The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1903-10-15

of paragraph PSI of the act of July "a,
1897 and the importer claims that the
same is properly dutiable at the rate
of 20 per cent ad valorem, under the
provisions of section 6, as an unenu-
merated manufactured article.
The question as to the dutiable char
acter of fish roe under the act of 1890
has been twice decided by this Board.
Under that act, the merchandise was
provided for in the free list as fish eggs
without limitation, and the Board held
in G.. A. sos IT. d. 1862 and G. A. 2S97
Ct. d. 1910 that the same was en-
titled to free entry, although dried,
sailed and smoked, and thereby chang
ed in their character. Under the pre-
sent act, however the question is pre-
sented in a new light The provisions
of paragraph $40 of the free list cover
ing fish eggs excerpts fish roe pre-
served for food purposes" and while
such fish roe is thus expressly taken
out of the provisions of the free list, it
is not provided for in the dutiable list
by name, and the question to be de-
termined is, is fish roe dutiable as fish
or is it dutiable as a nom enumerated
manufactured article, as claimed in the
protest.
The merchandise is dried fish roe,
packed in tins, and is conceded to be
prepared or preserved for food pur-
poses. Fish roe, being part of fish,
is classfiable as fish, for no differentia-
ton can be made between fish and
parts thereof. In fact, many varieties
of fish come packed minus their heads
pf out tod tn,
rieties only portions of fish are packed
in cans, and to differentiate between
whole fish and portions of fish would
destroy many provisions of the fish
schedule. In Boyle V. Magone Q52 U.
s., 623) and In re Johnson CSC Fed. Rep.
SO2) bloater paste, preparation made
by grinding fish and seasoning the
same with spices, was held to be dutia-
BILE as fish, and in C. A. 459S IT. D.
2115S) fish balls packed in tins were
held to be dutiable as fish in tins. Fol-
lowing these rulings, the merchandise
Is clearly dutiable as fish, but it is not
dutiable as dried fish, as assessed. In
In re Johnson (supra) the court held
that the provision for fish in tins was
more specific than the provision for
fish, fresh, smoked, dried, sailed pick
led or frozen" as provided for in pa
ragraph 261, under which the classify
ing officer assessed the merchandise be-
fore us. Judge Lacombe in that case
said that Congress apparently intend
ed mot so much to lay the duty on
fish but to lay the duty upon the tin
cans that brought the fish in" This
ruling was followed in G.. A. 474S Ct. D.
22414).
This Board held in u. A. 512O Ct. D.
2965O that canned fish roe, designed for
use as food, was dutiable at the rate of
20 per cent ad valorem under the pro-
visions of section 6, as a nonenumerat-
ed manufactured article. With this
ruling we do not now agree, for fish
roe is undoubtedly fish and dutiable as
such within the cases above cited
Even, however, if such merchandise be
of the nonenumerated class, it would
still fall within the fish schedule by
virtue of section I, known as the
similitude clause. for it is not only sim
liar in material, texture and use" to
fish, but it is identical. AS was said
in Hahn V. United States 600 Fed.
Rep, 635)-
Inasmuch as the material is identi-
call. e., similar or alike in all res
pects-the soundness of this conclusion
of fact is not open to dispute.
The merchandise is thefore dutiable
either directly or by similitude as fish
and being in tins is chargable with
duty at the rate of 80 per cent ad
valorem under the provision in para
graph 25S for ''all other fish in
tin packages"
The protest is overruled without af-
firming the correctness of the classif-
cation.