United States v. Cottmann

DISSENTING OPINION

Garrett, Judge:

I do not interpret the opinion of the court below in finding the price of $3.98 per ton, at which the raw phosphate rock was sold to the superphosphate manufacturer, to be the correct foreign value for appraisement, to have necessarily constituted a final rejection by it of the price at which sales were made and offered to be made to the farmers and farmers’ cooperative organizations in Morocco.

I construe it rather to mean that as between two classes of sales in Morocco the court determined that the prices at which sales were made to the manufacturer constituted the correct yardstick, and that it did not treat the issue as being between all the sales in Morocco for consumption there and the sales for export to countries other than the United States.

If I am in error as to this and the former is the correct construction of the Customs Court’s opinion, then, it seems to me, a question of law is presented, rather than one of fact, viz: As a matter of law does the price at which the phosphate rock was sold, or offered for sale, to the farmers of Morocco, constitute a foreign value in the sense of the Antidumping Law, or would it, if taken in connection with the price' paid by the manufacturer?

The majority of the court see proper to express an opinion upon the sales to farmers, at this time. I am not now prepared to concur in the view which they express upon that subject, and feel that, since the cause is being remanded, that question should be treated as an open one which the court below should be at liberty to consider along with all the other facts and legal issues of the case. I do not feel that this question should be now adjudged and the other questions remanded with no intimation of our view upon any one of them. To the extent that the expression in the majority opinion may be treated as a foreclosure of that question, I respectfully dissent, because I think that all sales made and offered to be made in Morocco should be studied together, of course, in the fight of the limitations and restrictions under which they were made and offered to be made, and from these sales, taken as a whole, it should be determined whether there is a Moroccan market value for home consumption which meets the statutory definition of foreign market value.