dissenting.
The evidence in this case is clear and convincing that the imported hops were spoiled on the high seas, that they were on arrival unfit for food or for use as an ingredient in the making of a food product, and that they were in a wholly commercially worthless condition.
Under the law the 35 bales of the contaminated hops should have been treated as a non-importation of adulterated food which was thereafter not dutiable. The Supreme Court of the United States has consistently recognized and applied the doctrine that merchandise such as was imported in the case at bar does not come within the category of goods, wares and merchandise imported into the United States within the meaning of the tariff laws. Marriott v. Brune, 9 How. 619; Lawder v. Stone, 187 U. S. 281. Our own Court has likewise approved the same view, as disclosed in the following holding in the case of United States v. Shallus, 2 Ct. Cust. Appls. 332, 333:1
It is equally well established, as a fundamental principle of substantive law, that a cargo or part thereof so far destroyed as to become of no commercial value *164at the time the importation is brought within the customs district is not, as to the destroyed portion, deemed an “importation of merchandise” within the tariff laws of the United States, and therefore no duty accrues thereupon or can be collected therefor. Lawder v. Stone (187 U. S. 281); Stone v. Shallus (143 Fed. Rep. 486); United States v. Habicht (1 Ct. Cust. Appls. 53); Marriott v. Brune (9 How. 619).
Appellant has been assessed with a large amount of duty on merchandise which never entered the commerce of the country and under circumstances which dictate that such duty should be refunded as an inequitable extraction presumably not within the intent of Congress to levy.
The judgment of the United States Customs Court, for the reasons hereinbefore stated, and for the reasons stated in the opinion of Judge Ekwall in the court below, should be reversed.
T. D. 32074 (21 Treas. Dec. 662)