United States v. EIGHT BALES# S IJK

• Decision Date: 12 March 1964
• Citation: 227 F. Supp. 425
• Parties: UNITED STATES of America, Libellant, v. EIGHT BALES #S I.J.K. 1/8 Strapped Sealed — Said to Contain 13,076 RAW MINK SKINS.
• Court: U.S. District Court — Southern District of New York

227 F. Supp. 425

UNITED STATES of America, Libellant, v. EIGHT BALES #S I.J.K. 1/8 Strapped Sealed — Said to Contain 13,076 RAW MINK SKINS.

United States District Court S. D. New York.

March 12, 1964.

Robert M. Morgenthau, U. S. Atty., for Southern District of New York, Stephen Charnas, Asst. U. S. Atty., New York City, of counsel, for libellant.

Norman Katz, New York City, for claimant.

SUGARMAN, District Judge.

Claimant moves

"1. To dismiss the libel on the ground that the court lacks jurisdiction because the libellant has failed to comply with the provisions of Title 19, United States Code, Sections 1607 and 1608.

"2. To dismiss the libel on the ground that pursuant to the provisions of Title 19, United States Code, Sections 1514 and 1515, a timely protest has been filed to the decision of the Collector of Customs in excluding the delivery of the merchandise in question to the claimant and that exclusive jurisdiction of the subject matter and basic issues of said protest and the instant libel is within the United States Customs Court pursuant to the provisions of Title 28, United States Code, Section 1583."

Claimant's motion will be treated as an exception and the matters submitted in support of the motion as exceptive allegations to the libel. Murray v. The Meteor, 93 F.Supp. 274 (E.D.N.Y. 1950).

For the purposes of the present consideration claimant admits all facts well pleaded in the libel. United States v. Cargo etc. ex British Schooner Patara, 40 F.2d 74 (E.D.N.Y.1930).

The libel seeks condemnation of 8 bales containing 13,076 raw mink skins because the skins

"were imported into the United States under Consumption Entry No. 301370 in violation of Title 18, United States Code, Section 542 and in violation of Title 19, United States Code, Section 1592, in that said consumption entry falsely listed the country of origin of said articles as Sweden and in that said consumption entry falsely listed the said articles as 4 bales supposedly containing 5,040 pieces of raw mink skins."

Consumption Entry No. 301370 was dated July 9, 1963 and it is alleged in the libel that the goods were seized on or about July 19, 1963.

Title 18 U.S.C. § 542 inter alia makes it a crime to attempt to or to enter or introduce any goods into the commerce of the United States by means of any fraudulent or false written statement, regardless of whether the government may thereby be deprived of duty thereon. The section states that it shall not be construed to relieve the goods from forfeiture under other laws.

Title 19 U.S.C. § 1592 inter alia makes goods attempted to be or entered or introduced into the commerce of the United States by means of any false written statement subject to forfeiture regardless of whether the government may be deprived of any duty thereon. The allegations of the false statements as to quantity and country of origin being accepted as true, as aforesaid, justify the agent's seizure of the goods. Title 19 U.S.C. § 1602.

The libel also alleges that the goods were valued at more than $2500, an allegation which if accepted as true would justify the collector's procedure of referring the matter to the United States Attorney for institution of this suit. Title 19 U.S.C. § 1610.

However, Title 19 U.S.C. § 1607 provides a summary procedure for forfeiture of goods valued not in excess of $2500 and further provides that the value of goods, the importation of which is prohibited shall, regardless of actual value, be held not in excess of $2500.

The libel also alleges that importation of these skins is prohibited by (a) Title 19 U.S.C. § 1367 and (b) Proclamation No. 2935 and Trade Agreement Letter of November 23, 1951 (note to Title 19 U.S.C.A. § 1362) and (c) Trade Agreement Letter of January 17, 1953, 18 F.R. 593, all forbidding the importation of mink skins from the Soviet Union and that these skins are such.

I.

Claimant argues that because it is alleged that the goods emanated from the Soviet Union they must be held valued not in excess of $2500 and thus subject only to the summary procedure of Title 19 U.S.C. § 1607, a method obviously not employed by the collector, the absence of which, claimant contends, deprives this court of jurisdiction.

The issue must be decided as though the seizure was for false statements made in the importation of goods valued at not in excess of $2500 and the allegation of the libel of their higher value ignored.

The summary method of forfeiture allowed by Title 19 U.S.C. § 1607 is designed to obviate the expense and delay of condemning goods of small value. Conway v. Stannard, 17 Wall. 398, 84 U.S. 398, 21 L.Ed. 649 (1873). Instead of referring the matter to the United States Attorney for a plenary proceeding as in admiralty for condemnation, the collector is empowered to summarily dispose of the goods by sale after publication of notice of the seizure thereof. However, if a claim is filed and bond for costs given, the summary procedure is automatically stopped and the matter referred to the United States Attorney for condemnation in the usual manner. Title 19 U.S.C. § 1608; Title 28 U.S.C. §§ 1355, 2461(b).

A literal reading of 19 U.S.C. § 1607 that "the collector shall cause a notice of the seizure of such articles and the intention to forfeit and sell or otherwise dispose of the same according to law to be published" would seem to support the claimant's contention that such method as to goods defined therein is singular. However, in the absence of a clear showing that Congress meant the summary method in such cases to be mandatory and to foreclose the continued use of the traditional method, employed by the collector here, I am constrained to read the statute as being merely permissive. Cairo & F. Railroad Company v. Hecht, 95 U.S. 168, 24 L.Ed. 423 (1877).

The scheme of the statute is that where the collector employs the summary method and publishes the notice of seizure and the requisite claim and bond are filed, the parties are resorted to the traditional plenary suit as in admiralty for the condemnation of property. Where, as here, the collector does not employ the summary method of forfeiture and sale but employs the plenary method of suit for condemnation, no prejudice is visited upon a claimant who then need not file his claim and bond until the action is commenced, as was done by claimant here. Thus no right or benefit to the claimant requires giving Title 19 U.S.C. § 1607 an imperative rather than a permissive construction. Ballou v. Kemp, 68 App.D.C. 7, 92 F.2d 556 (1937).

The history of the last sentence of Title 19 U.S.C. § 1607 requires no different result. The provision that "merchandise the importation of which is prohibited shall be held not to exceed $2,500 $1000 in value" first came into the section by act of June 17, 1930, c. 497, Title IV, § 607, 46 Stat. 754, the Tariff Act of 1930. The report of the Committee on Ways and Means of the House of Representatives (Rep. # 7, 71 Cong. I Sess. to accompany H.R. 2667)¹ insofar as it dealt with section 607 of the Tariff Act of 1930 is set forth in the margin. The amendment was not mentioned in the report of the Committee on Finance of the Senate (Rep. # 37, 71 Cong. I Sess.) and, unless it escaped my notice, was not debated in either the House or Senate. Accordingly, the Congress is assumed to have accepted sub silentio the reason for the amendment given in the House report. Nothing in that report manifests a clear Congressional intent that the summary method is mandatory as to goods valued at less than $2500 or the importation of which is prohibited.

Title 19 U.S.C. § 1607 was last amended to increase the stated amount from $1000 to $2500 by act of September 1, 1954, c. 1213, Title V, § 506, 68 Stat. 1141, the Customs Simplification Act of 1954. The Senate and House reports, 1954 U.S.Code Congressional and Administrative News, 83 Cong. II Sess., p. 3907, insofar as they dealt with the change in section 607 of the Tariff Act of 1930 are set out in the margin.² Here, permissive rather than mandatory employment of the summary forfeiture is indicated.

II.

On October 17, 1963 the collector advised claimant that

"The merchandise was seized under the provisions of U.S.Code, Title 18, Section 545 (18 U.S.C. § 545) and under the provisions of that section of law is subject to forfeiture."

On December 3, 1963, after the filing of the libel herein, claimant wrote the collector:

"Protest is hereby made from the decision of the Collector excluding the merchandise imported * * * from entry or delivery as being imported contrary to law, and, on information and belief, specifically in violation of the prohibition set forth in T.D. 52877 * * *." (Emphasis supplied.)

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