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January 1, 1850


THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maryland.

It was an action of assumpsit brought by F. W. Brune & Sons against William H. Marriott, the collector of the port of Baltimore, to recover back certain duties upon importations of sugar and molasses, which, it was alleged, had been illegally charged, and paid under protest.

The importations were made in various vessels, and at various times, between the 2d of February, 1847, and the 4th of November, 1848.

On the 3d of February, 1847, the Secretary of the Treasury addressed to Mr. Marriott the following letter:––'Treasury Department, February 3d, 1847.

'SIR,–For your information and government, in regard to allowances to be made for deficiencies and leakage on imports, where quantities are ascertained by weighing, gauging, or measuring, I transmit a copy of my instructions to the collector of New Orleans, of the 30th ultimo, fixing the principles on which said allowances are to be made.

'I am, very respectfully, your obedient servant,

'(Signed,) R. J. WALKER, Secretary of the Treasury.

'WM. H. MARRIOTT, Esq., Collector of the Customs, Baltimore.

The copy of the instructions referred to in the above letter was as follows:––

'Treasury Department, January 30th, 1847.

'SIR,–In reference to the subject stated in your letter of the 7th instant, respecting allowances for deficiencies and invoice value, I would remark, that the law makes no distinction between articles subject heretofore to specific rates of duty, but now liable to ad valorem duty, in the mode of ascertaining quantities with a view to fix the values on which the duties are to be assessed. Whatever allowance, therefore, would have been made under former laws on articles subject to specific duty, would inure under existing laws on articles of the same description now liable to as valorem rates of duty. Consequently, where the specific duty was heretofore levied on the actual quantity landed, as ascertained from actual weighing, gauging, or measuring, the same course is to be pursued in regard to the same description of articles under existing rates of duty.

'If, therefore, the quantity of any article falls short of the amount given in the invoice, on due ascertainment, as before stated, an abatement of the duties to the extent of the deficiency should be made. If, on the contrary, it be found to exceed the quantity stated in the invoice, the aggregate cost or value must be made to correspond with such increase, and the duties estimated and assessed accordingly.

'The allowances authorized by the 58th and 59th sections of the act of 2d March, 1799, chap. 128, to which you refer, are still to be allowed. It is therefore to be observed, that the allowance made in the 59th section, of two per cent. for leakage, applies solely to the case of liquors known in commerce as such, and as contradistinguished from liquids of any other description.

'I am, very respectfully, your obedient servant,

'R. J. WALKER, Secretary of the Treasury.

'DENIS PRIEUR, Collector of the Customs, New Orleans.'On the 24th of March, 1847, the Treasury Department issued the following circular, through the medium of the telegraph:––

'E. Mag. Telegraph, March 24, 1847, Washington.

'SIR,–By direction of the Secretary of the Treasury, you are requested to make no allowances for deficiencies to invoices until further advised.

'(Signed,) Mc. YOUNG, Chief Clerk.

'L. M. CHASTEAU, U. S. Tel.'

On the same day, the following circular was transmitted through the post-office:––

Circular to Collectors and other Officers of the Customs.

'Treasury Department, March 24, 1847.

'The attention of the Department having been specially called to the subject of allowances for deficiency, drainage, leakage, and breakage, under the existing laws, and particularly in reference to the provisions of the 58th and 59th sections of the act of 2d March, 1799, it is decided that in all cases where allowances are claimed under said sections, or either of them, the appraisers, or other proper officers, shall first ascertain whether any deficiency, damage, leakage, or breakage has occurred during the voyage of importation, by stress of weather or other accident at sea, and if so, and the actual leakage, deficiency, or breakage cannot be otherwise ascertained, then to make the allowance as the case may be, for draught, tare, leakage, or breakage, to the extent authorized by said sections; but if said damage, deficiency, leakage, or breakage, so occurring as before mentioned, shall be found by said appraisers or other officers to be less than the amount authorized by said sections, then the allowance shall only be for the actual damage, deficiency, leakage, or breakage; and if the amount be ascertained to be actually greater than the amount allowed in said sections, the actual damage, deficiency, leakage, or breakage shall still be allowed, subject to limitations and restrictions imposed by former circulars.

'It must be remembered that draught can be allowed only on articles imported in bulk, and tare on articles imported in casks, barrels, bags, boxes, or other packages, and leakage in the case of liquors; but when there is an allowance for tare, draught, leakage, or breakage, it must be confined to a separate allowance for one of them, and cannot be extended to two or more.

'Under the 58th section, the allowances for draught or tare are only permitted on 'articles subject to duty by weight'; and under the 59th section, the allowance for leakage and breakage is confined to liquors 'subject to duty by the gallon'; and there are no duties imposed by the act approved 30th July, 1836, either by weight or gallon; it is an extremely liberal construction to allow in any case any operation whatever to those sections, even to the limited extent permitted by these instructions.

'(Signed,) R. J. WALKER, Secretary of the Treasury.'

On the 9th of April, 1847, Brune & Sons addressed the following protest to the collector at Baltimore:––

'Baltimore, 9th April, 1847.

'GEN. WM. H. MARRIOTT, Collector of the Port of Baltimore.

'Dear Sir,–Having been informed that it is the intention of the Secretary of the Treasury not to make allowance on the payment of duties on such articles as may result here less in quantity, from loss in weight or leakage, than at the time of shipment, for instance, sugar, molasses, &c., and on which a duty ad valorem of the invoice is exacted, we hereby protest against the payment of such entire amount of duty, being of opinion that the law at present in force authorizes an allowance for actual loss in weight or gauge, as shown by the difference in the invoice and the returns of the weighers and gaugers of such cargoes after delivery in this port.

'We desire that this protest should extend to all our importations of sugar and molasses since the operation of the present tariff, viz.:––

Water Witch, from Aricibo, entered 17th November, 1846.

J. E. Ridgway, from Aricibo, entered 8th February, 1847.

Juliet, from St. Thomas, entered 15th February, 1847.

United States, from Ponce, entered 26th February, 1847.

San Jacinto, from Havana, entered 26th February, 1847.

Creed, from Cardinas, entered 1st March, 1847.

At New York, O. Thompson, from Aricibo, entered 3d March, 1847.

At New York, Sophia, from Ponce, entered 4th March, 1847.

At New York, Sarah Adams, from Ponce, entered 9th March, 1847.

At New York, Seboris, from Mayaguez, entered 10th March, 1847.

Francis Partridge, from Ponce, entered 2d April, 1847; and Oceola, from Mayaguez, entered this day.

'The protest upon our previous importations was not made at the time of entry, because we were informed that a fair allowance would be made, but regret now to learn that the original instructions of the Secretary of the Treasury have been countermanded. We are credibly informed that allowances have, in cases similar to the above, actually been made in neighbouring places, and we think ourselves entitled to equal consideration.

'We have the honor to be, dear Sir, your most ...

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