A protest by an importer, addressed to the collector and signed
by the importer saying
"I do hereby protest against the rate of 50% assessed on
chocolate imported by me, Str. La Bretagne, June 23/91. Import
entry 96,656. -- M.S. No. 52/53, I claiming that the said goods
under existing laws are dutiable at 2 cts. per lb., and the
exaction of a higher rate is unjust and illegal. I pay the duty
demanded to obtain possession of the goods, and claim to have the
amt. unjustly exacted refunded,"
is, in form and substance, a sufficient compliance with the
requirements of section 14 of the Act of June 10, 1890, c. 407, 26
Stat. 131, 137.
A judgment or decree of the Circuit Court of the United States
for the Southern District of New York having been made and entered
on the 4th day of January, 1895, by which it was ordered, adjudged,
and decreed that there was no error in certain proceedings before
the Board of United States General Appraisers, and that their
decision be in all things affirmed, and an appeal having been duly
taken from said judgment or decree to the circuit court of appeals
by the United States, and the cause having come on for argument in
that court, a certain question of law arose concerning which that
court desired the instruction of the Supreme Court of the United
States for its proper decision.
The facts out of which the question arose are as follows:
Certain merchandise, consisting of sweetened chocolate in the
form of small cakes or tablets manufactured from cocoa sweetened
with sugar, known commercially as "sweetened chocolate," was
imported and entered for consumption by the appellee, M. Salambier,
from a foreign country into the port of New York on June 23, 1891,
which merchandise was classified for customs duties at fifty
percent
ad valorem by the collector of the port of New
York under the provisions of paragraph 239 of the Tariff Act of
October 1, 1890, and the duty was liquidated accordingly.
Page 170 U. S. 622
The importer and appellee protested against this exaction, and
duly filed the following protest:
"New York,
July 26, 1891"
"Hon. Joel B. Erhardt,
Collector."
"Sir: I do hereby protest against the rate of 50% assessed on
chocolate imported by me, Str. La Bretagne, June 23/91. Import
entry 96,656. -- M.S. No. 52/53."
"I, claiming that the said goods under existing laws are
dutiable at 2 cts. per lb., and the exaction of a higher rate is
unjust and illegal, I pay the duty demanded to obtain possession of
the goods, and claim to have the amt. unjustly exacted
refunded."
"Very respectfully,"
"M. Salambier"
"J. H. Dumont,
Atty."
The collector of the port of New York thereupon transmitted the
said protest with the invoice and entry to the board of three
general appraisers on duty at the port of New York, and said board,
on December 10, 1892, rendered their decision reversing the
decision of the collector and holding that the said merchandise was
dutiable at two cents per pound, under paragraph 319 of the Tariff
Act of October 1, 1890, and that the importer should not be
deprived of his remedy by reason of having failed to specifically
claim classification of the said imported merchandise as a
manufacture of cocoa under said paragraph 319.
From this decision of the Board of United States General
Appraisers the United States appealed to the Circuit Court of the
United States for the Southern District of New York by petition,
praying for a review of said decision pursuant to section 15 of the
Act of June 10, 1890, claiming in their petition, among other
things, that the said board were in error in failing to hold that
the protest in question was insufficient and invalid inasmuch as it
did not set forth distinctly and specifically the reasons for the
importer's objection to the collector's decision as to the rate and
amount of duties charged upon the merchandise according to the
provisions of law; also
Page 170 U. S. 623
in deciding an issue not raised by the protest or arising in the
case; also in entertaining said protest, and in failing to find the
issue of law with the collector of customs; also in reversing the
decision of the collector aforesaid in the premises.
The said circuit court, upon said petition, ordered the Board of
United States General Appraisers to return to the circuit court the
record and the evidence taken by them, together with a certified
statement of the facts involved in the case and their decision
thereon, pursuant to section 15 of the Act of June 10, 1890, and
the said Board of General Appraisers thereafter made such return in
conformity to the order of the court.
The case thereafter came on to be tried upon the record as above
set forth, and upon the invoice and entry, before Hon. Hoyt H.
Wheeler, District Judge holding the said circuit court. The circuit
court affirmed the decision of the Board of General Appraisers
herein, and judgment was thereupon made and entered as above set
forth, from which judgment the present appeal was taken by the
United States to this Court.
Upon these facts, that court desired instruction upon the
following question of law for the proper decision of said cause,
namely:
"Was the protest hereinabove set forth a good and sufficient
protest under existing law against the decision of the collector in
his assessment of duty upon the appellee's importation of sweetened
chocolate under the Tariff Act of October 1, 1890?"
"And to that end, that court hereby certifies such question to
the Supreme Court of the United States."
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
It was decided by the United States Circuit Court of Appeals for
the Second Circuit in
United States v. Schilling,
Page 170 U. S. 624
53 F. 81, that "sweetened chocolate" was dutiable under
paragraph 319 of the Tariff Act of October 1, 1890 at the rate of
two cents per pound, as "cocoa, prepared or manufactured, not
specially provided for in the act."
From that decision the United States took no appeal. In the
present case, the Board of General Appraisers held that "sweetened
chocolate" was dutiable at the rate of two cents per pound under
said paragraph 319. The United States appealed from the decision of
the Board of Appraisers to the Circuit Court of the United States
for the Southern District of New York, not on the ground that the
merchandise in question was not properly dutiable under paragraph
319 at two cents per pound, but claiming that the protest made by
the importer against the decision of the collector, who had
assessed the sweetened chocolate under paragraph 239 of said act at
fifty percent
ad valorem was not a sufficient protest
under existing law. From the judgment of the circuit court
affirming the decision of the Board of General Appraisers, an
appeal was taken by the United States to the circuit court of
appeals, and that court has certified to us the single question of
the legal sufficiency of the protest, which, omitting unnecessary
words and figures, was as follows:
"I do hereby protest against the rate of 50% assessed on
chocolate imported by me, Str. La Bretagne, June 23, '91. . . . I,
claiming that the said goods under existing laws are dutiable at
two cents per pound, and the exaction of a higher rate is unjust
and illegal, I pay the duty demanded to obtain possession of the
goods, and claim to have the amount unjustly exacted refunded."
By the fourteenth section of an act approved June 10, 1890, 26
Stat. 131, entitled "An act to simplify the laws in relation to the
collection of the revenues," Congress enacted
"that the decision of the collector as to the rate and amount of
duties chargeable upon imported merchandise, including all dutiable
costs and charges, and as to all fees and exactions of whatever
character (except duties on tonnage) shall be final and conclusive
against all persons interested therein unless the owner, importer,
consignee or agent of such merchandise
Page 170 U. S. 625
or the person paying such fees, charges, and exactions, other
than duties, shall, within ten days after, 'but not before,' such
ascertainment and liquidation of duties, as well in cases of
merchandise entered in bond as for consumption, or within ten days
after the payment of such fees, charges and exactions, if
dissatisfied with such decision, give notice in writing to the
collector, setting forth therein distinctly and specifically, and
in respect to each entry or payment, the reasons for his objections
thereto, and if the merchandise is entered for consumption shall
pay the full amount of the duties and charges ascertained to be due
thereon."
The three paragraphs concerned are as follows:
"239. All other confectionery, including chocolate
confectionery, not specially provided for in this act, fifty
percentum
ad valorem."
"318. Chocolate (other than chocolate confectionery and
chocolate commercially known as sweetened chocolate), two cents a
pound."
"319. Cocoa, prepared or manufactured, not specially provided
for in this act, two cents per pound."
26 Stat. 584, 588.
It is not claimed on behalf of the government in the present
case that the protest was not made in writing by a person entitled
to do so, or that it was not made within due time, or that the
requisite payment under protest had not been duly made. In other
words, it is conceded that the importer, within the time prescribed
in the statute, and having paid the full amount of the duties
exacted, gave notice in writing to the collector that he was
dissatisfied with his decision, and gave certain reasons for his
objections thereto.
What is claimed by the government is that the nature of the
importer's objections to the decision of the collector was not set
forth with the distinctness and with the minuteness of
specification required by the statute.
It does not appear that the collector deemed the protest
insufficient in form or unintelligible. Not complaining of any want
of distinctness in the protest, he adhered to his decision as to
the nature of the merchandise and the amount of the duty, and, in
pursuance of the statute, transmitted the protest,
Page 170 U. S. 626
with the invoice and entry, to the Board of General Appraisers.
The board regarded the protest as sufficient in respect to form and
distinctness, reversed the decision of the collector, and held that
the merchandise was dutiable at two cents per pound under paragraph
319 of the tariff act.
As already stated, it is admitted by the government that the
collector was wrong in his classification of the imported article,
and that the duty assessed by the Board of General Appraisers is
the one that should have been exacted from the importer. Still it
is contended that the importer has lost his remedy by reason of
having failed to specifically claim classification of the imported
merchandise as a manufacture of cocoa under said paragraph 319.
Apart from the authorities cited, and which we shall presently
examine, we have no difficulty in agreeing with the Board of
Appraisers and with the circuit court that the protest was, in form
and substance, a reasonable compliance with the law. The object of
the statute in requiring a protest was to distinctly inform the
collector of the position of the importer. In this instance, it was
impossible for the collector to have read the protest without
perceiving that his classification of the merchandise, as dutiable
under paragraph 239 of the tariff act at twenty percent
ad
valorem was objected to, and that the importer claimed that,
under the law, the goods were dutiable at two cents per pound. The
collector could not have been perplexed by the omission to name the
specific paragraph which the importer sought to have applied, for
there were but two paragraphs, besides 239, which dealt with the
subject -- namely paragraphs 318 and 319, and under either or them
the duty was that claimed by the importer, two cents per pound.
The conclusion thus reached is consistent with the authorities
to which our attention has been called in the briefs or the
respective parties:
"We are not disposed to exact any nice precision, nor to apply
any strict rule of construction, upon the notices required under
this statute. It is sufficient if the importer indicates distinctly
and definitely the source of his complaint and his
Page 170 U. S. 627
design to make it the foundation for a claim against the
government."
Greeley's Administrator v.
Burgess, 18 How. 413.
"Persons importing merchandise are required to make their
protests distinct and specific, in order to apprise the collector
of the nature of the objection before it is too late to remove it
or to modify the exaction and that the proper officers of the
treasury may know what they have to meet in case they decide to
exact the duties as intimated notwithstanding the objection and to
expose the United States to the risk of litigation."
Curtis' Administratrix v.
Fiedler, 2 Black 461.
"The object of the requirement is to prevent a party, if he
suffers a mistake or oversight to pass without notice, from taking
advantage of it when it is too late to make the correction, and to
compel him to disclose the grounds of his objection at the time
when he makes his protest. . . . Technical precision is not
required, but the objections must be so distinct and specific as,
when fairly construed, to show that the objection taken at the
trial was at the time in the mind of the importer, and that it was
sufficient to notify the collector of its true nature and
character, to the end that he might ascertain the precise facts and
have an opportunity to correct the mistake and cure the defect if
it was one which could be obviated."
Davies v. Arthur, 96 U. S. 148.
"A protest is not required to be made with technical precision,
but is sufficient if it shows fairly that the objection afterwards
made at the trial was in the mind of the party and was brought to
the knowledge of the collector so as to secure to the government
the practical advantage which the statute was designed to
secure."
Arthur v. Morgan, 112 U. S. 495.
"A protest which indicates to an intelligent man the ground of
the importer's objection to the duties levied upon the articles
should not be discarded because of the brevity with which the
objection is stated."
Schell's Executors v. Fauche, 138 U.
S. 562;
Heinze v. Arthur's Executors,
144 U. S.
29.
In
Herrman v. Robertson, 152 U.
S. 521, a protest was held insufficient in that it
failed to point out or suggest in any way the provision which
actually controlled, and in effect only raised a question which of
two clauses, under one or the
Page 170 U. S. 628
other of which it was assumed that the importation came, should
govern as most applicable.
Under these and other authorities which we have examined, we
conclude that the notice was sufficient, and accordingly answer the
question certified to us by the circuit court of appeals in the
affirmative, and it is so ordered.
