DISSENTING OPINION
Evans, Judge:I regret not to have been able to agree with the majority opinion in this case for the reason that I cannot accept the interpretation of the facts as they have been outlined by the witnesses because in my judgment the statements of said witnesses are contradicted by records made by the plaintiff or through its agencies. For instance, in the first place, it clearly appears by Collective Exhibit 1 that the Mabel, after having been documented in the United States was registered by the Cooperative de Pescadoras “Lazaro Cardenas,” under date of March 17, 1937 (Exhibit 2). The witnesses attempted to raise the inference that Exhibit 2 was merely a fishing license. I do not believe a witness can be heard to contradict the statements on this document, to wit, that the 20 pesos paid was a registry fee for the Mabel. If we assume that it was a fishing license then it granted such license to the Cooperative de Pescadoras Lazaro Cardenas. Under Exhibit 4 as translated the Mexican Government had reserved the fishing rights of certain parts of the Gulf of California to be ceded to the Cooperative Society of Fishermen—
on the understanding that in that Cooperative there shall be admitted as associates anyone who wishes to join, natives or foreigners, provided that they deliver their entire production to the Cooperative for the sale thereof either for internal consumption within the Republic or for exportation, through the agency of the Cooperative.
*202The purpose of making this reservation is stated in the last paragraph of the preamble of the decree in the following language:
Whereas: It is the obligation of the Federal Government to prevent possible • disadvantageous competition on the part of foreign enterprises for our native fishermen, specifying those waters which should be reserved for the exclusive use of the aforesaid fishermen, thus presenting a united front to foreign buyers who wish to control and to set prices on the national fishing products with serious damage to the interests of the collectivity and of the Government itself: * * *
Article 1 of the decree provides as follows:
Article 1. The fishing zone north from Parallel 27 in the Gulf of California is declared to be a zone of common exploitation, devoted to the exclusive use of the regional fishermen.
The record indicates that an organization known as the Cooperative Fishing Co. of Kino Bay, Lazaro Cardenas, was operating at Kino Bay, Sonora, Mexico, under the provisions of the Mexican decree above quoted. If we accept as true that these fish in suit were caught by the Mabel under the supervision of her captain, they could only have been taken lawfully pursuant to the fa.ct that the Mabel was licensed to operate under the Cooperative Society of Fishermen above noted and under tbe provisions of the Mexican decree that the take of fish should have been, delivered to the Cooperative for sale. That such was the procedure is established by Collective Exhibit 1 which shows that 1,147 kilos of cabrillas and 1,140 kilos of pintas, the identical quantities of these respective types of fish imported, were bought on July 9 from the Sociedad Cooperative de Pescadoreres de Bahia Kino “Lazaro Cardenas.” The invoice or factura is No. 277 and was entered in folio No. 177 of the books of that Cooperative. It shows that the fish were purchased by the Sonora Fish Co. The statement by one of the witnesses that he had to get this bill in order to get the fish out of Mexico does not eliminate tbe fact that he was compelled under the law to get the fish from the Cooperative.
Since the documentary evidence shows that the fish covered by protest 919886-G were caught from the boats and weighed on July 7 and were sold to the Sonora Fish Co. on July 9, such fish were constructively at least in possession of the Cooperative, and under the provisions of Collective Exhibit 4 they could be sold only for exportation by the Cooperative. I therefore think that they ceased to bo the product of American fisheries. Article 477 (d) of the Customs Regulations of 1931, and its predecessor, article 449 of the Customs Regulatious of 1923, provide:
* * * Tbe purchase by the owner, agent, master, or crew of an American vessel of fish or other marine products taken by the citizens of another country in foreign waters will subject such fish or other marine products to treatment as foreign merchandise.
Furthermore, the checking list (Exhibit 3) made out when the fish were weighed on July 7, 1937, shows the identical quantity of fish covered by the factura. This exhibit, in my judgment, contradicts *203some of the testimony in this record in that it indicates that part of the fish were caught by the boat, part by the Cooperativa, which we interpret to mean fishermen under the Cooperativa, part by the master of the boat, and part by Juan. The testimony shows that besides the master there were an engineer and two additional employees to carry on the operation of the Mabel regularly. In all, four men regularly attached to the boat, one the master, one the engineer, and two whom the master called laborers. The testimony shows that they hired five extra fishermen besides the crew on the trip on which the fish covered by protest 919886-G were caught.
Exhibit 3 shows the catch of the master on this trip to have been •66 kilos, the catch of one person called Juan to have been 70 kilos. Since the list notes the name of the master and his catch, together with one other person and his catch, it is fair to presume that Juan was a member of the crew, and I think it is a fair inference that no other member of the crew engaged in taking fish. But assume that they were so engaged, then they must have represented the boat and you would therefore Rave two men operating from the boat with a ■catch of 1,142 kilos as against five men operating from the Cooperativa with a take of 1,009 kilos. Assuming that the engineer had no obligation to stand by his engine, the record would disclose that he and the other laborer had extraordinary luck, which I am willing to concede ■does befall some fishermen at some times, but not in such an extraordinary degree as is disclosed by this document.
In my judgment the testimony discloses a willingness and an intention to circumvent the laws of Mexico if we accept the statement that they did not sell any fish to the Cooperativa and did not buy any from the Cooperativa. If they would act in collusion to thwart the laws of Mexico it would stand to reason that they would do likewise with reference to the tariff laws of this country.
I therefore think the claims of the plaintiff should be overruled.