# United States v. Siegfried Lowenthal Co.

> Court of Customs and Patent Appeals · June 1, 1943 · 31 C.C.P.A. 19

URL: https://www.frixlaw.com/law-library/cases/6819029

## Case

- **Full name:** United States v. Siegfried Lowenthal Co.
- **Court:** Court of Customs and Patent Appeals
- **Decided:** June 1, 1943
- **Citations:** 31 C.C.P.A. 19; 1943 CCPA LEXIS 116
- **Precedential status:** Published
- **Opinion:** Concurrence by Hatfield
- **Judges:** Bland, Garrett, Hatfield, Jackson, Lenroot
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6819029

## Opinion text

Hatfield, Judge,
specially concurring.
I concur in the conclusion reached in the opinion written by Judge Jackson. I do so, solely on the theory that, so far as the record discloses, appellee’s application to repack the whisky here involved was made to the Collector of Customs for the purpose of safety and preservation. The application having been made to the collector, it is immaterial whether he referred the matter to the Secretary of the-Treasury or to some other customs official for consideration. The-decision permitting the repacking of the whisky for safety and preservation was the decision of the collector, and not that of the Secretary of the Treasury or any other customs official.
Section 562 expressly provides that all merchandise withdrawn from bonded warehouse shall be withdrawn in the original packages in which it was imported “unless, upon the application of the importer, it appears to the collector that it is necessary to the safety or preservation of the merchandise to repack or transfer the same.”
Whether the loss of 435.63 gallons of whisky, which occurred in the bonded warehouse, was due to leakage, theft, destruction by fire or other casualty, or in the repacking, does not appear of record. Accordingly, section 563, quoted in Judge Jackson’s opinion, has no application to the issues here involved.
The application for repacking having been made to the Collector of Customs solely for the purpose of safety and preservation of the merchandise, it would seem to be clear that the proviso contained in section 562 has no application to the issues here involved.
If the Secretary of the Treasury has authority, which I seriously doubt in view of the provisions of paragraph 813 (quoted in Judge Jackson’s opinion), to permit the repacking of whisky under the proviso contained in section 562, then it would seem to be clear that whisky repacked under the proviso is subject to withdrawal for consumption “upon payment of the duties accruing thereon, in its condition and quantity, and at its weight, at the time of withdrawal from warehouse * *
The Congress must have had in mind, at the time of the enactment of the proviso contained in section 562, that all merchandise repacked in accordance with its provisions should pay duty only on the quantity, weight, and condition at the time of its withdrawal from warehouse, because not only does the statute expressly so provide, but the report of the Committee on Ways and Means of the House of Representatives *32 (Report No. 7, to accompany H. R. 2667), relative to the 'proviso contained in section 562, clearly indicates that tbe Congress so contemplated.
The only assignment of error to this court which is relied upon by counsel for the Government states that the trial court erred “In holding that duty should have been taken upon the involved whisky upon the basis of the withdrawal-gauge of 528.6 gallons rather than upon the basis of the entered gauge.” That assignment of error is very broad, and, if it raises any question for this court’s consideration, it certainly raises the question whether the application for repacking, limited as the application is for safety and preservation of the merchandise, was made to the collector, as the statute expressly provides, or to the Secretary of the Treasury.
For the reasons stated, I concur in the conclusion reached in Judge Jackson’s opinion.
.1 am authorized to say that Garrett, Presiding Judge, concurs in the views herein expressed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6819029. Public record. Not legal advice.