United States v. Bruckmann

582 F.2d 622, 65 C.C.P.A. 90, 1978 Cust. Ct. LEXIS 1054
CourtCourt of Customs and Patent Appeals
DecidedAugust 17, 1978
DocketNo. 77-26 & 77-30
StatusPublished
Cited by33 cases

This text of 582 F.2d 622 (United States v. Bruckmann) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bruckmann, 582 F.2d 622, 65 C.C.P.A. 90, 1978 Cust. Ct. LEXIS 1054 (ccpa 1978).

Opinions

Baldwin, Judge.

The United States appeals from the order of the Customs Court, 78 Cust, Ct. 155, C.D. 4702, 435 F. Supp. 1219 (1977), granting plaintiff’s (hereinafter Bruckmann) cross-motion for summary judgment on the basis of its holding that incandescent gas lamp parts ¡are properly classified under item 653.30, Tariff Schedules of the United States (TSUS) rather than under residual item 653.39, TSUS. We reverse.

Bruckmann cross-appeals from the holding of the Customs Court ■that the cast iron “stems” or support posts of the lamps are not properly classified as “columns, pillars, or posts” under item 652.93. We affirm.

The merchandise described on the protest as “Victorian Street Lamps from England, Cast Iron Post, and Frog (iron connecting ■¡bracket between lantern and post),” was classified under item 653.39, TSUS.1 Bruckmann (appellee/cross-appellant) urged that the merchandise be classified under item 653.30.

The relevant portions of the TSUS are as follows:

Schedule 6, Part 3, Subpart F:
Hangars and other buildings, bridges, bridge sections, lockgates, 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:
Columns, pillars, posts, beams, girders, and similar structural units:
Not in part of alloy iron or (852. 93 steel: ; Cast-iron (except malleable cast-iron) articles, rough or advanced_ [2]
% if: ^
Illuminating articles and parts thereof, base metal:
(653. 30 Incandescent lamps designed to be operated by propane or other gas,
[92]*92or by compressed air and kerosene or gasoline_ [3]
Otter:
653. 35 Table, floor and otter portable lamps for indoor illumination, or brass_ * * *
Other:
653. 37 Of brass_ * * *
653.39 Other.._19% ad vat

The questions considered by the Customs Court were: 1) whether the lamp "stems” were properly classifiable under item 652.93, 653.30 or 653.39, and 2) whether the remainder of the lamp parts, were classifiable under items 653.30 or 653.39.

In addition to reviewing those issues, we must also determine whether we have jurisdiction to hear the cross-appeal.

Opinion

I.

The United States argues that we lack jurisdiction to consider the cross-appeal. The argument is based on the assumption that a cross-appeal is no more than a separate appeal undertaken by one of the' parties below. The syllogism continues that, since the time limit for filing appeals is 60 days 4 after the entry of the decision of the Customs-Court, and Bruckmann filed notice of cross-appeal 68 days after said entry, the separate appeal was untimely and this court lacks jurisdiction over the appeal. We do not agree. The statute gives-us jurisdiction to review “any judgment or order of the Customs Court” once a proper application for such review is filed in the office of the clerk. Of course, only those parties to a proceeding in the Customs Court who' appeal are able to improve their legal position.6 While our rules do-[93]*93not, of course, provide for appeals or cross-appeals, they do contemplate cross-appeals;6 consequently, Rule 1.4(a),7 making the Federal Rules of Appellate Procedure applicable in this court in certain situations is pertinent here. Rule 4(a) of the Federal Rules of Appellate Procedure states, in part, that “[i]f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed.” The cross-appeal was timely filed. Consequently, the cross-appeal is properly before us.

il:

Nonetheless, Bruckmann’s argument in the cross-appeal that the stems of the lamps should be classified under item 652.93 is not persuasive. This classification falls under the dominant heading (652.92 TSUS) “Columns, pillars, posts, beams, girders and similar structural units.” These articles must be parts of structures. A complete definition of “structural” or “structure” is not to be found. An adequate point of departure is found in Simon, Buhler & Baumann (Inc.) v. United States, 8 Ct. Cust. Appls. 273, 276, T.D. 37537 (1918), as follows:

Ordinarily speaking, “structure” carries with it the idea’ of size, weight, and strength, and it has come to mean anything composed of parts capable of resisting heavy weights or strains and artificially joined together for some special use.

In United States v. Humble Oil & Refining Co., et al., 46 CCPA 138, 140, C.A.D. 717 (1959), we indicated “that the word ‘structures,’ is not limited to such erections as buildings, bridges, and edifices.” In Laurence Myers Scaffolding Co. v. United States, 57 Cust. Ct. 333, 339, C.D. 2809, 259 F. Supp. 874, 879 (1966), “bridge overhang shores, highway shores, and building- shores” were • all found to serve a purpose similar to the articles mentioned in. the TSUS item. Therefore, bridges and highways are considered to be statutory “structures.” In J. Ray McDermott & Co. v. United States, 69 Cust. Ct. 197, C.D. 4394, 354 F. Supp. 280 (1972), an offshore oil.well drilling platform was found, to be a “structure.”

Clearly, none of these structures could be analogized to the lamp parts here in issue. W¿ 'agree that lamp “stems” are not parts of structures within the meaning of the heading above item 652.93.

III.

We do not agree with the holding of the Customs Court that the lamp parts in issue are properly classifiable under item 653.30 rather than under the remainder or “basket” item 653.39.

[94]*94It is fairly well-settled law tbat an eo nomine 8 provision which; does not specifically provide for parts does not include parts. An. example is found in Robertson v. Gerdan, 132 U.S. 454, 458-9 (1889), in which the Supreme Court stated: “If Congress had intended * * to impose the same duty on parts of musical instruments which it imposed on musical instruments, it would' have been easy to impose that duty on ‘musical instruments of all kinds, and parts of the same.’” ' -

Similarly, in United States v. Schoverling, 146 U.S. 76, 82 (1892), the Supreme Court refused to permit the imposition of duties on parts-of breech-loading shotguns under an eo nomine provision specifically for “breech-loading shotguns” (but containing no mention of parts).

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582 F.2d 622, 65 C.C.P.A. 90, 1978 Cust. Ct. LEXIS 1054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bruckmann-ccpa-1978.