# Wilmington Shipping Co. v. United States

> Court of Customs and Patent Appeals · June 17, 1965 · 52 C.C.P.A. 89

URL: https://www.frixlaw.com/law-library/cases/6823429

## Case

- **Full name:** Wilmington Shipping Company v. United States
- **Court:** Court of Customs and Patent Appeals
- **Decided:** June 17, 1965
- **Citations:** 52 C.C.P.A. 89; 1965 CCPA LEXIS 367
- **Precedential status:** Published
- **Opinion:** Dissent by Smith
- **Judges:** Agreement, Almond, Counsel, Martin, Rich, Smith, Worley
- **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/6823429

## Opinion text

Smith, Judge,
dissenting.
While I agree with the dissenting opinion written by Judge Rich, there are some additional observations which have influenced me in arriving at my present view concerning this case. Some six years ago, when I entered upon the duties of my present office, I noted for the first time the noble sentiment incised over the 10th Street facade of the Department of Justice:
JUSTICE IS THE GREAT INTEREST OF MAN ON EARTH. WHEREVER HER TEMPLE STANDS, THERE IS A FOUNDATION FOR SOCIAL SECURITY, GENERAL HAPPINESS AND THE IMPROVEMENT AND PROGRESS OF OUR RACE.
It was, therefore, with a sense of shock and disbelief that I read in the Government’s brief that even if this were a case where equitable *98 relief were appropriate, “such, relief is clearly beyond the power of this court to grant. Jacksonville Paper Co., a Corporation v. United States, supra at 165.” What, indeed, has become of the noble concept of “justice” if we accept this position of the Government ?
The pertinent facts are that appellant, believing the appraisement of certain imported merchandise was too high, filed a notice of appeal for reappraisement by a judge of the TJ.S. Customs Court. Thus far, it has been denied such reappraisement because it relied on the oral representation of the Assistant Collector of Customs that the appraisement had been made and completed at the values set forth in certain written “Hotice[s] of Probable Unpaid Duties or Taxes.” It acted upon this representation promptly — too promptly according to the Government’s view — and filed the appeal for reappraisement which comes before us. After appellant’s time had expired for the filing and perfection of what the Government would perhaps concede was a timely appeal, i.e., after receipt of a written notice, some nameless individual in the vast reaches of the governmental bureaucracy discovered that the appeal for reappraisement could be aborted by a motion to dismiss. As the matter reaches us, such a motion was filed, it was granted on the ground that the notice of appeal was premature, and the appeal was dismissed.
Apparently the Government’s position rests on the basic premise that one may rely upon the word of an Assistant Collector of Customs only at his peril. It is this which disturbs and troubles me for its end result can only be to undermine a citizen’s faith in his governmental officials and to deny him his right to rely upon their fairness in dealing with him.
■Basically, the Government’s position on this motion seems to me to require a double standard of fair dealing. There would be little doubt here, I think, if the transactions upon which appellant relied had been between private parties, that some sort of an estoppel or nimc pro timo ratification of the underlying oral representations would have been applied to assure that appellant would not be unfairly deprived of its day in court, because it had relied in good faith upon the representations of another who stands to gain an unfair advantage by repudiation of such representations. Here, however, it seems to me the Government is saying in effect that a different rule should apply when such representations are made by a governmental official. I do not agree that this should be the case.
The situation on the present record is that appellant had relied in good faith upon the representations made by a governmental official in the course of his duties and within the ambit of his authority, and then in good faith took the action believed necessary to perfect the appeal for reappraisement. These events admittedly occurred a few days before the time the Government concedes would have been the *99 proper date on which to take the appeal. For this reason the Government has thus far prevailed and appellant finds itself out of court without having had a hearing on the merits of the appeal. What has the Government gained by this ? It has gained at best a Pyrrhic victory. It has not had to appear in court and support the values found by its appraiser. But this victory has been won at the cost of the respect of every decent and thinking citizen who at some time or another is bound to meet his elected or appointed official in some such capacity and who may wish to rely upon what he has been told by such official. I am unwilling to be party to any opinion which sanctions such a course of conduct.
There is yet another lesson to be learned here. At base the problem arises from an unfortunate wording of the statute by which it appears to mean different things to different governmental officials. How, if the Government’s position is correct, can any citizen accept the word of any governmental official concerning the meaning of such a statute? The statute is so worded that both appellant and the Government by the simple expedient of emphasizing different portions of the same sentence can find support for their opposed positions. Section 501 of the Tariff Act of 1930 reads:
The collector shall give written notice of appraisement to the consignee, his agent, or his 'attorney, if (1) the appraised value is higher than the entered value, or (2) a change in the classification of the merchandise results from the appraiser’s determination of value, or (3) in any case, if the consignee, his agent, or his attorney requests such notice in writing before appraisement, setting forth a substantial reason for requesting the notice. The decision of the appraiser, including all determinations entering into the 'same, shall he final and conclusive upon all parties unless a written appeal for a reappraisement is filed with or mailed to the United States Customs Court by the collector within sixty days after the date of the appraiser’s report, or filed by the consignee or his agent with the collector within thirty days after the date of personal delivery, or if mailed the date of mailing of written notice of appraisement to the consignee, his agent, or his attorney. Every such appeal shall be transmitted with the entry and the accompanying papers by the collector to the United States Customs Court.
Appellant emphasizes the words “within thirty days after the date of personal delivery,” while the Government finds support for its position by emphasizing the portion “written notice of appraisement.”
There is no question as to how the officials initially concerned with this transaction 'interpreted the section. Edward C. Snead, who became a customhouse broker after some 32 years of service in various capacities in the Customs Service, including the positions of Assistant Collector of Customs of both Wilmington, N.C. and Charleston, S.C., as well as having been an administrative officer with the Bureau of Customs, filed an affidavit in 'this case and testified as a witness. Mr. Snead after reciting the facts of his conversation with the Assistant Collector of Customs stated that he considered that this conversation *100 amounted to a “personal delivery” of the notice of appraisement referred to in the section of the statute above quoted. He is supported in this position by the personal opinion set forth in a letter from James E. Townsend, the Assistant Collector of Customs, that:
* * * the conversations which, took place between customs personnel and Mr. Snead on or about November 2, 1960, concerning the appraisement of the above mentioned entries did constitute personal delivery of notice of appraisement as contemplated under section 501 of the Tariff Act.'
There is nothing of record on which to challenge the statements of these two men. It seems to me that we should rely upon the understanding of such men as to what transpired and as to what its practical effect was rather than rely upon what is at best a technical construction of the statute, giving it an effect quite different from what those actually in the field apparently understood it to mean. .Where a statute is so vaguely worded that it is subject to such diverse interpretations, it seems to me that we should give great weight to the actual practice which, in this case at least, had placed a particular interpretation upon it; i.e., that the notice of appraisement could be given either personally, as in this case, or it could be given by mailed written notice. Whether or not this is a proper interpretation, the fact is that the events which transpired affirmed all that the importer’s agent had been told; namely, that the written notices of probable unpaid duties or taxes were supported by the appraisement, that the appraisement was made, and that written notices of the appraisement were sent to appellant.
In such a situation it seems to me that we should apply rules of common sense to the entire transaction and treat it as we would treat a similar-transaction between private parties. Otherwise, the net effect of the Government’s position is that it may profit, without accountability in court, by the simple expedient of repudiating the representations made by its own officer acting within the ambit of his official duty. I think an importer should be entitled to rely upon these statements in good faith and in view of the ambiguous wording of the statute should be permitted to take the action which was here taken. To the extent an-appeal might find the appraisement to assess values which are too high, the Government has been unjustly enriched by its change of position. Such conduct would not be sanctioned if it were the act of a private citizen. The fact that it here has the sanction of the Department of Justice does not justify the result reached by the majority.
I would, therefore, find that the notice of appraisement given orally on November 2, 1960 was ratified nunc pro tuno by the appraiser’s report of November 10, 1960 and the written notices mailed to the importer at that time. I give little weight to the Government’s position that appellant could have perfected an appeal after receipt of the *101 written notice. It had taken the appeal in good faith and in reliance upon the oral notice of appraisement which was thus ratified. Why should the importer he required to do again what it already had done in good faith reliance upon the representation of the Assistant Collector of Customs ? I would reverse.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6823429. Public record. Not legal advice.