MARKEY, Chief Judge.
This appeal is the first to be heard, and this opinion the first to be published, by the United States Court of Appeals for the Federal Circuit, established October 1, 1982 by the Federal Courts Improvement Act of 1982, Pub.L.No.97-164, 96 Stat. 25.
The court sits in banc to consider what case law, if any, may appropriately serve as established precedent. We hold that the holdings of our predecessor courts, the United States Court of Claims and the United States Court of Customs and Patent Appeals, announced by those courts before the close of business September 30, 1982, shall be binding as precedent in this court.
Respecting the merits, South Corporation (South) and Seal Fleet, Inc. (Seal) appeal from a judgment of the United States Court of International Trade (Edward D. Re, Chief Judge), upholding the imposition of foreign repair duties under 19 U.S.C. § 1466(a).
The parties stipulated that the involved vessels were at all material times: (a) engaged exclusively in oceanographic research and intended solely for that purpose; and
South's vessel M/V NORTH SEAL departed the United States on July 18, 1972 and was on a foreign voyage until its return to the United States on December 23, 1972. Repairs costing $98.40 were made on December 2, 1972 at Montego Bay, Jamaica. Duty of $49.20 was assessed and paid under § 1466(a).
Seal's vessel M/V ATLANTIC SEAL departed the United States in December 1970. Repairs were made on December 29, 1970 and on January 2, January 22, and February 9, 1971, all at Ancona, Italy, at a total cost of $3,274.10. Duty totalling $1,637.05 was assessed and paid under § 1466(a).
South and Seal timely protested the duties. When Customs overruled the protests, South and Seal each filed an action for refund in the United States Court of International Trade. The court consolidated the causes and, holding that the repair duties were properly assessed and imposed, dismissed the consolidated action.
The sole issue on the merits is whether error occurred in upholding imposition of repair duties under 19 U.S.C. § 1466(a).
I. Choice of Governing Law.
As a foundation for decision in this and subsequent cases in this court, we deem it fitting, necessary, and proper to adopt an established body of law as precedent. That body of law represented by the holdings of the Court of Claims and the Court of Customs and Patent Appeals announced before the close of business on September 30, 1982 is most applicable to the areas of law within the substantive jurisdiction of this new court. It is also most familiar to members of the bar. Accordingly, that body of law is herewith adopted by this court sitting in banc.
To proceed without precedent, deciding each legal principle anew, would for too long deprive the bar and the public of the stability and predictability essential to the effort of a free society to live under a rule of law. As the Supreme Court said in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970):
Id. at 403, 90 S.Ct. at 1789.
The considerations listed by the Court as underlying restraint upon the power to overrule are applicable equally to the power to start afresh. An orderly administration of justice would not be aided by the latter course. For every panel of judges of this court to examine anew every issue presented would be a practice devoid of counterbalancing advantage. Such an alternative, "start from scratch" approach would entail years of delay in constructing a body of law worthy of description as the law of the circuit. We choose therefore to begin on a readily available and clearly identifiable base, maintaining at the same time a controlled
The adoption of precedents here announced continues the stability in those areas of the law previously within the jurisdiction of our predecessor courts. That jurisprudence was established in great part by judges now members of this court. The public and the bar have presumably structured their legal affairs in accordance with that jurisprudence. To abandon it at this stage would be to cast the court, the public, and the bar adrift on a sea of uncertainty.
Other than that created by our predecessor courts, no body of law established by any other court or set of courts would appear a suitable candidate for adoption. No other such body would include all or as many of the areas of law with which this court will be dealing. In those areas new to this court, selection of one from many available bodies of law would require an immediate rush to resolution of numerous conflicts existing among them; yet resolution of conflict, a major element in this court's mission, requires not a one-shot selection but a careful, considered, cautious, and contemplative approach.
As a court of nationwide geographic jurisdiction, created and chartered with the hope and intent that stability and uniformity would be achieved in all fields of law within its substantive jurisdiction, we begin by adopting as a basic foundation the jurisprudence of the two national courts which served not only as our predecessors, but as outstanding contributors to the administration of justice for a combined total of 199 years, the Court of Claims and the Court of Customs and Patent Appeals.
II. Imposition of Repair Duties under 19 U.S.C. § 1466(a).
19 U.S.C. § 1466(a) imposes a duty on repairs performed in a foreign country upon vessels documented under our laws "to engage in the foreign ... trade" or "intended to be employed in such trade." South and Seal concede that the present vessels are documented and are entitled to engage in trade, but contend that repairs to them are outside the scope of § 1466(a) because the phrase "to engage" means "for the purpose of engaging" and the vessels are not documented for that purpose.
The argument rests on a misconstruction of the dichotomy in the statute. It is, moreover, in conflict with the statute's legislative history.
Section 1466(a) plainly and unambiguously applies to repair of a vessel which is either documented to engage in trade or is intended to be employed in trade. South and Seal cite nothing in the legislative history that would indicate a congressional intent that "documented to engage" should be read as "documented for the purpose of engaging", if the latter phrase has a meaning different from that appearing in the statute.
Moreover, an argument based on an effort to rewrite the statutory phrase "to engage" as "for the purpose of engaging" involves a disregard of the term "or" and the phrase "intended to be employed in such trade" in the statute. The particular purpose or intent of the vessel owner is not a part of the present documentation. That the owner of a vessel documented to engage in trade may elect not to so employ that vessel, or may never have intended so to employ it, is simply irrelevant. Intent appears in the statute only in relation to non-documented vessels. The statutory provision is not concerned with vessels that are neither documented nor intended to engage in trade. Thus application of the concept of intended use to repairs on vessels documented to engage in trade and to repairs on vessels not documented to engage in trade
Thus, once it is established that a vessel is documented only to engage in trade, inquiry into whether that vessel is also actually engaged in trade, or is also intended to be employed or engaged in trade, or into the vessel owner's purpose, is unnecessary and irrelevant. Though courts may disregard a term's literal meaning where it is evident that a special or limited meaning is necessary to effectuate the legislative intent, Malat v. Riddell, 383 U.S. 569, 571, 86 S.Ct. 1030, 1032, 16 L.Ed.2d 102 (1966), there is no such or similar basis here for requiring a disregard of the disjunctive meaning of the statutory term "or" and the clear division it makes in the statute between a category of vessels documented to engage in trade and a category of vessels not documented but intended to be employed in trade, or for requiring an application of the concept of intent or purpose to both the former and the latter categories.
Construing the similar phrasing of Section 22(b)
Thus this case, turning as it does on an issue of statutory construction, is controlled by the interpretative approach of Best Foods, an earlier holding within the body of precedents adopted today. Though the court here sits in banc, and is thus positioned to overrule that holding, it perceives no reason so to do in this case.
Beyond the plain meaning of the statutory phrase "documented to engage in the foreign ... trade", its legislative history makes clear the intent of Congress. In enacting § 1466(a) Congress sought to protect and encourage American ship repair facilities.
The registration, i.e., documentation, of a vessel is not compulsory. Properly documented American vessels are accorded benefits not otherwise available, 46 U.S.C. § 221,
South and Seal rely on Corpus Company v. United States, 350 F.Supp. 1397 (1972), appeal dismissed, 60 CCPA 185 (1973), wherein the Customs Court (now the Court of International Trade), in applying § 1466 to documented oceanographic research vessels, said:
350 F.Supp. at 1402.
Corpus Company does not, of course, constitute precedent in this court. Whatever may have been the merits of the decision there rendered, the court in that case was construing § 1466 as it existed before the addition thereto of subsection (e) in January 1971.
Moreover, enactment of § 1466(e) in 1971 manifested Congress' understanding that repairs to oceanographic vessels were subject to duty under § 1466(a). S.Rep.No.91-1474, 91st Cong., 2d Sess. (1970), reprinted in U.S.Code Cong. & Ad.News 5910, 5911, outlining the purposes of subsection (e), expressly included oceanographic vessels within the class of special service vessels intended to be exempt from repair duties if the length of absence from the United States and elapsed time before repair criteria of § 1466(e) are satisfied:
South and Seal argue that Congress' understanding was based on mistake, and that the foregoing Senate Committee report merely reflects Congress' adoption of a mistaken representation of the Treasury Department that oceanographic vessels were at that time subject to and required
The argument is not sound. It is true that at the time subsection (e) was under consideration, § 1466(a) had been construed by trial courts
As above indicated, correction of legislative mistakes, if mistake there be, is under our Constitution a matter left not to judicial but to legislative discretion, particularly where, as here, application of the statute as written does no violence to its clear legislative purpose. As the Court of International Trade recognized in Elizabeth River, supra, and in the present case, the amendment of the statute, giving a limited exemption to certain vessels, clearly demonstrated that Congress' purpose was to continue the dutiability of repairs to those vessels when the exemption criteria are not met.
Moreover, adoption of South's and Seal's construction of § 1466(a), under which repairs to their vessels could not under any circumstances have been dutiable in 1971, would impermissibly impute a useless act to Congress. That construction must therefore be viewed as unsound and rejected. See John B. Hewett Co. v. United States, 48 CCPA 24 (1960). If § 1466(a) would not have imposed duties at any time for repairs to any non-trading vessel, there would have been no need in 1971 for exemption and Congress' enactment of subsection (e) with its specific criteria must accordingly have been an unnecessary and thus a useless act. Hence adoption of that construction would require a total disregard of the court's function as described in Beaver Products Co. v. United States, 17 CCPA 434 (1930), accord, United States v. Corning Glass Works, 586 F.2d 822 (Cust. & Pat. App.1978), i.e., to harmonize statutory tariff provisions in such manner as to preserve each provision and to achieve the legislature's purpose.
South and Seal seek to extend the holdings in United States v. Western Operating Corp., 35 CCPA 71 (1947), and United States v. American Whaling Co., 38 CCPA 164 (1951), in which recognition was given to the special statutory treatment of whaling vessels under R.S. § 4339 (46 U.S.C. 280). It was held that by virtue of that provision, whaling vessels were exempted from § 1466(a) regardless of documentation. Those decisions did no more than give effect to the express intent of Congress and cannot be read as precedent endorsing a general exemption for all non-trading vessels which hold documents entitling them to engage in foreign trade.
Finally, South and Seal say the Oceanographic Research Vessels Act (ORVA), 46 U.S.C. §§ 441-445, specifically § 443
We disagree. Enacted to exempt research vessels from strict inspection and personnel protection laws mandated for commercial crews, ORVA relates to safety
Because: (a) the statute provides for imposition of duties on repair of vessels documented to engage in foreign trade; (b) the vessels of South and Seal are so documented; (c) engagement or intended employment as non-trading vessels are considerations inapplicable to vessels so documented; (d) the vessels here involved do not meet the exemption criteria of § 1466(e); and (e) imposition of the present repair duties is consistent with the plain meaning of the statute and with its legislative history and purpose, the judgment appealed from must be and is affirmed.
The present adoption does not affect the power of this court, sitting in banc, to overrule an earlier holding with appropriate explication of the factors compelling removal of that holding as precedent. If conflict appears among precedents, in any field of law, it may be resolved by the court in banc in an appropriate case.