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10 April 2015
Customs recently rejected a door-to-door shipment that was said to contain used pacemakers for repair which had been exported between Argentina and Ireland under a transportation contract by a shipper, Bioimplant SA. Customs believed that the shipper's declaration on the air waybill, which indicated that the pacemakers were used and had a value of $990, was inaccurate. In accordance with Customs Regulation 3236/94 as amended, door-to-door cargo may only be transported to and from Argentina if the shipment is worth up to $1,000 and the carrier is considered the importer and exporter of the shipment for customs purposes.
According to Customs, the pacemakers were new and worth $28,014. Based on this allegation Customs started summary proceedings against the carrier, Federal Express Corp (Fedex), and imposed a fine and a requirement to pay export tax of more than $28,000, rather than the tax which Fedex had paid based on the shipper's declaration of $990, in accordance with Article 954 of the Customs Code. Customs held Fedex responsible under Customs Regulation 3236/94, but the real exporter was Bioimplant.
Fedex was not responsible for the contents of the shipment in accordance with Article 19 of the Montreal Convention 1999 as well as the Constitution, which sets out that private shipments are protected by postal privacy. After Customs had notified Fedex of the start of summary proceedings, Fedex sent a legal letter to Bioimplant to notify it of the customs decision. However, Bioimplant argued that the fine and penalties were imposed on the plaintiff (Fedex) which, to avoid interest and further consequences, had voluntarily paid the amount requested by Customs based on its conditions of contract, which established Fedex's authorisation to clear Customs in the name of the shipper and pay whatever sums were required.
After the parties had provided their evidence, the Civil and Commercial Federal Court II held in favour of the plaintiff and stated that in accordance with the regulations applicable to door-to-door transportation, Fedex had acted in good faith according to its legal obligations and had voluntarily paid the amount of fines and taxes indicated by Customs. Further, the court held that Bioimplant, the real importer, had not used its rights of defence when Fedex notified it of the customs procedure. Consequently, the court decided that the defendant must repay the amounts that Fedex had paid to Customs with interest, as it had received notification of the customs decision from the plaintiff.
The defendant appealed the first-instance decision, but Chamber I of the Federal Civil and Commercial Court of Appeals upheld it based on the fact that the defendant had not used its right of defence when it had been notified by the plaintiff that Customs considered that the pacemakers were new and that the value which the shipper had declared on the air waybill (ie, the value which Fedex had used to pay the export taxes) was inaccurate. The court also noted that the defendant had not proven that the pacemakers were used. As a result, it stated that the customs value of the shipment should be considered the reference point for the payment of export taxes. The Court of Appeals ruled that Bioimplant had to pay Fedex the amounts that the latter had paid to Customs for the shipment along with interest, legal expenses and fees.
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