132 F.2d 150 | Emer. Ct. App. | 1942
In this case Galban Lobo Co. S. A. complains of the dismissal by the Price Administrator of its protest against Revised.
Revised Price Schedule No. 16 became effective February 11, 1942. It prescribed a maximum price for raw cane sugars of 96° polarization from offshore producing areas landed at New York, of 3.74 cents per pound “duty paid cost and freight basis.” On February 28th the complainant, a Cuban corporation, entered into .a contract to sell 12,205 bags of sugar to the American Sugar Refining Company at 2.65 cents per pound, F.A.S.
The contract provided that the sugar should be shipped per S. S. Yildum, “expected to commence loading about March 13th to March 16th, 1942, to New York, Philadelphia, or Baltimore.” The S. S. Yildum was delayed, however, and did not arrive at Puerto Tarafa for loading until the latter part of March. She was loaded on March 30th and sailed April 4th. The complainant alleges that on or about April 9th the Refining Company refused to pay the contract price of 2.65 cents per pound on the ground that Revised Price Schedule No. 16 required a reduction of the F.A.S. price by an amount equal to the 22% freight surcharge authorized by the War Shipping Administration.
On April 22d complainant’s New York agent and the Refining Company jointly addressed a letter to the Office of Price Administration asking whether, without violating Revised Price Schedule No. 16, the Refining Company could pay complainant 2.65 cents per pound for the sugar. On May 4th an assistant general counsel for the Office of Price Administration addressed a letter to complainant’s agent and the Refining Company advising them that the 22% surcharge was “freight” within the meaning of the term “cost and freight” in Revised Price Schedule No. 16, and that under the Price Schedule, the Refining Company could not pay the 22% surcharge without a proportionate decrease in the contract price since it would result in a payment in excess of 3.74 cents per pound, cost and freight basis, New York. On June 1st the complainant filed a protest against this interpretation and application of the provisions of Revised Price Schedule No. 16. The protest was dismissed on July 1st and the present complaint was filed in this court within 30 days thereafter.
It is the Price Administrator’s contention that the complainant’s grounds of protest arose on March 16, 1942 when the order of the War Shipping Administration which advanced the freight rates on sugar shipped from Cuba to United States ports became effective. He says that under Revised Price Schedule No. 16 this order became immediately applicable to the sugar about to be shipped under the then existing con
The Price Administrator conceded in argument that “an interpretation resolving an ambiguous provision of a price schedule or regulation might constitute a new ground for protest,” and asserted that whether or not it does constitute a new ground will in each case be a question of fact. With this interpretation of Section 203(a) of the act we agree. The decisive question, therefore, is whether the provisions of Revised Price Schedule No. 16 unambiguously required the application of the War Shipping Administration’s freight rate increase to the complainant’s sale of sugar to the extent of reducing by the amount of that increase the F.A.S. price which it was entitled to receive for the sugar sold. After full consideration we have reached the conclusion that the schedule was sufficiently clear to put the complainant on notice, when the increase in freight rates was ordered, that the amount of the increase would be deductible from the sale price of the sugar sold by it to the Refining Company.
Section 1334.1 of Revised Price Schedule No. 16 provides that “regardless of the terms of any contract of sale or purchase, or other commitment * * * no person shall sell, offer to sell, deliver, or transfer raw cane sugars to any person, and no person shall buy, offer to buy, or accept delivery of raw cane sugars from any person, at prices higher than the maximum prices set forth in Appendix A, * * * These prices are gross prices before discounts of any nature are deducted, and they include all commissions and all other charges.” Appendix A, designated as Section 1334.9 of the Schedule, provides that “(a) Maximum prices per pound for raw cane sugars from offshore producing areas of 96 degrees polarization duty paid cost and freight basis shall be as follows: (1) United States Atlantic ports North of Cape Harteras to and including New York, 3.74 cents * *
We think that Revised Price Schedule No. 16 plainly prohibits a purchaser of raw cane sugars from paying for cost, freight and duty combined more than the maximum' price specified in the schedule, without regard to his contractual obligation. While the schedule does not expressly deal with purchases on the F.A.S. basis such purchases are impliedly included within its. purview, since the cost free alongside the ship which is to carry the sugar to a United States port is a definitely ascertainable element in the aggregate cost and. freight price with which the schedule does, deal. Consequently the determination of the F.A.S. maximum price involves merely the deduction from the duty paid cost and freight price of the constituent elements of duty and freight. That this-was obvious to the complainant appears, from its action in determining in exactly this way the F.A.S. price at which it sold its sugars to the Refining Company.
The complainant argues, however, that it' was not so obvious that a subsequent increase in freight rates 'by governmental action would under the schedule necessarily reduce its F.A.S. price even though that price was wholly in accord with the schedule when the contract of sale was made.
It is true that on March 16th the sugar had not yet been loaded. It does not follow, as the complainant suggests, that the question whether under the price schedule the freight increase of that date must be borne by the complainant was for that reason then merely a hypothetical one. On the contrary the complainant was then in the business of selling Cuban sugar for import into the United States and was actually under contract to deliver sugar at ship’s side at Puerto Tarafa for transportation to New York. It was clearly under the duty of taking notice of all provisions of price schedules, regulations or orders affecting that business and that contract. Among these were the provisions of Revised Price Schedule No. 16 as affected by the order increasing freight rates. It was likewise under the necessity of filing its protest with the Price Administrator within 60 days if it thought that the resulting imposition upon it of the cost, of the increase was for any reason improper. We conclude that the complainant’s grounds of protest arose on March 16, 1942 and that its protest filed June 1, 1942 was rightly dismissed by the Price Administrator as out of time under Section 203(a) of the act. This conclusion makes it unnecessary to consider the other contentions advanced by the complainant.
The complaint is dismissed.
“F. A. S. vessel” means free alongside, and obliges the seller to pay all charges and be subject to risk until the goods are placed alongside of the vessel either in a lighter or on the wharf. 1 Williston, Sales. 2d Ed., 020.
7 Fed.Reg. 1239.