Nissho-Iwai American Corp. v. United States
| Decision Date | 12 March 1986 |
| Docket Number | No. 80-4-00637.,80-4-00637. |
| Citation | 641 F. Supp. 808,10 CIT 154 |
| Parties | NISSHO-IWAI AMERICAN CORP., Plaintiff, v. The UNITED STATES of America, Defendant. |
| Court | U.S. Court of International Trade |
Stein Shostak Shostak & O'Hara (James F. O'Hara), Los Angeles, Cal., for plaintiff.
Richard K. Willard, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch (Barbara M. Epstein), New York City, for defendant.
The question presented in this case pertains to the proper classification, for customs duty purposes, of certain parts and accessories of unassembled bridges or bridge sections imported from Japan.
The merchandise was entered at the port of Anchorage, Alaska, and was classified by the Customs Service under item 652.98 of the Tariff Schedules of the United States (TSUS), a "basket" provision for bridges, bridge sections, and other structures and parts of structures of base metal. Hence, the merchandise was assessed with duty of 9.5 per centum ad valorem.
Plaintiff protests this classification, and contends that the merchandise is properly classifiable under item 652.96, TSUS, as "columns, pillars, posts, beams, girders and similar structural units," made in part of alloy iron or steel, dutiable at 5.5 per centum ad valorem.
Since resolution of the classification issue requires analysis of the tariff items relating to the superior heading, it is helpful to set forth the tariff provisions relating to these base metal structures as of the date of importation:
Schedule 6, Part 3, Subpart F
Hangars and other buildings, bridges, bridge sections
lock-gates, towers, lattice masts, roofs, roofing
frameworks, door and window frames, shutters
balustrades, columns, pillars, and posts, and other
structures and parts of structures, all the foregoing
of base metal
Of iron or steel:
Door and window frames:
. . .
Columns, pillars, posts, beams, girders,
and similar structural units:
Not in part of alloy iron or steel:
. . .
In part of alloy iron or steel:
652.95 In part of stainless steel .........6% ad val.
652.96 Other ............................5.5% ad val.
652.98 Other...............................9.5% ad val.
As noted, plaintiff contends that the imported merchandise is classifiable under item 652.96, with duty at 5.5% ad valorem, whereas Customs has classified the merchandise under item 652.98, with duty at 9.5% ad valorem.
The question presented, therefore, is whether, within the meaning of the competing tariff provisions, the imported merchandise is classifiable under item 652.98, the provision covering bridges, bridge sections, structures and parts of structures of base metal, as classified by Customs, or under item 652.96, the provision encompassing "Columns, pillars, posts, beams, girders, and similar structural units," in part of alloy iron or steel, as claimed by plaintiff. In order to decide this question, the court must consider "whether the government's classification is correct, both independently and in comparison with the importer's alternative." Jarvis Clark Co. v. United States, 733 F.2d 873, 878, reh'g denied, 739 F.2d 628 (Fed.Cir.1984); E.R. Hawthorne & Co. v. United States, 730 F.2d 1490, 1490 (Fed.Cir.1984).
The parties have agreed to a stipulation of the facts, and each has moved for summary judgment pursuant to Rule 56 of the Rules of the Court. Since there is no issue as to any material fact, the case may properly be decided on the parties' cross-motions for summary judgment. See B & E Sales Co. v. United States, 9 CIT ____, Slip Op. 85-22, at 5 (Feb. 28, 1985); C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust.Ct. 17, 22, C.D. 4327, 336 F.Supp. 1395, 1399 (1972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974).
After a careful examination of the stipulated facts, the pleadings and supporting papers, the pertinent tariff provisions, and the relevant case law, it is the determination of the Court that Customs has correctly classified the imported merchandise under item 652.98, TSUS.
The imported merchandise consists of the necessary parts and accessories of unassembled bridges or bridge sections, including columns, beams, girders, bolts, nuts, brackets, plates, hinges, drain boxes, railing, bridge shoes, and railing anchors. All parts and accessories are made of steel, in part of alloy. The merchandise, as imported, was ready for erection into bridge sections, and was later assembled into specific bridge sections of the Anchorage Port Access Bridge project in Anchorage, Alaska.
Plaintiff contends that the imported parts of bridge sections are "similar structural units" to "columns, pillars, posts, beams, and girders," within the ambit of the superior heading to item 652.96. In support of its position, plaintiff cites the canon of construction, ejusdem generis. The Court, however, has concluded that, since the imported merchandise is in fact more than these structural units, this guide to statutory interpretation provides no support for the plaintiff's contention that the imported merchandise is classifiable under item 652.96.
Ejusdem generis, which means literally, of the same class or kind, teaches that "where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described." United States v. Damrak Trading Co., 43 CCPA 77, 79, C.A.D. 611 (1956). The doctrine of ejusdem generis is "a specific application or illustration of the broader maxim noscitur a sociis, i.e., known by its associates." Economy Cover Corp. v. United States, 76 Cust.Ct. 130, 132, C.D. 4645, 411 F.Supp. 783, 784 (1976). In Economy Cover Corp., the court explained:
In essence, ejusdem generis means that when general words in a statute follow a specific enumeration of persons or things, the general words are not to be construed in their widest sense or meaning, but rather are to be limited, or held to apply, only to persons or things of the same kind or class as those specifically enumerated.
Id.; see Oxford Int'l Corp. v. United States, 75 Cust.Ct. 58, 68, C.D. 4608 (1975); Nomura (America) Corp. v. United States, 62 Cust.Ct. 524, 530, C.D. 3820, 299 F.Supp. 535, 540 (1969), aff'd, 58 CCPA 82, C.A.D. 1007, 435 F.2d 1319 (1971).
As applicable to customs classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general term. See Economy Cover Corp., supra, 76 Cust.Ct. at 132, 411 F.Supp. at 784-85; Stylo Matchmakers Int'l v. United States, 73 Cust.Ct. 78, 83, C.D. 4556 (1974). In order for plaintiff's classification to prevail, therefore, it must be established that the imported parts of bridge sections are structural units similar to columns, pillars, posts, beams, and girders. See United States v. Bruckmann, 65 CCPA 90, 93, C.A.D. 1211, 582 F.2d 622, 625 (1978); J. Ray McDermott & Co. v. United States, 69 Cust.Ct. 197, 205, C.D. 4394, 354 F.Supp. 280, 286 (1972); Laurence Myers Scaffolding Co. v. United States, 57 Cust.Ct. 333, 339, C.D. 2809, 259 F.Supp. 874, 878 (1966).
In Laurence Myers Scaffolding Co. v. United States, 57 Cust.Ct. 333, C.D. 2809, 259 F.Supp. 874 (1966), certain bridge overhang shores, highway shores, and building shores, used to support concrete form work, were classified under item 657.20, TSUS, as other "articles of iron or steel," not specially provided for elsewhere in the tariff schedules. The plaintiff argued that the merchandise was properly classifiable under item 652.94 as "columns, pillars, posts, beams, girders and similar structural units," not in part of alloy iron or steel. In analyzing the common meaning of columns, pillars and posts, the court noted that the one common characteristic of these terms was that they offered firm upright support to a building or structure. Id. at 340, 259 F.Supp. at 879. In addition, the court found that these structural members were of unitary construction. Since the building shores at issue comprised tubular uprights, fastened together by coupling pins, braced by cross bars and adjusted by stopper pins and an incorporated jack, the court found the shores were composite articles. Thus, the court held that the shores were "not similar structures to columns, pillars and posts within the common meaning of those terms but were in fact more than said designated structural units...." Id.
The decision in J. Ray McDermott & Co. v. United States, 69 Cust.Ct. 197, C.D. 4394, 354 F.Supp. 280 (1972), is in accord with this holding. At issue in McDermott were two steel components for an offshore oil drilling platform which were described as a "jacket section" and a "box girder." Both units were classified under item 652.98 as "other" structures or parts of structures of base metal. The plaintiff claimed that both units were properly classifiable under item 652.94 as "columns, pillars, posts, beams, girders, and similar structural units," not in part of alloy iron or steel. Analyzing each imported component separately, the court held that the "box girder" should have been classified as a "girder" under item 652.94 because it served the single function of providing vertical support for the rig above it. The court found, however, that the platform jacket's primary function was not to provide upright support, but to protect the pipe piles from the elements. Since the unit's function was not primarily support, the court held that the imported "jacket section" could not be considered a similar structural unit to columns, pillars, and posts. 69 Cust.Ct. at 205, 354 F.Supp. 280. It is significant to note that the imported jacket, although comprised of steel, was classified under item 652.98.
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