The opinion of the court was delivered by: SMITH
Henry Robinson Company, Inc., a corporation of the State of New York, hereinafter identified as the Petitioner, purchased from one Seymour Vosko, of the Dominion of Canada, a quantity of 'coke tin plate wasters,' described as 'waste,' as distinguished from 'scrap.' The purchase order was filled by the St. Lawrence Manufacturing Co., Inc., of the Dominion of Canada, hereinafter identified as the 'Shipper.' The Shipper filed with the Export Permit Branch of the Department of Trade and Commerce of the Dominion of Canada, an application for a permit to export the said commodity.
The application was false in the following respects: First, the name and address of the consignee was therein stated as 'Henri Robinson, Rome, Italy,' when in truth and in fact the name and address of the consignee was Henry Robinson Co., Inc., New York, New York; and second, the ultimate destination was therein stated as 'Italy,' when in truth and in fact the ultimate destination was Yugoslavia. An export permit issued on the application. It is reasonable to infer that the false application was wilfully made by the Shipper with intent to evade the laws of the Dominion of Canada.
The commodity was shipped in bond to the Petitioner, 62 William Street, New York. The shipment entered the United States at Rouses Point, New York, where F. W. Myers & Co., Inc., acting on behalf of the Canadian National Railway, filed with the United States Customs Service 'Transportation Entry and Manifest of Goods Subject to Customs Inspection and Permit,' Entry No. A733 and Entry No. A831. These manifests were likewise false in that the final foreign destination was therein stated as 'Italy.'
The Petitioner was advised of the arrival of the commodity at New York, New York, and thereafter Brauner & Co., upon the instructions of the Petitioner, executed and filed two 'Shippers' Export Declarations for In-Transit Goods,' 14699 and 14700, in each of which the name and address of the ultimate consignee were truthfully stated as follows: Tehnopromet, Belgrade, Yugoslavia.
The Petitioner attempted to export the commodity under the general license, 'GIT,' established by Section 372.9(a) of the rules and regulations of the Office of International Trade, which authorized, 'subject to other provisions' therein contained, 'the exportation from the United States of shipments of commodities Moving in Transit Through the United States for which no formal or informal consumption entry has been made by the United States Customhouse, which originate in and are destined to any foreign country.'
Pursuant to the provisions of Section 401 of Title 22, U.S.C., 22 U.S.C.A. § 401, quoted in the annexed appendix, the shipment was seized, and thereafter, pursuant to the provisions of Section 402 of the said Title, 22 U.S.C.A. § 402, application was made to this court for a warrant of detention. The warrant of detention issued and the present proceeding followed.
The matter is before the court at this time on a petition for restoration filed pursuant to the provisions of Section 403 of Title 22 U.S.C., 22 U.S.C.A. § 403. This petition is resisted on the ground that the commodity is subject to seizure and forfeiture under the express provisions of Section 401 of the said title, 22 U.S.C.A. § 401.
It is the contention of the Government that the attempted exportation of the commodity was in violation of the rules and regulations promulgated by the Office of the International Trade, and particularly Section 371.2(b)(3)(i), Page 4099 of the Federal Register of July 17, 1948. This contention seems to rest entirely on the argument that the 'Transportation Entry and Manifest of Goods Subject to Customs Inspection and Permit,' hereinabove referred to, was an 'export control document' within the meaning of Section 371.1(o). We cannot agree with either the contention or the argument advanced in support of it.
Section 371.2(b), supra, reads as follows:
'(3) Without limitation of the foregoing or of any other provisions of the law or Parts 370 to 399, inclusive, of this chapter, no such person shall:
(i) Falsely state the country of ultimate destination intended, or divert commodities in violation of the terms, provisions and conditions of any export control document to any country other than that of the destination named ...