United States v. Mexican International R.

151 F. 545 | 5th Cir. | 1907

SHELBY, Circuit Judge,

after making the foregoing statement, delivered the opinion of the court.

1. The original entry of the merchandise was made July 25, 1903, and the duties, amounting to $51.20, were paid by the Alexican International Railroad Company, acting by its customs agent, E. A. Bonnet. On March 5, 1904, within less than one year of the original entry, the collector reliquidated the entry and assessed the increased duties to the amount of $-3,876.60. Section 21 of the act of June 22, 1874 (18 Stat. 190, c. 391 [U. S. Comp. St. 1901, p. 1986]), provides:

“Whenever any goods, wares, and merchandise shall have been entered antj 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 ujion all parties.”

We have put in italics the phrase bearing directly on the point under discussion. Before “the expiration of one year from the time of entry” the settlement of duties is not conclusive on the government. Before the expiration of the one year the collector may reliquidate the assessment, although the duties first assessed have been paid and the goods withdrawn for consumption. Louisville Pillow Company v. U. S. (C. C. A.) 144 Fed. 386, 11 Treas. Dec. 509; Protests of Cassel, 146 Fed. 146, 9 Treas. Dec. 422; Beard v. Porter, 124 U. S. 437, 8 Sup. Ct. 556, 31 L. Ed. 492; Neresheimer v. U. S. (C. C.) 7 Treas. Dec. 3, 131 Fed. 877; Gandolfi v. U. S., 74 Fed. 549, 20 C. C. A. 652.

2. Under section 14 of the “Act to simplify the laws in relation to the collectioii of revenues” '(Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933]), the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise is final and conclusive against all persons interested therein, unless the owner, importer, consignee, or agent of such merchandise, or the person paying such fees, charges, and exactions other than duties, shall, within 10 days after the ascertainment' and liquidation of duties, give notice in writing to the collector setting forth his objections. Upon such notice being given, the collector shall transmit the invoice and all papers connected therewith to the board of three general appraisers, which board shall examine and decide the case thus submitted. Act June 10, 1890, c. 407, 26 Stat. 131, 1 Supp. Rev. St. 751 [U. S. Comp. St. 1901, p. 1933]. In the case at bar, no notice of dissatisfaction having been filed within the time prescribed, the reliquidation is final and conclusive ag'ainst all parties interested therein. Louisville Pillow Company v. U. S. (C. C. A.) 144 Fed. 386, 11 Treas. Dec. 509.

3. The United States contended on the trial that the Mexican International Railroad Company, on the facts proved, was the consignee within the meaning of the customs laws. If that contention is sustained, it would be liable for the duties assessed on reliquidation. There was in evidence a resolution of the board of directors of the railroad company providing for the appointment within the several collection districts of the United States of agents and attorneys, who shall have authority to receive and enter at the custom houses any and all goods hereafter imported by the company or which may hereafter arrive consigned to the company. There was in evidence, also, a power of attorney, executed by the railroad company, constituting J. N. Shafter and F. A. Bonnet their agents to receive and enter at the custom house at the port of Eagle Pass, Tex., all goods imported by or consigned to the railroad company, and generally to transact customs business of the railroad company at that port. The consular invoice in evidence contains the following caption:

“Invoice of Waste & Cotton Shipped by the Mexican International Railroad Company to the Port of Eagle Pass', Texas, in Railroad Cars, and to be There Entered at the Custom House, Consigned to J. N. Shafter.

“F. A. Bonnet.”

The indorsement on the invoice shows that it was presented to the cónsul by J. N. Shafter. The declaration of the consular invoice is made by “J. N. Shafter, customs agent of the Mexican International Railroad Company.” He declares that he is the “agent of the merchandise in the within invoice,” and that it is intended “to make entry of said merchandise at the port of Eagle Pass, Texas, in the United States of America.” The invoice is indorsed, showing that the “shipper” is the Mexican International Railroad Company.

The original bill of lading for the goods, which was presented at the custom house, together with the consular invoice at the time the éntry was made, is made out on an official blank of the Mexican International Railroad Company, and shows, under the head of “Marks and Numbers,” the following: “The consignee and destination: F. A. Bonnet, Eagle Pass.” The original entry of the goods was made by F. A. Bonnet, who made oath that he was the consignee of the merchandise offered for entry. The evidence tends to show that he was acting as the customs agent of the railroad company. The evidence of J. N. Shafter in the record shows that he was employed by the railroad company in 1903. He briefly describes the method of doing business by himself and the customs department in regard to shipments coming to the Mexican International Railroad Company. He testified that shipments usually come consigned to him (Shafter), and that the collector in accepting duties requires the signature of the servant of the employer who pays the duty. The merchandise “is shipped across the river to a local person at Eagle Pass. In this case the local person is Bonnet, who is chief clerk in my office, and that is done for the purpose of completing the records.” The evidence shows that in this case the $51.20 of duties first assessed were paid by F. A. Bonnet, acting as the agent of the railroad company, with money furnished by the railroad company. The money so paid was charged on an expense bill, and presumably collected with the freight when the goods "were withdrawn from the custom house, forwarded to Philadelphia, and there delivered to J. R. C. Boyer.

There appears to be some conflict in the written evidence offered. The United States offered a bill of lading of the goods in question, in which, under the head of “Marks and Numbers,’' is the following: “Consignee and destination: F. A. Bonnet, Eagle Pass.” The defendant offered a. “duplicate” bill of lading of the same date and for the same goods, on the back of which is the following indorsement: “Consignee and destination: J. R. C. Boyer, Philadelphia, Pa., via New Orleans and Morgan Line, a/c J. N. Shafter, Eagle Pass.” Both bills of lading were in the Spanish language, but only translations into English appear in the bill of exception. ‘

It is provided by the first section of the customs administrative act (Act June 10, 1890, c. 407, 26 Stat. 131 [U. S. Comp. St. 1901, p. 1886]) that:

“All merchandise imported into the United States shall for the purposes of this act be deemed and held to be the property of. the person to whom the merchandise may be consigned. * *' * ” 26 Stat. 131, 2 U. S. Comp. St. 1901, p. 2005.

Construing this statute in Baldwin v. U. S., 113 Fed. 217, 218, 51 C. C. A. 174, the court held that the government is not called on tb hunt up any ultimate consignee when there is a primary consignee to’ whom the goods are sent, and who himself presents the invoice, makes the entry, receives the bill of lading, and gets the goods, thus being himself their importer. In the case at bar the evidence, to say the least, tends strongly to show that the Mexican International Railroad Company, through its authorized agent, was the consignee of the goods. F. A. Bonnet, acting, the evidence tends to show, as the agent of the railroad company, declared himself to be the consignee. It has been held that such declaration estops one from denying that he is the consignee when sued for the duties. U. S. v. Vandiver (D. C.) 133 Fed. 252, 9 Treas. Dec. 191.

It is held in U. S. v. Bishop, 125 Fed. 181, 60 C. C. A. 123, that the consignee of imported goods is deemed the owner for the purpose of the collection of the duties on the goods consigned.

In the various transactions relating to the importation of these goods, the evidence shows that Bonnet and Shafter were acting as the attorneys in fact of the railroad company. In some of their statements they described themselves as such agents, but in others they used only their individual names. But the evidence as to the course of business, as well as the evidence relating to the importation in question, shows that all parties concerned knew that both Shafter and Bonnet were acting for the railroad company. They were probably relieved of personal liability, being the agents of a disclosed principal. Whitney v. Wyman, 101 U. S. 392, 25 L. Ed. 1050.

The facts were sufficient, we think, to sustain a verdict that the railroad company, acting through its agents, Shafter and Bonnet, was really the importer and consignee of the goods. It was error, therefore, to direct a verdict in favor of the railroad company.

The judgment of the District Court is reversed, and the cause remanded, with instructions to grant a new trial.