Galban Lobo Co. v. Henderson, 3.

• Decision Date: 19 November 1942
• Docket Number: No. 3.,3.
• Citation: 132 F.2d 150
• Parties: GALBAN LOBO CO., S. A., v. HENDERSON.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

132 F.2d 150 (1942)

GALBAN LOBO CO., S. A., v. HENDERSON.

No. 3.

United States Emergency Court of Appeals.

Heard October 20, 1942.

Decided November 19, 1942.

Writ of Certiorari Denied February 1, 1943.

Donald Marks, of New York City (Julius B. Baer, of New York City, on the brief), for complainant.

Ben W. Heineman, Chief, Court Review Branch (David Ginsburg, Gen. Counsel, Thomas I. Emerson, Associate Gen. Counsel, Nathaniel L. Nathanson, Asst. Gen. Counsel, Herbert C. Brook, and John O. Honnold, Jr., Attys., all of Office of Price Administration, all of Washington, D. C., on the brief), for respondent.

Before VINSON, Chief Judge, and MARIS and MAGRUDER, Judges.

Writ of Certiorari Denied February 1, 1943. See ___ U.S. ___, 63 S.Ct. 530, 87 L.Ed. ___.

MARIS, Judge.

In this case Galban Lobo Co. S. A. complains of the dismissal by the Price Administrator of its protest against Revised Price Schedule No. 16, Raw Cane Sugar. The Price Administrator held that the protest was not filed within 60 days after the grounds of protest arose and accordingly dismissed it as too late without considering the merits. The protest was filed on June 1, 1942. The question which we are called upon to decide is whether the grounds of protest arose more than 60 days prior to that date. For while those provisions of Section 203(a) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix § 923(a), which prescribe the time within which to file a protest based on grounds arising after the effective date of a price schedule are, to say the least, imperfectly expressed, both parties agree that it is the intention of the act to grant for that purpose a period of 60 days from the time when the grounds of protest arose. The complainant, as we shall see, contends that the grounds of protest in its case arose on May 4th, or at the earliest April 9th, both being within 60 days of June 1st. According to the Price Administrator's view they arose on March 16th, a date more than 60 days prior to June 1st. Literally construed the statute would have required a protest to the price schedule in question on grounds arising on March 16th to have been filed not later than April 12th, 60 days after the effective date of the schedule. For the purposes of this case, however, we may accept the parties' more liberal interpretation since even upon that view of the act the protest was filed too late if the Price Administrator is correct as to the time when the grounds of protest arose.

Revised Price Schedule No. 16 became effective February 11, 1942. It prescribed a maximum price for raw cane sugars of 96° polarization from offshore producing areas landed at New York, of 3.74 cents per pound "duty paid cost and freight basis." On February 28th the complainant, a Cuban corporation, entered into a contract to sell 12,205 bags of sugar to the American Sugar Refining Company at 2.65 cents per pound, F.A.S.¹ Puerto Tarafa, Cuba. The contract price was the Cuban equivalent at that time of the established maximum price of 3.74 cents per pound "duty paid cost and freight basis" New York. On March 12th the War Shipping Administration issued Rate Order No. 12, effective March 16th, which authorized a 22% surcharge on ocean freight rates for transporting sugar from Cuba to United States Atlantic and Gulf ports.

The contract provided that the sugar should be shipped per S. S. Yildum, "expected to commence loading about March 13th to March 16th, 1942, to New York, Philadelphia, or Baltimore." The S. S. Yildum was delayed, however, and did not arrive at Puerto Tarafa for loading until the latter part of March. She was loaded on March 30th and sailed April 4th. The complainant alleges that on or about April 9th the Refining Company refused to pay the contract price of 2.65 cents per pound on the ground that Revised Price Schedule No. 16 required a reduction of the F.A.S. price by an amount equal to the 22% freight surcharge authorized by the War Shipping Administration.

On April 22d complainant's New York agent and the Refining Company jointly addressed a letter to the Office of Price Administration asking whether, without violating Revised Price Schedule No. 16, the Refining Company could pay complainant 2.65 cents per pound for the sugar. On May 4th an assistant general counsel for the Office of Price Administration addressed a letter to complainant's agent and the Refining Company advising them that the 22% surcharge was "freight" within the meaning of the term "cost and freight" in Revised Price Schedule No. 16, and that under the Price Schedule, the Refining Company could not pay the 22% surcharge without a proportionate decrease in the contract price since it would result in a payment in excess of 3.74 cents per pound, cost and freight basis, New York. On June 1st the complainant filed a protest against this interpretation and application of the provisions of Revised Price Schedule No. 16. The protest was dismissed on July 1st and the present complaint was filed in this court within 30 days thereafter.

It is the Price Administrator's contention that the complainant's grounds of protest arose on March 16, 1942 when the order of the War Shipping Administration which advanced the freight rates on sugar shipped from Cuba to United States ports became effective. He says that under Revised Price Schedule No. 16 this order became immediately applicable to the sugar about to be shipped under the then existing contract between the complainant and the Refining Company and consequently if its application thereto was objectionable the complainant from that date had grounds for protest. The complainant, on the other hand, argues that the application of the freight rate increase of March 16th to its contract of February 28th was not clearly indicated by the terms of Revised Price Schedule No. 16, but that the schedule was at best ambiguous in this respect. Therefore, it says, it did not have grounds to...