# Poole Co. v. United States > Court of Customs and Patent Appeals · December 9, 1919 · 9 Ct. Cust. 271 URL: https://www.frixlaw.com/law-library/cases/6827961 ## Case - **Full name:** Poole Co. v. United States - **Court:** Court of Customs and Patent Appeals - **Decided:** December 9, 1919 - **Citations:** 9 Ct. Cust. 271; 1919 CCPA LEXIS 60; 1919 WL 21408 - **Precedential status:** Published - **Opinion:** Concurrence by Barber - **Judges:** Barber, Martin, Montgomery, Smith, Vries - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6827961 ## Opinion text CONCURRING OPINION. Barber, Judge: I have such grave doubts as to the soundness of the conclusion in this case that while not expressly dissenting therefrom, I deem it my duty to call attention to some of the things upon which my doubts rest. In addition to what is said about the condition of the cheese in the court's opinion, it also appears of record that the reason why the cheese decayed in transit was because at the time of exportation it was not mature or ripe enough to withstand the heat and other ordinary conditions incident to its passage through the Tropics to the port of importation. One of the importers testified that the cheese was not properly shipped because “it was too young, and too green; could not stand the trip, could not stand passing the Tropics in that condition,” and that “when seasoned and properly shipped it is not perishable”; .while another witness, also connected with the-importers, said in substance that when any such cheese was shipped too young it was liable to spoil; that the reason it did spoil was because it was so shipped and that if it had been well seasoned, the heat would not have affected it. The importers were aware of its condition immediately upon the docking of the ship, which was in the hot weather of July, on the fifth d.ay of which they began to. unload it. Not until July 10 did they undertake to remove it from the dock to their warehouse and in the warehouse (and whether this was refrigerated or not does not appear), they spent three or four weeks in sorting the cheese. It occurs to me, as it did to some members of the board before whom the evidence, was taken, that this delay contributed a good deal to the rapid decay of the merchandise. In United States v. Shallus ( 2 Ct. Cust. Appls., 332 ; T. D. 32074), at page 333 this court said in substance that the destruction or loss which occurred to merchandise after the same entered the lines of *279 the customs district would not exempt the portion so destroyed from the payment of customs duties, and I doubt if it can be said here that the quantity of destroyed cheese that was finally ascertained a month or so after importation under the conditions of record here did not include a substantial amount that had become worthless after it crossed the customs line; nor do I see how the importer can be said to have maintained the burden cast upon him by his protest by showing the quantity destroyed so long after importation. I think it was his duty to show before in any event he could be allowed to recover, the loss that had occurred at the time the cargo came within the customs jurisdiction. I am quite inclined to believe .that the rule established by this court in Houlder v. United States ( 4 Ct. Cust. Appls., 247 ; T. D. 33480), Lauricella v. United States ( 4 Ct. Cust. Appls., 253 ; T. D. 33482), and in United States v. Moscahlades Bros. ( 9 Ct. Cust. Appls., 46 ; T. D. 37904), controls this case against the importers. While paragraph X clearly regards.fruit as a perishable article, it also indicates that such commodities as are subject to the condemnation of health officers are likewise so regarded. Generally speaking-this would include but would not necessarily be limited to various food products besides fruit, the existence of which in a decayed condition is a menace to the public health either because of offensive, -obnoxious and unhealthful odors arising therefrom or because in such decayed condition it was unsuitable for any commercial purpose and its continued existence dangerous to the public. It must be remembered that at the time the case of Lawder v. Stone was decided there were no such’ statutory provisions for the relief of importers as are now found in section 3 of paragraph X. We said in Houlder v. United States, supra, that in the cases coming within the ancestor of the provisions of paragraph X the remedy was.exclusive and I question if uniformity of customs administration is not promoted by adhering to that view. Obviously this cheese spoiled because it possessed within itself when subjected to the normal conditions that might be expected to attend its transportation, unlading, etc., qualities that rendered it liable to decay. If not so, it would not have decayed. No claim is made that ripe cheeses of this kind must be shipped in refrigerated vessels, and the suggestion that this shipment was not hardly bears upon the issue as it seems to me. The cited definitions of "perishable” readily apply to the merchandise here. The importer or his witnesses regarded it as perishable and it has perished. To say that a commodity is not perishable because other shipments of the same name but in a different condition and one that prevents decay are not perishable, seems;to me in a measure to beg the question. I doubt if the fact that nonperishable cheese of this name has been admitted *280 to bonded warehouse is either controlling or important. It is. true that section 2962 of Revised Statutes excepts from warehouse privileges perishable articles. It is also true that section 2976 provides that all merchandise of a perishable nature deposited in public or private bonded warehouse shall be sold forthwith. On the whole I query if it is not safer to adopt the view that whether or not an article is perishable within the meaning of the statute must be determined upon the facts of each particular case, but my purpose is sufficiently accomplished by calling attention . to the foregoing considerations without expressly dissenting from the conclusion of the court. If the rule of the opinion does not come back to plague us and pro: motes uniformity of administrative practice, this case is well disposed of. If otherwise, “Thou canst not say I did it.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6827961. Public record. Not legal advice.