Nootka Packing Co. v. United States

22 C.C.P.A. 464, 1935 CCPA LEXIS 2

• Court: Court of Customs and Patent Appeals
• Decided: January 7, 1935
• Docket: No. 3759
• Status: Published

Opinions

Graham, Presiding Judge,

delivered the opinion of the court:

Merchandise, consisting of minced razor clam meat, in cans,' packed in British Columbia, Canada, was classified by the collector at the port of Seattle, Wash., as “clams * * * packed in airtight containers” and assessed with duty at 35 per centum ad valorem under paragraph 721 (b) of the Tariff Act of 1930. The importers ’ protested said classification, claiming, inter alia, that the goods were free of duty under paragraph 1761 of said act as shellfish, prepared or preserved. This claim is the only one relied on in this court. From the judgment of the United States Customs Court, First Division, overruling the protest, importers have appealed to this court.

The two competing tariff provisions follow:

Par. 721. (b) Clams, clam juice, or either in combination with other substances packed in air-tight containers, 35 per centum ad valorem.

Par. 1761. Shrimps, lobsters, and other shellfish, fresh or frozen (whether or not packed in ice), or prepared or preserved in any manner (including pastes and sauces), and not specially provided for.

The uncontradicted testimony of the two witnesses for the importers shows that the involved merchandise consists of razor clams which, after shelling, have had the stomachs, entrails and part of the necks removed, and which have been washed, drained and put through a mincer; that this clam meat is put in cans of two sizes, referred to in the record as “half pound” and “picnic” sizes, so as to half fill' them; that the cans are then filled with a brine “partly salt and partly fresh water, ” “for seasoning and delivery,” are steamed about 5 minutes to produce a vacuum, and are sealed and cooked for a period of from 1 hour 15 minutes to 1 hour 22 minutes; that the merchandise is shipped in this condition and is ready to eat; that there is no clam juice produced or added to the product. The average size of the meat of one of the clams, after removal from the shell, is 5){ inches, the maximum length shown being 8 inches, and the weight of the same being from 2% to 5 ounces. The contents of the so-called “half pound” tins is about 5 ounces. An examination of the exhibits repre■senting the merchandise shows that the cans are about one-half full of clam meat, cut into pieces ranging from one-half inch in length to the size of small peas, immersed in a millc-colored juice. No testimony was offered by the Government.

The decision of the trial court is brief, and, for supporting authority, relies upon its decisions in Walter T. Ueland et al. v. United States, T. D. 46025, 62 Treas. Dec. 617, and Alexander & Baldwin, Ltd. v. United States, Abstract 24390, 63 Treas. Dec. 1584. The last-cited case was affirmed by this court in Alexander & Baldwin, Ltd. v. United States, 21 C. C. P. A. (Customs) 558, T. D. 46988, subsequent to the decision of the trial court in the instant case.

Both sides agree that the issue is whether the merchandise is properly dutiable as “clams * * * in air-tight containers” or entitled to free entry as “other shellfish * * * prepared or preserved * * * not specially provided for.”

The importer contends, that the involved merchandise is not “clams” for the reason that it is something more than clams— processed material obtained from clams — and relies largely upon the decision of this court in United States v. Sheldon & Co., 14 Cust. Appls. 228, T. D. 41708, to support this contention. The importer argues that “The enumeration of 'clams' in the plural is an indication that whole clams, identifiable as individuals, are intended, rather than the processed material obtained from clams.”

In support of the Government’s contention that the merchandise is dutiable as assessed, three arguments are made: First, that the case of Alexander & Baldwin, Ltd. v. United States, 21 C. C. P. A. (Customs) 558, T. D. 46988, is stare decisis; second, that the legislative history of the provisions under consideration indicates that it was the intent of Congress to make the merchandise at bar dutiable as assessed; third, that paragraph 721 (b) is an eo nomine provision, and is a more specific description of the merchandise involved than is said paragraph 1761.

The imported merchandise was entered and invoiced as “minced clams.” Although cut into pieces, cleaned, and cooked, according to the testimony of the importers, it can be readily identified as parts of clams. Paragraph 721 (b) of the Tariff Act of 1930 provides for “Clams, clam juice, or either in combination with other substances, packed in air-tight containers.” It will be observed that this language is not restricted to clams in their raw or natural state, nor is it restricted to entire clams. It includes any clams in any condition, so long as they are clams. “Where a dutiable provision names an article without terms of lifnitation all forms of the article are thereby included unless a contrary legislative intent otherwise appears.” Smillie v. United States, 11 Ct. Cust. Appls. 199, 201, T. D. 38966. In Tower & Sons v. United States, 11 Ct. Cust. Appls. 157, 162, T. D. 38948, boiled down cider was held to come within the statutory designation “cider,” as against “fruit juices” and “fruit syrups,” the court saying, “when the term ‘cider ’ was written into the provision without words of limitation it must be assumed that it was intended to include all kinds of cider.”

To the same effect is Schade v. United States, 5 Ct. Cust. Appls. 465, T. D. 35002, where frozen wheat was involved.

It is apparent that this was the intention of the Congress in enacting this provision. We quote a portion of the report of the Ways and Means Committee of the House of Representatives, relative to H. R. 2667, now the Tariff Act of 1930. Report No. 7. 71st Cong., 1st sess., p. 74:

Special provision is made for the caviar from sturgeon roe, which is the most expensive form of cavair, and for canned clams. The latter is a new industry of interest to both coasts of the United States. On the Atlantic coast the competition is from Canada and on the Pacific coast there exists a very important competition from Japan. The rates provided are intended to equalize the cost of production. (Italics ours.)

The mere mincing of the clams, or cleaning them, or cooking them, does not remove them from the designation of clams. The cases are plentiful in support of this proposition. In Neuman & Sehwiers Co. et al. v. United States, 4 Ct. Cust. Appls. 64, T. D. 33310, hapas, with the bone extracted, and cooked and canned, were held to be hams, and not prepared or preserved meats. In Brown & Co. v. United States, 6 Ct. Cust. Appls. 415, T. D. 35977, soya beans, cooked and salted, and canned, were held to be not “something more than soya beans in the sense that they are something else.” In that case the court further said, “That is to say, they are soya beans advanced m condition, but not so far advanced as to be converted into a new article.” In that case the court cited many preceding cases, both in this court and in the Supreme Court of the United States, where the same principle obtained.

In Mawer Co. v. United States, 7 Ct. Cust. Appls. 493, T. D. 37108, olives, pitted, stuffed with pimentos, sterilized and soaked and canned, were held to come within the designation “olives,” rather than within “edible fruits * * * prepared or preserved.” In

the recent case of Alexander & Baldwin v. United States, 21 C. C. P. A. (Customs) 558, T. D. 46988, the contest was between paragraphs 721 (b) and 1761, as in the case now before us. While the precise question here involved was not presented there, this court did say in its opinion:

While it does not appear in the instant ease whether the combination of clams and clam juice had undergone a process of cooking, that, in our opinion, as the issue has been here presented, is not material, and we regard this case and that involved in T. D. 46025 as being quite analogous.

The appellants contend that this case is controlled by another lino •of cases, exemplified by the pistache nuts case, United States v. Sheldon & Co., 14 Ct. Cust. Appls. 228, T. D. 41708. In that case, pistache nuts, roasted and salted, were held by a majority of the court to be edible nuts, prepared or preserved, rather than under the designation “pistache nuts.” However, that case did not rest upon the competition between pistache nuts and edible nuts, prepared or preserved, alone, but was based largely upon the fact that the Congress, in enacting the provision for edible nuts, had repeated the, expression, “not specially provided for,” in such a way as to compel the court to the conclusion that what the Congress had in mind was edible nuts, prepared or preserved, which had not been otherwise, specially provided for, rather than as edible nuts which had not been specially provided for.

The appellants also cite two cases, United States v. La Manna et al., 14 Ct. Cust. Appls. 123, T. D. 41647, and United States v. Pacific Trading Co., 14 Ct. Cust. Appls. 131, T. D. 41649. There the competition was between a statutory provision for onions, and another for vegetables, pickled, or packed in salt, brine, oil, or prepared or. preserved. In each of these latter cases, the decision rested largely upon the fact that onions had been uniformly in previous acts, and in the act then under consideration, dutiable by the bushel or pound, and it was thought by the court that this, together with a consideration of the legislative history, compelled the conclusion that only onions in their natural state were intended to be included in the eo nomine provision for onions. Hence-, the onions involved in the cases there at bar, being pickled, were held to be more properly dutiable under the piclded or prepared vegetable provision. These cases were followed by Budlong Pickle Co. v. United States, 16 Ct. Cust. Appls. 174, T. D. 42808.

Other adjudged cases on the subject will be briefly commented' upon.

Breman v. United States, 136 Fed. 743, wherein limes, in brine, were held by the court to be classifiable as “fruits in brine” rather than as. “limes,” is relied upon by appellant. An examination of that case-shows that limes in brine were different in character and use from fresh limes; that there was a commercial designation distinguishing limes in brine from fresh limes, and a long established administrative - practice distinguishing the same.

The case of United States v. Reiss & Brady, 136 Fed. 741, also. relied upon, is one where commercial designation distinguished between “figs” and “fruits preserved.” Lacomb, C. J., in disposing of the matter, was of the opinion that in trade and commerce the com- . peting paragraphs described different articles.

Stone & Co. v. United States, 7 Ct. Cust. Appls. 173, T. D. 36492, involved currants, crushed and ground into a mass. These were held to be “fruits, * * * prepared,” rather than as “currants.” This case approaches closely the matter involved here, and is strongly relied upon. However, it will be noted that the court there said: “The importation has completely lost its identity as currants. It is an indeterminate mass or pulp. It is, in fact, a material prepared or made from currants, the ultimate use of which is in the manufacture of wines. Its general and more diversified uses as currants have thus been destroyed or limited.”

No such facts appear here. So far as the record goes, the imported product before us is adaptable to exactly the same uses as would be whole clams.

Malouf v. United States, 1 Ct. Cust. Appls. 437, T. D. 31502, is cited. There a product made of wheat, ground and cooked, was held not to be within the designation “wheat,” as it had ceased to be wheat and was entirely unsuitable for any wheat use.

The case of Kwong Yuen Shing v. United States, 1 Ct. Cust. Appls. 16, T. D. 30774, is brought to our attention. In that case, preserved duck meat, salted, pickled, dried in the sun and packed in tins, and sometimes packed in peanut oil, was held to be “meats prepared or preserved” rather than “poultry dressed.” It appears from the opinion of the court that this holding rested upon proof of commercial designation. This further appears from reference to the opinion of this court in United States v. General Hide & Skin Corp., 11 Ct. Cust. Appls. 78, T. D. 38731, where the decision in the Kwong Yuen Shing case, supra, is commented upon. In United States v. General Hide & Skin Corp., supra, rabbit meat, cooked and canned, was, in the absence of commercial designation, held to be rabbits, and to come within the designation “game” rather than as “meats * * * prepared or preserved.”

In this latter case, this court again reiterated its holding “that where an article is designated without words of limitation, that designation will generally include the article in all its forms known to commerce.” To the same effect is Shoellkopf, Hartford & MacLagan v. United States, 71 Fed. 694, where the statutory term “paraffine,” without limitations and without proof of commercial designation, was held to include all kinds of paraffine.

In Smith v. United States, 168 Fed. 462, meat of the quail, lark, and young chickens, prepared by cooking and packed in airtight cans for preservation, was held to be classifiable as “meats of all kinds, prepared or preserved,” rather than as “poultry dressed.” This case, also, went off on proof of the established meaning of the word “poultry.”

The clear weight of the authorities on the subject is that an eo nomine statutory designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative' practice to the contrary, and without proof of commercial designation, will include all forms of said article. Such is the situation here, and the trial court properly held the imported goods to be dutiable under said paragraph 721 (b).

It seems inconceivable that the Congress, in attempting to protect the clam industry in the United States, should intend to free list such clams if they were cut into pieces. In our opinion, no such conclusion is required. The imported goods are clams, and should be classified as such.

The judgment of the United States Customs Court is affirmed.