long and hide under leaves and within rotten logs, feeding upon small worms and the like, but coming out frequently, especially in the night and wet weather. These little creatures are among the prettiest objects in the American woods. This sojourn on land lasts until the autumn of the third or spring of the fourth season, by which time they have nearly attained to full size and have reached sexual maturity. They then gradually change in color back to the original green and return to the water, where their lungs cease to act, pharyngeal respiration is restablished, and they proceed to breed.

However highly we may regard the publication Time, as a magazine, we prefer to rest our judgment in this case upon the scientific statements found in the authorities quoted, from all of which it appears that a portion of the life of newts, perhaps the greater portion thereof, is passed upon land, hence all the authorities declare them to be amphibious. It is true that their young lives and mating season are spent in the water but that would not put this creature in the class with fish.

Webster’s International Dictionary, in speaking of fish, states:

> 2. Any of numerous cold blooded, strictly aquatic water-breathing craniate vertebrates having the limbs (when present) developed as fins, and typically a long somewhat tapering body covered with scales and ending in a broad vertical caudal, or tail, fin. [Underscoring ours.]

We are of the opinion that the protest should be overruled. It is so ordered.