United States v. Wedemlann & Godknecht, Inc.

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 & God-knecht, 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 Farbenfa-briken 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 & God-knecht, 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 [1147] forwarded by Wedemann & God-knecht, 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 & God-knecht, 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 [1148] 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 & God-knecht, 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 & God-knecht, 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 claims by anyone else. The elaborately argumentative Government brief contains three main points: A. Appellee is not the “importer” within the meaning of section 514; B. Appellee is not the “consignee”; C. Appellee is not the “agent of the person paying such charge.” We pass A and B without discussion because we join the Customs Court in disagreeing on point C, which suffices to support an affirmance. Considering the Government’s arguments on point C, we begin by noting the concession in its brief that an agent of the consignee has a right to file a protest. It also concedes “that Allen Forwarding Company was the ‘principal,’ i. e., the importer, consignee, and person paying the charge, in the subject transactions.” The only question that remains is whether there was clear error in the lower court’s conclusion that ap-pellee, in filing the protest, acted as the agent of the consignee. While there is no evidence of specific appointment of Wedemann & Godknecht, Inc., to act as agent of Allen Forwarding Co. in filing protests, it would have been a work of [1149] supererogation to have made such an appointment in view of the relationship of these customs brokers to each other and to the business of Farbenfabriken Bayer and its domestic customers. Those relationships were such as to reduce to an absurdity the strange statement in the Government’s brief that “Wedemann & Godknecht, Inc. was a stranger to the entry transaction * * *.” On the contrary, the facts demonstrate that Wedemann & Godknecht, Inc., was in the driver’s seat throughout, selecting out-port brokers to represent it and its client, employing lawyers to file protests as necessary, and generally looking after the customs business of FFB. Allen Forwarding Co. did not have to appoint it to file protests as its agent because Wedemann & Godknecht, Inc., was making the decisions, and when it filed the protests on the Philadelphia importations it must have done so as the agent of “the person paying such charge.” Although it did so without specific request or appointment, we think the “ratification” by Allen Forwarding Co. cleared up that question, both confirming the agency relationship within the meaning of section 514 and adopting the action taken as its own. We do not regard this as a technical question of agency law in the usual sense. Agency law as such is primarily concerned with contractual rights and liabilities, vicarious tort liabilities, etc.; what we are really concerned with here is customs law procedures, court pleadings, and the proper naming of parties in compliance with a procedural statute. The right at stake is the right to a judicial review, on which hangs the right to recover excess duty admittedly paid. In Wilmington Shipping Co. v. United States, 52 CCPA 76, 79, C.A.D. 861 (1965), we expressed approval of the proposition stated in Lewis’ Sutherland on Statutory Construction, Sec. 717, that statutes giving the right of appeal are to be liberally construed in furtherance of justice. In Eaton Mfg. Co. v. United States, 60 CCPA 23, C.A.D. 1076, 469 F.2d 1098 (1972), in which the sufficiency of a protest filed pursuant to section 514 was involved, we said, 60 CCPA at 30, that “denial of jurisdiction for insufficiency of protest is a severe action which should be taken only sparingly” and construed the protest liberally. In spite of some uncertainty, we held it sufficient because it did not “impose any undue burden on the collector.” In Wells, Fargo & Co. v. United States, 7 Ct.Cust. Appls. 346, T.D. 36903 (1916), the predecessor of this court took a liberal view of the establishment of an agency relationship in the matter of filing a protest by Wells, Fargo as a customhouse broker for an owner. The court said (pp. 351—52): This is not a case which involves the binding force and effect of a contract made by an agent, but rather is a question of practice or procedure under a statute providing how an action may be instituted. In light of these principles and precedents and on the particular facts of this case we find no error in the decision below. The record makes it clear that the Government was aware at all times that any refunds of excess duty paid were to go to Allen Forwarding Co., and thus did not suffer additional administrative burden from the manner in which these protests were filed. We do not mean by this opinion to condone slipshod performance by the customs bar in complying with the tariff statutes. If, as the Government would have us believe, filing of protests in the name of the wrong party is becoming a problem, we hope that the excessive litigation which has resulted from what was done in this case will be taken as a lesson. But we think the penalty should fit the crime and that FFB should not have to foot the bill for improving professionalism in the customs bar and among brokers. The judgment of the Customs Court is affirmed. Footnotes [1] Judges Rao, Ford, and Newman, opinion by Judge Ford. [2] The court then consisted of Judges Rao, Ford, and Rosenstein. [3] By Judge Rosenstein. [4] There are 23 .assignments of error (which seems an excessive number) which, as argued, all relate to the single question of appellee’s right under section 514 to file the protests.