hours after the arrival of the importing vessel, as required by the regulations. The regulations do not say that the notice should be filed within 48 hours after entry of the vessel at the customhouse, but within 48 hours after arrival of the vessel. We think the application claiming allowance was clearly filed within time. The collector refused to act upon this application on the ground that the regulations of the Secretary in T. D. 30023 were not complied with in one particular. He claims that the importers did not, within 48 hours after arrival of the importing vessel, give notice in writing to the collector of an intention to claim for rot. In this, as we have stated above, he was in error.

The Government claims, however, that there is no proof of any decay or rot in this lot of onions, and that the importers do not seem to have filed any proof whatever. The board, finding that no proof of any kind was filed, can not give relief. In the case of Vandegrift v. United States (T. D. 32470), the Court of Customs Appeals held that proof to ascertain such destruction and nonimportation shall be lodged with the collector of customs within ten days after the landing of the merchandise, under the regulations of the Secretary of the Treasury. We are of opinion that the contention of counsel for the Government is correct, and that no proof has been filed.

Certain notations are found on the invoices, said to be made by the Government examiner, which are not, however, capable of being understood without testimony. The importers called the examiner and examined him in reference to this matter. He explained the meaning of his annotations. We would not be able to understand their meaning without this testimony, and inasmuch as the testimony was subject to exclusion under the Vandegrift case, cited supra, it came too late, and is excluded from the record. There being therefore a want of any competent evidence as to any rot having been filed within 10 days after the landing of the merchandise, the protest is overruled and the decision of the collector is affirmed.

(T. D. 33279-G. A. 7449.)
American fisheries.

1. "AMERICAN FISHERIES"-GREAT LAKES.

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*

The term "American fisheries" as used in paragraph 567, tariff act of 1909, which grants free entry to "fish * caught in the Great Lakes or other fresh waters by citizens of the United States, and all other fish the products of American fisheries," applies to fisheries in the Great Lakes or fresh waters.

2. SAME REGULATIONS OF SECRETARY OF THE TREASURY.

The fact that the Secretary of the Treasury in his regulation or instruction to the collectors of customs (T. D. 32138) prescribes the method of producing proof that importations of fish claimed upon are the product of an American fishery within the meaning of the statute, does not preclude the importer from the right to furnish such proof in some other manner before the board.

3. "AMERICAN FISHERIES" DEFINED.

The Post Fish Co., a corporation duly organized under the laws of the State of Ohio, owns and operates a steamer known as the Louise, a vessel of American registry, which is used exclusively in the business of transporting to the port of Sandusky, Ohio, fish caught in the Canadian waters of Lake Erie by men employed by the Post Fish Co. to fish for them. These fishing operations are carried on under the direction and general oversight of the master of the Louise, who is an American citizen, the vessel being on or near the fishing grounds when the fish are taken from the water and delivered on board; and the Post Fish Co. furnishes to the men employed to catch these fish the equipment necessary for that purpose. Held, that the fish so imported constitute the product of an American fishery within the meaning of the statute.

United States General Appraisers, New York, March 14, 1913. In the matter of protests 656595, etc., of The Post Fish Co. against the assessment of duty by the collector of customs at the port of Sandusky.

Before Board 3 (WAITE, SOMERVILLE, and HAY, General Appraisers; HAY, G. A., absent).

WAITE, General Appraiser: The question here arises over the importation of certain fresh fish imported into the port of Sandusky, Ohio, having been caught in the Canadian waters of Lake Erie, on the north shore of the lake, around what is known as Point Pelee, They were assessed under paragraph 271, tariff act of 1909, which provides for "fresh-water fish not specially provided for in this section, one-fourth of one cent per pound." They are claimed to be free of duty as the product of American fisheries, protestants citing paragraphs 567 and 639 of the law. Paragraph 567 provides for

Fish, fresh, frozen, or packed in ice, caught in the Great Lakes or other fresh waters by citizens of the United States, and all other fish, the products of American fisheries.

It is claimed by the Government that the term "American fisheries" does not apply to fresh waters, on the theory that if it is made to apply to fresh water it renders the provision for fresh fish caught by American citizens in the Great Lakes or other fresh waters nugatory. We can not take this view of the law.

Paragraph 639 of the law of 1909, which provides free entry for "spermaceti, whale, and other fish oils of American fisheries," provides also for "all fish and other products of such fisheries." This corresponds in language to paragraph 626 of the law of 1897.

Paragraph 567 of the present law takes the place of paragraph 555 of the law of 1897, the only change being the addition of the language

And all other fish, the products of American fisheries.

It will be seen that under the law of 1909 the products of American fisheries, including fish, are provided for in two places, namely, under paragraph 567 and paragraph 639. This may be the result of an oversight on the part of the legislators, or it may be that it was intended to cover specifically both salt and fresh water fish,

We do not deem it necessary, however, to speculate with reference to this, as our view is that paragraph 567 was intended to make free of duty fresh fish when frozen or packed in ice, caught by citizens of the United States in the Great Lakes or other fresh waters, when not within the purview or organization of a fishery, and also to apply to the products of an American fishery when established in the Great Lakes or other fresh waters, in which case it would not be necessary that the fish be actually caught by a citizen or citizens of the United States. The language seems plain, and we do not deem it advisable to resort to a strained construction when the language is so comprehensive and inclusive.

We think the word "other" in paragraph 567 has reference to other fish than those actually caught by citizens of the United States which are the product of a duly organized and established fishery within the meaning of the statute as defined by the court.

It is claimed also on the part of the Government that the regulations of the Secretary of the Treasury not having been complied with as regards the production of proof, the protests can not be sustained. The regulation referred to is known as T. D. 32138 (Circular 4, Treasury Department, Jan. 10, 1912). This is not such a regulation as is specifically provided for in the statute. It is instructions rather of the Secretary of the Treasury to the collectors of customs with reference to procedure and the method of producing testimony, issued under his general authority to oversee and direct the collection of revenue. If the fish in question are the product of an American fishery they are made free by the statute. That point not being made clear to the collector, he would, as he has in this case, assess duty. This, we do not think, would preclude the importer from showing before the board that his importation was included within the paragraph of the statute providing for its free entry.

Having arrived at this conclusion with reference to the preceding points mentioned, the only question to be determined is as to whether the fish sought to be entered by the importer in this case are the product of an American fishery within the meaning of the statute. We learn from the evidence in the case that the importation was made by the Post Fish Co., a corporation duly organized under the laws of the State of Ohio. Fishing operations have been carried on in this place or locality by practically the same people for the last 20 or 30 years, originally by the president of the existing company, who, it seems, now has general charge, as president of the company, over the operations. The fish are brought in on an American vessel and entered at Sandusky, from which place daily trips to the fishing grounds, which are about Point Pelee on the northerly shore of Lake Erie, are made for the purpose of collecting the fish which are caught in the nets made use of in the enterprise. The president of the com

pany, who seems to have a general and immediate oversight over the business, is an American citizen. The master of the vessel, the Louise, is also an American citizen. We are not advised as to whether the members of the crew of the vessel are citizens of the United States; neither is there any direct proof as to the citizenship of those who are engaged in the more immediate work of fishing, such as tending the nets and lifting the fish therefrom and placing them in the boats. We assume, however, that some one directly connected with the operations is a citizen of Canada, in order that they may obtain the license to fish. Be that as it may, the operation is carried on by means of equipment in the way of nets, stakes, etc., furnished by the Post Fish Co. The small boats which are used in taking the fish from the pounds, or "lifting" them, as it is called, are owned sometimes by the fishermen and sometimes jointly by the fishermen and some member of the fish company, and in one instance the boat was owned by the man tending the nets. It seems the nets are what are known as pound nets, with leads, stakes being stuck in the bottom of the lake upon which nets are hung leading to a square inclosure called a "pound," this being made of nets also, strung upon stakes. These extend for about 12 miles from a northerly location on the east side of Point Pelee southerly and around up in a northerly direction to the west side, there being five different plants or "fisheries," as they are termed; that is, nets looked after and attended by five different men, sometimes one man attending to 2 or 3 pounds, and sometimes more. The industry as carried on was under the supervision and subject to the complete control of the master of the Louise. Whenever it was desired to lift the fish from these nets it was done by his instruction. Whenever the lifting was omitted, if for a day or more, that was also by his instruction. He directed where the fish should be brought and delivered to the vessel of the company. Generally the fish were taken from the nets and put into small boats by the fishermen, and by them placed in boxes on the Louise. If, however, it was necessary to have more men in the operation of lifting the fish, they were furnished from the crew of the company's vessel; and when the fish were delivered on board, one at least, and more if necessary, of the fishermen assisted in taking care of the fish; that is, in weighing and sorting and stowing them away upon the vessel. When the fish were taken from the nets the Louise apparently hove to as near as convenient to the pound and the fish were taken on board. So she would proceed from one fishery to another around the point until the fish from the last pound were received aboard. She would then take her departure to Sandusky.

We do not see how the boat of the company could have entered more intimately into the operation of taking the fish from the waters than she did in this case. The supervision over the operations was

entirely in the master of the vessel. The vessel was an American vessel, the enterprise was an American enterprise financed and carried on by citizens of the United States. The fishermen proper, or the men who took the fish from the water, it is true, were paid in some instances by the pound. In view, however, of the holding of the department and the practice in such matters, we do not consider this such a sale of the fish, even though the fishermen were citizens of a foreign country, as would deprive the protestant in this case from making free entry. Upon this point the Court of Customs Appeals, in United States v. Reading (1 Ct. Cust. Appls., 515; T. D. 31534), quoted the following statement made by the Secretary of the Treasury regarding fish caught at Bonne Bay:

While said fish were paid for at the rate of 14 cents per pound, it appears that it is the general practice of fishing vessels to pay for fish caught for them at a rate per pound, and as said fish were caught after the arrival of the Bohemia on the fishing grounds and expressly for that vessel, and were loaded directly aboard the vessel from the boats without having been landed ashore, the department is of the opinion that the same should be considered as having been caught by said vessel with the assistance of men, boats, and gear hired for the purpose and not as having been purchased. (T. D. 28768.)

As stated in the decision of the Court of Customs Appeals above cited, a somewhat liberal construction has usually been given to the provision with reference to the product of American fisheries. The question was presented in 1886 as to whether fish which had been taken by the crew of a vessel with the assistance of men and nets hired in a foreign country for that purpose would be free. At that time the Secretary of the Treasury instructed the collector that, the fish having been taken by an American vessel licensed for the fisheries, the fish would be free of duty as the product of American fisheries. (T. D. 7933.) On the other hand, in 1894, fish caught in foreign waters, purchased from traps, nets, or other appliances, and brought in by an American fishing vessel, were held not to be free as the product of American fisheries. (T. D. 15479.) And, again, in T. D. 28768, where the master of a vessel engaged 20 men not citizens of the United States, paying them at the rate of 11⁄2 cents per pound for all fish caught by them, it being an American vessel, such fish being delivered from the boat to the vessel, it was held that the fish were free as the product of American fisheries. In T. D. 28768 it was stated:

The department has frequently held that fish taken by an American vessel on the coast of Newfoundland "with the assistance of men, boats, and gear hired for the purpose" are free of duty as a product of American fisheries.

In the case of United States v. Reading (supra) the Court of Customs Appeals, quoting from a circular letter of the Secretary of the Treasury, uses the following language:

An American fishery, within the meaning of said paragraph, is defined as a fishery operated under the American flag by American vessels in foreign waters, in which such vessels have the right, by treaty or otherwise, to take fish and other marine products.