Pacific Creosoting Co. v. United States

ROSS,' Circuit Judge (after stating the facts as above). The defense was based upon this statute of the United States: “That whenever any goods, wares, and merchandise shall have been entered and passed free of duty, and whenever duties upon any imported goods, wares, and merchandise shall have been liquidated and paid, and such goods, wares, and merchandise shall have been delivered to the owner, importer, agent, or consignee, such entry and passage free of duty and such settlement of duties shall, after the expiration of one year from the time of entry, in the absence of fraud and in the absence of protest by the owner, importer, agent, or consignee, be final and conclusive upon all parties.” IS Stats. L. 190. The contention on the part of the plaintiff in error is that the merchandise in question was passed free of duty at the time of the respective entries at Tacoma, and that, therefore, the action is barred by the statute just quoted. This the government disputes. Tacoma is a subport at which there is a deputy collector of customs, but the office of the collector is at Port Townsend. The record shows that there is no naval officer in the customs district of Puget Sound. Under such circumstances, the collector is by section 2622 of the Revised Statutes (U. S. Comp. St. 1901, p. 1809) required to execute all of the duties in which the co-operation of a naval officer is otherwise required. The evidence shows that previous to the entries in question similar merchandise had been admitted free of duty at the port of Popt Townsend, and that, when the first of the importations in question was entered at the subport of Tacoma, it was claimed by the importer and recognized by the deputy collector as being entitled to free entry, and was delivered to the importer; that the other and later shipment was also claimed by the importer as entitled to free entry, but was classified by the deputy collector as dutiable, on which the duty had been paid or secured. Without either payment or security, however, that importation was also delivered to the importer. The evidence shows that according to the customs regulations, as well as the practice at the port in question, the liquidation of duties was made, and required to be made, by the collector at Port Townsend; that according to the practice prevailing at the subport of Tacoma, if the imported goods appear to the deputy collector tó be entitled to free entry, they are at once delivered to the importer, and, if in the preliminary examination by the deputy and his assistants they seem to be dutiable, they are either held until the duty is paid, or released upon the understanding that it will be paid. Two copies of the statement form of entry are thereupon sent from the office of the subport to the collector’s office at Port Townsend (and such the record shows was done in the matter of the entries here in question) for liquidation by that officer. It appears from the evidence that some previous similar importations had been there considered entitled to free entry and had been so admitted, but that the liquidation of these entries [37] was suspended by the collector at Port Townsend; that finally that officer addressed to the Secretary of the Treasury this letter: “Office of: tlie Colled or oí Customs. “Port of Port Townsend, Wash. “Port Townsend, Wash., October 26, 1909. “The Honorable, the Secretary of the Treasury, Division of Customs, Washington, D. C. “Sir: Inviting the attention of the Department to T. D. 29980, wherein the Board of II. S. General Appra isers decides that iron drums are unusual coverings for creosote oil, X have Hie honor to request you to advise this office whether the enclosed entries O. E. 81 and 117a, of August, 1908, covering similar merchandise imported at Tacoma, Wash., should be classified arid liqui-da ted in accordance with the above decision. These goods are earlier importations and the liquidation of the entries was suspended awaiting the action of the Board of IT. S. General Appraisers and advice from the Department. whether the board’s decision should be treated as retroactive to this extent. If duty is assessed on the drums in question covered by the enclosed entries, it would amount to about $11,500. The question also arises whether there is any limitation upon the liquidation of these entries, the goods having been entered and passed free of duty more than one year ago (Art. 1065, C. R. 1008), although this office is inclined to the opinion that the limitation does not begin to run until after the liquidation of the entry. “Respectfully, F. C. Harper, Collector.” The evidence shows that, pursuant to instructions, the collector of the port on November 27, 1909, liquidated the duties and ascertained the amounts properly collectible to be those sued for by the plaintiff. The evidence being without substantial conflict, the trial court properly instructed the jury to return a verdict for the plaintiff, which was done. As said by this court in the case of Abner Doble v. United States, 119 Fed. 152, 56 C. C. A. 40: “Tho law does not prescribe the time when the collector shall liquidate the duties. He may liquidate before or after a year from entry. The only limi-ta Hon upon his action in that regard is that, after once liquidating, lie may not, in the absence of fraud or protest by the owner, importer, agent, or consignee, reliquidate after a. year from the date of entry.” See, also, United States v. De Rivera (C. C.) 73 Fed. 679; Gandolfi v. United States, 74 Fed. 549, 20 C. C. A. 652. The judgment is affirmed.