812 F.Supp. 222 (CIT. 1993), 92-01-00019, Sea-Land Service, Inc. v. United States

Docket NºCourt No. 92-01-00019.
Citation812 F.Supp. 222
Party NameSEA-LAND SERVICE, INC., Plaintiff, v. The UNITED STATES, Defendant.
Case DateJanuary 28, 1993
CourtCourt of International Trade

Page 222

812 F.Supp. 222 (CIT. 1993)

SEA-LAND SERVICE, INC., Plaintiff,

v.

The UNITED STATES, Defendant.

Court No. 92-01-00019.

United States Court of International Trade.

Jan. 28, 1993

Ross & Hardies, Myles J. Ambrose, Evelyn M. Suarez and David F. Norton (Robert S. Zuckerman, Sea-Land Service, Inc., of counsel), for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice (Barbara M. Epstein, Mark G. Nackman, Intern. Trade Litigation, U.S. Customs Service, of counsel), for defendant.

OPINION

TSOUCALAS, Judge:

Defendant moves pursuant to Rule 12(b)(1) of the Rules of this Court to dismiss this action for lack of jurisdiction. 1

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This action was initiated by plaintiff, Sea-Land Service, Inc. ("Sea-Land"), to recover duties assessed on repairs made overseas to its American documented vessel pursuant to 19 U.S.C. § 1466(a). 2 Subsequent to the assessment of duties, Sea-Land challenged the assessment by filing an application for relief with Customs' San Francisco Vessel Repair Liquidation Unit, seeking remission based on a claim that the work constituted non-dutiable modifications under 19 U.S.C. § 1466(a). Plaintiff's Exhibits B & C. On May 1, 1990, Customs determined that Sea-Land's application for relief was defective on procedural and substantive grounds. Therefore, on May 25, 1990, Customs liquidated the entry. See Bulletin Notice of Liquidation. On May 30, 1990, Customs notified Sea-Land by letter that its application for relief was denied and that it had ninety days from the date of liquidation to file a protest to this decision. On August 28, 1990, Sea-Land filed a protest to the liquidation. On July 15, 1991, Customs denied Sea-Land's protest as untimely filed. Plaintiff's Exhibit G.

The Government now brings this motion to dismiss claiming that the protest was not timely filed. Sea-Land opposes defendant's motion and cross-moves for summary judgment pursuant to Rule 56 of the Rules of this Court seeking an order holding that its protest was timely filed and directing Customs to reliquidate vessel repair entry No. C-32-0006746-1 with a refund of $262,556.50 plus interest. Sea-Land claims that in its liquidation Customs erroneously construed a charge for paint as being in U.S. dollars when in fact it was stated in Japanese yen. This charge is reflected in Item 39 of the Application for Relief. As a result, Sea-Land was assessed excess duties in the amount of $262,556.50.

DISCUSSION

According to 19 U.S.C. § 1514(c)(2) (1988 & 1992 Supp.), a protest of a Customs decision "shall be filed ... within ninety days after but not before--(A) notice of liquidation or reliquidation, or (B) in circumstances where subparagraph (A) is inapplicable, the date of the decision as to which protest is made."

In this case, Sea-Land claims that its protest was timely filed eighty-nine days after the ninety-day period began to run. Sea-Land claims that the ninety days began to run on May 30, 1990, the date they received a letter from Michael Weissman, Chief, Technical Branch, Commercial Operations Division, in which Customs notified Sea-Land that its application for relief had been denied. Defendant's Motion to Dismiss and Memorandum in Support of its Motion (" Defendant's Motion "), Exhibit B. The Government, however, claims that the ninety day statutory period began to run on May 25, 1990, the date of liquidation, and that Sea-Land's protest was untimely filed ninety-four days thereafter. Thus, the issue before this Court is from when did the ninety day period begin to run during which Sea-Land was to protest Customs' decision.

The statute clearly states that a protest of a Customs decision must be filed within ninety days after notice of liquidation. See 19 U.S.C. § 1514(c)(2). This Court has stated that "proper notice of liquidation refers to the bulletin notice of liquidation." See Penrod Drilling Co. v. United States, 13 CIT 1005, 1009, 727 F.Supp. 1463, 1467 (1989), aff'd, 925 F.2d 406 (1991); see also, Goldhofer Fahrzeugwerk GmbH v. United States, 13 CIT 54, 706 F.Supp. 892, aff'd 885 F.2d 858 (Fed.Cir.1989). Furthermore, "the date of liquidation shall be the date the bulletin notice is posted in the customhouse." United States v. Reliable Chem. Co., 605 F.2d 1179, 1183 (1979); Penrod Drilling, 13 CIT at 1009, 727 F.Supp. at 1467; Goldhofer, 13 CIT at 58, 706 F.Supp. at 895. It is the importer who "has the

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burden for examining all notices posted to determine whether its goods have been liquidated, and to protest timely." Penrod Drilling, 13 CIT at 1009, 727 F.Supp. at 1467; Goldhofer, 13 CIT at 58, 706 F.Supp. at 895; Omni U.S.A., Inc. v. United States, 11 CIT 480, 483, 663 F.Supp. 1130, 1133 (1987), aff'd, 840 F.2d 912 (Fed.Cir.1988), cert. denied, 488 U.S. 817, 109 S.Ct. 56, 102 L.Ed.2d 34 (1988). The bulletin notice in this action clearly states that the date of liquidation was May 25, 1990.

Plaintiff, however, claims that in calculating the ninety day period it relied on a misleading letter sent to them on May 30, 1990. The ambiguous letter stated that the entry in question will be liquidated, when in fact it was liquidated five days earlier. 3 Based on this alone, it was very possible for Sea-Land to be unsure as to the date of liquidation and, thus, Sea-Land acted reasonably in relying on Customs letter of May 30, 1990. The letter indicated that the entry had not been liquidated as of yet and Sea-Land was reasonable in assuming that the ninety days to protest...

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3 practice notes
  • 815 F.Supp. 1484 (CIT. 1993), 89-12-00652, Texaco Marine Services, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • March 10, 1993
    ...on the cost thereof in such foreign country. See 19 U.S.C. § 1466(a); see also Sea-Land Service, Inc. v. United States, 17 CIT 61, ----, 812 F.Supp. 222, 223 The courts have broadly construed section 1466 as an inducement to employ United States labor through the imposition of an ad valorem......
  • 15 F.Supp.2d 906 (CIT. 1998), 96-01-00192, United States JVC Corp. v. United States
    • United States
    • Federal Cases Court of International Trade
    • July 7, 1998
    ...period...."). The decision in Farrell Lines has only been followed once. See Sea-Land Serv., Inc. v. United States, 17 CIT 61, 812 F.Supp. 222 (1993), vacated as moot 17 CIT 649, 829 F.Supp. 393 (1993). Generally, when faced with Farrell Lines, the court has either sought to clarify an......
  • 829 F.Supp. 393 (CIT. 1993), 92-01-00019, Sea-Land Service, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • June 28, 1993
    ...to a settlement in this case, and said stipulation having been approved by the Court, it is hereby ORDERED that Slip. Op. 93-13, 812 F.Supp. 222 (January 28, 1993) is vacated and set aside; and it is ORDERED judgment be entered in accordance with the stipulation entered into by the parties.......
3 cases
  • 815 F.Supp. 1484 (CIT. 1993), 89-12-00652, Texaco Marine Services, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • March 10, 1993
    ...on the cost thereof in such foreign country. See 19 U.S.C. § 1466(a); see also Sea-Land Service, Inc. v. United States, 17 CIT 61, ----, 812 F.Supp. 222, 223 The courts have broadly construed section 1466 as an inducement to employ United States labor through the imposition of an ad valorem......
  • 15 F.Supp.2d 906 (CIT. 1998), 96-01-00192, United States JVC Corp. v. United States
    • United States
    • Federal Cases Court of International Trade
    • July 7, 1998
    ...period...."). The decision in Farrell Lines has only been followed once. See Sea-Land Serv., Inc. v. United States, 17 CIT 61, 812 F.Supp. 222 (1993), vacated as moot 17 CIT 649, 829 F.Supp. 393 (1993). Generally, when faced with Farrell Lines, the court has either sought to clarify an......
  • 829 F.Supp. 393 (CIT. 1993), 92-01-00019, Sea-Land Service, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • June 28, 1993
    ...to a settlement in this case, and said stipulation having been approved by the Court, it is hereby ORDERED that Slip. Op. 93-13, 812 F.Supp. 222 (January 28, 1993) is vacated and set aside; and it is ORDERED judgment be entered in accordance with the stipulation entered into by the parties.......