This suit is brought against the collector, to recover certain duties paid under protest. It is submitted upon a case stated, in which it appears that, upon sundry importations of sugar and molasses, there was a considerable loss by leakage, during the voyage, and the quantity actually imported and received, as ascertained and certified by the proper officers, much less, in several cargoes, than that stated in the invoices. The duties were, however, assessed upon the invoice amount; and this suit is brought to recover back so much of the money as was paid for duties, upon that portion of the cargoes which was-lost, on the voyage, by leakage.
The question arises upon the proviso in the eighth section of the act of 1846, which declares, that under no circumstances shall the duty be assessed upon less than the invoice value, any law of congress to the contrary notwithstanding. The question is, whether this proviso includes the quantity as' well as the price or value of the merchandise mentioned in the invoice. The clause is certainly not free from ambiguity; the secretary of the treasury, in his circular letter of instructions to the collectors, dated 25th November, 1846, took notice of this difficulty, and expressed his opinion that it did not repeal the previous law, which authorizes allowances for deficiencies and for damages occurring during the voyage; the same opinion is more particularly stated in his letter of 30 January, 1847, to the collector of the port of New Orleans; and the instructions given in this letter would apply directly to cases like the one now before us, and sanctions the claim made by the plaintiffs.* This instruction was, however, soon after recalled, and it seems, was not after-wards acted upon, nor are we able to discover, from the correspondence before us, the construction finally placed upon this proviso, by. the department, nor to ascertain precisely the classes of cases to which it was supposed to extend, or to which it was supposed not to apply. We think the instruction first given, as above mentioned, is the true one, and that it was not the intention of the act of 1846 to annul the previous laws upon that subject. The principles of justice would seem to require that the merchant should be charged with duty only upon the merchandise which he actually introduces into the country; he imports nothing more, and brings in nothing more for sale or for consumption. He could not protect himself, by insurance, from ordinary leakage and damage, in articles which, from their nature, are liable to such casualties, without paying a premium heavier perhaps than the amount of loss, nor is it, we believe, one of the hazards usually, if ever, undertaken by the underwriters. If the duty is charged upon what is lost as well as what arrives, he will in fact pay, in almost every case, a higher duty on his importation than the law intends to impose; and the proviso would be inconsistent with the other provisions, and with the spirit of the tariff of 1846, if it be construed to exact such duties; for this law is avowedly framed on the most liberal principles of commerce, and contemplates a *478reduction of duties upon articles of this description to a lower standard. It would hardly comport with this policy, to place in the law a proviso which, upon articles so important in commerce as sugar and molasses, would, in many cases, make the duties higher than they had ever been before, and indeed, in almost every cargo, make them higher than the rate specified in the law. We think the proviso refers to the price stated in the invoice, and not the quantity, and did not repeal the former law authorizing deductions and allowances to the importer in the eases mentioned.
There is another difficulty, however, in this case, since none of the previous laws make any specific provision for loss of quantity in sugar or molasses, by leakage, on the voyage; nor does it appear that the treasury department have formed any definite opinion on this particular question, or established any settled or uniform rule on the subject; for we find, upon examining the correspondence and instructions of the department, as we have already stated, that different instructions were given at different times, and finally an order given to make the allowance on molasses, but not on sugar. We do not see how, from the terms of this law, or of any previous act of congress, this distinction can be made; for the clause in relation to liquors, in the law of 1799, c. 22, § 59 (1 Stat. 672), can hardly be construed to embrace molasses. It is, however, evident, we think, that under the act of 1842, where-ever the duty was ad valorem, it was charged only upon the merchandise actually imported or brought in; for the sixteenth section, which regulates the manner of estimating and charging the ad valorem duties, directs the appraisers, by all the ways and means in their power, to ascertain the value in the foreign market, and to charge the duty upon that value. They were not confined in any case to the invoice; and consequently, if the goods actually imported were found to be of less value than the price stated in the invoice, the duties were chargeable only on the value ascertained by the appraisers. Whether this diminution in value was occasioned by damage to the quality, on the voyage, or loss in quantity, could make no difference; for the appraisers appraised only the goods received and imported into the country, and it was the value of these goods which they were required to appraise, and upon which the duty was to be paid, and not merchandise which was stated in the invoice, but had not been actually brought in. This construction of the sixteenth section of the act of 1842 is confirmed by the twenty-first section of the same law, which expressly provides that when any deficiency in the quantity mentioned in the invoice is found in any package, the importer is to be allowed for it in estimating the duties. It is true, that the language in which this provision is made, would seem to make it applicable only to dry goods; but it can hardly be supposed that any distinction was intended to be drawn between dry goods and groceries, or that a rule deemed just as to one, would have been denied to the other; on the contrary, it shows that congress intended to impose the duty only upon the merchandise imported, and that the construction we have given to the sixteenth section, is the one which congress intended it should receive. As this appears to have been the policy of the government, uniformly manifested before the tariff act of 1846, we do not think that the provisions in relation to the invoice value could have been intended to change it; a different construction would make the law not only unjust in its principles, but would, in a multitude of cases, be likely to enhance the duties on sugar and molasses above the tariff of 1842, instead of reducing them. The language of the proviso does not require such a construction; and it would be' opposed to the general legislation of congress, and more especially to the general scope and policy of the act of congress in which it is found.
The next question is, how is this deficiency to be ascertained and estimated? Regularly this should, it would seem, be done by the appraisers; for some of the items which make up the dutiable value of the goods, would be the same upon the quantity of sugar or molasses received, as upon the quantity finvoiced; but others certainly, and the more important ones, would not. We understand that, since the act of 1846, no ap-praisement is made unless there is an excess over the quantity invoiced, or the goods are undervalued in the invoice; but the individual, of course, cannot be deprived of a legal right, if he produces the best evidence which the nature of his case will permit; and in this case the returns of the weigher and gauger show precisely the deficiency in quantity, and the invoice shows the amount upon which the duty was assessed; and the deficiency is admitted to have arisen from leakage on the voyage.
In the absence of any official appraisement, the only rule of abatement approximating to exact justice between the parties, would seem to be this — to estimate the dutiable value of the sugar and molasses lost by leakage, in the same manner, and upon the same principles, that the dutiable value of the amount mentioned in the invoice is ascertained, and to reduce the assessment accordingly. It appears, indeed, that in the importation of sugar from Cuba, the price of the hogshead is charged separately in the invoice, and it has been argued that, as these hogsheads are actually imported, there ought to be no deduction of that item, nor upon the charges at the foreign port, which also, under the act of congress, constitute a part of the value upon which the duty is assessed. But this would hardly be just to the merchant; for the hogsheads are of much more *479value in Cuba than in this country, and they enhance the price of the hogshead of sugar in the foreign market. And as a smaller number would be required to contain the diminished amount of the sugar received, it is just that an abatement should be made for them in the same ratio with the sugar; for otherwise, the cargo of sugar, from the unnecessary number of hogsheads, would be assessed at a higher value than it was really worth in the foreign market; that is to say, higher than the quantity actually received was worth in the port at Cuba. And the same may be said of most of the charges of any importance; certainly, so. far as concerns the commissions, which would necessarily be reduced in proportion with the market value of the merchandise shipped. Besides, in the invoices of sugar from Porto Rico, there is no separate charge for the hogsheads; the invoice states that so many hogsheads of sugar were shipped, at such a price. Undoubtedly, the manner in which it is put up, and the price of the hogsheads which contain it, form a part of its value in the foreign port, and constitute, therefore, a part of the sum in the invoice, upon which the duty is charged; yet, if one or more hogsheads are lost by leakage, and the importer is entitled to an allowance for it, the only mode by which the abatement could be made, would be, by the price of the hogshead of sugar as charged in the invoice. The papers which accompany the cargo, do not show what was the price of the hogshead, and if there is no appraisement, the collector has no mode of ascertaining the reduction except by the price of the sugar. To make an allowance for sugar imported from Porto Rico by this rule, and to refuse the abatement for the hogsheads,' on importations from Cuba, would be to establish a different tariff for these two islands, and would, in effect, make it higher- on the sugars of the latter than those of the former.
NOTE [from original report]. Affirmed by the supreme court, at December term, 1849. [Marriott v. Bruñe] 9 How. [50 U. S.] 619. [NOTE. Defendant brought error, and the supreme court, in affirming the decree of the circuit court, assigned the following as grounds of affirmation:. That the actual amount of the commodities arriving at the port was alone liable for duty, and not the amount shipped, especially as there was no proof that the loss of the sugar by drainage improved its quality; that the proviso in the eighth section of the act of 1846 (9 Stat. 43), setting forth “that under no circumstance shall the duty be assessed less than the invoice value, any act of congress to the contrary notwithstanding,” was apparently not general in its application, but related to the enactment in the section in which it occurred, but, if general, the importer would not be estopped as to the statement of quantity in the invoice, as the duty should be assessed only on the quantity reaching home, and entered and ascertained by law by the measurer and weigh-er; that the words in the proviso, “less than the invoice value,” meant the same as invoice price, —and the further ground that the written protest applied to all subsequent importations of a like character by the same parties. Marriott v. Bruñe, 9 How. (50 Ü. S.) 619.]*479Independently, however, of this consideration, we think, for the reasons above stated, that where there is no appraisement, the reduction should be made on the whole dutiable value of the article; for no duty ought to be exacted beyond what the law has imposed; and if it is not practicable to ascertain the precise amount of the loss, the merchant ought not, on that account, to be made liable to a charge, which evidently was not intended to be imposed upon him. The same reasoning applies to the allowances upon the importations of molasses, both from Cuba and Porto Rico, in which the hogsheads are always separately charged. The reduction, in the opinion of the court, ought to be made in proportion to the dutiable value of the part lost.
The remaining question is, what duties were paid, under protest, within the meaning of the act of 1845 [c. 22; 5 Stat. 727]? That act requires that the protest shall be in writing, signed by the claimant, at or before the payment of the duties, and set forth, distinctly and specifically, the ground of objection. The protest of 9 April, 1847, cannot apply to payments previously made, and the plaintiff is not entitled to recover them; but it is sufficient to cover all subsequent payments, and a particular protest in each case is not required by the law. The object of the protest is merely to give notice to the officer of the government, that the importer means to claim the reduction, and to make known to the collector the grounds upon which he makes the claim. In these respects this protest is sufficiently explicit, and covers all the cargoes upon which the duties had not been finally assessed and adjusted by the collector. The protest is not required to be made on or before the payment of what are called the estimated duties; for this payment is necessarily regulated by the invoice quantity, as well as the invoice price. The importer cannot, at that time, know whether there has been any loss by leakage; nor can he know, after it has been ascertained by the weigher and gauger, whether the collector will exact duties upon the amount stated in the invoice. The protest is legally made, when the duties are finally determined, and the amount assessed by the collector; and a protest before, or at that time, is sufficient notice, as it warns the collector, before he renders his account to the treasury department, that he will be held personally responsible, if the portion disputed is not legally due; and that the claimant means to assert his rights in a court of justice. The payment of the money upon the estimated duties is rather in the nature of a pledge or deposit than a payment; for it remains in the hands of the proper officer, subject to the final assessment of the duties, and if more has been paid than is due (which is most commonly the case), the surplus belongs to the importer, and is returned to him.
Upon the whole, the court is of opinion, that the plaintiff is entitled to recover for the amount of the deficiency in the sugar and molasses, by leakage, as mentioned in the case stated; that the reduction ought to be made according to the dutiable value of the portion lost; and that the protest of 9 April, 1847, covers all the cargoes where duties had not before been finally assessed and adjusted by the collector. If the parties can, by agreement, ascertain the amount due to the plaintiffs, stating the account upon these principles, with interest from the times of payment, the court will give judgment in their favor for that sum. But if they cannot agree, the court will refer the papers to a commissioner, with directions to state the account upon the principles hereinbefore set forth. Judgment for plaintiffs.