delivered the opinion of the court:
The merchandise in this case consisted of empty high-explosive artillery shells which were imported in carload lots from Canada. They were destined for use in a shell loading and assembling plant which was maintained by the importers at Kingsland, N. J., where they were to be loaded and otherwise finished as ammunition for delivery to the Russian Government. The plant at Kingsland was an enormous establishment covering many acres of ground; it was in use by the importers as one of their agencies in carrying out an extensive contract with the Russian Government for furnishing it with a vast quantity of artillery ammunition. In this transaction great numbers of partly finished shells were brought to the plant to be loaded, most of them being of domestic manufacture, others being of Canadian origin.
This case relates to seven entries of Canadian shells, and these arrived at Newark, N. J., a subport of the port of New York, between the dates of Januai'y 3, 1917, .and January 9, 1917. They were there entered for immediate consumption and a deposit - of duty equal to the appropriate rate of 20 per Cent ad valorem was made with the collector, who thereupon issued permits ■ of delivery and relinquished control of the merchandise to the importers. The cars containing the shells were then immediately moved by the importers to the plant at Kingsland for use as aforesaid.
On January 11, 1917, only two days after the last of these entries, an explosion and fire took place at the Kingsland factory, and the entire plant, including the materials in the warerooms and in cars upon the yard tracks, was destroyed. The shells now in question were at the plant at this time and shared in the general destruction.
On January 13, 1917, within 10 days after the date of the entries aforesaid, the importers lodged with the collector a written notification that they thereby abandoned to the Government all of the merchandise covered by them in accordance with paragraph X, section III, tariff act of 1913. A copy of that paragraph follows later in this decision.
Upon receipt of this notification the collector directed the importers to deliver the merchandise which they proposed to abandon to-the seizure room at 641 Washington Street, New York City. The *21importers, however, made no delivery in response to this demand. The collector then held that the failure of the importers to deliver the merchandise thus demanded was a default upon their part, and because thereof and also because the merchandise according to his, finding had been totally destroyed and was no longer capable of identification or delivery, the collector disregarded, the alleged abandonment and proceeded with the final liquidation of the entries as in due course.
Thereupon the importers filed a protest against the collector’s action, challenging it upon two grounds. They first claimed that the merchandise in question was not an importation into this country within the purview of the tariff laws, and that it was not legally liable to be assessed with customs duties, since the shells were brought here under the contract aforesaid with the Russian Government for immediate loading and exportation, and were not intended to enter into the commerce of the country. It was also claimed in this behalf that the importers had theretofore applied to the authorities for the privileges of a bonded manufacturing warehouse for this purpose, and that this request had been unlawfully refused, whereby they had been compelled to rely upon the drawback privileges of the act as their only practical relief under the circumstances. The second claim made by the importers in the protest was based upon the alleged abandonment of the merchandise as above set out.
The first branch of the protest is concededly identical with the issue decided by this court in the case of Agency Canadian Car & Foundry Co. v. United States (10 Ct. Cust. Appls., 172; T. D. 38547). That case, however, related to shells which had been entered in the same manner as these and for the same purpose but more than 10 days prior to the time of the explosion. For that reason no tender of abandonment was made with reference to them. The sole issue, therefore, in the former case was whether the merchandise had become liable to' customs duties as imported merchandise within contemplation of the tariff laws. Upon this issue the court held against the claim of the importers, and the protest was overruled. The question of abandonment, however, not being involved in the former case was of course not passed upon, and it remains as the sole issue before the court upon this appeal.
The present protest was submitted to the Board of General Appraisers upon testimony including the record in the former case, and the board overruled it. From that decision the importers appeal.
The following is a copy of the applicable parts of paragraph X, as above cited:
Nor shall any allowance be made for damage, but the importers may within ten days after entry abandon to the United States all or any portion of goods, wares, or *22merchandise of every description included in any invoice and be relieved from the payment of duties on the portion so abandoned: Provided, That the portion so abandoned shall amount to 10 per centum or more of the total value or quantity of the invoice. The right of abandonment herein provided for may be exercised whether the goods, wares, or merchandise have been damaged or not, or whether or not the same have any commercial value: Providedfurther, That section twenty-eight hundred and ninety-nine.of the Revised Statutes, relating to the return of packages unopened for appraisement, shall in no wise prohibit the right of importers to make all needful examinations to determine whether the right to abandon accrues, or whether by reason of total destruction there is a nonimportation in»whole or in part. All merchandise abandoned to the Government by the importers shall be delivered by the importers thereof at such place within the port of arrival as the chief officer of customs may direct, and on the failure of the importers to comply with the directions of the collector or the chief officer of customs, as the case may be, the abandoned merchandise ■ shall be disposed of by the customs authorities under such regulations as the Secretary of the Treasury may prescribe, at the expense of such importers.
It will be noted tbat the statute just copied provides that all merchandise abandoned to the Government by importers shall be delivered by them at such place within the port of arrival as the chief officer of customs may direct. The provision follows that in case of failure of the importers to comply with the directions of the collector or chief officer aforesaid the abandoned merchandise shall be disposed of by the customs authorities under such regulations as the Secretary of the Treasury may prescribe, at the expense of such importers.
This court has held in the case of Thomas & Pierson v. United States (4 Ct. Cust. Appls., 51, 54; T. D. 33305) that these provisions conclusively imply that an abandonment can not be effected under the statute unless the merchandise in question be “deliverable” at the time of the abandonment. The merchandise involved in that case was 2,916 bags of chicory lost overboard from a lighter in New York Harbor in consequence of a collision, after the payment of the duties thereon and the delivery of the merchandise to the importers. No effort was made to recover the chicory which presumably would have had no commercial value if recovered. But the importers tendered an abandonment thereof to the Government under paragraph X, supra. The collector, however, refused to accept the proffered abandonment, and upon protest his action was sustained by the board. On appeal to this court the board’s decision was affirmed, the court’s decision reading in part as follows:
Subsection 22 does not extend the right of abandonment to all goods imported. Blit the paragraph clearly imports that the abandoned goods shall be at the time of abandonment deliverable goods. Delivery is provided for in the paragraph and this presupposes a deliverable condition. These goods were at the bottom of the river at the time of the proposed abandonment. It needs no evidence to demonstrate that they were not deliverable.
It may be observed that in the foregoing case the good faith of the importers was not questioned, nor was there any doubt entertained *23as to tbe loss of the merchandise. The collision indeed had taken place it may be supposed in the very presence of the customs officials. But nevertheless the chicory was at the bottom of the river when its abandonment to the Government was proposed, and consequently it was not deliverable. For that reason alone the tender of abandonment was held by the court to be inoperative.
In the present case likewise the good faith of the importers is of course above question, and the facts surrounding the transaction are beyond dispute. Nevertheless, upon the record the board felt bound to hold that the merchandise in question was not "deliverable” at the time of the proposed abandonment, and accordingly overruled the protest. A review of the record leads us to the conclusion that there is no escape from such a decision.
The testimony before the board, including that introduced in the former case as above noted, discloses that at the time of the explosion there were 1,359,443 high-explosive shells in or about the Kingsland plant, of which 1,078,265 were of domestic manufacture, and 281,178 were imports from Canada. The importations now in question com-’ prised 54,866 shells and constituted accordingly only about one-fifth of the Canadian shells at the plant, such shipments having been regularly received for some time.preceding the explosion. The individual shells.of ffil..kindsjwerq severally marked when in process of manufacture in order that each shell might thereby be traced to.its separate origin .and to the consignment of which it was a part.
When the explosion and fire occurred this enormous mass of material was scattered far and wide, and only 43,630 shells were after-wards salvaged'from the débris. And these were so rusted, pitted., burned, and broken that all marks of identification wei** (Obliterated, It was therefore impossible to ascertain whether the salvaged shells were of domestic or Canadian origin, and if Canadian, whether they belonged-to the present shipments or former ones. In fact, it.may 'fairly be understood from the testimony that there was no possibility of identifying a single salvaged shell or piece of débris as part of the present importations/' The 4§,630 salvaged shells were sent by the appellant company to the Bethlehem Steel Co.’s plant at Newcastle, Del., where they were used in manufacturing Russian ammunition which was thereafter exported from this country.
We have therefore no primary or physical evidence whatever for the identification of any of the present importations after the explosion. Nothing but secondary evidence-is possible in answer to the question of what became of them. ...They-were simply blown out of existence so far as any possibility of a deliveryof them was concerned, and for the purpose of the present inquiry they, like the chicory in the Thomas & Pierson cáse, süpra, were no longer in esse. Accordingly in the decision now under review the board, after referring to *24the chicory case, rightfully said: “All that the court said of sunken goods is equally applicable to the merchandise here under discussion, which prior to the time of the tender of abandonment had been literally blown to atoms. It was not deliverable, to say the least.” Such a situation is clearly distinguishable from that in the Doull Miller & Co. case, G. A. 7523 (T. D. 34032), wherein the abandoned merchandise' was damaged but, nevertheless, was still capable of identification and delivery.
It must be conceded that the present case visits an undeserved hardship upon the importers, and we regret that the statute denies them the relief which they have sought under it. But it seems clear that Congress intended to permit of an abandonment of merchandise under the act only in cases wherein the merchandise itself was still in esse in a deliverable condition, and that no proof of the destruction of the merchandise should be accepted in lieu thereof, however conclusive such proof might be. If such secondary evidence were relied upon, it might in many cases be a means of defrauding the revenue, and this doubtless explains the imperative character of the rule as adopted.
The testimony discloses the fact that prior to this transaction it was not the custom of the collector at the port of New York to demand a delivery to the Government of goods which were abandoned' under the statute, nor to take them into custody in event they were not delivered to him by the importers. We do not think, however, that this practice should have any effect upon the present question, since the course pursued by the collector in the present case was directly obedient to the statute and to the department’s rules. — (Customs Regulations 1915, arts. 603, 604.)
In the former case growing out of this transaction, supra, we said:
The appellant has been the victim of a great misfortune,, and the appeal is strong that it should not suffer the loss of its goods and the very large amount of duties paid thereon as well. Nevertheless, as the law has made no provision for the return of* duties in such cases as this, the court is powerless to- grant relief.
We can only repeat this observation and say that in the present case the impossibility of a delivery of the merchandise in question defeated the effort of the importers to abandon it to the Government; and the decision of the board to that effect should be, and is, affirmed.