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TENNANT v. DILL

December 16, 1957

C. TENNANT, SONS & CO., OF NEW YORK, Plaintiff,
v.
Robert W. DILL, Collector of Customs, Port of New York, United States Bureau of Customs, Treasury Department, Defendant



The opinion of the court was delivered by: LEVET

The plaintiff, an importer of Paraguayan tung oil, seeks a preliminary injunction restraining and enjoining the defendant from refusing to permit the entry into the United States of certain tung oil owned by plaintiff.

The complaint seeks a declaratory judgment and a mandatory injunction. The plaintiff is a New York corporation; the defendant Dill is the Collector of Customs of the United States Bureau of Customs, Treasury Department, for Customs Collection District No. 10, encompassing the Port of New York.

On September 2, 1957, there was shipped to the plaintiff from Asuncion, Paraguay, approximately 662,540 pounds of tung oil of a market value of approximately $ 150,000. On September 12, 1957, another shipment of tung oil of approximately 485,012 pounds was en route to plaintiff on the 'Dalmacia,' an Argentine vessel.

 On September 9, 1957, pursuant to the provisions of Section 22 of the Agricultural Adjustment Act (Title 7 U.S.C.A. § 624), a Proclamation of the President was signed, (No. 3200, 22 F.R. 7265) U.S.Code Cong. & Adm.News 1957, p. 860 imposing a quota on the importation of Paraguayan tung oil of not more than 96,452 pounds prior to October 1, 1957, and of not more than 131,556 pounds during each of the four months commencing October 1957, and ending January 1958, and in no event in the aggregate of more than 2,964,000 pounds during the period commencing September 9, 1957 and ending October 31, 1958. The Proclamation provides that 'the total quantity of tung oil entered shall not exceed 26,000,000 pounds' for the period commencing September 9, 1957 and ending October 31, 1958. However, no reference is made to tung oil en route to the United States on September 9, 1957.

 On October 7, 1957, the plaintiff attempted to obtain entry of its first shipment of Paraguayan tung oil, but the defendant refused, and still refuses, to permit the entry of all of said tung oil, although permitting the entry of approximately 131,460 pounds of plaintiff's said oil, being the entire quota for the month of October 1957. The balance was refused, except for the purpose of having it consigned to and placed in bond in Bonded Storage Tank No. 16, care of Harbor Tank Storage Co., Guttenberg, New Jersey. The second shipment of approximately 485,012 pounds, having a market value of approximately $ 100,000, arrived on or about October 30, 1957, and received a similar rejection. The plaintiff seeks to secure immediate entry of all of this Paraguayan tung oil.

 On April 9, 1947, an International Trade Agreement between the United States and the Republic of Paraguay became effective (61 Stat., Part 3, p. 2688 et seq.). Article I, subdivision 1, of this Agreement (p. 2689-90) provides:

 'The United States of America and the Republic of Paraguay will grant each other unconditional and unrestricted most-favored-nation treatment in all matters concerning customs duties and subsidiary charges of every kind and in the method of levying such duties and charges, and, further, in all matters concerning the rules, formalities and charges imposed in connection with the clearing of goods through the customs, and with respect to all laws or regulations affecting the sale, taxation, distribution or use of imported goods within the country.'

 Article I, subdivision 2, of this Agreement (p. 2690) provides:

 'Accordingly, articles the growth, produce or manufacture of either country imported into the other shall in no case be subject, in regard to the matters referred to above, to any duties, taxes or charges other or higher, or to any rules or formalities other or more burdensome, than those to which the like articles the growth, produce or manufacture of any third country are or may hereafter be subject.'

 Article III, subdivision 1, of this Agreement (p. 2691) provides:

 'No prohibition or restriction of any kind shall be imposed by the Government of the United States of America or the Government of the Republic of Paraguay on the importation, sale, distribution or use of any article the growth, produce or manufacture of the other country, or on the exportation of any article destined for the territory of the other country, unless the importation, sale, distribution or use of the like article the growth, produce or manufacture of all third countries, or the exportation of the like article to all third countries, respectively, is similarly prohibited or restricted.'

 Article XII of this Agreement (61 Stat., Part 3, p. 2700) provides:

 '1. If, as a result of unforeseen developments and of the concession granted on any article enumerated and described in the Schedules annexed to this Agreement, such article is being imported in such increased quantities and under such conditions as to cause or threaten serious injury to domestic producers of like or similar articles, the Government of either country shall be free to withdraw the concession, in whole or in part, or to modify it to the extent and for such time as may be necessary to prevent such injury. Accordingly, if the President of the United States of America finds as a fact that imports of any article enumerated and described in Schedule II are entering the United States of America under the circumstances specified in the preceding sentence, he shall determine whether the withdrawal, in whole or in part, of the concession with regard to the article, or any modification of the concession, by the imposition of quantitative regulations or otherwise, is necessary to prevent such injury, and he shall, if he finds that the public interest will be served thereby, proclaim such finding and determination, and on and after the effective date specified in such proclamation, and so long as such proclamation remains in effect, imports of the article into the United States of America shall be subject to the customs treatment so determined to be necessary to prevent such injury. Similarly, if the Government of the Republic of Paraguay finds as a fact that any article enumerated and described in Schedule I is being imported into the Republic of Paraguay under the circumstances specified, it may, if it finds that the public interest will be served thereby, withdraw in whole or in part the concession with regard to the article, or modify the concession by the imposition of quantitative regulations or otherwise, to the extent and for such time as may be necessary to prevent such injury.

 '2. Before the Government of either country shall withdraw or modify a concession pursuant to the provisions of paragraph 1 of this Article, it shall give notice in writing to the Government of the other country as far in advance as may be practicable and shall afford such other Government an opportunity to consult with it in respect of the proposed action; and if agreement with respect thereto is not reached the Government which proposes to take such action shall, nevertheless, be free to do so and the other Government shall be free within thirty days after such action is taken to terminate this Agreement in whole or in part on thirty days' written notice.'

 This Agreement was entered into by the President pursuant to authority contained in Title 19 U.S.C.A. § 1351, commonly known as the International Trade Agreement Extension Act.

 On October 30, 1947, a number of nations, including the United States, entered into a General Agreement on Tariffs and Trade, commonly known as GATT (61 Stat., Part 5, pp. A3, A7 et seq.). Article XIII, ...


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