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order to explore the inner construction. In addition, defendant has supplied two affidavits, one from Arthur Price, a professor of textile science and chairman of the department at the Fashion Institute of Technology which is a unit of the State University of New York. The second affidavit was that of Karen P. Binder, an attorney with the Office of the Assistant Chief Counsel for Customs Court Litigation, U.S. Customs Service, in which she deposes that she presented the samples of the imported merchandise to Mr. Price.
The question of law presented for determination is whether the diagonally intertwined yarn contained in the inner handles of the handbags constitutes braid. The affidavit of Professor Price, who examined the samples, states as follows:
Based upon my experience, it is my opinion that the inner portion of the handle of this handbag is composed of textile fabric which is wrapped by three or more lengths of yarn which
are diagonally intertwined in a so-called "maypole” construction. The definition of the term “braids,” as set forth, supra, in headnote 2(1) of schedule 3, makes it evident that said term was intended to encompass braids "in the piece," "whether of flat, tubular, or other construction," "with or without cores” and whether made “from fibers, filaments (including tinsel wire and lamé), yarns, cordage, textile fabrics, or any combination thereof."
The legislative intent with respect to headnote 2(f) is set forth in the “Tariff Classification Study,” schedule 3 (1960), as follows:
The term “braids” which is defined in headnote 2(f) is a term which has acquired a variety of meanings. It has been loosely used to include ornamental trimmings of practically every construction. Properly, however, and as used in these schedules, braid is formed by a special “maypole” type of construction, in which three or more lengths are diagonally intertwined. It is so interpreted in customs practice, with the exception of a limitation which has been imposed by practice, affirmed by court ruling (CD 825; CIE 1661/57). Under these rulings, it is the practice of customs officers to exclude from the meaning of the term “braids” so-called cords which consist of a braided sheath surrounding an inner core. This latter practice is not reflected in the proposed definition which would include all braids in the piece whether flat, tubular, or of other construction, and whether with or without cores. The proposed definition also includes such braids whether they have been braided from fibers, filaments (including tinsel wire and lame), yarns, cordage, textile fabrics, or any combination thereof. It is believed that this definition properly reflects the trade conception of braid.
The provision for braids covers those which are not suitable for making or ornamenting headwear. The headwear braids are dutiable in part 1B of schedule 7. As previously stated in the
explanatory notes regarding the definition of the term “braids”
30 percent ad valorem. Item 348.05 involves no rate change. Congress, in enacting the provisions for braids, was well aware of the variety of meanings which the term has acquired. In order to prevent misunderstanding, Congress set forth the type of construction of braids it intended to cover. The construction was for three or more lengths to be diagonally intertwined which is known as a “maypole” type of construction. Plaintiff admits the construction is the result of two to four pieces of cloth wrapped with several pieces of yarn diagonally intertwined. Mr. Price, after examination of the exhibits, confirmed this and further designated such construction as the maypole type.
While classification is under schedule 7, the information contained in headnote 2(f) of schedule 3 and in the “Tariff Classification Study” is pertinent to the determination. This headnote controls when textile materials are involved. It is agreed the imported merchandise is composed of textile material.
In view of the definition and the legislative history in which Congress states its belief that said definition properly reflects the trade conception of the term “braids,” it supplants the common or trade meaning for customs purposes. The court is bound by the language used and has no authority to give meaning to the language other than that conveyed by words, terms or expressions in which the legislative will has been expressed. Armbee Corporation et al. v. United States, 60 Cust. Ct. 105, C.D. 3278, 279 F. Supp. 438 (1968), appeal dismissed, 55 CCPA 115 (1968).
The case of Sol Kahaner & Bro. v. United States, 71 Cust. Ct. 97, C.D. 4480, 372 F. Supp. 1393 (1973), aff'd, 62 CCPA 35, C.A.D. 1141, 509 F. 2d 1186 (1975), cited by both parties is supportive of defendant's position. In the Kahaner case, certain merchandise known in the millinery trade as braid was held not to be braid since it was made on a knitting machine and did not have the necessary maypole construction.
Plaintiff's position that braids suitable for making or ornamenting headwear (item 703.80–703.95) and tubular braids with nonelastic core under item 348.00 do not encompass the involved merchandise is correct. The "Tariff Classification Study" (1960) cited supports this position. The argument, however, is without merit since plaintiff has apparently overlooked item 348.05, TSUS, which provides for other "Braids not suitable for making or ornamenting headwear.” This provision would cover braid of the type utilized in the handles of the handbags involved herein.
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The fact that the braid is functional does not affect the classification. "Summaries of Trade and Tariff Information,” schedule 3, volume 6 (1968), states:
* * * Braids often are functional components of wearing apparel, household furnishings, furniture upholstery, luggage linings, safety equipment, parachutes, rugs, hoses, electric cords, military insignia, and many other items. The heading of schedule 3, part 4, "Fabrics of Special Construction or for Special Purposes” which covers braids not suitable for making or ornamenting headwear is not determinative. The heading of the tariff provision utilizing such language is intended as a convenience and has no legal or interpretive significance as set forth in general interpretative rule 10(b).
In view of the foregoing, the imported handbags were properly classified under item 706.20, supra. Defendant's cross-motion for summary judgment is granted and plaintiff's motion for summary judgment is denied.
Judgment will be entered accordingly.
SEAGULL MARINE, PLAINTIFF v. UNITED STATES, DEFENDANT
On Plaintiff's Motion and Defendant's Cross-Motion for Summary
Glad, Tuttle & White (Edward N. Glad on the briefs) for the plaintiff.
Stuart E. Schiffer, Acting Assistant Attorney General; Joseph I. Liebman, Attorney in Charge, Field Office for Customs Litigation (Susan C. Cassell on the brief), for the defendant.
RICHARDSON, Judge: The merchandise in this action consists of inflatable liferafts exported from England and entered at Los AngelesLong Beach, Calif., in March 1977. The liferafts were classified in liquidation under TSUS item 696.05 as modified as yachts or pleasure boats, valued not over $15,000 each, at the duty rate of 2 per centum ad valorem. The importer contends that the liferafts are exempt from duty as "vessels” in accordance with general headnote 5(e) of the TSUS. And the Government, while conceding the classification to be erroneous, contends that the liferafts should be classified under TSUS item 696.35 as modified as pneumatic craft not specially provided for, not of a type designed to be chiefly used with motors or sails, at the duty rate of 6 per centum ad valorem.
The case is before the court on motion and cross-motion for summary judgment, and the essential facts in the case are not in dispute. It appears that the subject liferafts have a carrying capacity of from 4 to 16 persons; are made of a rubber-covered fabric, with sides consisting of 2 inflatable tubes with inflatable arches and opening at one end; are inflated by means of a carbon dioxide cylinder and valves which are parts of the equipment of each raft and which can be activated either automatically or manually; are equipped with gear such as painters, sea anchors, paddles, rainwater catchments, an emergency pack containing first aid equipment, water, seasickness tablets, and flashlights; and are imported in deflated condition packed either in a low-profile canister or a valise. Additionally, the parties concede that the merchandise in issue is in all material respects the same as that in Thornley & Pitt, C.J. Hendry Co. v. United States, 48 Cust. Ct. 134, C.D. 2325 (1962) which plaintiff argues is stare decisis of the issue here.
In Thornley & Pitt, C. J. Hendry Co. v. United States, supra, the liferafts, composed in chief value of india rubber and imported as cargo, had been classified in liquidation under paragraph 1537(b) of the Tariff Act of 1930, as modified by T.D. 53865 and T.D. 53877, as manufactures of india rubber, at the duty rate of 1242 per centum ad valorem, and the importer primarily claimed that the liferafts are "vessels” within the rule expressed by the Supreme Court in The Conqueror, 166 U.S. 110 (1897), and not subject to tariff duties. The First Division of the Customs Court, speaking through Mollison, J., sustained the importer's primary claim. The court said (p. 137):
* * * we are of the opinion that the liferafts before us are "vessels" within the definition of that term, as codified in 1 U.S.C., section 3, and as that term has been judicially defined in the cited cases. They are contrivances used, or capable of being used, as a means of transportation on water; the service upon which they are capable of being engaged is a maritime service, and their use is practical. They are not within the class of vessels which Congress has made subject to duty, i.e., motorboats, yachts, or pleasure craft, and, while possibly not of the general shape and outline of what is ordinarily called to mind by the use of the word "vessel,” nevertheless, they meet every requirement of statutory definition and of the judicial construction of the laws
involved." The Government contends that the doctrine of stare decisis is not applicable here because Thornley & Pitt is clearly erroneous, and has in essence been overruled by our appellate court. Defendant argues that the liferafts in issue are not "vessels” because they are not used for transportation, being at best designed to permit the occupants to "float” or “drift” until rescued, which activity defendant does not deem to constitute transportation. Defendant further argues that the liferafts are not "vessels” because they are not involved in any commercial or maritime service, citing United States v. Bethlehem Steel Co. et al., 53 CCPA 142, C.A.D. 891 (1966), and touting the “relative unseaworthiness" of the rafts as compared to the midbodies involved in Bethlehem Steel. And finally, defendant argues that the competing tariff provisions which confronted the Thornley & Pitt court are different from the competing tariff provisions which confront this court today in this case, noting that “specificity has replaced generality," with the result that Thornley & Pitt is rendered inapplicable thereby.
Plaintiff counters with the argument that Bethlehem Steel did not overrule Thornley & Pitt by excluding liferafts from the definition of the term “vessel,” and with the further argument that defendant's remaining arguments have all been answered in Thornley & Pitt which has not been shown by defendant to be erroneous.
The court agrees with plaintiff. The court does not find defendant's arguments to be persuasive of the existence of error in the well reasoned opinion of Judge Mollison in Thornley & Pitt who, among other things, discussed all of the principal cases touching upon the subject of vessels dating back to The Conqueror, supra, as well as the statutory definition of the term "vessel” as set forth in 1 U.S.C., section 3, before concluding that the liferafts met every requirement of statutory definition and of judicial construction of the laws involved.
The fact that the liferafts in issue merely float and do not conform in shape to the conventional shape of boats as an aid to propulsion is of no moment. Even prior to The Conqueror, supra, the courts recognized that rafts were "vessels" although possessing no means of propulsion except that imparted by action of currents or waves. See United States v. One Raft of Timber, 13 F. 796 (1882); Seabrook v. Raft of Railroad Cross-Ties, 40 F. 596 (1889). In Seabrook the court said (p. 598), “The first vessels were rafts. The raft is the parent of the modern ship.” Moreover, the status of the raft as a “vessel” is recognized in the Tariff Schedules where, under item 696.60, only rafts (among other things) which are not "vessels” are made dutiable under