Edge Import Corp. v. United States
| Decision Date | 17 December 1979 |
| Docket Number | Court No. 75-8-02155.,C.D. 4832 |
| Citation | 484 F. Supp. 906 |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
| Parties | EDGE IMPORT CORP., Plaintiff, v. UNITED STATES, Defendant. |
Greenwald, Kovner & Goldsmith, New York City (Frank J. Hariton, New York City, at the trial; Leo Goldsmith, Jr., New York City, on the briefs), for plaintiff.
Alice Daniel, Acting Asst. Atty. Gen., Washington, D. C., Joseph I. Liebman, Attorney in Charge, Field Office for Customs Litigation, New York City (Susan Handler-Menahem, Hackensack, N. J., at the trial and on the brief), for defendant.
This case involves the importation of hunting knives exported from Germany and entered at New York in 1973 and 1974. The prior opinion of this Court, C.R.D. 79-7, denying defendant's motion to strike portions of plaintiff's brief, appears in 82 Cust.Ct. ___.
The Customs Service heretofore classified the imported knives under TSUS item 650.21, as modified by T.D. 68-9, and assessed duty thereon at the rate of 0.5 cent each plus 8.5 per centum ad valorem. Plaintiff in its complaint claims that those knives which contain stag horn in their handles are properly classifiable under TSUS item 650.13, as modified by T.D. 68-9, and dutiable at the rate of 2 cents each plus 6 per centum ad valorem. Plaintiff further claims that those knives which contain wood in their handles are properly classifiable under TSUS item 650.19, as modified by T.D. 68-9, and dutiable at the rate of 1 cent each plus 6 per centum ad valorem. Finally, plaintiff alternatively claims that prior Customs practice requires a result in its favor.
For the reasons stated below, it is the determination of the Court that the classification relied upon by the defendant shall prevail.
The pertinent provisions of the tariff schedules as modified by T.D. 68-9, are as follows:
SCHEDULE 6. - METALS AND METAL PRODUCTS
Part 3. - Metal Products
* * * * * *
Subpart E. - Tools, Cutlery, Forks
and Spoons
* * * * * *
Knives not specifically provided for elsewhere
in this subpart, and cleavers, with or without
their handles
* * * * * *
Knives with their handles
* * * * * *
650.13 With animal horn, bone, ivory
mother-of-pearl, or shell handles
............................ 2¢ each +
6% ad val
* * * * * *
Other
650.19 Hunting knives with wood
handles ................... 1¢ each +
6% ad val.
650.21 Other ...................... 0.5¢ each +
8.5% ad val.
In this case there is the question of whether a knife, containing a metal guard and metal pommel may be classified as a stag-handled knife or a wood-handled knife. This raises the issue of whether a guard and pommel are part of the handle of a knife. A subsidiary question plaintiff has made reference to is whether prior classification by the Customs Service bars the classification made herein.
Two witnesses were offered by plaintiff and one by defendant. Plaintiff's witnesses, however, were ineffective and not particularly persuasive.
Plaintiff's first witness was Mr. Tom Palmer, who for seven years was Vice President of Gutman Cutlery Company (the parent of plaintiff). He was involved in sales and purchasing for the company with "special emphasis on product design." (R. 4.)
Mr. Palmer stated he agreed with Webster's Seventh New Collegiate Dictionary's definition of handle — "a part that is designed to be grasped by the hand." (R. 8.) Mr. Palmer further stated, in the major portion of his testimony, that in the knife trade the exhibits in the case would be known as stag-handled or wood-handled knives. (See, e. g., R. 7, 23.) This was because the portion that was held was either wood or stag. However, on cross-examination, counsel for the defendant brought out that Palmer, while demonstrating how a knife is held, also had his hand, more particularly his thumb, wrapped around the metal guard as well. (R. 49-50.) Thus the guard would appear to be a segment of the handle. Nevertheless, Palmer stated that manufacturers, distributors and consumers, referred to the importations as stag-handled or wood-handled knives. This opinion was largely endorsed by numerous knife catalogues introduced by the plaintiff. However, even if the imported merchandise is known in the trade as wood-handled or stag-handled knives, this is not necessarily determinative of its tariff classification. United States v. Ignaz Strauss & Co., Inc., 37 CCPA 32, 35, C.A.D. 415 (1949). See also Hancock Gross, Inc. v. United States, 383 F.Supp. 832, 73 Cust.Ct. 72, C.D. 4555 (1974), aff'd, 517 F.2d 951, 62 CCPA 100, C.A.D. 1153 (1975).
Plaintiff's second witness was Mr. Ivan Szanto, the general manager of Gutman Cutlery (parent of plaintiff). Mr. Szanto testified that while he could imagine a knife with no metal whatsoever from the end of the blade to the end of the knife, such a knife would not be a quality knife. (R. 65.) Furthermore, he never saw a guard made out of wood, although he conceded that such a construction may not be impossible. (R. 66.) Finally, "the pommel is always made out of metal." (R. 67.) On cross-examination though, Mr. Szanto identified high quality knives, marked hunting knives (catalogue, Exhibit A), which contain wood in their handles and have no guards or pommels of metal. In another catalogue exhibit (Exhibit C, Gutman's own cutlery) proffered by the defendant, the witness, however, identified a knife with a stag handle which has no metal guard or pommel. (R. 79.) Thus, such a knife is clearly possible.
Apparently in an effort to introduce a de minimis argument i. e. that the metal in a knife pommel and guard is de minimis when compared to the handle as a whole, Szanto testified that the guard is never more than 3 percent of the value of the knife. (R. 77.) Yet doubt was cast on this figure on cross-examination. (R. 80.)
It should be noted that nowhere in the record are any of the exhibits identified as being the same as the imported merchandise. This should have been done by plaintiff, if that is true.
The defendant's witness was Mr. R. N. Farquharson, Executive Vice President and Chief Operations Officer of Case Cutlery Company. Case Cutlery manufactures pocketknives, hunting knives, scissors and shears, and markets them around the world. (R. 84.) The company also has prepared knives for the military, and for the Space Program. (R. 85.) The company has been making knives since 1947. (R. 91.) Mr. Farquharson has been with Case since 1955. (R. 84.) As Executive Vice President and Chief Operations Officer, since 1973, Mr. Farquharson has been in charge of all the operations of the company. (R. 85.) Mr. Farquharson at the time of trial was President Emeritus of the American Cutlery Manufacturers Association after having served two years as President. He has been quoted in books and articles on knives and through the years has frequently attended trade shows. (R. 86.)
According to this experienced witness, (R. 87.) He stated: "It's not a knife without a handle and without a blade." (R. 88.) Some more of his testimony is worthwhile excerpting here:
In other knives, where the handles are made by using washers, the pommel locks the washers in place. "The pommel is used to keep the whole handle together." (R. 89.)
The defendant's position in this case is that since these elements of the handle, the guard and the pommel, are made of metal, one may not refer to the completed object as a stag-handled or wood-handled knife since important segments of them are made of metal. One of plaintiff's counterarguments is that the TSUS provision for stag-handled or wood-handled knives, under such an understanding as outlined above, would be devoid of meaning since there never would be such an item as a completely stag-handled or wood-handled knife. Yet Mr. Farquharson's testimony belies this argument:
Q. Was there a time historically when guards and pommels were all made from the covering material? — A. Oh, yes. They still are in some instances....
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