United States v. International Commercial Co.

DISSENTING OPINION

Argentine law conferred on the executive power the right “To prohibit or restrict the exportation of products or merchandise when this is required by the necessities of the country.” Pursuant thereto, the “Instituto Argentino de Promoción del Intercambio” (Argentine Institute for the Promotion of Trade, referred to herein as “I. A. P. I.'”), was vested with the responsibility to “take charge of the placing abroad of the exportable surpluses.” By resolution of the Secretary of Industry and Commerce, canned corned beef, the merchandise under consideration, became an exportable commodity, “within the scope of the commercial control” of I. A. P. I.
Under such governmental restriction, exportation to the United States of canned corn beef was conditional. Approval of all proposed transactions was required by the I. A. P. I. as to price, quantity, purchaser, and terms.
The condition created a controlled export market, thereby removing export value, section 402 (d), Tariff Act of 1930 (19 U. S. C. § 1402 (d)), as a consideration for appraisement of the present merchandise.
Agreed facts, establishing foreign value, section 402 (c), Tariff Act of 1930, as amended by the Customs Administrative Act of 1938 (19 U. S. C. § 1402 (c)), make such statutory value the proper basis for appraisement of the canned corned beef in question.
Cole, Judge:

Because of the interesting and able arguments addressed to the court in this important case and the study I have made of the same, in presenting these minority views, I deem it appropriate, at the expense of some possible repetition, to express in my own way, the facts and issues as I find them and my conclusions thereon.

This case is presented as a review of Reap. Dec. 7980, wherein the trial judge held export value, section 402 (d) of the Tariff Act of 1930 (19 U. S. C. § 1402 (d)), to be the proper basis for appraisement of canned corn beef (first-grade) from Argentina, packed in 12-ounce tins and 48 tins to the case. While the conclusion sustained the *639statutory basis adopted by the appraiser, the trial judge held to be nondutiable certain items included in the appraised value.

Both parties have appealed therefrom. Each has filed extended assignments of errors which, in view of the approach taken herein, can be summarized in this way. Importers (plaintiffs below) contend that the Argentine export market was controlled and therefore foreign value, section 402 (c) of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938 (19 U. S. C. § 1402 (c)), is the proper basis for appraisement. The Government (defendant below), claiming export value to be the proper basis for appraisement, has limited the issue by accepting the trial judge’s conclusion with respect to all nondutiable items, except the 20 per centum imposed by “In-stituto Argentino de Promoción del Intercambio” (Argentine Institute for the Promotion of Trade, hereinafter referred to as I. A. P. I.), which, as stated by Government counsel at the time of oral argument, is claimed to be a “proportion of the purchase price agreed upon in Argentina and which the American importer agreed to pay,” and therefore properly part of statutory export value.

Although the shipments under consideration were exported in August and October 1947, respectively, this litigation, by virtue of stipulated facts, is determinative of the period from August 1, 1947, to December 31, 1948.

Of prime importance is whether or not the export market was controlled, within the meaning of said section 402 (d). Because determination of the question is all-conclusive, reference to the voluminous record — oral testimony and documentary proof introduced by both sides — will be confined to the parts pertinent in the development of our views.

Prevailing Argentine law, admitted in evidence before the trial judge, spells out the kind of an export market existing in the principal market of Buenos Aires, Argentina, during the period in question. It is entitled to great weight and it is so considered in our findings. Following is an outline of the condition established as a result thereof.

The Argentine Congress, on August 6, 1946, enacted an emergency law “of public order,” effective until June 3, 1952 (plaintiffs’ exhibit 3), affecting “the raw materials, manufactured articles, work contracts and products of any nature destined for foodstuffs, clothing, dwellings, materials for construction, lighting, heating, sanitary services and any other works affecting the living conditions and working conditions and the transportation of the said things.” Article 2 (h) thereof confers upon the executive power the right “To prohibit or restrict the exportation of products or merchandise when this is required by the necessities of the country.” [Italics added.]

Pursuant to that law, I. A. P. I., a governmental instrumentality created by decree (plaintiffs’ exhibit 1) “to promote the development of domestic and foreign trade,” and whose broad and varied powers *640included authority to carry out “All transactions or purchases which the Executive Power may decide for the protection of production,” was vested with the responsibility to “take charge of the placing abroad of the exportable surpluses” (plaintiffs’ exhibit 4). By resolution of the Secretary of Industry and Commerce, canned corned beef, the merchandise in question, became an exportable commodity “within the scope of the commercial control” of I. A. P. I. (plaintiffs’ exhibit 5).

Documentary evidence explains the actions taken and procedures followed by the foreign Government to maintain the control contemplated by its laws and decrees. The proof in this direction can be summarized in this narrated form.

Immediately after the official pronouncement that exportation of canned corned beef was subject to approval by I. A. P. I., that agency apprised packers of its restrictions. At first, I. A. P. I. notified the packers that it would buy all canned corned beef in excess, as stated in the affidavit of the vice president of Compañía Swift de La Plata, S. A. of Buenos Aires (plaintiffs’ collective exhibit 17), “of the quantity prescribed by the Argentine Government for shipment to England, and resell such excess production in world markets under its own name and on its own behalf.” Packers objected, explaining that the marketability of canned corned beef depended upon reputations of distributors, established brands, and efficient merchandising ability. I. A. P. I. thereupon issued an order, permitting sales of canned corned beef at a fixed price of which 30 per centum would be paid to the Government agency. Again packers protested, claiming the price was prohibitive and, as set forth in the affidavit (plaintiffs’ collective exhibit 17, supra), “Following prolonged and additional numerous discussions between representatives of the packers, including affiant, and representatives of I. A. P. I., I. A. P. I. notified all packers including affiant, on or about July, 1947, that they would be permitted to sell canned meats, including canned corned beef, for export to the United States at the best price possible, upon the condition that a charge equal to 30% of the F. O. B. price of each sale by the packers be paid to I. A. P. I.” The packers, being unable to absorb any of the I. A. P. I. charge, asked that the proposed levy of 30 per centum be reduced, and thereafter, under date of July 18, 1947, I. A. P. I. verbally advised all packers that exportation of canned corned beef to the United States would be permitted under the following conditions: All sales would be made in dollars; details of each proposed transaction would be submitted to I. A. P. I. for approval as to price, quantity, purchaser, and terms; proceeds (in dollars) from sales would be paid directly to I. A. P. I., but if payment had been made to the packer, then the latter would immediately endorse the form of payment over to I. A. P. I.; a fixed percentage (20 per centum of the net *641f. o. b. selling price) would be retained by I. A. P. I., tbe balance to be paid to tbe packer in tbe form of Argentine pesos converted at tbe rate of 335.82 pesos per $100.

Tbe significance of tbe foregoing is tbe consistency witb wbicb I. A. P. I., delegated by tbe executive power to regulate exportable surpluses, exercised its power of control by constant contact witb tbe industry, ultimately leading to conditions acceptable to tbe packers but requiring approval of all elements to a transaction by tbe duly authorized Government institution.

Negotiations to a contract of sale were exclusively between tbe foreign packer and tbe United States purchaser, but after an agreement bad been reached, details thereof bad to be submitted to I. A. P. I. for approval. If disapproved, that ended tbe transaction. Without a stamp of approval from I. A. P. I., an export permit could not be obtained, and, of course, tbe merchandise could not be exported. Other requisites included tbe filing of a report of tbe shipment witb tbe National Meat Board and tbe obtaining of a loading certificate and an embarkation permit, but those formalities were subordinate to tbe permission to export required from I. A. P. I.

Tbe trial judge, bolding that statutory export value was not destroyed by tbe procedures hereinabove described, said:

While I. A. P. I. may have had authority to prohibit the exportation of canned corned beef or impose such restrictions as to abolish a free market, the evidence indicates that the complicated system set up by I. A. P. I. and other Government agencies resulted in fixing prices without any other restrictions. Therefore, the market is not so controlled as to preclude the existence of an export value.

To say that tbe “complicated system set up by * * * Government agencies resulted in fixing prices without any other restrictions,” is clearly not sustained by tbe record. During tbe period under consideration, there were times when canned corned beef was not freely offered by anyone for exportation to tbe United States.

Of tbe eight packers of canned corned beef in Argentina, six of them admittedly did not freely offer such or similar merchandise for export to tbe United States. Tbe remaining two, Establecimientos Argentinos de Bovril, Ltda., and Compañía Sansinena, S. A. (hereinafter called “Bovril” and “Sansinena”), as established by importers’ proof, refused to offer such or similar merchandise during part of tbe time included within tbe period witb wbicb I am concerned.

Thomas Wells Holt, dealer in food products at Jacksonville, Fla., including merchandise like that under consideration, testified that be was in Buenos Aires during October and November 1947, when be approached several packers of canned corned beef, including “Bovril” and “Sansinena,” trying to purchase tbe product but was unable to get even an offer of price. Both “Bovril” and “Sansinena” “were not interested” in doing business.

*642“Sansinena’s” business, and associated transactions, are entitled to unusual weight herein by virtue of a stipulation between the parties that appraisement of the present merchandise “was based upon prices at which similar canned corned beef manufactured by the said Sansinena was sold for export to the United States on the respective dates of exportation of the two involved shipments,” and that “for the purpose of showing the ordinary course of trade and the method of doing business by said Compañía Sansinena, in the sale or offer for sale of first-grade canned corned beef manufactured by it such or similar to that involved herein, any party may offer evidence respecting sales and/or offers for sale of such or similar merchandise, manufactured by the said Compañía Sansinena S. A. and exported to the United States during the entire period, August 1, 1947 to December 31, 1948, inclusive.”

J. Bailey Pratt, employed as a trader by H. J. Baker & Bro., importer and exporter of canned meats, and who negotiated sales in this country (plaintiffs’ exhibit 12) for “Sansinena,” testified that he did not offer canned corned beef throughout the period in question because “the price was out of line sometimes, and then they [“San-sinena”] did not have the stock available.” Corroborative of the oral testimony are exchanges of correspondence (plaintiffs’ collective exhibits 54 and 55) showing that on March 4, 1948, “Sansinena” refused prospective purchasers in this country a quotation because “our stocks are entirely cleared for the present. Goods are in the process of preparation however, and we will let you know immediately we have quantities available” (collective exhibit 55, supra). On March 29, 1948, “Sansinena,” answering a firm in the United States who wanted to place an order, said, “In reply, we beg to inform you that having sold our stocks and future production up to the end of May next, we regret we are not in a position to submit a quotation for corned beef at this moment.” Lists of sales attached to the affidavit (plaintiffs’ exhibit 30) and the American vice consul’s reports (defendant’s collective exhibits B and C) disclose no sales by “Sansinena” of merchandise, like that under consideration, during 1948, after February 5 of that year.

The trial judge summarized the evidence just reviewed as follows:

A reading of the entire record on this point indicates that there were times when Sansinena had no merchandise on hand and at such times no offers were made and no prices quoted. However, except for the statements of J. Bailey Pratt, there is no evidence that the merchandise was not freely offered to all purchasers when it was available.
While it has been held that to freely offer an article for sale contemplates that some reasonable quantity must be ready or could be produced for reasonably prompt delivery, it has also been held that export value may be based upon the prices at which the merchandise is offered for future delivery. Kuttroff, Pickhardt & Co. (Inc.) v. United States, 14 Ct. Cust. Appls. 176, T. D. 41698; White Lamb Finlay, Inc. v. United States, 29 C. C. P. A. (Customs) 199, C. A. D. 192.

*643The Kuttroff, Pickhardt & Co. (Inc.) and White Lamb Finlay, Inc., cases, supra, are not authorities for the issue under consideration. Each merely decided the particular issue presented before it. The Kuttroff, Pickhardt & Co. (Inc.) case concerned the value of a coal-tar product. Competition was between United States value, section 402 (d) of the Tariff Act of 1922, and American selling price, section 402 (f) of the Tariff Act of 1922. Consideration with respect to the free offer of an article was limited to the subject as it related to the statutory definition of American selling price, section 402 (f), supra, a matter that has no bearing on this discussion. The White Lamb Finlay, Inc., case related to the export value of woven flax paddings and was based on stipulated facts showing that in the ordinary course of trade such or similar merchandise was not carried in stock by manufacturers but was freely offered for sale to all purchasers for exportation to the United States for future delivery. Certainly, that is not the condition before me.

In this case, the controlling influence is the Argentine law, holding absolute control over exportable surpluses. The business of “San-sinena,” as well as “Bovril,” considered in such light, must be viewed as though both of those companies operated with caution, realizing their limitations in exporting canned corned beef to the United States and, therefore, acting as they did, were not free to quote prices or offer merchandise at all times.

Government counsel, in their brief, suggest that the only reason for creating the Argentine market, as shown herein, was for currency purposes. The point is stated in this way:

The purpose of the governmental policy expressed in the Argentine law and regulations was to take care that the exportable surplus was placed abroad in such a manner that the balance of United States dollars in Argentina should be preserved and increased. This proposition was not intended to, and in fact did not, infringe upon the possibility of prices being freely offered to all purchasers.

To accept this argument would be to ignore importers’ convincing-proof set forth in the affidavit (plaintiffs’ collective exhibit 31) of Earl Williams, supervisor of production and sales of canned corned beef by Frigorífico Armour de La Plata, S. A. of Argentina, whose entire exportable quantity was sold to its American affiliate, Armour & Co. of Chicago, Ill. Explaining in detail the procedure followed by the Argentine packer on sales for export to the United States, the witness testified that upon receipt of an order for canned corned beef, an application (Form AF-34) is submitted to I. A. P. I. for permission to export the product. Approval thereof, identified by a stamp on the application and assignment of a sales number to the transaction, is understood to be an acceptance by I.'A. P. I. of “the purchaser, the destination, the character of the merchandise, the quantity and the price, as set forth in this application.” At times, I. A. P. I. has denied permission to export, “alleging that the F. O. B. *644Buenos Aires prices were too low.” (That statement is a direct contradiction of information contained in tbe report of tbe American consul in Buenos Aires (defendant’s collective exhibit A) saying that approval by I. A. P. I. “is more or less automatic.”) Following authority from I. A. P. I. to export, “a communication of shipment” (Form A-92) must be approved by the National Meat Board, an agency of the Argentine Ministry of Economy. Export permit (Form AF-39) can then be obtained upon payment to the Secretary of Industry and Commerce of an export tax amounting to one-half of 1 per centum of the f. o. b. Buenos Aires value of the exportation. Compliance with these requirements leads to issuance by the Argentine customs of a loading permit and certificate of embarkation. After exportation, payment for the shipment is made by I. A. P. I. to the packer or Argentine exporter in the amount shown on the original application (Form AF-34), less 20 per centum, converted into Argentine pesos at the rate of 335.82 pesos per $100.

Although I. A. P. I. assumes no risk or responsibility in any part of transactions covering canned corned beef exported to the United States, and therefore cannot be regarded as the seller, the same is not true with respect to other commodities. Affidavits (plaintiffs’ exhibits 8 and 10), executed by Reeves B. Borchers, director and chief of the By-Products Department of Compañia Swift de La Plata of Argentina, show that in dealing with edible beef and mutton fats, and hides, I. A. P. I. purchases outright the “exportable surpluses” of such products, acquiring full ownership of the merchandise and taking over all obligations of the seller. The preference of I. A. P. I. to pursue different methods in taking charge “of the placing abroad of the exportable surpluses,” (exhibit 4, supra) is most significant and indicates the determination of that governmental agency to exercise proper control over exportations “to promote the development of domestic and foreign trade,” (exhibit 1, supra).

A market has been held to be controlled where sales were conditional upon the use, resale, or disposition of the merchandise. United States v. Half Moon Mfg. & Trading Co., Inc., 28 C. C. P: A. (Customs) 1, C. A. D. 115; United States v. Graham & Zenger, Inc., 31 C. C. P. A. (Customs) 131, C. A. D. 262. The record herein is abundantly sufficient to establish that all packers of canned corned beef in Argentina, whether or not their output for export to the United States was confined to one purchaser in this country, were restricted in the disposition of their merchandise for exportation here. The control, imposed through power of the Argentine Government, acquired by legislative decree and utilized for the purpose of obtaining “the highest benefits for the economic interests of the country” (plaintiffs’ exhibit 1), was not limited to any particular factor but applied to all phases of transactions.

*645The Graham & Zenger, Inc., case, supra, is directly in point. In that case, it appeared that the Belgian .Government, by official decree assumed direct supervision over a syndicate or an association composed of all glass manufacturers in Belgium and controlled use of the merchandise by requiring purchasers for home consumption to dispose of the glassware in the Belgian market. Holding that such a merchandising practice did not constitute the kind of trade contemplated under the tariff act as being a free and open market, the court, speaking through Jackson, J., said:

* * * It may be, as urged by appellant, that at the time of this importation it was the ordinary course of trade in Belgium to buy and sell glassware for home consumption with the aforesaid restriction attached to the sale thereof. Even if such be considered the ordinary course of trade, it is clear from this record that there was no free, open, unrestricted market as provided for in the statute.

Continuing further, the court aptly added:

Appellant contends that restraints imposed by the sovereign on the interchange of goods because of war or abnormal world conditions do not convert an otherwise free market into a restricted one. To read this contention is to answer it. Wherever a restraint is imposed upon the use of purchased goods there can be no free market, regardless of whether such restraint has been imposed by the sovereign or a private association, cartel, or syndicate. The very essence, of freedom is taken from a sale of goods accompanied by any restraint with respect to its resale, use or other disposition, regardless of the source of such restraint. Our tariff acts must be interpreted as written, and not so as to meet the exigencies of foreign trade or governments. If, as urged by appellant, the regulations by foreign governments of the free flow of goods might render it impossible to find a foreign value, export value, or United States value for many if not all commodities, in our opinion the remedy lies with the Congress and not with the courts. United States v. Half Moon Mfg. & Trading Co., Inc., supra.

Sucb sound reasoning employed by Judge Jackson has equal application to the instant case. Accordingly, I bold that the Argentine export market, during the period under consideration, was a controlled market for tariff purposes, and therefore export value, as contemplated by section 402 (d), supra, cannot be the basis for appraisement of the present merchandise.

The conclusion of the majority, herein disposing of the issue concerning a controlled export market, is not a thorough discussion of authorities governing the proposition. Instead, it is a limited view, indicative only of instances where the status of the purchaser has been affected. The reasoning applied by my colleagues overlooks those cases wherein a controlled market was established solely by reason of the seller’s restrictive business practice, unrelated to the purchaser, presenting a direct contradiction to the theory of “qualified ownership,” the controlling reason for the position taken by the majority. United States v. H. W. Robinson & Co., State Forwarding Co., and Edgar S. Bibas, 19 C. C. P. A. 274, T. D. 45436, and United States v. *646Heemsoth-Kerner Corp. (Bauer Type Foundry, Inc.), 31 C. C. P. A. 75, C. A. D. 252.

In the Robinson case, supra, the merchandise consisted of silk tie squares. The manufacturers limited their sales to wholesalers, who acquired outright ownership, without any qualification as to use, resale, or disposition. Sales by the manufacturers were held to be restricted and, therefore, not a basis for finding foreign value.

In the Heemsoth-Kerner Corp. {Bauer Type Foundry, Inc.), case, supra, appellee, as the sole importer of the printing type there under consideration, designated certain territories throughout the United States to definite distributors or dealers. The importer bound itself not to permit sale of its product in those districts assigned to distributors. Holding such practice to constitute a controlled United States market, the court, speaking through Presiding Judge Garrett, said: “So, while it appears that the merchandise is freely offered by appellee for sale in the principal market at list prices to all purchasers in some portions of the United States, it is not freely offered for sale by appellee at such list prices in such principal market to purchasers in territories allotted to distributors, which territories cover a major portion of the United States.”

All of the cited cases, including those mentioned in the majority opinion, adhere to the major rule that the essence of control is the restraint of freedom, regardless of how it is exercised or by whom it is imposed.

The Graham & Zenger, Inc., case, supra, with the quotations therefrom as hereinabove set forth, is highly significant in this controversy, as it gives recognition to the powers of a foreign Government to impose conditions destroying a free market within the meaning thereof under this country’s tariff laws. In this case, I. A. P. I., a governmental agency, endowed with powers comparable with those possessed by the executive power, exercises control, as outlined in the proof hereinabove analyzed, that challenges every phase of a transaction relating to the exportation to the United States of canned corned beef from Argentina.

Within a set of stipulated facts embodied in this record, the parties agree that at the time of exportation of the canned corned beef in question, “such merchandise was freely offered for sale and sold to all purchasers in Buenos Aires, the principal market of Argentina, in usual wholesale quantities and in the ordinary course of trade for home consumption in Argentina, at the prices listed below, which prices included the cost of all containers and coverings of whatever nature and all other costs, charges and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States.

*647In the case of Appeal No. 183740-A— at 8.70 Argentine pesos per dozen 12 ounce tins, net packed.
In the case of Appeal No. 184568-A— at 9.00 Argentine pesos per dozen 12 ounce tins, net packed.”

The agreed facts established for the canned corned beef in question a foreign value, section 402 (c), as amended, supra, in the amounts as immediately hereinabove set forth.

My opinion, being a complete departure from the decision under review, makes it unnecessary to consider other questions covered by the trial judge and argued by respective counsel in their briefs.

For reasons hereinabove set forth, I find as matter of fact:

(1) That the merchandise consists of first-grade canned corned beef, packed 48 tins of 12 ounces each per case, exported from Argentina on August 5, 1947 (reappraisement 183740-A), and on October 17, 1947 (reappraisement 184568-A).

(2) That within the period under consideration, canned corned beef, such as or similar to that in question, was not freely offered for sale* or sold to all purchasers for exportation from Argentina to the United States.

(3) That on or about the dates of exportation of the product in question, such merchandise was freely offered for sale and sold to all purchasers in the principal market of Buenos Aires, in usual wholesale quantities and in the ordinary course of trade for home consumption in Argentina, at the following prices: Reappraisement 183740-A, 8.70 Argentine pesos per dozen 12-ounce tins, net packed; reappraisement 184568-A, 9 Argentine pesos per dozen 12-ounce tins, net packed.

Accordingly, it should be held as matter of law:

(1) That during the period under consideration, there was no export value, within the meaning thereof in section 402 (d), supra, for canned corned beef, such as or similar to the present merchandise.

(2) That the proper basis for appraisement of the product in question should be foreign value, section 402 (c), as amended, supra, such statutory values being as set forth in finding of fact (3).

The judgment of the trial judge should be reversed.