United States v. Bird

Customs and Patent Appeals

United States v. Bird

16 Ct. Cust. 306, 1928 WL 28023, 1928 CCPA LEXIS 85

CourtCourt of Customs and Patent Appeals

DecidedJune 15, 1928

DocketNo. 3055

StatusPublished

Cited by8 cases

This text of 16 Ct. Cust. 306 (United States v. Bird) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Bird, 16 Ct. Cust. 306, 1928 WL 28023, 1928 CCPA LEXIS 85 (ccpa 1928).

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Opinions

GRAHAM, Presiding Judge,

delivered the opinion of the court:

An article invoiced as “one antique Chinese silk rug” and entered as an “oriental rug — artistic antiquities” was imported at New York and was classified by the collector for duty as an oriental rug under paragraph 1116 of the Tariff Act of 1922. Accompanying the entry were the certificate and affidavit of the seller and the owner, in attempted compliance with the customs regulations, hereinafter more particularly referred to. The importer protested, claiming the goods to be free of duty as artistic antiquities under paragraph 1708 of said act.

On the hearing before the Customs Court three witnesses were called by the importer to testify as to the character of the imported article and its use. There were also introduced, without objection, the certificate and affidavit attached to the entry, hereinbefore referred to. It is also claimed that an oral stipulation was made upon the trial, to the effect that the imported merchandise was an artistic antiquity. No attempt was made to prove, on the trial, who was the producer of the imported article, or the person or persons from whom it was acquired by the seller, and no evidence was offered on this subject.

The Customs Court sustained the protest and the Government appeals. In so doing, several points are presented for our consideration. But one, however, will be particularly noticed, namely, that the court below erred in not overruling the protest because of the fact that the customs regulations had not been complied with.

Paragraph 1708, under which free entry is claimed, is as follows:

Pae. 1708. Works of art (except rugs and carpets), collections in illustration of the progress of the arts, works in bronze, marble, terra cotta, parían, pottery, or porcelain, artistic antiquities, and objects of art of ornamental character or educational value which shall have been produced more than one hundred years prior to the date of importation, but the free importation of such objects shall be subject to such regulations as to proof of antiquity as the Secretary of the Treasury may prescribe.

[308]*308In determining the issues presented in this case it will not be necessary to pass upon the question as to whether the court below correctly found, on the evidence, that the imported article was not a rug. Nor is it necessary to inquire as to whether the word “rug” as used in paragraph 1708 refers alone to floor coverings. Irrespective of these matters, we think the court should have overruled the protest because of the failure of the importer to show that he had brought himself within the scope of the applicable Treasury regulation, article 423, Customs Regulations, 1923. That regulation is in its relevant part, as follows:

Art. 423. Artistic antiquities. — Works of art (except rugs and carpets), collections in illustration of the progress of the arts, works in bronze, marble, terra cotta, parían, pottery, or porcelain, artistic antiquities, and objects of art of ornamental character or educational value which shall have been produced more than 100 years prior to the date of importation, will be admitted free of duty, upon compliance with the following regulations:

There shall be attached to the invoice filed upon entry a certificate of the foreign seller or shipper before the American consul at the place of shipment in substantially the following form:

- — , 19 — . I,-, do hereby certify that I am the-of certain works of art, viz, -, covered by consular invoice No. -, certified before the American consul at-, on the- day of-, 19 — ; that the said -were acquired by me from-on the-day of-, 19 — ; and I further declare that-.

I,-, consul of the United States at-, do hereby certify that the above declaration was subscribed and sworn to (or affirmed) before me by -, on this - day of -, 19 — , and that the statements therein contained are true, to the best of my knowledge and belief.

U. S. Consul.

An affidavit by the owner on Customs Form 3343 shall also be filed on entry.

The application of this statute in cases like that at bar is not a matter of first impression with this court. We have had occasion to pass upon a similar question in United States v. Tsai, 9 Ct. Cust. Appls. 42, T. D. 37902. In that case the Customs Regulations of 1915, article 395, were identical, so far as material, with those above quoted, in the regulations of 1923. In the case cited the importer attached a statement, in which he failed to state the names of the persons from whom the antiquities in question; imported from China, were procured. The court said:

The board seems to lay stress upon the fact that the requirement that a certain form be followed is that the certificate shall be in “substantially” the form indicated. There seems to be no contention made that the regulations such as are here in question are not within the authority of the Secretary of the Treasury, nor could there well be, in view of our decisions in Martin v. United States, 3 Ct. Cust. Appls. 384, T. D. 32982; United States v. Thomas, 3 Ct. Cust. Appls. 142, T. D. 32385; Gump v. United States, 3 Ct. Cust. Appls. 137, T. D. 32384; and McBride v. United States, 1 Ct. Cust. Appls. 293, T. D. 31354. [309]*309Without the necessity of quoting from these cases it may be stated that they hold that the requirement of a certificate similar in form to these under a similar authority conferred by statute may be made by regulation of the Secretary of the Treasury, and that the purpose of requirements similar to those named in the regulations here in question is to afford to the customs officers an effective basis for investigation as to the claim made if they desire to make it, so that such officers may determine whether or not a prima facie case of antiquity has been made. United States v. Thomas, supra. See also Kronfeld v. United States, 4 Ct. Cust. Appls. 60, T. D. 33308.

It gets down to the question, then, as to whether there has been a substantial compliance with the terms of this regulation. To say that there has been a substantial compliance would indicate that much of what is contained in the required certificate is meaningless. It is manifest from a reading of the certificate to be signed by the shipper or seller that the party from whom the alleged antiquity is acquired must be named. No attempt was made in this case to name any one party, but the term “various persons” was employed. This affords no information to the officers of customs as a basis for an investigation. On the contrary, it would appear to be withholding information, if not in the possession of the shipper, yet such as should be easily acquired.

Nor is the date given. It is idle to say that any date within a period of two years is sufficiently accurate. Some variation might be allowed, and some description of the person from whom the goods were acquired, which would furnish means of identification, but here no attempt is made to furnish the means of identification, either as to the date or as to the persons from whom the goods were acquired.

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GRAHAM, Presiding Judge,

delivered the opinion of the court:

An article invoiced as “one antique Chinese silk rug” and entered as an “oriental rug — artistic antiquities” was imported at New York and was classified by the collector for duty as an oriental rug under paragraph 1116 of the Tariff Act of 1922. Accompanying the entry were the certificate and affidavit of the seller and the owner, in attempted compliance with the customs regulations, hereinafter more particularly referred to. The importer protested, claiming the goods to be free of duty as artistic antiquities under paragraph 1708 of said act.

On the hearing before the Customs Court three witnesses were called by the importer to testify as to the character of the imported article and its use. There were also introduced, without objection, the certificate and affidavit attached to the entry, hereinbefore referred to. It is also claimed that an oral stipulation was made upon the trial, to the effect that the imported merchandise was an artistic antiquity. No attempt was made to prove, on the trial, who was the producer of the imported article, or the person or persons from whom it was acquired by the seller, and no evidence was offered on this subject.

The Customs Court sustained the protest and the Government appeals. In so doing, several points are presented for our consideration. But one, however, will be particularly noticed, namely, that the court below erred in not overruling the protest because of the fact that the customs regulations had not been complied with.

Paragraph 1708, under which free entry is claimed, is as follows:

Pae. 1708. Works of art (except rugs and carpets), collections in illustration of the progress of the arts, works in bronze, marble, terra cotta, parían, pottery, or porcelain, artistic antiquities, and objects of art of ornamental character or educational value which shall have been produced more than one hundred years prior to the date of importation, but the free importation of such objects shall be subject to such regulations as to proof of antiquity as the Secretary of the Treasury may prescribe.

[308]*308In determining the issues presented in this case it will not be necessary to pass upon the question as to whether the court below correctly found, on the evidence, that the imported article was not a rug. Nor is it necessary to inquire as to whether the word “rug” as used in paragraph 1708 refers alone to floor coverings. Irrespective of these matters, we think the court should have overruled the protest because of the failure of the importer to show that he had brought himself within the scope of the applicable Treasury regulation, article 423, Customs Regulations, 1923. That regulation is in its relevant part, as follows:

Art. 423. Artistic antiquities. — Works of art (except rugs and carpets), collections in illustration of the progress of the arts, works in bronze, marble, terra cotta, parían, pottery, or porcelain, artistic antiquities, and objects of art of ornamental character or educational value which shall have been produced more than 100 years prior to the date of importation, will be admitted free of duty, upon compliance with the following regulations:

There shall be attached to the invoice filed upon entry a certificate of the foreign seller or shipper before the American consul at the place of shipment in substantially the following form:

- — , 19 — . I,-, do hereby certify that I am the-of certain works of art, viz, -, covered by consular invoice No. -, certified before the American consul at-, on the- day of-, 19 — ; that the said -were acquired by me from-on the-day of-, 19 — ; and I further declare that-.

I,-, consul of the United States at-, do hereby certify that the above declaration was subscribed and sworn to (or affirmed) before me by -, on this - day of -, 19 — , and that the statements therein contained are true, to the best of my knowledge and belief.

U. S. Consul.

An affidavit by the owner on Customs Form 3343 shall also be filed on entry.

The application of this statute in cases like that at bar is not a matter of first impression with this court. We have had occasion to pass upon a similar question in United States v. Tsai, 9 Ct. Cust. Appls. 42, T. D. 37902. In that case the Customs Regulations of 1915, article 395, were identical, so far as material, with those above quoted, in the regulations of 1923. In the case cited the importer attached a statement, in which he failed to state the names of the persons from whom the antiquities in question; imported from China, were procured. The court said:

The board seems to lay stress upon the fact that the requirement that a certain form be followed is that the certificate shall be in “substantially” the form indicated. There seems to be no contention made that the regulations such as are here in question are not within the authority of the Secretary of the Treasury, nor could there well be, in view of our decisions in Martin v. United States, 3 Ct. Cust. Appls. 384, T. D. 32982; United States v. Thomas, 3 Ct. Cust. Appls. 142, T. D. 32385; Gump v. United States, 3 Ct. Cust. Appls. 137, T. D. 32384; and McBride v. United States, 1 Ct. Cust. Appls. 293, T. D. 31354. [309]*309Without the necessity of quoting from these cases it may be stated that they hold that the requirement of a certificate similar in form to these under a similar authority conferred by statute may be made by regulation of the Secretary of the Treasury, and that the purpose of requirements similar to those named in the regulations here in question is to afford to the customs officers an effective basis for investigation as to the claim made if they desire to make it, so that such officers may determine whether or not a prima facie case of antiquity has been made. United States v. Thomas, supra. See also Kronfeld v. United States, 4 Ct. Cust. Appls. 60, T. D. 33308.

It gets down to the question, then, as to whether there has been a substantial compliance with the terms of this regulation. To say that there has been a substantial compliance would indicate that much of what is contained in the required certificate is meaningless. It is manifest from a reading of the certificate to be signed by the shipper or seller that the party from whom the alleged antiquity is acquired must be named. No attempt was made in this case to name any one party, but the term “various persons” was employed. This affords no information to the officers of customs as a basis for an investigation. On the contrary, it would appear to be withholding information, if not in the possession of the shipper, yet such as should be easily acquired.

Nor is the date given. It is idle to say that any date within a period of two years is sufficiently accurate. Some variation might be allowed, and some description of the person from whom the goods were acquired, which would furnish means of identification, but here no attempt is made to furnish the means of identification, either as to the date or as to the persons from whom the goods were acquired.

We are unable to agree with the board that this was a substantial compliance with the regulation, and feel compelled to hold otherwise.

The Tsai case, supra, differs from the case at bar in this respect, that the collector in that case did not accept the proffered proofs, and here they seem to accompany the entry and other papers. In the Tsai case the collector so refused to accept them because they failed to specify the names of the producers, the date and place of production, and the names and residences of the persons from whom and the dates when the antiquities were acquired by the shippers. But in both the Tsai case and here the question submitted is as to the legal sufficiency of the proffered certificate and affidavit.

The Treasury regulations hereinbefore quoted must be given the force and effect of law. It will be observed that it recites that the certificate accompanying the entry shall be in “substantially the following form.” This must be given a reasonable construction. The suggestion is made that a literal compliance with the provision requiring the name of the producer of an artistic antiquity as a prerequisite of importation would prevent the entry of many desirable artistic antiquities. It will be observed that the Treasury regulation also requires the affidavit of the owner that the imported article is over 100 years old. Where this is furnished, together with a statement that the importer, because of its antiquity, has been unable to obtain the name of the producer, there would be much to support the view that this was a substantial compliance with the [310]*310regulation. But such is far from the case presented in the Tsai case, supra, and from the case at bar.

The seller in the case at bar filed his certificate with the entry, the relevant portion of which is as follows:

I, Jack Mason, do hereby declare that I am the seller of certain works of art covered by consular invoice No. 177, certified before the American vice consul at Shanghai, China, on the 10th day of Jan., 1924; that the following facts are true of said articles:

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I further declare that all the above are more than one hundred years old to the best of my knowledge and belief.

Here, it will be observed, the seller gives the date of purchase and the place where purchased, but does not give the name of the person from whom purchased, averring that it is unknown. If he knew one, why could he not give the other? No reason is apparent or offered why he did not do so. In doing as he did, he violated, without apparent reason, the regulations which he must comply with if he is to have free entry of his goods.

But it is said that he need not so comply because thereafter, upon the trial before the Customs Court, the customs officials admitted that the imported goods were artistic antiquities.

We have refused to so hold in former cases, notably in Kronfeld, Saunders & Co. v. United States, 4 Ct. Cust. Appls. 60, T. D. 33308.

In the case last cited the collector had accepted defective papers from the importer at a time after entry. We said:

His acceptance of the papers after the entry, without objection or comment, was intended by him to be a waiver of strict compliance with the literal requirements of the instructions. However, it has been held by this court that the collector has no power to waive such a requirement. See Martin, jr., v. United States, 3 Ct. Cust. Appls. 384, T. D. 32982. The case just cited is analogous to the present case in several points and is cited generally as authority for the conclusions herein announced. Among other relevant principles that case also holds that the right to object to such an irregularity is not lost to the Government simply because of the fact that no objection is actually made at the time by the collector or by counsel for the Government before the collector.

The proper administration of the customs law requires that the importer comply with the reasonable customs regulations, duly promulgated. The right of free entry in case of artistic antiquities is made dependent upon compliance with the reasonable regulations of the Treasury Department therein. To hold that the importer may fail to comply with such regulations, and, if he succeeds in [311]*311obtaining free entry from the collector, may make his proof orally thereafter, if necessary, is to practically nullify the customs regulations, and is a reversal of the line of authority in this court since its creation.

Even if an importer might supplement an insufficient certificate and affidavit by proofs subsequently offered, it would avail the importer nothing here, because he entirely failed to offer, on the hearing, any evidence as to the name of the producer of his goods, or of the name of the person or persons from whom it was purchased by the seller, or any reason for his failure to state the same.

For these reasons, the judgment of the court below should be and is reversed.

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16 Ct. Cust. 306, 1928 WL 28023, 1928 CCPA LEXIS 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bird-ccpa-1928.

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