Wilmington Shipping Co. v. States

52 Cust. Ct. 642, 1964 Cust. Ct. LEXIS 1305
CourtUnited States Customs Court
DecidedMay 11, 1964
DocketA.R.D. 174; Entry No. 126, etc.
StatusPublished
Cited by2 cases

This text of 52 Cust. Ct. 642 (Wilmington Shipping Co. v. States) is published on Counsel Stack Legal Research, covering United States Customs Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilmington Shipping Co. v. States, 52 Cust. Ct. 642, 1964 Cust. Ct. LEXIS 1305 (cusc 1964).

Opinion

DoNloN, Judge:

On application of appellant (plaintiff below), we have reviewed the decision of the trial judge. He dismissed these appeals to reappraisement, holding that they were filed before ap-praisement and, hence, were not lawfully filed under the provisions of section 501, Tariff Act of 1930.

When the reappraisement appeals were called for trial in Wilmington, N.C., defendant moved to dismiss them on the ground that they had been prematurely filed. The official papers were received in evidence on defendant’s motion, as were also certain documentary exhibits offered by plaintiff (exhibits 1 to 4, inclusive). The former assistant collector of customs at Wilmington, Mr. Edward C. Snead, was called by appellant (plaintiff below) and testified. In support of its motion, appellee (defendant below) introduced no proofs other than the official papers.

[644]*644The facts are not in controversy. This merchandise is plywood, exported from Japan between January 25, 1960, and June 10, 1960, and consigned to appellant. Some shipments were for the account of Thomas Plywood Corp. of Fayetteville, N.C.; other shipments were for the account of United Plywood Co. of London, England. Appellant, in entering these plywood shipments, retained as consultant Mr. Edward C. Snead, then a customs broker, but who, for upwards of 32 years, prior to 1959, had been in customs service. His official positions included assistant collector at Wilmington, N.C., and at Charleston, S.C.; acting collector at Wilmington; and administrative officer with the Bureau of Customs.

The reports of the appraiser to the collector on forms entitled “Summary of Entered Value,” with respect to this merchandise, are dated November 10, 1960. Written notices of appraisement, issued by the assistant collector, are dated that same day, and appellant does not dispute the fact that such notices of appraisement were duly mailed to appellant on November 10, 1960. The appeals to reappraisement were filed November 2, 1960, and November 3, 1960, prior to issue of such notices.

Section 501 provides as follows:

The collector shall give written, notice of appraisement to the consignee, his agent, or his attorney, if (1) the appraised value is higher than the entered value, or (2) a change in the classification of the merchandise results from the appraiser’s determination of value, or (3) in any case, if the consignee, his agent, or his attorney requests such notice in writing before appraisement, setting forth a substantial reason for requesting the notice. The decision of the appraiser, including all determinations entering into the same, shall be final and conclusive upon all parties unless a written appeal for a reappraisement is filed with or mailed to the United States Customs Court by the collector within sixty days after the date of the appraiser’s report, or filed by the consignee or his agent with the collector within thirty days after the date of personal delivery, or if mailed the date of mailing of written notice of appraisement to the consignee, his agent, or his attorney. Every such appeal shall be transmitted with the entry and the accompanying papers by the collector to the United States Customs Court.

What appellant argues is, in substance, that on the facts shown in opposition to defendant’s motion to dismiss the appeals, it has proved that the decision of the appraiser has not become final and conclusive, under section 501, because written appeals for reappraisement were, in fact, filed with the collector within 30 days after personal delivery of written notices of appraisement by the collector to appellant, as section 501 requires. What appellant asks us to construe as the collector’s written notices of appraisement, required by section 501, are the appraiser’s notices of probable unpaid duties, dated October 28, 1960, sent by the appraiser to appellant. Such notices advised that the appraiser contemplated appraisement at certain increased values.

[645]*645On November 2, 1960, after receipt by appellant of the appraiser’s notices of probable unpaid duties, Mr. Snead, acting in appellant’s behalf, personally requested the appraiser to withhold his report of appraisement for 20 days. This the appraiser said he would not do. He told Mr. Snead (November 2, 1960) that the merchandise had, in fact, already been appraised. Nevertheless, his signed report to the collector is dated November 10,1960, and the collector’s written notices of appraisement also bear that date.

The assistant collector at Wilmington, with whom Mr. Snead talked after his conference with the appraiser, confirmed to Mr. Snead that appraisement had been made, at the values advised in the appraiser’s written notice of probable unpaid duties which Mr. Snead showed to the assistant collector.

The question is, do these oral exchanges, in combination with the appraiser’s written notice of probable unpaid duties, constitute the notice of appraisement which the collector is required to give, under section 501, and which is the notice starting the statutory period within which appeals to reappraisement may be filed.

Admittedly, it was the appraiser, not the collector, who signed and issued to appellant the notices of probable unpaid duties. Admittedly, it is the collector whose written notice of appraisement, under section 501, starts the period for filing an appeal to reappraisement. What appellant argues is, in effect, that the collector orally adopted, as his written notice of appraisement under section 501, the appraiser’s written notice of probable unpaid duties when, on November 2, 1960, the assistant collector at Wilmington, Mr. James E. Townsend, in conversation with Mr. Snead, representing appellant, advised Mr. Snead (1) that the merchandise had been appraised on October 28,1960, and (2) that appraisement was at the values recited in writing in the notices of probable unpaid duties which Mr. Snead had previously received from the appraiser.

Section 8.29(c) of the Customs Eegulations, as amended, is as follows:

If the examiner believes that the entered rate or value of any merchandise is too low, or if he finds that the quantity imported exceeds the entered quantity, and the estimated aggregate of the increase in duties in the shipment exceeds $15, he shall promptly notify the importer of record on every shipment, on such form as may be appropriate at the port, and specify the nature of the difference on the notice. The report of appraisement shall not be withheld unless in the judgment of the appraiser there are compelling reasons that would warrant such action.

It has been held that notice of appraisement need not be in any particular form, but that it must give notice that the merchandise has been appraised. C. S. Emery & Co. v. United States, 11 Cust. Ct. 8, C.D. 782. The notice of increased and additional duties, prepared on customs Form 5107, required to be sent out after liquidation, has [646]*646been held not to constitute notice of appraisement. Orlix Dyes & Chemicals Corporation v. United States, 41 Cust. Ct. 168, C.D. 2036. A purported notice of appraisement which does not bear a signature is not the notice section 501 requires. Inlander-Steindler Paper Co. v. United States, 40 Cust. Ct. 825, Reap. Dec. 9150. The court there said:

It is tlie notice of advance in value of imported merchandise, sent by the

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Related

Norman G. Jensen, Inc. v. United States
56 Cust. Ct. 640 (U.S. Customs Court, 1966)
Wilmington Shipping Co. v. United States
52 C.C.P.A. 89 (Customs and Patent Appeals, 1965)

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Bluebook (online)
52 Cust. Ct. 642, 1964 Cust. Ct. LEXIS 1305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilmington-shipping-co-v-states-cusc-1964.