Mr. Justice WOODBURY
delivered the opinion of the court.
The plaintiff in error in this case seeks to reverse a judgment below, which enabled the Bruñes, as importers of certain sugars into Baltimore, to recover back from the collector a supposed excess-of duties, which had been paid upon, them. In some of the cargoes there was a small quantity of molasses, but both are regarded as resting on the same basis. The points involved are three in number.
1. What should be the true amount of duties in this case under our revenue system, looking to the general legislation on the subject, and to the nature of the transaction ?
2. Whether the result which may be thus' obtained should be affected or prevented by the special proviso in the eighth sec- . tion of the law of 1846 ?
3. Whether the protests, filed by the importers, were such as to enable them in point of law to recover back all which has .been allowed by the court below ?•
In considering the first question, it is. to. be noticed that the duties to be paid on imported sugar are now regulated chiefly by the act of Congress of July 30th, 1846. (9. Stat. at Large, 46.) By the eleventh section of that act the duties are fixed at thirty per cent, ad valorem. The collector here exacted that rate on the quantity of sugar named in the invoice and shipped from foreign ports. But the quantity which arrived and was entered here was less than that shipped, by drainage and waste, to the extent- of near five per cent.-; and' the defendants contended that the duty should be paid only on that diminished quantity.
The general principle applicable to such a case would seem to be, that revenue should be collected only from the quantity or weight which arrives here. That is, what is imported, —for nothing is imported till it comes within the limits of a port. (See cases cited in Harrison v. Vose, 9 Howard, 372.) And by express provision in all our revenue laws, duties are imposed only on imports from foreign countries; or the importation from them, or what is imported. (5 Stat. at Large, 548, 558.) The very act of 1846 under c msideration imposes'the duty on what is "imported from foreign countries." (p. 68.) The Constitution uses like language on this subject. (Article 1, <§><§> 8, 9.) Indeed, the general definition of customs confirms' this view; for,- says McCulloch (Vol. I. p. 548), "Customs are duties, charged upon commodities on their being imported into or exported from a country."
As to imports, they therefore can cover nothing which is not actually brought into our limits. That is the whole amount which is entered at the custom-house ; that is all which goes into the consumption of the country; that, and that alone, is what comes in competition with our domestic manufactures; and we are unable to see any principle of public policy which requires the words of the act of Congress to be extended so as to embrace more.
When the duty, was specific on this article, being a certain rate per pound, before the act of 1846, it could of course extend to no larger number of. pounds than was actually entered. The change in the law has been merely in the rate and form of the duty, and not in the quantity on which .it should be ¿Assessed.
On looking a little further into the principles of the case, it will.be seen that a deduction must be made from the quantity shipped abroad, whenever it does not all reach the United States, or we shall in truth asséss here what does not exist here. The collection of revenue on an article not existing, and never coming into' the country, would be an anomaly, a mere fiction of law, and is not to be countenanced where not expressed in acts of Congress, nor required to enforce just rights:
It is also the quantity actually received here by which alone the importer is benefited. It is all he can sell again to customers. It is all he can consume. It is all he can reexport for drawback. (1 Stat. at Large, 680 — 689: 4 Stat. at Large, 29.)
Nor is his sugar improved in quality by the drainage, so as to raise any equity against him by it. The evidence in the ensuing case from New York, which was argued with this, shows that the article usually becomes .of a worse color and quality than before, though if not drained at all it might ferment and become still more inferior.
Indeed, the reasonableness of this deduction seems countenanced by various other acts of Congress. In certain instances, where a loss usually occurs, and where a general and reasonable rate of reduction could be prescribed, they have authorized it expressly in several cases of the character referred to.
Thus, in the case of liquors, a certain fixed per- cent, is deducted in the measure, in all cases, for leakage (1 Stat. at Large, 166), and still more is deducted for breakage, when in bottles. (1 Stat. at Large, 672.) So another reduction is made in weight for tare and draft. (1 Stat. at .Large, 166.) The -last should be draff, meaning dust and dirt, and not what is generally meant by "draught" or "draft."
But beside these instances, in cases of an actual injury to an article arriving here in a damaged state, a reduction from the value is permitted expressly on account of the diminished value. 1 Stat. at Large, 41, 166, 665.
The former cases, referred to for illustration, rest on their peculiar principles, and allowances in them are made by positive provisions in acts of Congress, even though the quantity and weight of the real article meant to be imported should arrive here. Because, knowing well that the whole is not likely to arrive, and being able to fix, by a general average, the ordinary loss in those cases with sufficient exactness, the matter has been legislated on expressly.
Yet there are other cases of loss, from various causes, which may be very uncertain in amount, for which no fixed and inflexible rate of allowance can be prescribed, and which must, therefore, in each instance, be left to be regulated by the general provisions for assessing duties, and the general principles applicable to them, as before explained. Consequently, where a portion of the shipment in cases like these does not arrive here, and hence does not come under the possession and cog nizaiice of the custom-house officers, it cannot, as heretofore shown, be taxed on any ground, of law or of truth and propriety, and does not therefore require tor its exemption any positive enactment by Congress.
Such is. the case of a portion being lost by perils of the sea, or by being thrown overboard to save the ship; or by fire, or piracy, or larceny, or barratry, or a sale and delivery on, the'voyage, or by natural decay. If there be a material loss, it can make no difference to the sufferer of the government whether, it happened by natural or artificial causes. In either case, the article to that extent is not here to be assessed, nor to be of any value to the owner.
To add to such unfortunate losses, the burden of a duty on them, imposed afterwards, would be an uncalled for aggravation, would be adding cruelty to misfortune, and would not be justified(by any sound reason or any express,provision of law. On the contrary, Congress, in several instances, when the articles imported actually arrived here, and were afterwards destroyed' by fire before the packages had. been opened and entered into the consumption of the country, have refunded or remitted the duties. 2 Stat.at Large, 201; 5 ibid. 284; . 6 ibid. 2,
But much more should duties not be exacted on what was lóst or destroyed on its way hither, and which never came even into the possession or control of the custom-house officers, and much less into the use of the community..
Something has been urged in argument on the estimate made by the appraisers, and the final character attached to it. However that may be, if one was made in this case it could be final only as to the price of the sugar, abroad, and not as to the quantity or weight reaching this country. The latter is fixed by another class of officers, authorized by law for that purpose; and if the appraisers undertake to fix it, their action in that respect is coram non judice, and a nullity.1*
The price abroad in this case depended on a variety of circumstances, as the size of the erop, the urgency of the demand in the market, the quality of the article, See.; and the invoice may be prima fade evidence of the result of these and other causes in establishing that price; but for « quarter of a century it has been departed from by the appraisers, if the •facts ascertained by them will warrant it; though their action and decision as to the price are understood not to. be here.in this respect in controversy.
The various circulars from the Treasury Department, which have been referred to, and which hive been construed in some cases to permit the deduction of the quantity no,t really arriving in this country, and in others to forbid it, are entitled to much respect in deciding on the true meaning of the' revenue laws. But when contradictory or obscure, they furnish less aid, and are never decisive or incontrollable. Their design is, of course^ to protect the revenue from evasions, and the policy of the courts is the same, when deciding how the laws ought to be executed on these subjects.'
But ás Congress wishes to foster an honest and honorable commerce fey its laws, no less than obtain revenue, it is neither the true policy nor right of Departments or of courts, nor is it presumed to be their desire, to thwart the views of Congress, or embarrass mercantile business, when not attended by equivocation and fraud, or to throw doubts and difficulties oyer the liberal course proper to be pursued generally towards the community in any branch of trade.
Thinking, then, as we do, that making this deduction is no,t only the legal, but the more reasonable and liberal course, it has our full approbation.
The second point of inquiry, concerning the restrictive effect of the proviso on the eighth section of the act of 1846, has been very earnestly urged as opposed to a construction allowing this deduction. It is argued, that allowing it would usually reduce the aggregate value below the invoice, and that this is prohibited by the words of the proviso, enacting, " That under no circumstánce shall the. duty be assessed uporj an amount less than the invoice value, any law of Congress to.the contrary notwithstanding:" 9 Stat. at Large, 43.
But this proviso apparently relates to the enactment in the section where it stands, concerning thé owner, or his agent, raising the invoice or assessment to " the true market value of such imports in the principal markets of the country whence the importation shall have been made."
If, however, it was meant to be general, as seems more likely from previous laws, and to hold 'the owner to his invoice in all cases, by a species of estoppel, so far as not to let it be made lower than was originally admitted in the invoice, then the restriction manifestly relates to the price only. He néed not bp estopped about the quantity in the invoice, as the duty is not assessed on the quantity abroad, but on the quantity reaching home, and entered and 'ascertained by law by the measurer and weigher here." But he might properly be in respect to the price, as it is on the price abroad, and charges added, that the duty is by law to be assessed.
The -language of the proviso is not artistic, nor very clear, but, from the considerations just stated, we-think the words " less than the invoice value " must mean the same as invoice price. It can, too, bear no other construction consistent with its language and probable design, arid the evident design, looking to all the circumstances, must govern. 16 Peters, 367; Paine, C. C. 11; Bac. Abr. Statute, 1.
But what is calculated to remove all doubt, as to the true meaning of the proviso, is a clause in the act of April 20th, 1818, on this same subject. 3 Stat. at Large, 437.
The twelfth section provides, that, in " all cases where the appraised value shall be less .than the invoice value, the duty-snail be charged on the invoice value in the same manner as if no appraisement had been made."
This is plain and intelligible, and by value refers, of course, to the price- in the invoice, as that is to be fixed by the appraisers. Making the deduction, then, which was made below in this case, was no violation of this proviso, as it was a reduction in the quantity below the invoice, and not in the price.
The last question relates to the validity of the protests to the extent held in the Circuit Court.
There is no pretence that the protest by letter, dated the 9th of April, Í847, was not good in form and substance for'all the cargoes which had then been entered and the duties not paid. Though in some, of the previous entries no protest had been' made at the time, under an- impression that the duties on what had been lost would voluritarily be, refunded, yet, where the payment had been closed up, the court did not feel justified, nor do we, in embracing those cases under any existing equities, without the written protest required by the act of Congress. (S Stat. at Large, 727.) But where the duties had hot been closed up in any cases, when the written protest in April was filed, — though the preliminary payment of the estimated duties had taken place, — the court justly considered the protest valid. Because, till the final adjustment, the money remains in the hands. of the collector, and is not accounted for with the government, arid more may be necessary to be paid by the importer.
The question as to subsequent entries being covered by this protest is not so clearly in favor of the importer. But as they all depended on a like principle, — ras from the circulars of the Department some doubt existed whether the excess of duties would ritif voluntarily be refunded, — as the amounts in each importation were small, and both parties thus became fully aware that the excess in all such cases was intended to be put in controversy and reclaimed^: — we are inclined to think-this written protest may fairly be regarded, as applying to all subsequent cases of a like character, belonging to the same parties.
Judgment affirmed.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of-Maryland, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with .costs and damages at the rate of six per centum per annum.