concurring.
I concur in the majority’s decision, but I am persuaded that the decision is needlessly premised on a fiction. Allen Forwarding Co. (Allen) clearly was the' agent for Wedemann & Godknecht (Wede-mann). However, the majority reverses the positions and makes Allen the principal. As did the Customs Court, it also recognizes an after-the-fact “ratification” of Wedemann’s protest action by Allen. •
Under section 514 of the Tariff Act of 1930 (19 USC 1514), a protest may be filed by “the importer, consignee, or agent of the person paying such charge or exaction.” Appellant contends that “agent of the person paying such charge or exaction” means agent of the importer or agent of the consignee, and that to decide otherwise would be contrary to the “Congressional scheme.” Notwithstanding that section 505 of the Tariff Act of 1930 (19 USC 1505) requires the consignee to pay the duty at the time of entry, Congress did not use the phrase “or agent of the consignee” and, instead, used the phrase “agent of the person paying such charge or exaction,” which would indicate a broader sweep in the “Congressional scheme.”
*93Indeed, a strict interpretation of the language results in the anomaly of prohibiting the person paying the charge from filing a protest, while authorizing his agent to do so. A long time ago, the Second 'Circuit declined to indulge in such a strict interpretation, saying that “agent of the person paying such charge * * * includes the principal for otherwise substance would be subordinated to mere language.” Patchogue-Plymouth Mills Corp. v. Dunning, 101 F. 2d 41, 43 (2d Cir.1939). Using this approach, Wedemann, as principal of Allen, which technically paid the charge, would be entitled to file the protest. This is essentially the approach followed by the majority, which properly takes the position that statutes giving the right of appeal are to be liberally construed in furtherance of justice.
The legislative history of the anomaly in the statutory language provides no guidance, thus laying the foundation for liberally construing the statute in furtherance of justice, particularly when there would be no burden on the Customs Service. The present language was first enacted as section 514 of the Tariff Act of 1922 (Pub. L. No. 318, ch. 356, 42 Stat. 969) upon recommendation by the United States Tariff Commission.1 H.R. Rep. No. 248, pt. 1, 67th Cong., 1st Sess. 20 (1921). The Commission had originally recommended a complete revision and codification of the customs administrative laws during the Sixty-fifth Congress, but no action was taken. (Subsequently, Congress requested the Tariff Commission to resubmit its recommendations, and these were enacted.) The original recommendations included a proposal to authorize protests by “the importer, consignee, or agent or the person paying such charge, or exaction.” United States Tariff Comm’n, Report Upon the Revision of the Customs Administrative Laws 133 (1918) (emphasis added). This proposal was merely for the purpose of simplifying rather than substantively changing the existing law. Id. at 13, 203, 208. As can be seen, it would have eliminated the obscure phrase “agent of such merchandise” by replacing it with “agent.” However, the proposed language in the subsequent recommendations changed “or” (emphasized in the quotation above) to “of.” United States Tariff Comm’n, 67th Cong., 1st Sess., Proposed Revision of the Customs Administrative Laws 42 (Comm. Print 1921). There was no explanation for this change, and the anomaly dealt with by the Second Circuit has remained in every subsequent revision of the customs administrative laws.
The courts have consistently permitted the owner-importer o'f the merchandise or his agent to protest the decision of the collector, even *94though such owner-importer or agent (or both) was not so identified in the entry papers, upon proof of identity at the trial. See United States v. Hannevig, 10 Ct. Cust. App. 124, T.D. 38384 (1920); Adolco Trading Co. v. United States, 71 Cust. Ct. 145, C.D. 4487 (1973) ; Great Lakes Foundry Sand Co. v. United States, 15 Cust. Ct. 256, Abs. 50442 (1945); Bernstein v. United States, 59 Treas. Dec. 870, T.D. 44800 (Cust. Ct. 1931); Davies, Turner & Co. v. United States, 58 Treas. Dec. 1216, Abs. 14407 (Cust. Ct. 1930); Gray v. Lawrence, 10 F. Cas. 1031 (No. 5,722) (C.C.S.D.N.Y. 1853). The import of these decisions is that, for purposes of section 514, a protest may be filed by one who proves that he is the real party in interest or his agent. Thus, in Bernstein, supra, the concurring opinion quoted the following portion of Chief Justice Taney’s opinion in Mason v. Kane, 16 F. Cas. 1044 (No. 9,241) (C.C.D. Md. 1851) :
We see no inconvenience that can arise to the collector, or the public, by permitting the owner to maintain the suit in his own name, instead of suing in the name of his agent or consignee; the payment by the consignee, is the payment by the principal; and the protest of the consignee, the prote'st of the principal, if he thinks proper to adopt it. We think the practice in some of the circuits has sanctioned suits by the foreign owner, in cases of this description; and as this practice is consistent with a fair construction of the act of 1845, and no injustice or inconvenience can arise from it, the court are of opinion, that this objection must be overruled.
The majority recognizes that Farbenfabriken Bayer, A.G. (FFB) was the real party in interest and that Wedemann was its agent in the United States. Construing the statute liberally and looking at the substance of the transactions, particularly in view of the “duty-paid delivered” contract, I would consider “the person paying such charge” to include FFB and hold that its agent, Wedemann, is entitled to file the protest and conduct the litigation. Cf. S. Stern & Co. v. United States, 51 CCPA 15, C.A.D. 830, 331 F.2d 310 (1963).
I agree with the majority that naming Atwater and Liberty Fabrics in the protest was a “technical error”; further that the protest did not thereby impose an undue burden on the Customs Service. Also, as the majority says, the government was aware at all times that any refunds of excess duty paid were to go to Allen.2 As Wedemann’s agent, Allen would repay Wedemann, which in turn would repay its principal, FFB. Again as the majority says, the government would not suffer additional administrative burden.
*95This is not to say that the law of agency must be followed whenever customs procedures are involved. However, when the two can be harmonized in accordance with the real world of commerce and with no burden to the government, I think it should be done.
Previous statutes permitted protests by “the owner, importer, consignee, or agent of such merchandise, or the person paying such fees, charges, and exactions.” Tariff Act of 1913, § III, para. N, Pub. L. No. 16, ch. 16, 38 Stat. 187; Customs Administrative Act of 1890, § 14, ch. 407, 26 Stat. 137, as amended by the Tariff Act of 1909, § 14, Pub. L. No. 5, ch. 6, 36 Stat. 100.
In Silverstein Bros. v. United States, 58 Treas. Dec. 667, 672, T.D. 44394 (Cust. Ct. 1930) tlie court held the protest sufficient stating :
If the officer of the Government, the collector, understands the nature of the claim made, and by whom, we think it is sufficient. * * * [T]he officer of the Government who makes refund of duties improperly collected, can not be deceived in that regard because he knows who paid the duties.