Ricard-Brewster Oil Co. v. United States

DISSENTING OPINION.

Walkek, Judge:

I regret that I cannot concur in the decision and judgment rendered by my colleagues in this case. I deem a brief review of the material facts (as to which there is no dispute) essential to a statement of my views.

At 9:27 a. m. of October 22, 1937, a notice on customs Form 7511 of intent to export articles, to wit, refined neat’s-foot oil, with benefit of drawback was filed on behalf of the plaintiff at the collector’s office in Philadelphia. During that morning the shipment was delivered to the pier at which the exporting vessel lay. The receiving clerk for the agents of the steamship line signed the receipt therefor, *316which was marked “Have this shipment weighed.” The shipment was weighed on the customs scale on the pier and then was laden on board the export vessel. The lading was completed at 12 o'clock noon and was not done under customs supervision for the reason that the inspectors of customs at the pier had not received any official notice, either in the form of the original notice of intent or of a duplicate notice of intent that the goods were being exported for benefit of drawback. The original notice of intent filed in the collector’s office was received by the customs inspectors at 3:15 p. m. of the same day. In accordance with article 1054 of the Customs Regulations of 1937 the customs inspector in charge certified on the back of the notice of intent that the shipment was not inspected nor laden under customs supervision for the reason that lading had taken place prior to receipt of notice but that the records of the steamship company showed that packages of similar description were laden on board the export vessel.

The existing drawback statute is section 313 of the Tariff Act of 1930. So far as pertinent it reads as follows:

SEC. 313. DRAWBACK AND REFUNDS.
(a) Articdes Made From Imported Merchandise. — Upon the exportation of articles manufactured or produced in the United States witn the use of imported merchandise, the full amount of the duties paid upon the merchandise so used shall be refunded as drawback, less 1 per centum of such duties * * *.
(i) The Secretary of the Treasury is authorized to prescribe regulations governing (1) * * * the determination of the facts of the manufacture or production of such articles in the United States and their exportation therefrom * * *.

The regulations prescribed by the Secretary of the Treasury which was applicable to the shipment at bar were articles 1044 et seg. of the Customs Regulations of 1937, but the particular regulations pertinent to the issue under consideration are articles 1044 (a) and 1055. These read as follows:

Art. 1044. Notice of intent to export — local or direct exportation from a sea-hoard or frontier port. — (a) At least 6 hours, but not more than 90 days, before the lading of the merchandise to be exported, the claimant for drawback, or his duly authorized agent, shall file with the collector of customs at the port of exportation a notice of intent to export on customs Form 7511. A duplicate copy of the notice of intent shall be delivered to the customs officer in charge at the place of lading at the time the goods are delivered to the exporting vessel or conveyance. Such notices of intent shall give the name of the exporting vessel, or in the case of a vehicle the name of the carrier, and place of lading, describe the merchandise by marks and numbers and state in detail the kind and contents of the packages, the quantity, weight (gross and net), gauge, or measure.
Art. 1055. Failure to file notices of intent — Local shipments. — The failure to file a timely notice of intent with the collector, in accordance with the provisions of article 1044, shall not bar the payment of drawback, provided a notice of intent *317is delivered to tlie inspecting officer as required, nor shall failure to deliver a copy of the notice of intent to the inspecting officer bar the payment of drawback, provided a timely notice of intent was filed with the collector, and provided further that no other act or omission on the part of the shipper, the carrier, or the agent or either, resulted in the failure to secure inspection.

It cannot be maintained that article 1044 (a) was complied with in the instant case since the notice of intent was not filed in the collector's office at least 6 hours * * * before the lading of the merchandise to be exported” nor was “a duplicate copy of the notice of intent * * * delivered to the customs officer in charge at the place of lading.”

Plaintiff cannot rely on article 1055. That article provides for two situations: (1) Where the notice of intent filed with the collector is timely but a duplicate notice of intent is delivered to the inspector as required by article 1044, and (2) where there is a failure to deliver a notice of intent to the inspector at the place of lading but the notice of intent filed with the collector is timely. In the case at bar it plainly appears that the notice of intent was untimely and that no duplicate notice was given the inspector at the place of lading. It cannot be denied that it was solely plaintiff’s failure to comply with the regulations which occasioned the failure to have the goods laden under- customs supervision and that no act or omission on the part of the customs officials aided in that result.

It has been suggested that the indorsement “Have this shipment weighed” on the dock receipt constituted sufficient notice to the customs inspector in charge at the pier to inspect the merchandise and supervise its lading or to defer the lading until receipt of a notice of intent, it being argued that to the knowledge of the inspector weighing of merchandise to be exported could be for no other purpose than drawback. This argument tacitly admits that the applicable customs regulations were not complied with and evidently proceeds on the theory that the regulations were not mandatory in character but merely directory or administrative and that proof of compliance therewith or proof of actual exportation might be made after the actual lading and exportation or before this court.

Regulations in all material respects the same in language and intent, being articles 859-863 of the Customs Regulations of 1915, prescribed under the authority of section 313 of the Tariff Act of 1922, the predecessor drawback statute to section 313 of the existing tariff law, were held to be mandatory in character so that strict compliance therewith was a condition precedent to the right of the claimant to recover under the drawback provisions. Spencer, Kellogg & Sons (Inc.) v. United States, 13 Ct. Cust. Appls. 612, T. D. 41459.

The facts in the Spencer, Kellogg case are very similar to those in the case at bar. There an oral notice was given the inspector at the place *318of lading prior to the time the goods were taken on board the export vessel, and a written notice of intent was filed in the collector's office after such lading but prior to exportation. It appears also that although the goods were not laden under customs supervision the inspector later boarded the export vessel and saw the goods in the hold. The court said:

Reasonable regulations of the Secretary of the Treasury made in pursuance of law, have the force and effect of law. Penick & Ford (Ltd., Inc.) v. United States, 12 Ct. Cust. Appls. 432, T. D. 40611, and cases therein cited; Lunham v. United States, 1 Ct. Cust. Appls. 220, T. D. 31258; Stone & Co. v. United States, 7 Ct. Cust. Appls. 439, T. D. 37009; United States v. Bracher et al., 13 Ct. Cust. Appls. 432, T. D. 41344.
The appellant does not contend that the involved regulations of the Secretary of the Treasury are unreasonable, but contends that they have been substantially complied with. In our opinion, the regulations requiring notice of intent to export are mandatory and compliance therewith is a condition precedent to the right of the appellant to recover under the drawback provisions. Such regulations may not be disregarded and proof of exportation made in some other manner than that required by them. Lunham v. United States, supra; Agency Canadian Car & Foundry Co. v. United States, 10 Ct. Cust. Appls. 172, T. D. 38547; Agency Canadian Car & Foundry Co. v. United States, 11 Ct. Cust. Appls. 19, T. D. 38637.

To the foregoing it'may be added that the customs inspector in charge was under no duty to inspect merchandise intended for export except upon receipt of proper notice, or to defer lading, even assuming he had power and authority to do so. Nor was he under any duty, after the merchandise was laden, upon receipt of the notice from the collector’s office to go aboard the export vessel and satisfy himself that the merchandise specified in the notice of intent was the merchandise actually on board the export vessel. Neither neglect nor indifference can be charged to the customs officials; whatever neglect or indifference has been manifested in the circumstances attending the exportation of the merchandise in issue are clearly chargeable to the plaintiff herein.

It has been likewise suggested that had the notice of intent filed with the collector been sent at once to the customs inspector in charge at the pier he would have had ample time to inspect the lading. This seeks to place the blame on the shoulders of the customs officials whereas in truth and in fact the plaintiff’s failure to file a timely notice was the cause of the failure to inspect or supervise the lading. The regulations provide that 6 hours’ notice must be given the collector’s office. Notice was filed at 9:27 a. m. and reached the inspector at 3:15 p. m., or within 6 hours after filing. The requirement of the 6-hour leeway is doubtless to permit the notice to reach the inspector in the ordinary course of business. The collector was under no duty to dispatch the notice to the inspector at once upon its receipt, particularly when by the same regulation the claimant should have filed a duplicate notice with the inspector at the dock at the time the goods *319were delivered to the exporting vessel. Here, again, the customs officers did all they were required to do, and the fault or omission lies with the plaintiff.

Campbell v. United States, 107 U. S. 407, 27 L. ed. 592, has been cited. The facts in that case were as follows: The claimants had imported linseed into the United States from India and had paid the import duty thereon. This was manufactured in the United States into linseed cake and all drawback regulations of the Secretary of the Treasury then in force and effect were complied with on the part of the claimants, including the giving of notice of intent to export at least 6 hours before lading. However, the collector, under instructions from the Secretary of the Treasury, refused to perform the acts required by the regulations on his part to be done, such as examining, identifying, weighing, etc. The question then presented was whether the collector’s refusal to act could defeat claimant’s recovery of drawback, and the court held it could not.

In the Spencer, Kellogg case, supra, the Court of Customs and Patent Appeals considered the decision of the Supreme Court in the Campbell case, and differentiated the two cases as follows:

* * * In that case, the conditions precedent to the right of recovery had been performed. In this case, such conditions have not been performed; and in this vitally important respect, the cases are different.

In the opinion of the writer the Campbell case does not set forth a broader view of the rights of claimants under drawback law than that adopted by the Court of Customs and Patent Appeals. It is true that the Supreme Court said in the Campbell case that—

The Court of Claims makes the mistake of supposing that the claim is founded on the regulations of the Secretary of the Treasury. This view cannot be sustained. It is the law which gives the right, and the fact that the customs officers refuse to obey these regulations cannot defeat a right which the act of Congress gives.

What is the law which gives the right to recover? It is the drawback statute itself and reasonable regulations made under authority thereof which have the force and effect of law. It is said that the drawback provisions do not constitute a gratuity. In a later case, Swan & Finch Co. v. United States, 190 U. S. 143, 47 L. ed. 984, drawback provisions were held to be “a governmental grant of a privilege or benefit.” Obviously, then, the privilege of exporting manufactured merchandise with benefit of drawback becomes a right to recover only upon compliance with the terms of the grant as expressed in the law and reasonable regulations prescribed under authority thereof.

The regulations in question, articles 1044 (a) and 1055, are not unfair or unjust nor are they productive of undue hardship. As was *320said in Nestle’s Food Co. (Inc.) v. United States, 16 Ct. Cust. Appls. 451, 455, T. D. 43199:

Such regulations would tend to avoid dispute, misunderstanding, and litigation. They would be as helpful to exporters and other interested parties as to the Government.

While it might be regrettable that the plaintiff in this case who, it is stipulated, actually exported the goods manufactured with the use of imported duty-paid material, should not recover, nevertheless the requirements may not be relaxed lest the very conditions the regulations were designed to avoid become the rule. In the Nestle’s Food Co. case, supra, the court said:

Legal technicalities should not be given undue consideration, but the regulations under discussion are so1 obviously reasonable and fair, and so necessary to a proper détermination of the matters mentioned in Section 313, that, as we said in the Spencer, Kellogg case, supra, compliance with them is a “condition precedent to the right of the appellant to recover under the drawback provisions. Such regulations may not be disregarded and proof of exportation made in some other manner Úiqn that required by them.”

This statement is applicable to the situation in the case at bar.

Tor .the foregoing, reasons judgment should issue overruling the protest herein.