Customs Law

When I can, I ride my bike to work. It is a long ride but certainly not an epic endeavor. It is 20 miles door to door each way and takes me about an hour and 20 minutes. Lately, I am happy to say, I am seeing more and more bike commuters. Usually, I check out the bikes, particularly those that pass me. I am generally fine when I am passed by a Lightspeed or Kestrel road bike. Less so, when I am passed by a 20 year old three-speed Raleigh or Huffy with a milk crate on the rear rack. But, I admit, I am routinely passed by both groups of riders plus recumbents and legions of Treks and Giants. Lately, however, I am busy looking at how commuters carry their stuff. I have a Topeak quick release road bike seat post rack and small bag with mini panniers . That bag is perfect for carrying a change of clothes--assuming I leave pants and shoes in the office. It also lets me carry a bunch of gear including tools, a tube, and a CO2 inflater. What I can't carry is work. More specifically, I ca...

The War of 1812 is not well understood in the U.S. Most people have a general notion that the war involved the burning of the White House and Dolley Madison saving the art prior to dropping the letter e and starting her snack food empire . Also, most Americans seem to wrongly believe we won the war. Call it a draw. Also, there was pretty fierce fighting between the U.S. and Canadian forces loyal to the Crown. Now that the saw dust may be settling in the softwood lumber war, it seems a new front in U.S.-Canadian trade friction may be developing. Apparently some in Congress think the common practice of refunding indirect taxes when goods (or services) are exported discriminates against U.S. sellers and service providers. Congressman Pascell (D-NJ) recently introduced HR 2600 which, if passed, would apply a tax on goods from “any country” that imposes an indirect tax and grants rebates of the tax on export. Although many countries do this, it appears to apply to Canada's Goods ...

Here is something I have not done for a while: a post on case law. It’s not that I don’t read the cases. It’s just that on the customs side, they haven’t really inspired much comment. But, here are a few tidbits. In Agfa Corp. v. United States (Slip Op. 07-80) , the question was whether the tariff definition of “photographic plate” trumped the understanding of that term by essentially everyone in the world. Think fast—picture a photographic plate in your head. If you are older than the digital age and have even a passing knowledge of photography, you conjured up an image of exactly what Agfa claims is a photographic plate. Everyone knows a photographic plate is a transparent piece of rigid material (usually glass) coated with a light-sensitive material. I’m not sure, but I think this is the same technology Matthew Brady used to take pictures during the Civil War . Agfa imported photomechanical (or “photolithography”) printing plates of aluminum and a photosensitive polymer or e...

I am often asked whether I have time to go sightseeing while on business trips. I wish. More often than not, it goes like this: in, hotel, meeting, out. Today, I was not so lucky. I needed to go to Washington for a meeting tomorrow morning. My 4:00 PM flight was delays for want of a flight attendant. That delay meant we got off the ground at about 4:45, which would have been fine had a line of thunderstorms not been headed for DC. We circled over Pennsylvania until we were low on fuel, at which point we landed in Harrisburg. No, there was no time for sightseeing there. I'm not sure what sites there are to see, but we were not allowed off the plane. Forty-five minutes and one tank of gas later, we were off to DC. Rather than a 7:00 PM arrival, I got to the hotel at 10:30. I'm now at the Helix, a fairly swanky spot that stops serving food at 10:00. After a long interrogation of the front desk, I determined that my best option for food was to order a pizza. Starving, I...

If I were going in for brain surgery, I know exactly what standard of care I would want the doctor to apply: No mistakes, none. Lawyers call that strict liability. The trouble is, that is not the legal standard. The doctor only has to apply the same level of care as would a reasonable surgeon in similar circumstances. That means there might be mistakes made. But, as long as the doctor provided reasonable medical care, the mistake does not amount to negligence. I may be left unable to tie my shoes, but my doctor is not negligent. In the Customs context, things would seem to be a bit different. Importers have the legal obligation to exercise reasonable care. That means the importer is the surgeon. The patient is Customs & Border Protection. The trouble for importers is that CBP also has an important role is determining what constitutes reasonable care. It's like the patient telling the doctor what constitutes negligence. I'm thinking about this because Customs recently pub...