Slip Op. 03 - 11



## UNITED STATES COURT OF INTERNATIONAL TRADE

__________________________________________ : PRINCESS CRUISES, I

NC., : : Plaintiff, : : v. : Before: MUS GRAVE, JUDGE : THE UNI TED STATE S, : Consol. Court No. 94-06-00352 : (98-03-00463) Defend ant. : __________________________________________: [As instructed by the Court in Princess Cruises, Inc. v. United States , 26 CIT __, __, 217 F. Supp. 2d 1361, 1369 (2002), the parties submitted a Joint Status Report on November 12, 2002, stipulating the amount

of the refund Plaintiff was entitled to receive pursuant to the Court’s Aug ust 29, 2002, Opinion. Defend

ant subse quently

moved to withdraw from the stipulation after discovering that the stipulation allegedly

overstated Plaintiff’s recovery by $73,501.00. Plaintiff opposed Defe ndant’s motion on the ground that Defendant alleg edly conce ded in an earlier brief that Plaintiff was entitled to recover this amount. Held: Defendant’s motion to withdraw is granted and amount of the refund Princess is entitled to under subpart (a) of the stipulation is reduce d from $38 9,595.00 t o $316,094.00 plus interest accruing from June 17, 1994.] Decided: January 28, 2003 Gibson, Dunn & Crutcher LLP ( Judith A. Lee and Brian J. Rohal ) for Plaintiff. Robert D. McCall

um, Jr. , Assistant Attorney Gene ral, Davi d M. Co hen , Director, Commercial Litig ation Br anch, Civil Division, U.S. Depa rtm ent of Justice ( Todd Hughes ), and Richard McManus , Office of Chief Counsel, United States Customs Service, of counsel , fo r Defend ant.
OPINION
Inthe Court’s August 29, 2002, Opinion the parties were instructe d to confe r and att empt to reach a stipulat ion on th e amount of a f

inal judgment in this action. See Princess Cruises, Inc. v.Consol. Court No. 94-06-00352 Page 2

1 Customs would now s tipulate that Princess is entitled to receive “the total of (a) $316,094.00 plus interest accruing from June 17, 1994; and (b) $356,375.00 plus interest accruing from February

26, 1998.” Defendant’s Motion to Withdraw Stipulation at 5.
2 The Court

notes th e discrepancy

between the reference

on the Refund Chart to a “Letter and Payment of 3/4/94” and the “ 8 March, 1994” date on the actual letter and assumes that reference on the Refund Chart is inaccurate. United States , 26 CIT __, __, 217 F. Supp. 2d 1361, 1369 (2002). On November 12, 2 002, the parties submitted a Joint Status Report stipulating that Plaintiff Princess Crui se Li nes, Inc. (“Princess”) was entitled

to “the total of (a) $389,595.00 plus interest accruing from June 17, 1994; and(b) $ 356,375.00 plus interest accruing from Februa ry 26, 1998.” On Nove

mber 21, 200 2 , Defendant

the United States Customs Service (“Customs”) filed a motion to withdraw its stipulation to the amount contained in subpart (a), i.e. $389,595.00 plus interest accruing from June 17, 1994,
on the gro und that it “ fails to reflect certain reductions . . . alrea dy taken by

Princess and is, therefore, overstated by $73,501.00.” 1 Defendant’s Motion to Withdraw Stipulation at 2.

Discussion Customs allege s that this e rror re sulted fr

om a chart that Princess presented to Customs along with its proposed stipulation. The chart indicates that in March 1994 Princess paid HMT principal in the amount of $259,560.00 for ye ars 1991 and prior, $111,253.00 for 1992, and $18,782.00 for January 1 993. See id . at Ex. 1, p.1 (“Refund Chart”). The chart also indicates that the source f o r thesefigure s was “At

tachmen t A to Princess Cruises Letter and Pay ment of 3/4/94.” Id . The letter that Princess sent

to Customs on March 8, 1994, and Attachment A to that letter are also included as exhibits to Customs’ motion to withdraw from the stipulation. 2Consol. Court No. 94-06-00352 Page 3

3 In its October 30, 2001, reply brief Cust oms ad dress ed all egatio ns th at were made o n page seven of Princess’s August 31, 2 0 01, Response to Defendant’s Cross-Motion for Summary Judgmentand

Reply to Defenda

nt’s Opposition to Plaintiff’s Motion for Summary Judgment (“Pl.’s Reply Brief” ). These

allega tions, and Customs ’ subsequent concession, concerned error s in three bills from Customs all dated October 8, 1997, f

or intere st and unde

rpaid pr incipal H MT amounts
. See Pl.’s Reply Br. at

7 (referencing Letter from Princess Cruises to Customs of Dec. 2, 1997 , Pl.’s Statement of Mater ial Fac ts Not

in Dispute, Ex. 14, at 1). Princess’s December 2, 1997, letter states that “in tendering the HMF principal amounts to the Customs Service in March 1994, Princess Cruises deducted amounts for the appropriate portions of travel agent commissions,” but

complains that Customs’ September 4, 1997, letter, which included an attachment showing its calculations for the amounts billed on October 8, 1997, “did not include any deductions from harbor maintenance fee liability for 1992 and 1993” and made “an unexplained adjustment to th[e] offset” for the period 1991 and prior. Letter fr

om Princess Cruises to Customs of Dec. 2, 1997, at 3-4. Review of Attachment A reveals that Customs is correct in its belated discovery that the HMT principal remitted by Prince ss in March 1994 was reduced by $73,501.00 for the periods at issue in the present litigation. Nevertheless, Princess opposes Customs’ motion to withdraw on the basis that Customs “previously concede d over a ye ar ago [in its Octob er 30, 20 01, reply brief] that thesesame cha

rges should be re funded to Princess Cruises . . . . citing to the same line of the same letter as evide nce of th e amount i

tconceded

it owed to Prince ss Cruises .” Plaintif f’s Oppo sition to Defendant’s Motion to Withdraw at 3 (emphasis in the original). Princess misunderstands Customs’ concession. 3 Princess deducted amounts a

ttributab le to travel agent c ommissions f or land-based se

rvices f rom it s March 1 994 pay ment to Cust

oms. Customs subseque

ntly billed Prin

cess f or some or al l of these deductions on October 8, 1997. Princess paid these amounts and challenged the bills in its motion for summary judgment and Customs conceded in its October 31, 2001, reply brief that the travel agent commissions for landbased service s s hou ld not have been included in the October 8, 1997, bills. Therefore , the refund of these amounts should be included, and the Court assumes that

it was included, in the calculationConsol. Court No. 94-06-00352 Page 4

of subpart (b) of the parties’ stipulation, i.e. the $356,375.00 plus interest accruing from February 26, 1998, and the amount refunded under subpart (a) should be reduced by

$73,501.00.

Conclusion For the fore going reasons, Customs’ motion to withdraw from its stipulation i n the Novembe r 12, 2002, Joint Status Report is granted and the amount of the ref und Prince ss is entitle d to under subpart (a) is reduced from $389,595.00 to $316,094.00 plus interest accruing from June 17, 1994.

__________________________________________ R. KENTON MUSGRAVE, JUDGE Dated: January 28, 2003 New York, New York