US Says No Contractual Term of 'Reasonableness' in Surety Bonds
The government's cause of action against a surety runs from the date the surety breached the demand for payment on a customs bond and not from the date of liquidation, or deemed liquidation, of the underlying entries covered by the bond, the U.S. argued. Filing a cross-motion for judgment at the Court of International Trade on Dec. 9, the U.S. said it timely filed its case because the suit was brought within six years from the date surety firm Aegis Security Insurance Co. was delinquent on an over $100,000 bill for unpaid duties (United States v. Aegis Security Insurance Co., CIT # 22-00327).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The U.S. relied heavily on a 1993 U.S. Court of Appeals for the Federal Circuit case, United States v. Cocoa Berkau, to make its claim, noting that in the decision the appellate court said the "date of accrual occurs at the time of the breach of the bond." To see if a bond has been breached, CAFC looks to the "language of the bond."
In the present case, a condition of Aegis' bond is that the importer and surety agree to pay "as demanded by CBP." As a result, the terms of the bond weren't breached "until CBP made a demand for payment against Aegis and Aegis failed to pay the duties within the time required by law," the U.S. said.
The government then laid out the statutory framework under which it billed Aegis, noting that the importer is first billed for unpaid duties and given 30 days to pay up. If the bill is still unpaid after these 30 days, the surety is billed and given 30 days to pay. Once these 30 days are up, the surety has breached the bond "and the related law," the brief said.
Here, importer Presstek was billed on Nov. 25, 2016, for unpaid duties on a Chinese honey entry imported in 2002. After Presstek failed to pay, CBP demanded Aegis pay the duties on Feb. 6, 2017. Aegis breached its duty to pay on March 8, 2017, and the government subsequently brought suit on Nov. 2, 2022, within six years of March 8, 2017, making the case timely, the brief said.
The question of timeliness of suits such as these is an open question at the trade court, with one judge saying the six-year statute of limitations runs from the date of liquidation and another saying it runs from the date of payment demand (see 2308220054 and 2403180059). In the case finding the statute of limitations runs from the date of payment demand, the court said the case was nevertheless untimely, given that the U.S. violated an implied contractual term of reasonableness in waiting years to make the demand.
In response to this concern, the U.S. said no "reasonable time requirement applies to CBP's demand for payment" since Aegis' bond "should be construed in a manner consistent with the statutory and regulatory scheme providing for its issuance." The government argued that none of the statutory provisions governing payment of surety bonds, which are terms of the bond themselves, "include language requiring that the demand be made within a certain time or reasonable time."
This shows that "Congress did not require CBP to make a demand within a specific period of time or even within a reasonable period of time," the brief said. All the laws require is that demand be made.
Lastly, the U.S. said its payment demand isn't barred by the "doctrine of impairment of suretyship." The government claimed that "any impairment to suretyship arose from Aegis’s own failures to monitor its bond program and to assure that its customs bond manager was complying with its risk profile and that its reinsurer was not engaging in the very risk profile that Aegis purportedly sought to avoid."
The surety "should not be rewarded for turning a blind eye to the risk to which its bond manager and reinsurer subjected Aegis," the brief said.