The opinion
DISSENTING OPINION BY
SMITH, JUDGE.
I am sorry that I can not concur in the opinion of my esteemed associate, Judge Bland.
The importations involved in this appeal were shipped from Germany on April 26, 1921, and arrived in Baltimore on May 23, 1921, at which place they were entered for immediate transportation in bond to Cleveland, Ohio. They were entered for consumption on June 1, 1921, at their market value as prescribed by the tariff act of 1913. The goods were appraised at their export value under the provisions of sections 301 and 303 (a) of the emergency tariff act which was passed on May 27, 1921, and went into effect on May 28, 1921. The sections referred to, in so far as pertinent, read as follows:
Sec. 301. That whenever merchandise which is imported into the United States is subject to an ad valorem rate of duty or to a duty based upon or regulated in any manner by the value thereof, duty shall in no case be assessed on .■a value less than the export value of such merchandise.
íjí ifc 5{i * * * *
Sec. 303. (a) That wherever in Title I of this act, or in the tariff act of 1913, ■as amended, or in any law of the United States in existence at the time of the enactment of this act relative to. the appraisement of imported merchandise * * * reference is made to the value of imported merchandise * * * such Teference shall, in respect of all merchandise imported on or after the day this act takes effect, be construed to refer * * * to actual market value as. defined by the law in existence at the time of the enactment of this act, or to export value as defined by section 302 of this act, whichever is higher. [Italics not ■quoted.]
The importer appealed to reappraisement on the ground that the .appraisement should have been made as required by the act of 1913, *272 which was in full force at the time the goods arrived at Baltimore. The single general appraiser sustained the entered value, but on the collector’s appeal from that decision the original appraisement made under the act of May 27, 1921, which became effective on May 28, was held to be valid by the Board of General Appraisers sitting in reappraisement.
The collector thereupon liquidated the entry and assessed the importer with additional duties because he had entered the importation at its market value as prescribed by the tariff act of 1913 instead of its value as prescribed by the act of May 27, 1921, which went into effect five days after the goods arrived at Baltimore.
The decision of Judge Bland bolds without qualification that the phrase “merchandise which has been imported into the United States” covers only such merchandise as has actually entered the commerce of the country by its release from customs custody and that goods are not imported which have been simply carried.across the customs line into the United States with the intention of there un-lading them.
That definition is, as I see it, at odds with well-settled customs law and all of the decided cases as I understand them.
The common ordinary meaning of “import” is to bring merchandise from a foreign country or State into one’s own country or State; introduce from abroad, especially commercially; opposed to export. (See “import” and “export” — Standard Dictionary.)
“An importation into the United States means not merely a bringing of goods within our jurisdictional limits but also a bringing of them into some port, harbor, or haven with an intent to land them there.” —The Mary ( 16 Fed. Cas. 932, 933 ).
“Importation takes place when the vessel arrives at the port of entry intending there to discharge her cargo. Kidd v. Flagler ( 64 Fed. 367, 369 ), citing United States v. Vowell ( 5 Cranch 368 ); Arnold v. United States ( 9 Cranch 104, 108, 109 ). An importation is comflete when goods are brought within the limits of a port of entry with the intention of unloading them there. Kohne v. Insurance Co. ( 1 Wash. C. C. 138 , 165); United States v. Ten Thousand Cigars ( 2 Curt. 436, 437 ).
“ There is no statute of the United States, nor any general principle of law, which requires an entry to he made in order to render the importation complete. The arrival of a.vessel at her port of destination with intent to land her cargo constitutes an importation * * A If an entry be necessary to complete the importation, still when the law permits it to be made it must relate back to the period of the arrival of the vessel at . her port of destination.” —Perots et al. v. United States (19 Fed. Cas. p. 258) (Italics, not quoted.)
*273 Every tariff act wbicb. bas imposed a rate of duty on goods different from that wbicb prevailed at the time they came into the country bas recognized that they were imported when they crossed the customs line with intention to unlade and bas simply provided that if merchandise previously imported was not entered prior to the going into effect of the new act, or if merchandise previously entered without payment of duty and under bond for warehousing, transportation, or any other purpose, for wbicb no permit of delivery to the importer or bis agent was issued, they should be subject to the duties imposed by the new act.
Section 33 of the act of 1897, section 29 of the act of 1909, and paragraph Q of the act of 1913, read as follows:
Act of 1897, section 33. That on and after the day when this act shall go into effect all goods, wares, and merchandise previously imported, for which no entry has been made, and all goods, wares, and merchandise previously entered without payment of duty and under bond for warehousing, transportation, or any other purpose, for which no permit of delivery to the importer or his agent has been issued, shall be subjected to the duties imposed by this act and to no other duty, upon the entry or the withdrawal thereof: Provided, That when duties are based upon the weight of merchandise deposited in any public or private bonded warehouse, said duties shall be levied and collected upon the weight of such merchandise at the time of its entry.
Act of 1909, section 29. That on and after the day when this act shall go into effect all goods, wares, and merchandise previously imported, for which no entry has been made, and all goods, wares, and merchandise previously entered without payment of duty and under bond for warehousing, transportation, or any other purpose, for which no permit of delivery to the importer or his agent has been issued shall be subjected to the duties imposed by this act and to no other duty, upon the entry or the withdrawal thereof: Provided, That when duties are based upon the weight of merchandise deposited in any public or private bonded warehouse, said duties shall be levied and collected upon the weight of such merchandise at the time of its entry.
Act of 1913, paragraph Q. That on and after the day when this act shall go into effect all goods, wares, and merchandise previously imported, for which no entry has been made, and all goods, wares, and merchandise previously entered without payment of duty and under bond for warehousing, transportation, or any other purpose, for which no permit of delivery to the importer or his agent 'has been issued, shall be subjected to the duties imposed by this act and to no other duty, upon the entry or the withdrawal thereof: Provided, That when duties are based upon the weight of merchandise deposited in any public or private bonded warehouse, said duties shall be levied and collected upon the weight of such merchandise at the time of its entry.
The language of all three provisions demonstrates to a conclusion that they were intended to apply to merchandise already imported and completely negatives the idea that merchandise is not imported until released from customs custody.
The goods here involved were carried across the customs line and actually landed at Baltimore not later than May 23, 1921, and *274 unless the long-established definition of “imported” be changed, there is no escaping the conclusion that they were imported into the United States prior to the going into effect of the emergency tariff act. If before that act took effect they were not entered or entered without payment of duty under bond for warehousing, transportation, or for any other purpose they became by virtue of paragraph Q subject to the duties but not to the appraisement provided by the emergency tariff act. Paragraph Q says nothing at all about the appraisement of importations, and without judicial legislation it can not be said that that paragraph or any other provision of law requires their appraisement as prescribed by the emergency tariff act.
Congress took special care to expressly provide in paragraph Q that the weight of the merchandise should be taken as of the date of entry and not having prescribed that the appraisement thereof should be made in accordance with the later legislative dispensation, it does not lie. with the Judicial Department of the Government to add to the law a provision which Congress saw fit to omit. Indeed section 303 of the act of May 27 expressly declares that any reference in the act to the appraisement of merchandise shall be construed to refer to merchandise imported on and after the day the act went into effect.
No importer should be punished for entering his goods at the value prescribed by the law in force at the time of their importation, much less should he be mulcted in additional duties for not entering them at a value first made known to him by a law enacted after their importation and after their entry for warehousing or transportation in bond. Nevertheless, the prevailing opinion, without any express statutory mandate to that effect, firmly establishes a rule under which goods warehoused a year or two years before the emergency tariff act was passed must be assessed with additional duties if entered for warehouse at their market value under the act of 1913, instead of the higher export value prescribed by a subsequent legislative enactment of which the importer could have had no warning whatever at the time he made his entry.
This court only a few months ago emphatically declared that certain provisions of the act of 1922 manifestly designed for the relief of importers were not applicable to goods imported under the act of 1913 inasmuch as statutes must be regarded as prospective not retrospective unless the contrary appears. —Brown & Co. et al. v. United States ( 12 Ct. Cust. Appls. 207 ; T. D. 40026); Scaramelli v. United States ( 12 Ct. Cust. Appls. 134 ; T. D. 40056); Keve & Young v. United States ( 12 Ct. Cust. Appls. 103 ; T. D. 40027).
The rule adopted by those cases is modified by the decision in this case and is made inapplicable to goods in customs custody at the time the act of 1922 became effective. Moreover, if the act of 1922 must be denied a retroactive effect, by what process of reasoning *275 can a retroactive effect be accorded to the emergency act ? The rule established by the majority opinion makes it imperative to appraise, under the act of 1922, goods which may have been imported and entered in bond or for warehouse long before that act was passed. Worse than that, it punishes the importer for doing that which the law in force when he made his entry required him to do and penalizes him for failing to declare a value which for customs purposes did not then exist.
The decisions relied upon by the majority of court were rendered T)y virtue of paragraph Q, and it can not be successfully contended that without that paragraph any duty could have been lawfully assessed on the goods there involved other than that in force on the ( date they were carried across the customs line with intent to unlade. None of the decisions cited is authority for the appraisement of goods at a value other than that prescribed by the law in force when they came into the country.
The judgment of the board should in my opinion be reversed.
Barber, Judge, concurs in this dissent.