*370DISSENTING OPINION
Lenroot, Judge:I respectfully dissent from the conclusion reached by the majority in this case. It seems very clear to me that when the merchandise was unloaded on the dock at Los Angeles for transshipment to Denmark, and the proper entries were made for such transshipment, together with a bond as the law and regulations require in such cases, it was not subject to the provisions of section 304 (b).
We have many times held that the purpose of the marking statute was to protect the United States manufacturer and purchaser of the merchandise. Obviously there could be no object in marking merchandise that was never intended to be imported and enter into the commerce of the United States.
It is my opinion that the instant merchandise was not, before being marked, “imported” within the meaning of that word as used in section 304 (a); or, in other words, when landed on the dock at Los Angeles it was not imported merchandise. The general rule is that merchandise is imported when it is brought within a port of entry with intent to unlade. Minneapolis Cold Storage Co. v. United States, 9 Ct. Cust. Appls. 225, T. D. 38200.
The trial court held that the mere unloading of the merchandise-on the dock at Los Angeles brought it within that rule. However, the majority opinion here, I think very properly, disagrees with this view and in effect, it seems to me, holds that the merchandise was not originally brought into this country with intent to unlade.
There are many decisions which, in principle, hold that merchandise brought into this country under facts somewhat similar to those at bar is not imported at the time it enters the territorial limits of the United States. Among them are McLean v. Hager, 31 Fed. 602; United States v. Cronkhite Co., 9 Ct. Cust. Appls. 129, T. D. 37980; Five Per Cent Cases, 6 Ct. Cust. Appls. 291, T. D. 35508.
The case of Kee Co. et al. v. United States, 13 Ct. Cust. Appls. 105, T. D. 40943, is cited and discussed in the majority opinion. The distinction between that case and the case at bar is obvious when we observe that in the cited case the merchandise was brought into the United States with intent to unlade; while, as hereinbefore stated, the majority opinion in the case at bar holds that when the involved merchandise was brought into the United States and landed on the dock at Los Angeles there was no intention to unlade.
The other cases discussed in the majority opinion obviously, it seems to me, have no application to the case at bar.
The majority opinion contains the following statement:
* * * The ship carrying the goods crossed the customs border with the unmarked goods. Surely, under any definition of the term “import” they were completely imported as far as intent was concerned when the importer changed *371its mind and decided that they should go into the commerce of this country. They were not marked at that time and we are of the opinion that a subsequent marking under the circumstances stated will not warrant the collector in failing to levy the 10 per centum duty in question. The intent to cross the customs border, no matter for what purpose, merges into the act of importation when the goods are actually entered for consumption. [Italics mine.]
I infer from the foregoing that it is the view of the majority that if the importer had marked the goods one hour before deciding to import them into the commerce of this country the majority would have reached a different conclusion; but, because the marking immediately followed this decision, no relief may be granted to appellant. It seems to me that this is an extremely technical view of the case and one that does not comport with reason. If there was no duty to mark until appellant decided that the goods should enter the commerce of the country, and as the majority opinion impliedly holds, then appellant was in no wise in default in failing to mark the goods up to that time.
In the case of Asiam, Inc. v. United States, 25 C. C. P. A. (Customs) 68, T. D. 49065, speaking of the marking statute here involved, we said:
* * * As, of course, the statute does not require the impossible, nor does it, in our opinion, require anything except that which is reasonable. * * *
So here, in a case like that at bar, I think it should be held that if the goods are promptly marked after their importation into the commerce of the country has been decided upon, and before the goods have been released from customs custody, that is sufficient. To require more we would be compelled to hold that the statute required more than “that which is reasonable.”
The majority opinion states that appellant seeks to have the mental attitude of the owner, rather than what was done, the controlling factor in determining when-the merchandise was imported. I cannot agree with this statement. Appellant is relying upon what was in fact done as evidence of his intention; and so far as intention is concerned, I would repeat that this court has many times stated that merchandise is imported when it is brought into this country with intent to unlade. So intention is a material factor in determining when merchandise is imported. In fact the majority opinion recognizes this when it holds that there was no intent to unlade when the merchandise was originally brought into this country.
The concurring opinion in the trial court stresses the provision of section 304 (b) that if, at the time of importation, merchandise is not marked, it shall pay the 10 per centum duty “unless exported under customs supervision.” (Italics mine.) Obviously this provision applies only to the imported merchandise referred to in section 304 (a), and cannot refer to merchandise not imported in a tariff *372sense, although, within the territorial limits of this country. In this connection I would observe that the majority opinion of the trial court appears to distinguish between the terms “imported” and “importation.” The latter is the term used in section 304 (b), but the term “imported” is used in section 304 (a) which requires merchandise to be marked. Surely it could not be successfully argued that merchandise not required to be marked under section 304 (a) is required to be marked under section 304 (b).
In the case at bar the merchandise was voluntarily marked by appellant immediately upon its decision to enter the goods for con sumption in this country. There is not the slightest indication of bad faith upon the part of appellant. The majority admits the inequitable nature of its conclusion, but holds that under the law no relief may be given appellant. In my opinion it is only a strained construction which prevents such relief; and, believing as I do that laws should be construed whenever possible to promote justice and equity, I think the judgment appealed from should be reversed.
I am authorized to say that Presiding Judge Garrett concurs in this dissent.