Brown, Judge;
This suit against the United States was brought at the port of Philadelphia, Pa., to recover drawback claimed to have been illegally disallowed on a certain export of 20 drums of neat’s-foot oil which was partly manufactured from imported duty-paid material.
At the trial in Philadelphia the following oral stipulation was entered into by counsel for the respective parties herein:
[311]*311Paragraph One; The notice of intent number 3908 to export the merchandise in question, 20 drums of neat’s-foot oil with benefit of drawback pertaining to drawback entry 449 (which paper we ask to have marked Exhibit 1) was filed with the Philadelphia Collector of Customs at 9:27 a. m. October 22, 1937.
Paragraph Two; said merchandise was weighed on the morning of October 22, 1937, by and under supervision of the customs inspector as shown by the-paper hérewith submitted which we ask be marked Exhibit 2, but the weighing was not made pursuant to notice of intent aforesaid but on general instructions contained in article 1053 of the Customs Regulations of 1937, as a precautionary measure in anticipation of drawback as is shown by letter dated March 16, 1938, which we ask be received as Exhibit number 3.
Paragraph Three; thereafter, at noon of October 22,1937, this merchandise was laden on the steamship “Collamer”, but not under customs supervision. The lading as of October 22, 1937, is shown by a certified copy of the ocean bill of , lading which we ask be marked Exhibit 4.
Paragraph Four; during the morning of October 22, 1937, the customs inspector in charge of pier 98, was present on that pier. Said inspector did not receive from the collector’s office the notice of intent number 3908 until 3:15 p. m. October 22, 1937.
Paragraph Five; the steamship “Collamer” sailed or cleared from the port of Philadelphia on October 23, 1937.
Papers referred to were received in evidence and marked as Exhibits 1, 2, 3, and 4.
With the approval of the court the following written stipulation, dated January —, 1939, was added to the foregoing oral stipulation:
Paragraph Six; The merchandise in question, 20 drums of neat's-foot oil, was manufactured partly out of imported duty-paid material, and all regulations of the Secretary of the Treasury with reference to drawback, with the possible exception of timeliness of notice of intent which is being contested in this suit, were duly complied with, drawback being denied solely because of what the Collector claimed was lack of timely notice of intent.
Charles A. DeBey was called in behalf of the plaintiff. The relevant part of his testimony merely repeated in greater detail the facts stipulated between counsel.
The testimony may be summarized as follows:
The witness, DeBey, on October 22, 1937, was receiving clerk for the agents of the steamship line handling the shipment here involved at pier 98, South Philadelphia, and signed the receipt (exhibit 5) for twenty drums of neatsfoot oil on which receipt was written
Have this shipment weighed.
He immediately sent the truckman with his load to the customs scale on the pier to be weighed, but was not present at the weighing and did not know of his own knowledge that the shipment was weighed-
The shipment was laden on the Collamer at about 12 o’clock noon,. October 22,1937. The Collamer sailed at about 9:30 p. m., October 23, 1937.
Government counsel objected to various parts of the testimony of DeBey moving to strike same. All of these motions were overruled [312]*312subject to final decision by tbe division. Sitting as a division, we hereby sustain the rulings of the sitting judge and admit the testimony of DeBey. It simply adds a few details to the facts as stipulated and makes somewhat clearer what happened. Exception is noted for the defendant.
Government counsel moved “to dismiss this protest on the ground that the plaintiff had not shown that the duties assessed by the collector were not due and owing to the Government.” Motion was denied by the sitting judge on the ground that it seemed so intimately connected with the decision on the merits that it was reserved for 'final decision by the division. Sitting as a division we hereby deny the motion to dismiss on the ground that the question is not whether .the duties assessed by the collector were properly due and payable •to the Government but whether so much of these assessed duties as applied to the exported duty-paid merchandise was refundable to the plaintiff as drawback. Exception is noted for the defendant.
The record as a whole, to wit, the stipulations of fact entered into by counsel, exhibits 1 to 5 inclusive, and the relevant portions of the oral testimony of the witness DeBey, may be summarized as follows:
Notice of Intent to Export Articles with Benefit of Drawback, No. 3908, was filed with the collector of customs at Philadelphia at 9:27 a. m., October 22, 1937, on 20 drums of neat’s-foot oil, showing gross weight of 9,622 lbs., Net weight 8,596 (exhibit 1); at about 10:00 a. m. of the same day 20 drums of neat’s-foot oil, gross weight 9,622 lbs. were receipted for by the witness DeBey at pier 98, and which receipt (exhibit 5) bore the note “Have this shipment weighed”: this shipment was immediately sent to the customs scale on the pier (Rec. p. 5 and p. 8); the shipment was there weighed by. the Government inspector (exhibit 2) certifying the gross weight of the 20 drums of neatsfoot oil to be 9,600 lbs.; the shipment was laden, without Government inspection, on the S. S. Cdllamer at about 12:00 o’clock noon of the same day; the notice of intent was received at pier 98 at 3:15 p. m. of the same day (exhibit 1); the S. S. Collamer containing the 20 drums of neat’s-foot oil, gross weight 9,622 lbs. (exhibit 4) sailed at about 9:30 p. m,, October 23, 1937.
The merchandise in question, 20 drums of neat’s-foot oil, was manufactured partly out of imported duty-paid material, and all regulations of the Secretary of the Treasury with reference to drawback, with the possible exception of timeliness of notice of intent which is being contested in this suit, were complied with, drawback being denied solely because of what the collector claimed was lack of timely notice of intent (Stipulation, par. 6).
From the record it is clear that the weighing of the merchandise in question by the customs inspector at the pier on the morning of October 22, 1937, was not pursuant to the formal notice of intent but [313]*313on general instructions contained in article 1053 of the Customs Regulations of 1937, as aprecautionarymeasure. Why the precaution?
We think this is fully answered in the Reference Endorsement attached to the Certificate of Weight (exhibit 2) and which reads as follows:
F. 229, N/I 3908.
Reference Endorsement
United States Customs Service
District No. 11 Port of Philadelphia, Pa.
Respectfully referred to the Deputy Collector of Outside Div’n on request for further information with regard to non-inspection, in view of the fact that a weight was obtained — presumably on some form of notice.
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Brown, Judge;
This suit against the United States was brought at the port of Philadelphia, Pa., to recover drawback claimed to have been illegally disallowed on a certain export of 20 drums of neat’s-foot oil which was partly manufactured from imported duty-paid material.
At the trial in Philadelphia the following oral stipulation was entered into by counsel for the respective parties herein:
[311]*311Paragraph One; The notice of intent number 3908 to export the merchandise in question, 20 drums of neat’s-foot oil with benefit of drawback pertaining to drawback entry 449 (which paper we ask to have marked Exhibit 1) was filed with the Philadelphia Collector of Customs at 9:27 a. m. October 22, 1937.
Paragraph Two; said merchandise was weighed on the morning of October 22, 1937, by and under supervision of the customs inspector as shown by the-paper hérewith submitted which we ask be marked Exhibit 2, but the weighing was not made pursuant to notice of intent aforesaid but on general instructions contained in article 1053 of the Customs Regulations of 1937, as a precautionary measure in anticipation of drawback as is shown by letter dated March 16, 1938, which we ask be received as Exhibit number 3.
Paragraph Three; thereafter, at noon of October 22,1937, this merchandise was laden on the steamship “Collamer”, but not under customs supervision. The lading as of October 22, 1937, is shown by a certified copy of the ocean bill of , lading which we ask be marked Exhibit 4.
Paragraph Four; during the morning of October 22, 1937, the customs inspector in charge of pier 98, was present on that pier. Said inspector did not receive from the collector’s office the notice of intent number 3908 until 3:15 p. m. October 22, 1937.
Paragraph Five; the steamship “Collamer” sailed or cleared from the port of Philadelphia on October 23, 1937.
Papers referred to were received in evidence and marked as Exhibits 1, 2, 3, and 4.
With the approval of the court the following written stipulation, dated January —, 1939, was added to the foregoing oral stipulation:
Paragraph Six; The merchandise in question, 20 drums of neat's-foot oil, was manufactured partly out of imported duty-paid material, and all regulations of the Secretary of the Treasury with reference to drawback, with the possible exception of timeliness of notice of intent which is being contested in this suit, were duly complied with, drawback being denied solely because of what the Collector claimed was lack of timely notice of intent.
Charles A. DeBey was called in behalf of the plaintiff. The relevant part of his testimony merely repeated in greater detail the facts stipulated between counsel.
The testimony may be summarized as follows:
The witness, DeBey, on October 22, 1937, was receiving clerk for the agents of the steamship line handling the shipment here involved at pier 98, South Philadelphia, and signed the receipt (exhibit 5) for twenty drums of neatsfoot oil on which receipt was written
Have this shipment weighed.
He immediately sent the truckman with his load to the customs scale on the pier to be weighed, but was not present at the weighing and did not know of his own knowledge that the shipment was weighed-
The shipment was laden on the Collamer at about 12 o’clock noon,. October 22,1937. The Collamer sailed at about 9:30 p. m., October 23, 1937.
Government counsel objected to various parts of the testimony of DeBey moving to strike same. All of these motions were overruled [312]*312subject to final decision by tbe division. Sitting as a division, we hereby sustain the rulings of the sitting judge and admit the testimony of DeBey. It simply adds a few details to the facts as stipulated and makes somewhat clearer what happened. Exception is noted for the defendant.
Government counsel moved “to dismiss this protest on the ground that the plaintiff had not shown that the duties assessed by the collector were not due and owing to the Government.” Motion was denied by the sitting judge on the ground that it seemed so intimately connected with the decision on the merits that it was reserved for 'final decision by the division. Sitting as a division we hereby deny the motion to dismiss on the ground that the question is not whether .the duties assessed by the collector were properly due and payable •to the Government but whether so much of these assessed duties as applied to the exported duty-paid merchandise was refundable to the plaintiff as drawback. Exception is noted for the defendant.
The record as a whole, to wit, the stipulations of fact entered into by counsel, exhibits 1 to 5 inclusive, and the relevant portions of the oral testimony of the witness DeBey, may be summarized as follows:
Notice of Intent to Export Articles with Benefit of Drawback, No. 3908, was filed with the collector of customs at Philadelphia at 9:27 a. m., October 22, 1937, on 20 drums of neat’s-foot oil, showing gross weight of 9,622 lbs., Net weight 8,596 (exhibit 1); at about 10:00 a. m. of the same day 20 drums of neat’s-foot oil, gross weight 9,622 lbs. were receipted for by the witness DeBey at pier 98, and which receipt (exhibit 5) bore the note “Have this shipment weighed”: this shipment was immediately sent to the customs scale on the pier (Rec. p. 5 and p. 8); the shipment was there weighed by. the Government inspector (exhibit 2) certifying the gross weight of the 20 drums of neatsfoot oil to be 9,600 lbs.; the shipment was laden, without Government inspection, on the S. S. Cdllamer at about 12:00 o’clock noon of the same day; the notice of intent was received at pier 98 at 3:15 p. m. of the same day (exhibit 1); the S. S. Collamer containing the 20 drums of neat’s-foot oil, gross weight 9,622 lbs. (exhibit 4) sailed at about 9:30 p. m,, October 23, 1937.
The merchandise in question, 20 drums of neat’s-foot oil, was manufactured partly out of imported duty-paid material, and all regulations of the Secretary of the Treasury with reference to drawback, with the possible exception of timeliness of notice of intent which is being contested in this suit, were complied with, drawback being denied solely because of what the collector claimed was lack of timely notice of intent (Stipulation, par. 6).
From the record it is clear that the weighing of the merchandise in question by the customs inspector at the pier on the morning of October 22, 1937, was not pursuant to the formal notice of intent but [313]*313on general instructions contained in article 1053 of the Customs Regulations of 1937, as aprecautionarymeasure. Why the precaution?
We think this is fully answered in the Reference Endorsement attached to the Certificate of Weight (exhibit 2) and which reads as follows:
F. 229, N/I 3908.
Reference Endorsement
United States Customs Service
District No. 11 Port of Philadelphia, Pa.
Respectfully referred to the Deputy Collector of Outside Div’n on request for further information with regard to non-inspection, in view of the fact that a weight was obtained — presumably on some form of notice.
(signed) R. Redfoed,
Actg. Dep. Collector. ■
That presumption is correct. The words “Have this shipment weighed” written on the dock receipt was a form of notice, irregular and perhaps technically defective, but notice to the customs inspector sufficient for him to take the precaution to weigh the shipment just as he would have done had he had a formal notice of intent, and it was sufficient to have led him to the precaution of inspecting the merchandise or at least to have deferred the lading until receipt of the formal notice of intent.
First and last, the merchandise was under control of customs inspectors at the pier for nearly 35 hours — from about 10:00 a. m., October 22, until 9:30 p. m., October 23. This was ample time for inspection and the lack of it cannot be charged against the plaintiff.
The customs inspectors at the pier were Government agents charged with the duty of carrying out the provisions of the law according to the intent thereof and not by neglect or indifference to thwart that intent.
The Supreme Court’s view of the purpose of drawback statutes, for the stimulation of foreign trade as a part of our protective tariff system, is a liberal one which necessarily implies a liberal construction to be given the drawback statutes by the courts.
It was well expressed by Mr. Justice Miller in Campbell v. United States, 107 U. S. 407, a case asserting the then existing jurisdiction of the Court of Claims over actions for the recovery of illegally withheld drawbacks, a jurisdiction transferred to this court by section 514 of the Tariff Act of 1922.
At page 411 it is said:
The act of Congress having declared that on exportation there shall be allowed a drawback equal in amount to the duty paid on such material, and the Secretary having established by a regulation that, as regarded the cake resulting from the manufacture of the linseed into oil and cake, the latter represents at seventeen cents per hundred pounds the duty on the imported seed so converted into cake, [314]*314there resulted a contract that when exported the government would refund, repay, pay back, this amount as a drawback to the importer. If this be not so, it is because it is impossible to make a contract when the details of its execution or performance are left to officers who refuse to carry them out.
So it is equally clear that this claim is founded on the law allowing drawback.
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.
And at page 413:
A suggestion is made that the right to enforce the drawback in the court is affected by the fact that it is a gratuity.
It has never been supposed that there was a gratuity in all the cases where imports are free of duty. The purpose of the drawback provision is to make duty free, imports which are manufactured here and then returned whence they came or to some other foreign country — articles which are not sold or consumed in the United States. The linseed in this case was bought abroad and imported for the purpose of being manufactured, and the product immediately sent out of the country.
The drawback provision was simply a mode of making the linseed so imported and exported without distribution in the country duty free, and we see no gratuity in the case.
Applying the Supreme Court’s liberal approach to a construction of the drawback statutes thus expressed it is difficult to imagine that Congress intended this drawback to fail in the circumstances appearing in this record.
The notice of intent to export this merchandise was filed with the collector of customs at 9:27 a. m. of October 22. Had it been sent at once to the inspector at the dock it would have reached him in ample time for him to have inspected the lading which took place on that day. The inspector did not receive it until about 3 p. m., after the lading had taken place. The vessel did not sail until the evening of the next day.
It is impossible for us to hold that the failure of the collector to forward the notice of intent at once to the inspector at the dock deprived the importer of his right to drawback, there being no real dispute that the imported material on which drawback is claimed was included in the export shipment. That would not be to give the drawback statute the liberal construction which the Supreme Court thinks it should receive, the sole contest being based on the question of receiving 6 hours’ notice.
It is perfectly plain from the record that the imported material was in fact shipped abroad. Its identification is complete. This identification is the main purpose of all drawback regulations. Thus the drawback was earned. It is also perfectly plain from this record that the inspector at the dock knew, when he weighed the goods, that [315]*315they were drawback goods. That was the sole purpose of his weighing them. There could be no other purpose.
Moreover his so-called receipt which he sent with his report to the collector notes on its face that they were subject to drawback.
It is an elementary principle of law that requirements for notice before a certain time are solely for the purpose of seeing to it that the party who must act on the notice knows the fact in time. If such a party knows the fact from other sources that satisfies the fact of notice, and the lateness in filing the formal notice does not in such cases produce a default.
As what the notice said was already known to the Government officials it will not do as a matter of law for them to say:
We knew at the time of lading and did, or could, have fully protected the rights and revenue of the United States, but because you failed to file the formal notice in time we failed to have the lading under customs inspection in spite of the fact that we actually knew this was a drawback shipment and for that reason actually weighed the goods.
That sticks in the bark. It stands upon a bald technicality irrespective of the actual facts or the actual purpose of the regulations.
That catch should not deprive the citizen of his right to drawback here. It does not conform to the spirit of liberal approach to the drawback law which the Supreme Court expresses in the Campbell case.
That case is cited, not for an analogy of a factual situation, which was different from that before us, but for the liberal construction we should apply in construing the drawback law. Lower court decisions treating a drawback as a “gratuity” and defaulting a drawback for such failure of timely notice, when actual knowledge existed in those to be notified, do not militate against this view. It is the Supreme Court we must follow.
Judgment will issue sustaining the claim for the amount of the drawback withheld and directing the collector to refund same to the plaintiff herein.