Walter v. United States

CONCURRING OPINION

Mollison, Judge:

I concur in the decision written by my colleague, Chief Judge Oliver, in these cases. So far as the merchandise the subject of reappraisements 163451-A and 163452-A is concerned, it clearly appears that the rugs there involved never physically left China until 1946. Plaintiff-appellant’s attorneys contend that the intention to export, coupled with the physical act of transporting the goods from one port in China to another, was sufficient to consider them as having been exported in 1941, without actual carriage out of China at that time.

Appellant has not cited, nor have we been able to find, any case which holds that any act short of physically transporting goods out of a country can be considered to be an act of exportation. The common meaning of the verb “to export” and of its derivatives is to carry or send abroad, and both this meaning and the decided cases, as cited by Chief Judge Oliver, are against the contention made on behalf of the appellant. Cf., also, the decisions in the cases of B. Solomon v. United States, 26 Cust. Ct. 403, Abstract 55453, and United States v. The National Sugar Refining Co., 39 C. C. P. A. (Customs) 96, C. A. D. 470, which, while relating to the subject of exportation from the United States for benefit of drawback, enunciate principles which seem applicable as well to the subject of exportation generally.

With reference to the rugs the subject of reappraisement 163450-A, which left China in 1941, reached Kobe, Japan, were held up there, and were ultimately returned to China in 1942, it would appear that *607there was a bona fide exportation in 1941, but that that exportation' was nullified or canceled by the return and importation of the goods into China in 1942. The act of importation has been said to be the converse of the act of exportation (Flagler v. Kidd et al., 78 Fed. 341), and it would appear that the importation back into China of goods, previously exported nullified whatever status the, goods may have acquired by reason of the exportation.

It is urged by counsel for the appellant in the brief filed in its behalf that on the return to China the goods “did not enter into the commerce of China” and that the situation should be treated as one of interruption of transit of the goods on their journey to the United States. There is in evidence as part of plaintiff’s collective exhibit 1 certificates of import issued by the Commissioner of Customs at Tientsin, China, that the merchandise involved “was imported into • China * * *' and that the duties imposed bg [sic] the laws in force in China upon the said merchandise have been paid.” This evidence, offered by the plaintiff, would seem to establish that the importation into China was a completed act. There does not appear to have been imposed upon the importation any condition that the rugs be withheld from the commerce of China, and it would seem that the act of the purchasers’ agents in keeping them out of the Chinese market was entirely voluntary and did not affect the completeness of the importation. Apparently, complete control of the merchandise, while in China, was in their hands, so that it is questionable whether it is correct to say that the goods did not enter into the commerce of that country.

So far as the law applicable to our own country is concerned, generally speaking, entry of goods into the commerce of this country occurs when the importer or owner receives unconditional control of the goods. See United States v. Mussman & Shafer, Inc., 40 C. C. P. A. (Customs) 108, C. A. D. 506, decided January 14, 1953.