in the Cuban agreement would either cease to be preferential or be less preferential than the percentage rate of reduction provided for in the first column of schedule II. "It seems to us that the Cuban agreement embodies a practicable plan for exclusive preferential duties on Cuban products, both by naming specific preferential duties and by preferential reduction percentages, and is clearly within the authority conferred upon the President by the Reciprocal Tariff Act. "Although not necessary to our decision herein, we think it proper to make one further observation. Appellant claims a rate of 121⁄2 cents per bushel upon corn imported from Argentina. It is plain that he could not claim the rate proclaimed in the Cuban agreement of a maximum of 10 cents per bushel, for that would be in excess of the 50 per centum reduction of the general tariff rate applicable to corn imported from Argentina. It is also plain that the President has never proclaimed any rate of 122 cents per bushel upon corn imported from any country. "Section 350 (a) "The proclaimed duties * * * 6 shall apply to articles the growth, produce, or manufacture of all foreign countries, whether imported directly, or indirectly.' "Only by a mathematical calculation can the maximum rate of 10 cents per bushel on corn stated in the Cuban agreement be converted into a general tariff rate of 122 cents per bushel. Upon this point we think it not inappropriate to quote from appellant's brief as follows: "Under the general power as contained in Section 350 to negotiate trade agreements, the President is limited in his changes of the rates of duty to 50% of the "existing rate of duty" on an article. It seems obvious to us that "existing rate of duty" can mean only a rate of duty which is set forth in the general tariff published to and affecting all the world. A concession, or reduction, or discount from that general rate only ascertainable by a mathematical calculation and not anywhere published as a definite rate or figure cannot by any process of reasoning or stretching of the meaning of words be considered an "existing rate of duty". "So here, we do not think that it could be held that the President has ever proclaimed a duty of 122 cents per bushel upon corn, and for that reason, in addition to what we have hereinbefore said, appellant would not be entitled to the rate of 122 cents per bushel claimed by him. Omission appears in Treasury Decisions. "We have assumed that the Reciprocal Tariff Act is a valid enactment, and that it authorized the Cuban agreement here involved, as those issued have not been raised by the parties hereto. "For the reasons stated herein, the judgment of the United States Customs Court is affirmed." DECISION OF THE UNITED STATES CUSTOMS COURT, THIRD DIVISION (T. D. 49359) 7 E. & J. Burke, Ltd. v. United States On January 17, 1938, the United States Customs Court, Third Division, rendered a decision in favor of the defendant in the case of E. & J. Burke, Ltd. v. United States. The plaintiff brought suit to recover money alleged to have been illegally collected upon an importation of Jamaica rum imported from Great Britain on December 4, 1934. Under the provisions of paragraph 802 of the Tariff Act of 1930 duty was assessed at $5 per proof gallon. The plaintiff claimed that the importation was properly dutiable at the rate of $2.50 per proof gallon by virtue of section 350 (a) of the Tariff Act of 1930 and the Trade Agreement of August 24, 1934, between the United States and Cuba. The issue presented was whether or not the act of June 12, 1934, entitled "An Act to Amend the Tariff Act of 1930" (48 Stat. 943), by adding thereto section 350, gives the President of the United States authority to make an agreement with Cuba, the terms of which are exclusive to that country, and whether or not the Trade Agreement with Cuba of August 24, 1934, is such an exclusive agreement. This same issue was before the Customs Court and the Court of Customs and Patent Appeals in Von Damm v. United States, 25 C. C. P. A. (Customs), T. D. 49094, in which the Supreme Court of the United States denied a writ of certiorari on October 11, 1937.8 In the instant case decision was suspended pending the ruling by the Court of Customs and Patent Appeals in the Von Damm case. After the ruling was made both parties were permitted, upon request, to file supplemental briefs. The greater part of the plaintiff's brief consisted of copies of the brief filed with the Customs Court by the plaintiff in the Von Damm case, with the proper substitutions of the words for the imported merchandise and the countries of origin. The same attorneys represented the plaintiff in each case. The Customs Court held it to be unnecessary to set forth the statutes and trade agreements and the points argued at length by the 8 7 Treasury Decisions, January 27, 1938, vol. 73, No. 4, p. 17. For brief of F. H. Von Damm v. United States, see ante, p. 147. plaintiff's attorneys, as they were fully considered and answered by it and by the Court of Customs and Patent Appeals in the Von Damm case. The court then quoted the syllabus in the latter case as follows: “2. Section 350 (b)—amendatory act of June 12, 1934. "Section 350 (b) of the Tariff Act of 1930, of June 12, 1934, otherwise known as the "Reciprocal Tariff Act", authorized the making of an exclusive agreement with Cuba modifying the preferential treatment previously existing under the Treaty of Commercial Reciprocity between the United States and Cuba, of December 11, 1902. "3. Power of President to modify existing preferential duties. "No reason is apparent why the President, in making such an agreement with Cuba, could not modify the existing preferential treatment, both by changes in the percentage preferential and by fixing maximum specific duties on products imported from Cuba. "4. Cuban reciprocal agreement. "The reciprocal trade agreement with Cuba of August 24, 1934, embodies a practicable plan for exclusive preferential duties on Cuban products, both by naming specific preferential duties and by preferential reduction percentages, and is clearly within the authority conferred upon the President by the Reciprocal Tariff Act. "5. Section 350-reciprocal trade agreement. "Congress did not intend in the enactment of section 350, Tariff Act of 1930, that any reciprocal agreement should be made with Cuba, the provisions of which should automatically extend to other nondiscriminating countries. "6. Specific rate of duty on corn imported from Cuba under reciprocal agreement exclusive to Cuba. "Held that the specific rate of duty on corn imported from Cuba, 10 cents per bushel, under the reciprocal trade agreement with Cuba of August 24, 1934, is exclusive to Cuba, and not to be generalized, by mathematical computation, to other nondiscriminating countries." Concluding, the court stated: "We find nothing in the arguments presented by counsel in the case at bar to persuade us that the holding of the court above set forth is erroneous. Under authority of the Von Damm case case... we overrule plaintiff's claims. "Judgment will be rendered for the defendant. It is so ordered." RECENT PUBLICATIONS The following publications of direct interest in connection with Treaty Information have recently been released by the Department of State and may be secured from the Superintendent of Documents, Government Printing Office, Washington, D. C.: Commercial Relations: Provisional Commercial Agreement Between the United States of America and Chile.-Effected by exchange of notes signed January 6 and February 1, 1938; effective provisionally Febru ary 1, 1938. Executive Agreement Series, No. 119. Publication 1172. 8 pp. 56. Terminating Certain Provisions of the Reciprocal Trade Agreement of March 11, 1936 (Executive Agreement Series, No. 95): Agreement Between the United States of America and Nicaragua.-Proclamation by the President of the United States February 8, 1938, and exchange of notes, signed February 8, 1938; effective March 10, 1938. Executive Agreement Series, No. 120. Publication 1176. 4 pp. 5¢. Relief From Double Income Tax on the United States of America notes signed March 31, 1938. Publication 1173. 3 pp. 5¢. American Delegations to International Conferences, Congresses, and Exposi tions and American Representation on International Institutions and Commissions, with Relevant Data, Fiscal Year Ended June 30, 1937 (Compiled in the Division of International Conferences). Conference Series 35. Publication 1163. viii, 173 pp. 20¢. Shipping Profits: Arrangement Between and Sweden.-Effected by exchange of Executive Agreement Series, No. 121. The Making of Treaties and International Agreements and the Work of the Treaty Division of the Department of State.-Address by William V. Whittington, Treaty Division, Department of State, Before the Conference of Teachers of International Law, Washington, D. C., April 29, 1938. Publication 1174. 33 pp. 10¢. 156 |