United States v. Wedemann & Godknecht, Inc.

• Decision Date: 15 May 1975
• Docket Number: Customs Appeal No. 74-25.
• Parties: The UNITED STATES, Appellant, v. WEDEMANN & GODKNECHT, INC., a/c Atwater Throwing Co., et al., Appellees.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

515 F.2d 1145

The UNITED STATES, Appellant, v. WEDEMANN & GODKNECHT, INC., a/c Atwater Throwing Co., et al., Appellees.

Customs Appeal No. 74-25.

United States Court of Customs and Patent Appeals.

May 15, 1975.

Carla A. Hills, Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Saul Davis, New York City, for the United States.

Rode & Qualey, New York City, attys. of record, for appellee. Ellsworth F. Qualey, New York City, of counsel.

Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Associate Judges.

RICH, Judge.

This appeal is from the judgment of the United States Customs Court, Second Division,¹ sustaining protests to the classification of certain synthetic filaments manufactured in Germany by Farbenfabriken Bayer, A. G. (hereinafter FFB), and sold to domestic customers on a duty-paid delivered basis.

The merits of the classification issue were initially determined in Wedemann & Godknecht, Inc., a/c Burlington Industries, Inc. v. United States, 59 Cust.Ct. 475, C.D. 3199, 275 F.Supp. 1017 (1967). However, a question of the jurisdiction of the court to render a decision came up, based on an alleged lack of authority in the plaintiff, Wedemann & Godknecht, Inc., to file certain protests, and the court ordered further testimony to be taken on that question, the protests here involved being severed from some 40 others and restored to the calendar for that purpose.

The testimony of John W. Eisenhower, vice president of Allen Forwarding Company, Philadelphia customs brokers and foreign trade forwarders, was taken, following which the Customs Court, Second Division,² entered an order granting the Government's motion to dismiss the protests for lack of jurisdiction because they were not filed by a proper party plaintiff under section 514, Tariff Act of 1930, as amended, 19 U.S.C. § 1514. A supporting memorandum³ accompanied the order, Wedemann & Godknecht, Inc. v. United States, 65 Cust.Ct. 177, C.D. 4075 (1970).

Plaintiff then petitioned for rehearing and permission to take further testimony regarding the authority of the plaintiff, Wedemann & Godknecht, Inc., to file protests. The motion was granted, and further testimony, together with answers to interrogatories, obtained pursuant to a commission to take depositions abroad, was introduced. The witnesses were officers of plaintiff and FFB. Thereafter, the Customs Court entered judgment sustaining the protests, from which this appeal was taken, after finding, for reasons stated in its opinion on rehearing, 72 Cust.Ct. 14, C.D. 4499, 370 F.Supp. 1400 (1974), that the plaintiff was a person authorized to file the protests under section 514, thus reversing its previous decision on that question.⁴

The essential facts, relating to the statutory authority of Wedemann & Godknecht, Inc., to file protests, are succinctly and accurately stated in the Customs Court's last opinion (C.D. 4499) as follows:

The record establishes the involved merchandise was sold by Farbenfabriken Bayer, A. G. of West Germany, hereinafter referred to as "FFB," to Atwater Throwing Co. and Liberty Fabrics of New York on a duty-paid delivered basis. Wedemann & Godknecht, Inc., customhouse broker for FFB, was authorized to make all customs entries for clearance and delivery at New York. It was also authorized to employ customhouse brokers at ports other than New York for entry, clearance and delivery. Allen Forwarding Co. was hired by Wedemann & Godknecht, Inc. for the purpose of entering and clearing the involved merchandise at the port of Philadelphia, Pennsylvania. All papers were forwarded by Wedemann & Godknecht, Inc. to Allen Forwarding Co. Entries in the involved cases were made in the name of Allen Forwarding Co., naming as the ultimate consignee either Atwater Throwing Co. or Liberty Fabrics of New York. However, no owner declaration or superseding bond was filed within the time prescribed by section 485(d), Tariff Act of 1930. The duties were paid by Allen Forwarding Co. for which it was reimbursed or payment was received in advance from Wedemann & Godknecht, Inc. These sums were in turn reimbursed by FFB. Upon liquidation of these entries, Allen Forwarding Co. notified Wedemann & Godknecht, Inc. who in turn advised the attorneys, pursuant to an agreement with FFB, to file protests.

Protests were filed in the name of Wedemann & Godknecht, Inc. for the account of Atwater Throwing Co. or Liberty Fabrics of New York.

Under section 514, quoted in full together with other possibly pertinent statutes in the opinion below, the party filing protests must be "the importer, consignee, or agent of the person paying such charge or exaction here the duties." (Emphasis ours.) The only question before us, as it was before the lower court on the rehearing (the classification issue having been previously settled in appellee's favor and being no longer contested), is whether the plaintiff, factually and legally, falls into one or another of those categories. We agree with the Customs Court that it does.

We agree with the lower court that Allen Forwarding Co. is the consignee and sole owner of the imported merchandise in the tariff sense. (In the commercial sense FFB appears to have been the actual owner of the goods when they were imported, to have employed Wedemann & Godknecht, Inc., as its broker to see that the goods were entered and the duties paid on its behalf, and to have reimbursed Allen Forwarding Co. for the duties it actually paid, but these facts do not enter into the legal theory on which we sustain the decision below.)

Allen Forwarding Co., located in Philadelphia, was employed by Wedemann & Godknecht, Inc., located in New York City, as its associate at the time of importation to enter the goods, pay the duty, and keep it informed as to the status of the customs procedures. The goods having been brought into the port of Philadelphia, they were entered by Allen Forwarding Co. who paid the duty and became the consignee by action of law and, in fact, the "person paying such charge" under section 514. However, as the consignee and sole owner in the tariff sense, it did not itself file the protests. Under section 514 the question still remains whether the protests were filed by the "agent of the person paying such charge," i. e., an agent of Allen Forwarding Co.

Wedemann & Godknecht, Inc., had a multiple role in the situation. First of all, it represented FFB as a customhouse broker with respect to its shipments to this country, as it had been doing continuously for 20 years. In that capacity, it employed Allen Forwarding Co. with respect to these "out-port" Philadelphia importations. Allen Forwarding Co. advised it of the liquidations and Wedemann & Godknecht, Inc., having decided that the classification was wrong and the duty too high, filed protests in its own name, as the Customs Court said, and "for the account of" the domestic purchasers of the goods, Atwater Throwing Co. and Liberty Fabrics of New York. To be more realistic about it, Wedemann & Godknecht, Inc., did not file the protests, but instructed its then attorney, Eugene R. Pickrell, to do so. His name appears on the protests in the printed record as the actual signer and it must have been he who decided to name his client as the one filing the protests, for the account of whoever was the purchaser of the particular importation. This was, indeed, a "technical" error, as the lower court said, with respect to the importations into the port of Philadelphia handled by Allen Forwarding Co. for Wedemann & Godknecht, Inc.

In its first decision, in 1970, the Customs Court held that Wedemann & Godknecht, Inc., did not act as the agent of Allen Forwarding Co. in filing the protests. In its second decision here on appeal it reversed itself and said:

This matter being tried under the tariff statutes of the United States, we must therefore consider Allen Forwarding Co. as the consignee and actual owner of the merchandise for customs purposes and therefore the principal in this transaction. Emphasis ours.

Under the general principles of agency, the acts of an agent are the acts of the principal. In the case at bar, the acts of filing the protests involved by Wedemann & Godknecht, Inc. are deemed to be the acts of Allen Forwarding Co. The record does establish that Allen Forwarding Co. has ratified the acts of Wedemann & Godknecht, Inc. in filing the protests.

While the lower court did not come right out and say so, it seems clear from the foregoing that in filing the protests it considered Wedemann & Godknecht, Inc., to have acted as the agent of Allen Forwarding Co., the person paying the duty, within the meaning of section 514. The record showing of the ratification is found in the testimony of Mr. Eisenhower. He was asked on direct examination by Mr. Qualey, attorney for plaintiff,

Q. Did you notify Wedemann and Godknecht of the liquidation of each of these entries?

A. Yes, sir.

Q. Did they ask you to be so notified?

A. They gave us indication that the entries would probably be protested.

Q. Were you aware that protest was to be filed?

A. Yes, sir.

Q. Protest in each of these cases was filed in the name of Wedemann and Godknecht, Inc.; do you now as a representative of Allen Forwarding Company, ratify and confirm such action?

A. Yes, I do.

MR. QUALEY: Plaintiff rests.

In holding that plaintiff had the right to file the protests — i. e., that it was the proper party to do so — the Customs Court opinion concludes by saying:

That right should not be curtailed on a technicality when the consignee and its principals are in agreement as to the filing of a protest and the consignee has ratified the act of Wedemann & Godknecht, Inc. in filing the same. On the merits someone is entitled to a refund and that someone, as far as customs is concerned, is Allen Forwarding Co., the "person" paying the charge. In view of the record in this case, the Government in paying Allen Forwarding Co. will be protected from

...