delivered the opinion of the court:
The steam tug Berwind, of 147 tons gross and 3% tons net, 85 feet-long, 21 feet of beam, and with 10 feet depth of hold, was built in Ly-tham, England, about the year 1921. In 1922 she was purchased by the Yera Cruz Coal Co., of Vera Cruz, Mexico, and was brought across the ocean, but whether under her own power or not does .not appear. In 1925 she was removed to the harbor at Habana, Cuba, and was used there for two years in the towing of lighters. In March, 1926, she was transferred to the appellee, the Porto Rico Coal Co., and proceeded to San Juan, P. R., from Habana, Cuba, a distance of 1,000 miles, under her own power, where she has since been used in the harbor in docking and undocking ships of the United States, the Porto Rico Line, the Spanish Line, and the French Line, and for towing coal barges. She was documented while in Habana under the laws of Cuba, but not in San Juan or any other American port. She has a speed of 8 knots, has full towing equipment, quarters for her crew, and has always carried full salvage equipment until some part of the same was removed prior to her trip from Habana to San Juan. On June 3,1927, William J. Kennerly, manager of appellee, filed a bill of sale for the Berwind and entered her in a consumption entry in the collector’s office at San Juan, which he states was done in pursuance to the advice of the deputy collector there.
Thereupon, the local appraiser at San Juan proceeded to appraise the Berwind as imported goods, wares, and merchandise, and the appellee appealed to reappraisement. On this appeal, Chief Justice Fischer sustained a motion made by the appellant there to dismiss the proceedings on the grounds that the Berwind was not merchandise and not subject to appraisement or within the jurisdiction of the court. On petition for review, the Customs Court, First Division, reversed and remanded the cause, directing the single justice to enter judgment holding the appraisement to be null and void. This was thereafter done by the single justice, affirmed on review'by the first division, and the Government has brought the matter here. Thinking it *290necessary to protect the Government’s interest, appeals were taken from both the original and the final judgments of the firstjüvision and are known here as suits Nos. 3199 and 3218.
The first■ question presented for our consideration is: Was the Berwind, when she entered the customs jurisdiction at San Juan, an imported article, and, as such, subject to appraisement and the payment of import duty under the provisions of the Tariff Act of 1922?
The answer to this question lies in a determination whether the Berwind, at the time she entered our customs jurisdiction, was a vessel, within the meaning of section 3, Revised Statutes:
Sec. 3. The word “vessel” includes every description of water craft or other artificial contrivance used, or capable of being used, as means of transportation on water.
We had this matter under consideration in the case of the old cruiser Niobe in Hitner Bros. Co. v. United States, 13 Ct. Cust. Appls. 216, T. D. 41175. The Niobe was dismantled, her machinery out of commission and incapable of performing its functions, and she was entirely unable to perform any service such as a vessel ordinarily performs. We said, in part:
From these authorities some general conclusions may be deduced. In order to come within the definition of a “vessel” as fixed by section 3, Revised Statutes, the service upon which the thing in question can engage must be a maritime service. It must have some relation to commerce or navigation, or at least some connection with a vessel employed in trade. It must be engaged in, or in some sense related to, commerce and navigation. The fact that the structure has the shape of a vessel, or has been once used as one, or could by proper appliances be again used as such, can not affect the question. The test is the actual status of the structure as being fairly engaged in, or suitable for, commerce or navigation and as a means of transportation ón water.
The Berwind comes clearly within the construction thus announced' and is a vessel, within the meaning of the law.
Is such a vessel subject to import duties? Certain means of water transportation, coming within the definition of “vessels,” must be conceded to be subject to such import duties. These are such as have been specifically named in the tariff laws. Of such a kind are motor boats. Par. 370, Tariff Act of 1922. But as to all vessels not s.o specified, it has never been the policy of this country to subject them to payment of customs duties. That principle was well settled in the case of the Conqueror, 49 Fed. 99, affirmed in 166 U. S. 110.
In the Conqueror case, a steam, ocean-going yacht, foreign built, and'used for pleasure purposes, was entered at the port of New York as a vessel. The collector seized her and attempted to classify her as dutiable merchandise. Libel was brought to recover possession, on. the grounds the Conqueror was not subject to customs duties. The District Court entered a decree for restitution, with" an assessment of damages, which decree was affirmed by the Circuit Court of *291Appeals. The Supreme Court affirmed the judgment. In its opinion filed in the case, the Supreme Court said, in part:
But the decisive objection to the taxability of vessels as imports is found in the fact that, from the foundation of the Government, vessels have been treated as sui generis, and subject to an entirely different set of laws and regulations from those applied to imported articles. By the very first act passed by Congress in 1789, subsequent to an act for administering oaths to its own members, a duty was laid upon “goods, wares, and merchandise,” imported into the United States, in which no mention whatever is made of ships or vessels; but by the next act, entitled “An act imposing duties on tonnage,” a duty was imposed “on all ships or vessels entered in the United States” at the rate of six cents per ton upon all such as were built within the United States, and belonged to American citizens; of thirty cents per ton upon all such as should thereafter be built within the United States, belonging to subjects of foreign powers, and of fifty cents per ton upon all other ships or vessels, with a proviso that no American ship or vessel employed in the coasting trade or fisheries should pay tonnage more than once in any year This distinction between “goods, wares, and merchandise,” and “ships or vessels,” has been maintained ever since, although the amount of such duties has been repeatedly and sometimes radically changed. At the time of the arrival of the Conqueror, tonnage duties were imposed unde t the act of June 26, 1884, as amended by section eleven of the act of June 19, 1886, with a proviso that the President of the United States might suspend the collection of them in certain specified cases. In addition thereto there was, by Rev. Stat. §4225, a duty of fifty cents per ton, denominated “light money,” levied and collected on all vessels not of the United States which might enter the ports of the United States; although, by §4226, there was a provision that this tax should not be imposed upon any unregistered vessel “owned by citizens of the United States, and carrying a sea letter, or other regular document, issued from a customhouse of the United States, proving the vessel to be American property.” It would seem that, under this section and in virtue of the collector’s certificate to her bill of sale, stating that her owner was an American citizen, the Conqueror would not thereafter be subject 'to the payment of light money. The Miranda, 1 U. S. App. 228.
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In view of the elaborate opinion of the district judge upon this branch of the case it is unnecessary to extend this discussion further. We think that the liability of ships and vessels to tonnage dues and to light money, except where a certain class of vessels is speciaEy exempted, shows that it was not the intention of Congress to treat them as dutiable articles. So far as the court below awarded restitution of the vessel to the libellant, its decree was right and will be affirmed.
But it is argued by tbe Government that because the Bermnd is undocumented, that is, neither a registered nor enrolled vessel, under the provisions of sections 4131-4196, Revised Statutes, as amended, and Chapter II, Customs Regulations of 1923, she may evade the payment of both tonnage and import duties — that, not having paid tonnage duties, she should be considered as dutiable merchandise. We are not called upon to decide whether the Bermnd is or is not subject to tonnage duties as provided by the statutes. Ch. 3, secs. 4219-4227, R. S.; act of June 26, 1884, 23 Stat. 57; act of Feb. 5, 1897, 29 Stat. 511; U. S. Code, title 46, ch. 4, secs. 121-135, pp. 1467-1469. If she is not so subject, it is because of the exemptions provided by *292the law. The fact that she has a measurement of less than 5 tons net, and hence is not to be documented under the Customs Regulations above cited, does not affect her liability to tonnage duties; such liability is governed entirely by the statutory enactments providing for the collection of such duties. It is sufficient to say that she is of the class of property that, from our earliest national period, has been distinguished from imported goods, wares, and merchandise, and held not to be subjected to customs duties unless the statute otherwise expressly so provides.
It is contended by counsel for the Government, and it seems to have been the opinion of the Treasury Department, that a certain expression in the opinion in the Conqueror case justifies the view that undocumented vessels are subject to customs duties. That expression is as follows:
We do not undertake to say that the same rule applies to canoes, small boats, launches and other undocumented vessels, which are not used, or are not capable of being used, as a means of transportation on water, as the word “vessel” is defined in Rev. St-at. § 3. While these vessels have a limited capacity for transportation, they are ordinarily used for purposes of pleasure, and are not considered of sufficient importance to require them to be entered at the customs house, or to be entitled to the special protection of the flag. They are treated like other similar vehicles used upon land, and there are reasons for saying that these boats, which do not ordinarily come of themselves into the country, but are imported or brought upon the decks of other vessels, are mere manufactures or other “articles,” and are within the description of the tariff acts.
We can not agree that the quoted language is subject to such interpretation. This is but a statement that a certain type of small, undocumented vessel may be subject to customs duties as merchandise, under certain circumstances, but can not be treated as a statement that whether a vessel is documented or not shall be the test as to such dutiability.
It is contended by the Government that under the authority of In re Fassett, 142 U. S. 479, the appellee in this case is estópped by his entry of the Berwind from now claiming that she is not a dutiable article. In the case cited, Mr. Justice Blatchford, delivering the opinion of the court, said:
Under the Customs Administrative Act, the libellant, in order to have the benefit of proceedings thereunder, must concede that the vessel is imported merchandise, which is the very question put in contention under the libel, and must make entry of her as imported merchandise, with an invoice and a consular certificate to that effect, and thus estop himself from maintaining the fact which he alleges in his libel, that she is not imported merchandise.
Arguing with this statement as a basis, counsel contend the same rule should be applicable here.
Assuming, without holding, that appellee made a voluntary entry of the Berwind, we believe it does not follow that thereupon he was estopped from filing protest, or from raising the point in a reappraise*293ment proceeding in a proper way, that she was not dutiable merchandise. We come to this conclusion from a consideration of the legislative and judicial history, since the rendition of the opinion in the Fassett case, supra. In this matter the research of counsel has aided us very materially. ' ,
In re Fassett was decided under the Customs Administrative Act of June 10,1890. Paragraph 14 of that act provided that the decision of the collector as to the rate and amount of duties chargeable upon “imported merchandise * * * and as to all fees and exactions of whatever character (except duties on tonnage),” should be final and conclusive, unless appealed from by the importer. However, subsequent acts of Congress, apparently having in mind this conclusion, greatly broadened the scope of the decisions of the collector, which might be made and might be questioned by the person affected, by appeal. The Tariff Act of October 3, 1913, Section III, subsection N, permitted decisions of the cpllector and appeals therefrom, “as to the rate and amount of duties chargeable upon imported merchandise, or upon merchandise on which duty shall be assessed, including all dutiable costs and charges, and as to all fees and exactions of whatever character (except duties on tonnage).”
The Tariff Act of 1922, section 514, further enlarged this language until it now reads:
Sec. 514. Pbotest. — All decisions of the collector, including the legality of all orders and findings entering into the same, as to the rate and amount of duties chargeable, and as to all exactions of whatever character (within the jurisdiction of the Secretary of the Treasury), and his decisions excluding any merchandise from entry or delivery, under any provision of the customs revenue laws, and his liquidation of any entry, or refusal to pay any claim for drawback, or his refusal to reliquidate any entry for a clerical error discovered within one year after the date of entry, or within sixty days after liquidation when liquidation is made more than ten months after the date of entry, * * *
We had occasion to note some of these changes in the substantive law in United States v. Mandel Bros., 7 Ct. Cust. Appls. 476, T. D. 37051, which case involved mail importations, and was under the Tariff Act of October 3, 1913. The argument was made there that the Board of General Appraisers did not have jurisdiction of mail importations, upon the assumption that no entry was required thereof by law. The court, speaking through De Vries, J., said, in part:
Without expressing opinion upon that contention, it is here sufficient to point out that in this particular the jurisdiction of the board has been materially changed by the Tariff Act of 1913, paragraph N of section 3, by addition of the words “or upon merchandise on which duty shall have been assessed” to the language of the Tariff Act of 1909, subsection 14 of section 28. Italicizing said newly added words, the contrasted provisions may be more readily shown, the whole as herein-before quoted presenting the presently effective law. Undoubtedly this amendment was prompted by the decisions of the Supreme Court of the United States *294in “the Insular Cases," De Lima v. Bidwell, (182 U. S. 1) and Goetze v. United States (182 U. S. 221) holding that the board had not jurisdiction where the collector assessed duty upon goods not imported. By this provision jurisdiction of the board is extended to all decisions of collectors of customs as to the rate and amount of duties, whether or not imported, and, of course, whether or not legal entry is therefor provided. It is any and every decision of a collector as to the rate and amount of duties, etc., that may be protested and reviewed, and not only such a decision as to imported or legally entered merchandise or as to goods for which a certain entry is by statute provided. Wherefore, this appeal being from a decision of a collector of customs as to the proper rate and amount of import duty assessed thereupon, jurisdiction of the board attaches without further essential qualification to confer that jurisdiction.
We are of opinion the Fassett case was decided in view of the particular statute in force at that time, and can not be held to be applicable now. To hold that an importer is bound and estopped by each statement he makes in his entry, under present laws, would not only greatly interfere with and cripple the commerce of the country, but, in our judgment,/is far from the intent of Congress as expressed in the various acts which we have above cited and referred to.
It has been suggested that the question of the dutiability of the Berwind can not be raised in a reappraisement proceeding; that the only function of the appraiser and the single justice was to appraise the goods and of the appellate division of the Customs Court to review such appraisement.
It would appear that such contention loses sight of the former conclusions of this court on that point. In United States v. McConnaughey an Co., 13 Ct. Cust. Appls. 112, T. D. 40944, this court, speaking through Hatfield, J., called attention to the fact that under sections 486, 499, 500, and 501 of the Tariff Act of 1922, in reappraisement matters, the single general appraiser and the Board of General Appraisers (now the single justice and the Customs Court) both exercise purely judicial functions. In Johnson Co. v. United States, 13 Ct. Cust. Appls. 373, T. D. 41318, we further developed this rule and held:
If,-then, the functions of the single general appraiser and the Board of General Appraisers in reappraisement matters are purely judicial, the ordinary rules applicable to other courts and judicial proceedings will apply except where modified or amended by the statutory law here applicable.
In United States v. Central Vermont Railway Co., 17 C. C. P. A. 166, T. D. 43474, a local appraiser, claiming to act under the authority of an alleged antidumping order said to be issued under section 201 (a) of the Antidumping Act, 1921, estimated and reported in addition to the usual duties, certain antidumping duties. An appeal to rean-praisement and review by the Customs Court followed. When the case came to this court, we said, inter alia:
*295• If^this be true, then any question affecting the appraisement, either as to its amount or legality, is properly before the Customs Court on review. If such matters are not so cognizable by the Customs Court, they could not be considered here on appeal, for this court reviews the judgment of the reappraising court on questions of law only. (Sec. 501, supra.) Every reasonable view of the matter supports the conclusion that if there be, in fact, no valid appraisement, the Customs Court may so find, on review. Without attempting to express any view as to whether such a question may be raised on a protest to classification, it is sufficient to say that such question need not wait for protest, but may be raised upon reappraisement.
In many cases, while the exact question here raised has not been involved, the Customs Court, on review of reappraisement, has passed upon the validity of the appraisement, and we have reviewed that court’s judgments on appeal. Among these are Kuttroff, Pickhardt & Co. v. United States, 12 Ct. Cust. Appls. 299, T. D. 40313, and United States v. Tower & Sons. 15 Ct. Cust. Appls. 83, T. D. 42158.
It is evident from these authorities that the question of the validity ■of an appraisement may be raised and disposed of in a reappr’aisement proceeding before either the single justice, the appellate division, or here. And this comports with reason. It certainly was not the intent of the lawmakers that a local appraiser might appraise goods not subject, under the laws, to appraisement, and that because he has done so the single justice, the appellate division, and this court must go throügh the tedious and expensive round of appraising and review and then send the matter back to the collector for classification before a question can be raised as to whether it was lawful to appraise it in the first instance. This would be a harsh rule and one not to be favored.
When the reappraisement came before the single justice, it was de now. He had nothing to do with the appraisement made by the local appraiser.. It was his function to appraise, as an original proposition, or, if he found the goods not legally subject to appraisement, to so find and hold.
The single justice, in the first instance, finding the Berwind to be not subject to appraisement, dismissed the appeal to reappraisement. This was erroneous. As this court was acting de novo, its judgment should have been that the Berwind was not legally subject to appraisement. In addition, the judgment of the appellate division, directing the single justice to “hold that the appraisement of this vessel, by the appraiser at San Juan, Porto Rico, is void and should be set aside,” is, technically, erroneous for the same reason. However, we are of opinion that the final judgment entered in the case, as directed by said appellate division, may be construed, without violence to either the parties or the purpose and intent of the law, as a judgment that the Berwind is not legally liable to appraisement, and we so construe it.
*296The judgment of the Customs Court is therefore affirmed in both cases.