Nomura (America) Corp. v. United States
| Decision Date | 07 May 1969 |
| Docket Number | C.D. 3820 |
| Citation | 62 Cust. Ct. 524 |
| Parties | NOMURA (AMERICA) CORP. <I>v.</I> UNITED STATES |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Barnes, Richardson & Colburn (James S. O'Kelly and Hadley S. King of counsel) for the plaintiff.
William D. Ruckelshaus, Assistant Attorney General (Sheila N. Ziff and Andrew P. Vance, trial attorneys), for the defendant.
Lamb & Lerch (David A. Golden of counsel) as amicus curiae.*
Before WATSON, MALETZ, and RE, Judges
The two protests in this case, consolidated for purposes of trial, pertain to merchandise imported from Japan and described on the invoices as "Wader Boots - Chest High." It is made of rubber and consists of steel-shanked rubber boots at the bottom with attached rubber leggings rising to a high waist or chest.
The merchandise was classified by the collector of customs under paragraph 1537(b) of the Tariff Act of 1930, as modified, T.D. 53865, as "[b]oots, shoes, or other footwear, wholly or in chief value of india rubber." Duty was assessed at the rate of 12½ per centum ad valorem on the basis of American selling price appraisement as defined in section 402(e) of the Tariff Act of 1930, and as required by Presidential Proclamation 2027, T.D. 46158.
Plaintiff contends that the importations, referred to as "waders," are not "[b]oots, shoes, or other footwear," within the intendment of paragraph 1537(b), thus requiring the assessment of duty on the basis of American selling price appraisement. Rather, plaintiff asserts that the merchandise is properly classifiable under paragraph 1537(b) supra, as "[m]anufactures of india rubber or gutta-percha, * * * [o]ther" at the rate of 12½ per centum ad valorem on a basis of value other than the American selling price appraisement.
The relevant statute, paragraph 1537(b), Tariff Act of 1930, as modified, T.D. 53865, provides in part as follows:
"Manufactures of india rubber or gutta-percha, or of which these
substances or either of them is the component material of chief
value, not specially provided for (except * * *)
Boots, shoes, or other footwear, wholly or
in chief value of india rubber __________ 12½% ad val
NOTE: The duty on the foregoing
articles is to be calculated on the basis
specified in T.D. 46158
Other _____________________________________ 12½% ad val."
The plaintiff is a Japanese trading company which, at the time of the importations in 1960 and 1961, was importing footwear from its parent company in Japan. Plaintiff's sole witness, Mr. Sam Garfinkel, testified that he was employed by the plaintiff as a sales manager, and identified plaintiff's illustrative exhibit 1 as an article the same in all material respects as the waders designated on the invoices before the court. Being familiar with the manner of use of the merchandise, he testified that it is used by fishermen "casting in the surf, and going into the surf." (R. 8) It was "[u]sed primarily for fishing" and covered the body "[r]ight from the bottom of the feet right up to the chest." (R. 8) Mr. Garfinkel had never seen the article used in any other way. Referring to the merchandise imported by the plaintiff at the time of the importations, he testified that (R. 9) The defendant called two witnesses, Mr. Robert T. Frazza, a buyer of footwear for all the branch stores of Abercrombie & Fitch, and Mr. Joel K. Wechsler, assistant general manager of the sporting goods division of the Converse Rubber Company. Mr. Frazza testified that in the course of his duties he had bought and worn waders similar to those in question. He stated that the merchandise is part of the "footwear line," is "bought solely in the footwear, shoe department," and is not "sold anywhere other than in the footwear department" of his employer. (R. 12) From his total experience in the "footwear line" since 1947, Mr. Frazza testified that the merchandise was sold "by foot size, shoe size," and "is primarily a wading boot." (R. 12, 13)
In cross-examination Mr. Frazza testified that the merchandise was a "boot." He was asked whether he agreed with the definition of "boot" found in Webster's New International Dictionary, Second Edition, 1960, as:
"[a]n article of apparel, usually of leather, for the foot and leg, sometimes reaching only just above the ankle, sometimes to the knee, or, especially when made of rubber, to the hip."
The witness would agree with the definition "if it goes higher than the hip." He would not if it stopped at the hip. (R. 14) In response to a question by the court, Mr. Frazza also stated that there are some stores that sell this type of merchandise "in the fishing department, or athletic department." (R. 15)
Mr. Wechsler testified that the footwear items manufactured by his company consisted of fishing and hunting goods, tennis shoes, basketball shoes and waders. (R. 17) His company manufactures a product similar to plaintiff's illustrative exhibit 1 and he is "involved with the sales and distribution of that product." (R. 17-18) In a supervisory capacity he has traveled with his salesmen throughout the country visiting footwear buyers. Mr. Wechsler testified that items such as plaintiff's illustrative exhibit 1 "are sold by foot size as waders, as footwear." He repeated: "They are sold by footwear, boot size, as footwear." (R. 19) He testified further that he attended both sporting goods trade shows and shoe trade shows, and that the product in question "is usually displayed in a section of the exhibit room along with other waterproof footwear." (R. 19) Since the merchandise is advertised as containing pockets and a reinforced crotch, Mr. Wechsler in cross-examination was asked whether this was usual in an article of footwear. The witness replied "[c]ertainly," and listed articles of footwear so advertised as "[a]ll chest waders, all waist high waders * * *." (R. 29-30) On re-direct examination he testified that the primary purpose of the waders is to protect the foot and the leg. (R. 31) In re-cross-examination he added that to keep some of the area above the waist dry, is "a secondary purpose." (R. 31)
The question presented in these protests is whether the merchandise at bar, "waders," was properly included in the provision of the Tariff Act of 1930, which reads, "[b]oots, shoes, or other footwear, wholly or in chief value of india rubber." The defendant suggests that the case presents a classic example for the use of the sample as a potent witness, and maintains that the merchandise was correctly classified since waders are footwear, described in the trade and by lexicographic authorities as a form of footwear, to wit, boots. The plaintiff urges that a wader is not a boot since a boot is, by definition, "an article which covers the foot and leg, extending no further than the hip." As stated in its brief, "[c]overing almost the [sic] ¾ of the body, the goods at bar are clearly not boots or footwear." (Plaintiff's brief, p. 7)
It is well established that the terms of tariff provisions are used by Congress in their known commercial sense, which, in the absence of evidence to the contrary, is presumed to be the same as their common meaning. Swift & Co., a Corporation v. United States, 27 CCPA 181, C.A.D. 83 (1939). In ascertaining the common meaning of statutory terms the courts are not restricted to the testimony of witnesses but may consult standard lexicographic definitions. See United States v. O. Brager-Larsen, 36 CCPA 1, C.A.D. 388 (1948); United States v. Tropical Craft Corp., etc., 42 CCPA 223, C.A.D. 598 (1955).
The court has examined all available definitions for the terms "shoes," "boots" and "footwear." Since the parties apparently agree that the imported merchandise is known as "waders," the definitions of "wader" or "waders" have also been examined. Abridged dictionaries generally define "waders" as "high waterproof boots; hip boots," or "high waterproof rubber boots for wading." See Webster's New World Dictionary of the American Language (College Edition, 1964).
Webster's Third New International Dictionary of the English Language Unabridged (1968) gives the following meanings for the word "wader":
"1: one that wades 2: WADING BIRD 3a: WADING BOOT, b: a waterproof garment that consists of trousers sometimes reaching to the armpits, has attached socks or waterproof boots or shoes, and is worn (as by anglers or duck hunters) over the regular clothing — often used in plural (a pair of waders)."
These definitions are also to be found in the 1963 edition of Webster's Unabridged Dictionary, and they have been reproduced by the parties in their briefs. Each, of course, relies on different portions of the relevant definition. The plaintiff has emphasized the words "waterproof garment." The defendant has stressed the words "wading boot," which appear in capital letters in both the 1963 and 1968 editions.
Funk & Wagnalls Standard Dictionary of the English Language, International Edition (1966), sets forth the following three meanings for the noun "wader":
"1 one who wades. 2 a long-legged wading bird, as a snipe, plover, or stork. 3 pl. high waterproof boots, worn especially by anglers."
The plaintiff contends that "waders" are "in fact, articles of wearing apparel," as distinguished from "shoes, boots, or other footwear." Since an inspection of waders reveals that they are designed to be worn without shoes, defendant points out that there would seem to be little question but that they are "wearing apparel" for the feet. The instructive article on "shoes" in the 1966 edition of the Encyclopedia Britannica commences with the sentence that "[s]hoes and boots are very ancient items of dress, their value as protective covering in severe climates or rough terrain being obvious." On the subject of construction and design it is therein stated that ...
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