Inter Maritime Forwarding Co. v. United States

• Decision Date: 26 February 1962
• Docket Number: Protest No. 58/16546.,C.D. 2318
• Citation: 204 F. Supp. 49
• Parties: INTER MARITIME FORWARDING CO., Inc. v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

204 F. Supp. 49

INTER MARITIME FORWARDING CO., Inc. v. UNITED STATES.

C.D. 2318; Protest No. 58/16546.

United States Customs Court, First Division.

February 26, 1962.

Bernard B. Smith, New York City (Tompkins & Tompkins by Allerton deC. Tompkins and Michael Alexander, New York City, of counsel), for plaintiff.

William H. Orrick, Jr., Asst. Atty. Gen. (Richard E. FitzGibbon, New York City, trial attorney), for defendant.

Before OLIVER, MOLLISON, and WILSON, Judges.

WILSON, Judge.

The merchandise in the case at bar consists of woven fabric of wool, weighing over 4 ounces per square yard, imported from England, and subject to classification under paragraph 1109(a) of the Tariff Act of 1930, 19 U.S.C.A. § 1001, par. 1109(a). The cloth in question was entered for consumption at the port of New York after 3:07 p. m. eastern standard time, July 25, 1957, and before August 13, 1957. The merchandise was assessed with duty at a "non-quota" rate of 37½ cents per pound, plus 45 per centum ad valorem, under said paragraph 1109(a), supra. The importer claims that the merchandise is subject to duty under the involved paragraph, as modified by the General Agreement on Tariffs and Trade, T.D. 51802, at only 37½ cents per pound, plus 25 per centum ad valorem.

Under paragraph 1109(a) of the Tariff Act of 1930, as unmodified, woven fabrics, weighing more than 4 ounces per square yard, wholly or in chief value of wool, were dutiable at 50 cents per pound, plus an ad valorem rate of duty, depending upon the value per pound of the fabric. The other paragraphs of the tariff act here involved are paragraphs 1108 and 1109(a), as modified by the General Agreement on Tariffs and Trade, T.D. 51802, part I, schedule XX, as made effective by Presidential Proclamation No. 2761A, dated December 16, 1947, 61 Stat. 1103, which read as follows:

                -----------------------------------------------------------------------------
                Tariff Act     |                                   |    Rate of
                of 1930        |      Description of Products      |      Duty
                Paragraph      |                                   |
                ---------------|-----------------------------------|-------------------------
                1108           | Woven fabrics, weighing not       |
                               |  more than four ounces per        |
                               |  square yard, wholly or in        |
                               |  chief value of wool, regardless  |
                               |  of value:                        |
                               |                                   |
                               |   If the warp is wholly of        |
                               |      cotton or other vegetable    |
                               |      fiber ...................... | 30¢ per lb
                               |                                   |    and 25%
                               |                                   |    ad val
                               |                                   |
                               |   Other ......................... | 37 ½¢ per lb
                               |                                   |    and 25%
                               |                                   |    ad val
                               |   NOTE: The United States         |
                               |    reserves the right to          |
                               |    increase the ad valorem        |
                               |    part of the rate applicable    |
                               |    to any of the                  |
                               |    fabrics provided for in        |
                               |    item 1108 or 1109(a)           |
                               |    of this Part to 45 per         |
                               |    centum ad valorem on           |
                               |    any of such fabrics            |
                               |    which are entered in           |
                               |    any calendar year in           |
                               |    excess of an aggregate         |
                               |    quantity by weight of          |
                               |    5 per centum of the            |
                               |    average annual production      |
                               |    of similar fabrics             |
                               |    in the United States           |
                               |    during the 3 immediately       |
                               |    preceding calendar             |
                               |    years.                         |
                1109(a)        | Woven fabrics, weighing more      |
                               |  than four ounces per square      |
                               |  yard, wholly or in chief         |
                               |  value of wool, regardless of     |
                               |  value ......................     | 37 ½¢ per lb
                               |                                   |    and 25%
                               |                                   |    ad val.
                -----------------------------------------------------------------------------
                

As indicated above, by virtue of said trade agreement and proclamation, a right was reserved to the United States to increase the ad valorem rate on such fabrics under a quota provision.

The facts in the case at bar which give rise to the present controversy are as follows:

On September 28, 1956, the President of the United States, by proclamation No. 3160 (T.D. 54212), 71 Stat. c 12, invoked the "reservation" contained in the "NOTE," supra, for the remaining 3 months of that year and also invoked it for each calendar year thereafter, until otherwise proclaimed. The provisions of said proclamation No. 3160, so far as pertinent, read as follows:

7. "WHEREAS I find that upon invocation of the said reservation set forth in the second recital of this proclamation, effective October 1, 1956, it will be appropriate to carry out the trade agreement specified in the first recital of this proclamation that the ad valorem part of the rate be 45 per centum ad valorem in the case of any of the fabrics described in the said item 1108 or 1109(a) in Part I of Schedule XX to the General Agreement on Tariffs and Trade set forth in the second recital of this proclamation, * * *:

"(a) during the period from October 1, 1956, to December 31, 1956, both inclusive, if such fabrics are entered, or withdrawn from warehouse, for consumption after the total aggregate quantity of 3,500,000 pounds of such fabrics has been so entered or withdrawn; which quantity I find to be not less than 1 ¼ per centum of the average annual production in the United States during the three immediately preceding calendar years of fabrics similar to such fabrics; and

"(b) following December 31, 1956, until otherwise proclaimed by the President, if such fabrics are entered, or withdrawn from warehouse, for consumption in any calendar year after that total aggregate quantity by weight of such fabrics which shall have been notified by the President to the Secretary of the Treasury, and published in the Federal Register, has been so entered or withdrawn during such calendar year; which quantity the President shall have found to be not less than 5 per centum of the average annual production in the United States during the three immediately preceding calendar years of fabrics similar to such fabrics; * *

* * * * * *

"NOW, THEREFORE, I, DWIGHT D. EISENHOWER, President of the United States of America, acting under and by virtue of the authority vested in me by the Constitution and the Statutes, including the said section 350 of the Tariff Act of 1930, as amended, do proclaim as follows:

"1. In order to carry out the said trade agreements specified in the first and third recitals of this proclamation, until otherwise proclaimed by the President, the ad valorem part of the rate which shall be applied to the said fabrics described in the seventh recital of this proclamation, entered, or withdrawn from warehouse, for consumption in excess of the quantity specified in clause (a) of that recital, or in excess of a quantity notified to the Secretary of the Treasury pursuant to clause (b) of that recital, shall be 45 per centum ad valorem. * *"

On May 24, 1957, the President notified the Secretary of the Treasury that when the 1957 imports of the specified woven fabrics of wool reached 14,000,000 pounds, the ad valorem rate under paragraph 1109(a) would be increased from 25 per centum to 45 per centum (T.D. 54370). This notice was published in the Federal Register under date of May 28, 1957 (vol. 22 F.R. page 3717). Thereafter, on December 3, 1957, the Commissioner of Customs notified the collector of customs at the port of New York (exhibit 4) that imports of said woven fabrics of wool weighing 14,000,000 pounds had been reached on July 25, 1957, at 3:07 p. m. eastern standard time. As heretofore stated, the involved merchandise was entered during the calendar year 1957, after July 25, and was assessed under paragraph 1109 (a) of the Tariff Act of 1930 at the ad valorem rate of 45 per centum, plus the specific rate of 37½ cents per pound.

Pursuant to the Trade Agreements Act of 1934, adding section 350 to the Tariff Act of 1930, 19 U.S.C.A. § 1351, certain powers were conferred upon the President in carrying out trade agreements. Section 350(a) of the Tariff Act of 1930, as amended, provides:

"(a) For the purpose of expanding foreign markets for the products of the United States * * * the President, whenever he finds as a fact that any existing duties or other import restrictions of the United States or any foreign country are unduly burdening and restricting the foreign trade of the United States * * * is authorized from time to time —

"(1) To enter into foreign trade agreements with foreign governments or instrumentalities thereof; and

"(2) To proclaim such modifications of existing duties and other import restrictions, or such additional import restrictions, or such continuance, and for such minimum periods, of existing customs or excise treatment of any article covered by foreign trade agreements, as are required or appropriate to carry out any foreign trade agreement that the President has entered into hereunder. * * * The President may at any time terminate any such proclamation in whole or in part.

* * * * * *

"(c) As used in this section, the term `duties and other import restrictions' includes

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