A-67199, DECEMBER 14, 1935, 15 COMP. GEN. 512

A-67199: Dec 14, 1935

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PAYMENT IS NOT AUTHORIZED FOR SUCH ITEMS IN CONNECTION WITH MERCHANDISE ALLEGEDLY LOST IN THE CUSTOMS APPRAISER'S STORES. NOR IS THERE PRESENT IN SUCH CASE SUCH ELEMENTS OF LEGAL OR EQUITABLE LIABILITY AS TO WARRANT THE REPORTING OF THE CLAIM TO THE CONGRESS UNDER THE PROVISIONS OF THE ACT OF APRIL 10. 1935: THERE IS FOR CONSIDERATION THE CLAIM OF THE PHOENIX SHIPPING CO. CLAIMED AS THE VALUE OF TWO CASES OF LIQUORS WHICH WERE LOST IN APPRAISER'S STORES AT THE PORT OF NEW YORK. WHEN AN EFFORT WAS MADE TO TAKE DELIVERY AT THE APPRAISER'S STORES. AN INVESTIGATION OF THEIR DISAPPEARANCE WAS MADE BY CUSTOMS OFFICIALS BUT NO TRACE OF THEM WAS DISCOVERED. EXCEPT THAT THE SECRETARY OF THE TREASURY IS AUTHORIZED.

A-67199, DECEMBER 14, 1935, 15 COMP. GEN. 512

CUSTOMS SERVICE - LOSS OF PRIVATELY OWNED MERCHANDISE - GOVERNMENT LIABILITY THE CONGRESS HAVING DEFINED BY THE TARIFF ACT OF JUNE 17, 1930, 46 STAT. 746, THE LIABILITY OF THE UNITED STATES IN CASE OF INJURY, LOSS, ETC., TO PRIVATELY OWNED MERCHANDISE WHILE IN CUSTOMS CUSTODY AND THAT LIABILITY NOT INCLUDING THE VALUE OF MERCHANDISE, SHIPPING EXPENSE, OR ENTRY FEE, PAYMENT IS NOT AUTHORIZED FOR SUCH ITEMS IN CONNECTION WITH MERCHANDISE ALLEGEDLY LOST IN THE CUSTOMS APPRAISER'S STORES, NOR IS THERE PRESENT IN SUCH CASE SUCH ELEMENTS OF LEGAL OR EQUITABLE LIABILITY AS TO WARRANT THE REPORTING OF THE CLAIM TO THE CONGRESS UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928. 45 STAT. 413.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 14, 1935:

THERE IS FOR CONSIDERATION THE CLAIM OF THE PHOENIX SHIPPING CO. FOR $60.53, CLAIMED AS THE VALUE OF TWO CASES OF LIQUORS WHICH WERE LOST IN APPRAISER'S STORES AT THE PORT OF NEW YORK, PLUS EXPENSES OF SHIPPING TO NEW YORK AND THE ENTRY FEE OF $5. THE RECORDS SHOW THAT THE MERCHANDISE IN QUESTION ARRIVED ON THE STEAMSHIP WASHINGTON MARCH 9, 1934, AS PART OF A COMBINED SHIPMENT CONSIGNED TO THE PHOENIX SHIPPING CO., SERIAL ENTRY NO. 17937. WHEN AN EFFORT WAS MADE TO TAKE DELIVERY AT THE APPRAISER'S STORES, THESE TWO CASES COULD NOT BE FOUND. AN INVESTIGATION OF THEIR DISAPPEARANCE WAS MADE BY CUSTOMS OFFICIALS BUT NO TRACE OF THEM WAS DISCOVERED.

SECTION 563 OF THE TARIFF ACT OF 1930, APPROVED JUNE 17, 1930, 46 STAT. 746, PROVIDES:

(A) ALLOWANCE.--- IN NO CASE SHALL THERE BE ANY ABATEMENT OR ALLOWANCE MADE IN THE DUTIES FOR ANY INJURY, DETERIORATION, LOSS, OR DAMAGE SUSTAINED BY ANY MERCHANDISE WHILE REMAINING IN CUSTOMS CUSTODY, EXCEPT THAT THE SECRETARY OF THE TREASURY IS AUTHORIZED, UPON PRODUCTION OF PROOF SATISFACTORY TO HIM OF THE LOSS OR THEFT OF ANY MERCHANDISE WHILE IN THE APPRAISER'S STORES, OR OF THE ACTUAL INJURY OR DESTRUCTION, IN WHOLE OR IN PART, OF ANY MERCHANDISE BY ACCIDENTAL FIRE OR OTHER CASUALTY, WHILE IN BONDED WAREHOUSE, OR IN THE APPRAISER'S STORES, OR WHILE IN TRANSPORTATION UNDER BOND, OR WHILE IN THE CUSTODY OF THE OFFICERS OF THE CUSTOMS, ALTHOUGH NOT IN BOND OR WHILE WITHIN THE LIMITS OF ANY PORT OF ENTRY AND BEFORE HAVING BEEN LANDED UNDER THE SUPERVISION OF THE OFFICERS OF THE CUSTOMS TO ABATE OR REFUND, AS THE CASE MAY BE, THE DUTIES UPON SUCH MERCHANDISE, IN WHOLE OR IN PART, AND TO PAY ANY SUCH REFUND OUT OF ANY MONEYS IN THE TREASURY NOT OTHERWISE APPROPRIATED, AND TO CANCEL ANY WAREHOUSE BOND OR BONDS, OR ENTER SATISFACTION THEREON IN WHOLE OR IN PART, AS THE CASE MAY BE, BUT NO ABATEMENT OR REFUND SHALL BE MADE IN RESPECT OF INJURY OR DESTRUCTION OF ANY MERCHANDISE IN BONDED WAREHOUSE OCCURRING AFTER THE EXPIRATION OF THREE YEARS (OR TEN MONTHS IN THE CASE OF GRAIN) FROM THE DATE OF IMPORTATION. THE DECISION OF THE SECRETARY OF THE TREASURY AS TO THE ABATEMENT OR REFUND OF THE DUTIES ON ANY SUCH MERCHANDISE SHALL BE FINAL AND CONCLUSIVE UPON ALL PERSONS.

THE SECRETARY OF THE TREASURY IS AUTHORIZED TO PRESCRIBE SUCH REGULATIONS AS HE MAY DEEM NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SUBDIVISION, AND HE MAY BY SUCH REGULATIONS LIMIT THE TIME WITHIN WHICH PROOF OF LOSS, THEFT, INJURY, OR DESTRUCTION SHALL BE SUBMITTED, AND MAY PROVIDE FOR THE ABATEMENT OR REFUND OF DUTIES, AS AUTHORIZED HEREIN, BY COLLECTORS OF CUSTOMS IN CASES IN WHICH THE AMOUNT OF THE ABATEMENT OR REFUND CLAIMED IS LESS THAN $25 AND IN WHICH THE IMPORTER HAS AGREED TO ABIDE BY THE DECISION OF THE COLLECTOR. THE DECISION OF THE COLLECTOR IN ANY SUCH CASE SHALL BE FINAL AND CONCLUSIVE UPON ALL PERSONS.

THE PERMANENT INDEFINITE APPROPRIATION FOR "REFUND OF EXCESSIVE DUTIES (CUSTOMS) 2 TIMES 324" WAS REPEALED AS OF JUNE 30, 1935, BY THE PERMANENT APPROPRIATION REPEAL ACT OF JUNE 26, 1934 (48 STAT. 1225), AND THERE IS PROVIDED IN THE APPROPRIATION FOR THE BUREAU OF CUSTOMS FOR 1936 A SPECIFIC APPROPRIATION FOR REFUNDS AND DRAWBACKS AS AUTHORIZED BY LAW. SEE ACT OF MAY 14, 1935 (49 STAT. 222). NO PROVISION OR APPROPRIATION IS MADE FOR REIMBURSEMENT OF CONSIGNEES OR OWNERS OF PROPERTY LOST WHILE IN THE CUSTODY OF THE CUSTOMS SERVICE, THE CONGRESS HAVING LIMITED THE LIABILITY OF THE UNITED STATES FOR SUCH LOSSES TO REFUND OR ABATEMENT OF DUTIES. THE CLAIM IS ACCORDINGLY FOR DISALLOWANCE WITHOUT PREJUDICE TO THE PRESENTATION OF A CLAIM TO THE SECRETARY OF THE TREASURY THROUGH THE COLLECTOR OF CUSTOMS FOR REFUND OF ANY DUTIES PAID OR ASSESSED UPON THIS SHIPMENT.

UNDER THE CIRCUMSTANCES, THE CONGRESS HAVING DEFINED BY STATUTE THE LIABILITY OF THE UNITED STATES IN SUCH CASES, THE CLAIM DOES NOT PRESENT SUCH ELEMENTS OF LEGAL OR EQUITABLE LIABILITY AS TO WARRANT ITS BEING REPORTED TO THE CONGRESS UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928 (45 STAT. 413).