1. Where merchandise receives damages during a voyage, proof to
ascertain the damage must be lodged at the custom house of the port
where the goods are landed within ten days after the landing.
2. The damages must be ascertained before the goods are
entered.
Shelton & Co. -- the plaintiffs in error, who were also the
plaintiffs below -- imported a quantity of molasses from the island
of Cuba into the port of Boston. At the time of the
Page 72 U. S. 114
exportation from Cuba, it was sound and sweet. Upon reaching
Boston it was soured, having become so during the voyage. There was
a material difference between the value of sweet and sour molasses
both at the port of exportation and the port of importation --
sweet molasses being of the greater value. The molasses in question
was entered at the full value of sweet molasses. The
plaintiffs demanded to have the damage appraised and allowed in the
computation of duties. The defendant caused the damaged to be
appraised, but afterwards (under instructions from the Secretary of
the Treasury) refused to allow them, and duties were exacted by the
defendant,
and paid by the plaintiffs, under protest, upon the
full value of the molasses.
It was agreed that if the court should be of opinion that damage
by souring during the voyage of importation was a damage on the
voyage within the meaning of the provision of the fifty-second
section of the Act of March 2, 1799, judgment was to be entered for
the plaintiffs -- otherwise for the defendant.
Upon this agreement, the court below gave judgment for the
defendant, and this writ of error was prosecuted to reverse it.
The fifty-second section of the Act of March 2, 1799,
above-mentioned, enacts:
"That all goods, wares, and merchandise of which entry shall
have been made incomplete, or
which shall have received damage
during the voyage, to be ascertained by the proper officers of
the port or district in which the said goods &c., shall arrive,
shall be conveyed to some warehouse or storehouse to be designated
by the collector, in the parcels or packages containing the same,
there to remain at the expense and risk of the owner or consignee,
under the care of some proper officer, until the particulars, cost,
or value, as the case may require, shall have been ascertained,
provided that no allowance for the damage on any goods,
wares, and merchandise that have been entered, and on which the
duties have been paid or secured to be paid and for which a permit
has been granted to the owner or consignee thereof, shall be made
unless proof to ascertain such damage
Page 72 U. S. 115
shall be lodged in the custom house &c.,
within ten days
after the landing of such merchandise. [
Footnote 1]"
As having a certain bearing on the subject, reference may be
made also to the twenty-first section of an Act of March 1, 1823,
as follows: [
Footnote 2]
"That
before any goods, wares, or merchandise which may
be taken from any wreck shall be admitted to an entry,
the same
shall be appraised in the manner prescribed in the sixteenth
section of this act,
and the same proceedings shall be ordered
and executed in all cases where a reduction of duties shall be
claimed on account of damage which any goods, wares, or merchandise
shall have sustained in the course of the voyage, and in all
cases where the owner, importer, consignee, or agent shall be
dissatisfied with such appraisement, he shall be entitled to the
privileges provided in the eighteenth section of this act."
The manner of appraisement referred to as provided in the
sixteenth section and the privileges provided in the eighteenth
section were not material to the issue in this case.
Page 72 U. S. 116
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The question presented for our determination in this case
Page 72 U. S. 117
is a purely statutory one, and it must be decided by the light
of the laws of Congress, which relate to the subject.
The 52d section of the Act of March 2, 1799, declares that goods
of which an incomplete entry has been made or which shall have
received damage during the voyage, to be ascertained by the proper
officers, shall be conveyed in the parcels or packages containing
them to some warehouse to be designated by the collector, and that
they shall remain there at the expense of the owner or consignee,
under the care of some proper officer, "until the particulars,
cost, or value, as the case may be, shall be ascertained." The
proceedings touching the appraisement in case of damage during the
voyage are particularly prescribed. The proper deduction is also
provided for, whether the goods are chargeable with a duty
ad
valorem or a specific duty. The section concludes with a
proviso that no allowance shall be made for the damage on any goods
and merchandise which have been entered, and on which the duties
have been paid or secured to be paid and for which a permit has
been granted, unless the proof to ascertain the damage shall be
lodged in the custom house within ten days after the merchandise
was landed.
The Act of the 3d of March, 1823, provides that before goods
taken from a wreck shall be entered, they shall be appraised in the
manner prescribed by the 16th section of the act, and that the same
proceedings shall be had in all cases where a reduction of duties
is claimed on account of the damage which any goods may have
sustained in the course of a voyage.
It provides further that in all cases when the owner or
consignee is dissatisfied with the appraisement, he may avail
himself of the privileges given by the 18th section of the act.
It is not necessary to advert to the 16th and 18th sections more
particularly. They embrace details in nowise material to the
question under consideration. Insofar as they are inconsistent with
the mode of ascertaining the damage to the goods prescribed by the
act of 1799, the former act
Page 72 U. S. 118
must yield to the latter, and it is to that extent repealed. But
this in no wise affects the limitation of the time, fixed by the
act of 1799, within which the proof of the damage must be lodged in
the custom house.
The plaintiffs were clearly not entitled to recover, because it
did not appear that this requirement of that act had been complied
with. It was neither agreed nor made to appear
aliunde
that any proof was filed within the ten days.
There is another objection, which is equally conclusive. The
statute of 1823 requires the damage to be ascertained before the
goods are entered at the custom house. This order of proceeding was
attempted to be invested by the plaintiffs. They entered the
molasses regularly at the invoice price, and then insisted upon an
appraisement of the damage, and a corresponding reduction of the
duties, and the latter being refused, paid the full amount under
protest. The protest was unavailing. The claim for an appraisement
and for the consequent reduction of the duties came too late. The
door to relief was then closed, and no power but the legislature
could reopen it. The right was one which the importers might assert
or waive at their option. The entry of the goods was such a waiver,
and it was final. There was no power in the executive department of
the government competent to restore it. We place our decision upon
two grounds:
One that the requisite proof was not lodged in the custom house
within the time prescribed by the act of 1799.
The other that the molasses was completely entered before the
proceedings authorized by the act of 1823 were demanded and
taken.
The judgment below is
Affirmed.
[
Footnote 1]
1 Stat. at Large pp. 665, 666.
[
Footnote 2]
Ib., 736.
