So far as these cases relate to shortage of spirits, wines, etc., under the second proviso to paragraph 296, tariff act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule H, 30 Stat. 174 [U. S. Comp. St. 1901, p. 1654]), that question has been decided by the United States Supreme Court in favor of the Government. Shaw v. United States, T. D. 29,412. Counsel for the importers, however, show that certain of the protests involved herein relate to items of vermuth and insists that said decision has no application thereto. The counsel abandons all claims except that concerning vermuth.
I am of the opinion that the said proviso to paragraph 296, which states “that there shall be no constructive or other allowance for breakage, leakage, or damage on wines, liquors, cordials, or distilled spirits,” was not intended by Congress to include vermuth. When Congress enacted paragraph 296 it seems to have plainly had in mind vermuth as an independent exceptional article, because at the very beginning it found it necessary to mention it eo nomine after referring to still wines, and then in the middle of the paragraph when it made the first proviso it again singled out vermuth as one of the articles which, if containing more than 24 per cent, of alcohol, should be classed as a spirit. It would seem to me that, when it made a further proviso with regard to the articles as to which there should be no constructive or other allowance, etc., it would have continued its specific mention of vermuth, if it intended that provision to apply to that article; and the very fact it eliminated vermuth from that second proviso would seem to me to indicate that Congress intended to remove it from the effects of that proviso.
The decisions of the Board of Appraisers in the above-entitled suits are reversed so far as they cover items of vermuth. In all other respects they are affirmed.