Before CLARK, Chief Judge, MOORE, Circuit Judge, and SMITH, District Judge.
This is a suit brought against the United States by Alliance Assurance Company, Ltd., the insurer and subrogee of Carlyle Clothes, Inc., to recover the value of goods, consigned to H. W. Robinson & Co., Inc., customs broker for Carlyle and the importer of record, which, while being inspected for entry into this country, disappeared from the possession of the United States Customs.
Two causes of action were alleged: (1) under the Tucker Act, 28 U.S.C.A. § 1346(a)(2), for breach of an implied contract of bailment; and (2) under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), for the negligent loss of the goods.
In the cargo discharged from the S.S. Queen Mary at Pier 90, North River, New York, N.Y., in late December 1952 was a case of English woolens weighing 309 pounds imported by the H. W. Robinson & Co., Inc., a licensed customs broker for consignment to Carlyle Clothes.The stipulated value of the goods was $2,460.59.The appropriate entry procedure was followed and $708.25 duty was paid. The Invoice Division at the Custom House prepared ten so-called "Elliott Fisher" tickets containing identifying information, five of which were forwarded to the Appraiser at Public Stores and five delivered to the importer. Pursuant to statutory requirements (19 U.S.C.A. § 1499), on January 13, 1953 the goods were removed to Public Stores, 201 Varick Street, New York, N.Y. (the official government warehouse), for inspection by the customs officials to ascertain if the goods were of the value and quantity declared in the invoice.
On that date the goods were taken to the fifth floor of Public Stores, an inspection section, where the case was opened by a verifier and checked by an examiner. The goods passed inspection and presumably were repacked by the verifier and transferred to the "passed pile" of goods on that floor. The examiner then prepared a delivery order, consisting of two of the tickets, a white and a red, which were placed in a post office type box reserved for H. W. Robinson & Co., Inc. on the first floor at Public Stores. An employee of the importer then endorsed the white ticket and turned both tickets over to its trucking company which at 4:19 p.m. on the same day, January 13, 1953, surrendered the red ticket to the customs officials to obtain delivery. Since the delivery platform closed at 4:30 p.m., the customs officials would not deliver the goods that day. The red ticket was sent back up to the fifth floor which under prescribed procedure operated as a notice to send the goods down to the delivery platform. The red ticket should have been filed on the fifth floor thus indicating that the goods had been sent to the first floor platform for delivery to the consignee. On the following day, the customs officials were unable to locate the goods to make delivery. On January 21, 1953, a full week after the disappearance, a search throughout Public Stores failed to uncover the goods. Thereafter the duty paid was refunded.
The trial court had no alternative but to find, and in fact did find, that the goods disappeared from the Public Stores and that "the manner in which they have vanished remains a mystery" (146 F.Supp. 118, 123).
The United States made a motion to dismiss both causes of action for lack of jurisdiction over the subject matter. The trial court granted the motion to dismiss the claim under the Tucker Act, but denied the motion in so far as it sought to dismiss the claim under the Federal Tort Claims Act.
The trial court dismissed the cause of action under the Tucker Act "for lack of jurisdiction because it is not based on an express or implied contract within the meaning of the Act." The court, however, held that the government was subject to suit under the Tort Claims Act and that 28 U.S.C.A. § 2680(c) excepting any claim in respect of "the detention of any goods or merchandise by any officer of customs" from that Act did not bar plaintiff's claim because customs could not detain goods which had disappeared. Judgment was entered for the government, the court concluding that "[Plaintiff] has failed to prove that the customs officials were negligent in the handling of the case of woolen goods, * * *."
The Cause of Action Under the Tucker Act
The Tucker Act provides in relevant part:
"(a) The district courts shall have original jurisdiction, concurrent with the ...