lies in certain cases-where the difference between the duties claimed by the customs and those on the basis of the importer's declaration exceeds a given amount-varying from custom house to custom house, to the board of arbitrators, which "consists of four experts appointed by the inspector of the customs, and they are obliged to serve under penalty of being deprived of all privileges granted by the customs laws. The proceedings are carried on under oath to act impartially, and all decisions must be reached by a majority vote. In case there is a tie vote the customs inspector is required to decide the question. The decisions of the Board of Arbitrators are not regarded as precedents for future action." 1

In Uruguay, Bolivia and Peru also the use of experts forms a part of the procedure in some or all cases, whilst, in Colombia, the Customs Board, to which appeal must be made, has an outside member appointed by the House of Representatives.

For the settlement of valuation disputes the method of expertise certainly seems the most obvious and the "fairest " method. As far as classification is concerned, the case of France shows that even a great commercial country does not find it difficult to make use of the expert arbitrator in this connection, but here, perhaps, an administrative court constantly employed in the determination of the meaning of trade and tariff terms would seem to be better. At any rate, the foregoing analysis will have shown that there is no lack of variety in the institutions dealing with grievances, although, so far as valuation is concerned, one method seems to be predominantly employed.

1 T.S., No. 34, p. 136.

NOTE I. TO CHAPTER IX.

ON SOME EXCEPTIONS TO THE GENERAL RULE.

1. WE have seen in the chapter above that, in a number of cases, the valuation basis is wholesale market value at the time of sale or export, with or without additions. It may, however, not always be possible to discover what the wholesale market value is, and there may be no wholesale market value | at all. In these cases an alternative basis of valuation must be provided for the guidance of the appraiser.

In the United States the following, paragraph L of § III. of the Act of 1913, provides ways of escape :

(a) When market value cannot be ascertained satisfactorily.

"When the actual market value, as defined by law, of any article of imported merchandise, wholly or partly manufactured, and subject to any ad valorem duty, or to a duty based in whole or in part on value,1 can not be ascertained to the satisfaction of the appraising officer, such officer shall use all available means in his power to ascertain the cost of production of such merchandise at the time of exportation to the United States, and at the place of manufacture, such cost of production to include the cost of materials and of fabrication, and all general expenses to be estimated at not less than 10 per centum, covering each and every outlay of whatsoever nature incident to such production, together with the expense of preparing and putting up such merchandise ready for shipment, and an addition of not less than 8 or more than 50 per centum upon the total cost as thus ascertained; and in no case shall such merchandise be appraised upon original appraisal or reappraisement at less than the total cost of production as thus ascertained."

(b) When there is no open market value.

1 I.e., the clause covers, not only ad valorem duties, but compound duties, and classifications based on value, even though the duty be specific.

"The actual market value or wholesale price as defined by law of any imported merchandise which is consigned for sale in the United States, or which is sold for exportation to the United States, and which is not actually sold or freely offered for sale in usual wholesale quantities in the open market of the country of exportation to all purchasers, shall not, in any case, be appraised at less than the wholesale price at which such a similar imported merchandise is actually sold or freely offered for sale in usual wholesale quantities in the United States, due allowance, by deduction, being made for estimated duties thereon, cost of transportation, insurance, and other necessary expenses from the place of shipment to the place of delivery, and a commission not exceeding 6 per centum, if any has been paid or contracted to be paid on consigned goods, or profits not to exceed 8 per centum, and a reasonable allowance for general expenses (not to exceed 8 per centum) on purchased goods."

2. In Australia, by § 160 of the Customs Act, 1901-10. "Whenever it is difficult to determine the value of goods. for duty, either because the goods are not sold for use or consumption in the country of production, or because a lease of the goods or the right of using the same is sold or given but not the right of property therein, or because the goods have a royalty imposed thereon, and the royalty is uncertain, or is not a reliable means of estimating the value of the goods, or because the goods are usually or exclusively sold by or to agents or by subscription, or are sold or imported in or under any other unusual or peculiar manner or conditions (of all which matters the minister shall be judge), the minister may determine the value for duty of the goods."

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NOTE II. TO CHAPTER IX.

ON SOME DEFINITIONS OF CUSTOMS TERMS.

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REFERENCE has already been made in the preceding chapter to the difficulties which may be associated with the definition of such terms as "import" and "export, importer" and exporter," and so on. In this note a few quotations from Tariff Acts and legal decisions are given which may go to show how the matter is dealt with textually and administratively. The following quotation may serve to show how important precision in definition may be. In one of the undervaluation cases in the United States the goods in dispute were in a bonded warehouse :-" The Government tried to seize the goods on the ground of fraud, but the importer resisted the attempt in the courts by holding that goods in bonded warehouse are not actually in the commerce of the country, and that before he presented the formal entry papers at the custom house there was no telling whether or not he would place the correct valuation on the goods." 1 On appeal, the Government won, but the experience led directly to a re-definition of the term "false entry " in the 1913 Act, which now includes a paragraph (§ III., paragraph II) to the effect that "The arrival within the territorial limits of the United States of any merchandise consigned for sale. and the acceptance of a false or fraudulent invoice therefor . . shall be deemed to be an attempt to enter such merchandise, notwithstanding no actual entry has been made or offered."

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I. The words italicised in this quotation bring one directly to attempts to define the act of importation. By the South African Customs Management Act (§ 119) " import," importation," or "importing importing"" shall mean to bring or the bringing of goods into the Union." This attempt to define, by reference to a territorial conception, of course raises the question of

1 U.S. v. 25 packages of Panama hats (231, U.S. 358), quoted by I. Newton Hoffmann, op. cit., p. 864.

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what is meant by a country for customs purposes, and, as the American Island Cases" show, this is by no means always a simple matter.

1

We may now turn to some American definitions of the act of importation. An early American decision lays down that "the arrival of a vessel at her port of destination constitutes an importation." Quite consistent with this is the decision that "any importation is complete when the goods are brought within the limits of a port of entry with the intention of unloading them, and the right of the Government to duties accrues immediately upon importation. It is immaterial that before being unladen from the vessel the merchandise was lost overboard, so that the customs officers could not retain control over it."

2. Importer is defined in the U.K. Customs Consolidation. Act, § 284.2 "Importer' shall mean, include, and apply to any owner or other person for the time being possessed of or beneficially interested in any goods at and from the time of the importation thereof until the same are only delivered out of the charge of the officers of customs," whilst in South Africa

"Importer shall not include a person outside the Union who consigns goods thereto, but shall mean, in relation to goods, the person who actually brings the goods into the Union, or any person in the Union for the time being possessed of or beneficially interested in any goods at and from the time of the importation thereof."

In the United States, 1913 Act, § III., paragraph B, ".

all merchandise shall, for the purpose of this Act be deemed and held to be the property of the person to whom the same is consigned, and the holder of a bill of lading duly endorsed by the consignee therein named, or, if consigned to order, by the consignor, shall be deemed the consignee thereof; and in case of the abandonment of any merchandise to the underwriters the latter may be recognised as the consignee."

1" Compilation of Customs Laws and Decisions Thereunder," 2 vols., 1916. Importation defined, pp. 9, 11, 12, 1599, 1661, 1741. "In the case of the Algoma Central Ry. Co. v. Rex (1903), A.C. 478, it was held by the Privy Council, upon the construction of the Customs Tariff (Canada) Act, 1897, by which a duty is imposed upon foreign-built ships, that a ship was imported into Canada when it entered a Canadian port or harbour. Highmore, “ Customs Laws,” p. 45.

See also definition in the Sale of Food and Drugs Act, 1899, § (1), (2). Highmore, op. cit., p. 344.