U.S. v. Lockheed Petroleum Services Ltd.

Decision Date11 May 1983
Docket NumberNo. 82-35,82-35
Citation709 F.2d 1472
Parties, 1 Fed. Cir. (T) 63 The UNITED STATES, Appellant, v. LOCKHEED PETROLEUM SERVICES, LTD., Appellee. Appeal
CourtU.S. Court of Appeals — Federal Circuit

Jerry P. Wiskin, New York City, argued for appellant. With him on the brief were J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, Washington, D.C., and Joseph I. Liebman, Atty. in Charge, New York City.

Charles P. Deem, New York City, argued for appellee.

Before MARKEY, Chief Judge, and FRIEDMAN, DAVIS, NICHOLS and BENNETT, Circuit Judges.

DAVIS, Circuit Judge.

The United States appeals from a final judgment of the Court of International Trade in which the trial judge held appellee Lockheed Petroleum Services, Ltd. (Lockheed) entitled to drawback of duties for a manifold centre that it caused to be imported into the United States. This court has jurisdiction under Sec. 127(a) of the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25, 38 (to be codified at 28 U.S.C. Sec. 1295(a)(5)).

I

The facts can be quickly stated. Lockheed, a Canadian corporation, manufactured the manifold centre in Canada; this device was to be incorporated in this country into the M/C BASE (a vessel documented under the laws of Canada) by Delta Shipyards of Houma, Louisiana (Delta), which was building the vessel for Lockheed's account and ownership. In 1974, Lockheed imported the manifold centre into the United States and liquidated duties were paid in full.

Before the manifold centre was actually imported into this country, appellee requested a ruling from the United States Customs Service (Customs) as to whether it would be eligible for drawback pursuant to 19 U.S.C. Sec. 1313(a), (g) (1976), 1 subject to appellee's compliance with Customs regulations. Customs responded affirmatively, and provided Lockheed with a drawback rate.

In August 1975, Delta completed the M/C BASE for its use by Lockheed in oil exploration on the continental shelf in the Gulf of Mexico. On August 13, 1975, a Delta official mailed the abstract of manufacturing records required by 19 C.F.R. Sec. 22.4(g) (1982) 2 to Lockheed's counsel in New York City for review and filing with Customs in New Orleans. On August 18, the M/C BASE departed from the port of New Orleans, before receipt there of the abstract and without examination by Customs, for installation on the outer continental shelf at Block 331 of the Eugene Island area, roughly 80 miles from New Orleans in the Gulf of Mexico. On the following day, the District Director of Customs in New Orleans received the abstract of manufacture from Lockheed's New York counsel.

Lockheed then filed a drawback entry with Customs. Customs denied drawback because, it said, the M/C BASE did not clear for a foreign port pursuant to 19 C.F.R. Sec. 22.13(f) (1982) and also because Lockheed failed to comply with 19 C.F.R. Sec. 22.4(g) (1982), supra note 2, requiring that an abstract of manufacture be filed before a vessel's departure from the United States. In April 1977, Customs adversely liquidated the drawback entry and later denied Lockheed's protests regarding the denial of drawback.

Lockheed instituted this action, to recoup the drawback, in the United States Court of International Trade. The trial judge held that Lockheed was entitled to recover. In his view, Lockheed "relied on the representations of Customs that drawback would be allowed," but was denied drawback merely because the abstract of manufacture arrived too late--less than 24 hours after the M/C BASE left port--due to the "unforeseen occurrence" of slow mail delivery. The judge concluded that, in these circumstances, equitable relief was appropriate because Lockheed was not to blame for the late arrival of the abstract.

II

We hold that the trial court erred when it held that the equities dictated an award of drawback duties to Lockheed. There was, in this case, neither compliance by appellee with the controlling requirements nor acceptable excuse for that failure. Drawback privileges under the Tariff Act of 1930 are expressly conditioned, by statute, upon "compliance with such rules and regulations as the Secretary of the Treasury shall prescribe...." See 19 U.S.C. Sec. 1313(j) (1976); id. Sec. 1313(k) (Supp. IV 1980) (recodification). Numerous decisions have held that compliance with drawback regulations is mandatory. See, e.g., United States v. W.C. Hardesty Co., 36 CCPA 47, 52 (1949); American Tobacco Co. v. United States, 61 Ct.Cl. 980, 991-92 (1926); Nestle's Food Co. v. United States, 16 Ct.Cust.App. 451, 457, T.D. 43199 (1929); Spencer, Kellogg & Sons v. United States, 13 Ct.Cust.App. 612, 615-16, T.D. 41459 (1926); Lansing Co. v. United States, 424 F.Supp. 112, 114, C.D. 4675 (Cust.Ct.1976).

Lockheed failed to comply with an applicable regulation in its attempt to claim drawback. 19 C.F.R. Sec. 22.4(g) (1982), supra note 2, expressly required Lockheed to file an abstract of manufacture with the district director of Customs at the port of New Orleans before the M/C BASE departed from the United States. It is undisputed that the M/C BASE left that port on August 18 and that Customs did not receive the abstract from Lockheed's counsel until August 19. Moreover, the trial court implicitly ruled that the M/C BASE did leave the United States when it was removed to the Eugene Island area at a point some 80 miles off the Louisiana coast, and Lockheed does not contest this finding on appeal. 3 We concur in the trial judge's sub silentio conclusion that the M/C BASE did leave the United States; that finding is not contrary to the weight of the evidence. See Western Stamping Corp. v. United States, 57 CCPA 6, 8, 417 F.2d 316, 317 (1969).

Because Lockheed failed to file the abstract prior to the departure of the M/C BASE, Customs had no opportunity to verify the contents of the abstract through an examination of the vessel. As a result, Customs could not determine for itself whether Lockheed actually incorporated the manifold centre into the M/C BASE. Lockheed's current willingness to furnish a diving bell to Customs for inspection purposes at the Eugene Island site does not mitigate the failure to comply with the terms of 19 C.F.R. Sec. 22.4(g) (1982). That regulation is mandatory, not merely directory, and compliance is a condition precedent to the right of recovery of drawback. Cf. United States v. W.C. Hardesty Co., supra, 36 CCPA 47, 52 (1949). 4 Proffer of an after-the-fact substitute (cumbersome and bizarre in this instance) is not the equivalent of timely compliance.

III

The court below held that for two reasons Lockheed could recover drawback duties "under equitable principles". First, it found that Lockheed was not at fault for the asserted slow mail delivery of the abstract. Second, the court reviewed the previous communications between Lockheed and Customs which culminated in a Customs ruling that the manifold centre would be eligible for drawback. It concluded that Lockheed relied on Customs' representations that drawback would be allowed, and that Customs' subsequent denial of drawback was equivalent to forfeiture.

If there can be a case in which failure to comply with drawback requirements should properly be excused or overlooked, cf. 19 U.S.C. Sec. 1520 (Supp. IV 1980), this is not one. The trial court abused its equitable powers in awarding drawback to Lockheed. Although since 1980 the Court of International Trade has possessed equitable powers akin to those of a district court (see 28 U.S.C. Sec. 1585 (Supp. V 1981)), it surely cannot exercise those powers in favor of a party who, like Lockheed, is at fault for failure to comply with a mandatory regulation. 5 As we noted in Part II, supra, Lockheed had no legal entitlement to drawback unless it filed the abstract prior to the departure of the M/C BASE. It could have filed the abstract in a timely fashion in any number of ways to ensure compliance with the regulation, utilizing such well-known means as a telecopier, a messenger, or an overnight courier service. If it wished to use the U.S. Postal Service, it could have resorted to express mail, special delivery, or registered mail. It chose instead to rely solely on the ordinary post. The trial judge thought the failure of the ordinary mail to deliver the abstract in time was the fault of the Postal Service, but we consider that finding to be clearly erroneous. The fault was plainly appellee's. Delta (Lockheed's agent) left only the short period of five days between its mailing to New York (August 13) and the departure of the M/C BASE from New Orleans on August 18--although the abstract...

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