United States v. Fung Chong Co.

34 C.C.P.A. 40, 1946 CCPA LEXIS 523

Opinions

O’CoNNEll, Judge,

delivered tbe opinion of tbe court:

This is an appeal from a judgment of tbe United States Customs Court, Third Division, C. D. 937, sustaining tbe protest of tbe importer tbat two items of merchandise comprising “2 Cases Dried Sweet Kumquat Orange in jar” and “10 cases Pres. Kumquat Orange in jar” were dutiable at 1 cent per pound under paragraph 743 of tbe Tariff Act of 1930 as oranges and overruling tbe action of tbe Collector of Customs who classified and assessed tbe merchandise as prepared or preserved fruits at tbe higher rate of duty provided for in paragraph 752 of such act or as it was modified by the trade agreement with France, T. D. 48316.

It does not clearly appear from tbe record whether the merchandise was assessed by the collector at 35 per centum ad valorem under paragraph 752 or at 25 per centum under the provisions of the trade agreement.

The Tariff Act of 1930 provides:

Pae. 743. Lemons, 2% cents per pound; limes, in their natural state, or in brine, 2 cents per pound; oranges, 1 cent per pound; grapefruit, 1)4 cents per pound.

Pab. 752. Bruits in their natural state, or in brine, pickled, dried, desiccated, evaporated, or otherwise prepared or preserved, and not specially provided for, and mixtures of two or more fruits, prepared or preserved, 35 per centum ad valorem; fruit pastes and fruit pulps, 35 per centum ad valorem; candied, crystallized, or glacé apricots, figs, dates, peaches, pears, plums, prunes, prunelles, berries, and other fruits, not specially provided for, 40 per centum ad valorem; Provided, That a mixture of two or more kinds of candied, crystallized, or glacé fruit shall bear the highest rate of duty applicable to any of the components.

Paragraph 752 as modified by the trade agreement with France, T. D. 48316, provides:

The trial was begun in California and after taking testimony there, the case was continued and transferred to New York where additional witnesses were heard. After hearing all the witnesses and after recounting and analyzing their essential evidence in detail, the court held that appellant had “failed to prove that there is any commercial usage of the term ‘orange’ unqualified by some prefix or that there is any definite, uniform, and general commercial meaning of the term ‘orange’ throughout the United States.”

Under the circumstances this court may not properly reverse the judgment of the trial court unless we are convinced that the judgment is against the weight of the evidence. Balfour, Guthrie & Co., Ltd. v. United States, 32 C. C. P. A. (Customs) 144, C. A. D. 300.

The Customs Court has heretofore held that the common meaning of the word “oranges” included kumquats and that preserved kumquats were therefore dutiable under the provisions of the statute hereinbefore recited as applied to oranges. Quong Lee & Co. et al. v. United States, 10 Cust. Ct. 23, C. D. 716. The record in that case was relied upon by the importer in the instant case and was received in evidence without objection.

Appellant concedes that kumquats are within the common definition of the term “oranges” as used in paragraph 743, and the sole question presented here for determination is whether appellant has sustained its burden of proving that at and prior to the passage of the Tariff Act of 1930, the word “oranges” had a definite, uniform, and general meaning in the trade and commerce throughout the United States that differed from the common meaning of the word in that it excluded kumquats.

The trial court properly ruled that in customs cases the common and commercial meaning of a word used in the tariff act “are presumed to be the same unless it is otherwise shown; that the burden of proving commercial designation is upon the party who alleges it, and that commercial designation must be shown to be definite, uniform, and general throughout the United States at the time of the enactment of the tariff act.”

The rule as it has been established “was intended to apply to cases where the trade designation is so universal and well understood that the Congress, and all the trade, are supposed to have been fully acquainted with the practice at the time the law was enacted.” Jas. Akeroyd & Co. et al v. United States, 15 Ct. Cust. Appls. 440, T. D. 42641.

Appellant introduced in evidence the testimony of seven witnesses each of whom testified to the best of his knowledge and established among other things that he had been in the business of buying and selling oranges in wholesale quantities to jobbers or dealers in various parts of the country at or prior to the time of the enactment of the Tariff Act of 1930. Most of the witnesses testified, that the word “oranges” had a meaning in the trade and commerce of the United States that differed from the common meaning and some of them pointed out that if they received an order for oranges they would not fill it by delivering kumquats.

Taken as a whole, the weight of the evidence clearly establishes that at or prior to the enactment of the Tariff Act of 1930 the word “oranges” defined in the commerce of the United States a kind of citrus fruit that was comprised of numerous varieties and that the two principal varieties, the navel and the Valencia, constituted together the major portion of the annual production of the crop. Other oranges were commercially designated according to their variety as Mediterranean sweets, Javas, Homosasas, seedlings, ruby bloods, Malta bloods, Parson Browns, Hamlins, etc.

The importer urges here, “The basic difficulty with the Government’s attempt to prove commercial designation is that the term 'orange’ is not used by the trade. There are so many varieties of oranges that they have to specify the type of orange.”

In support of its holding that appellant had failed to prove there is any commercial usage of the term “orange” unqualified by some prefix, the court below correctly quoted the following excerpts from testimony given on cross examination by witnesses for the Government:

By Samuel H. Kelly—

X Q. Now, just to get this straight, to see if my notes are correct, navel oranges are November to May or June? — A. Yes.

X Q. Valencia oranges are April to November? — A. That is correct.

X Q. Suppose I ordered my oranges in May or April. What would I get?— A. Well, you would get ordinarily navels, because there would be greater volume at that time, but when there is an overlapping of seasons you would ask the jobber what he wanted, whether he wanted Valencias or navels.

X Q. So oranges in the trade and commerce do have a prefix? — A. Oh, yes, sure.

X Q. I mean they need the prefix to be identified? — A. Certainly.

By Joseph Moyes — ■

X Q. In buying — if I sent you an order for oranges, what would you deliver to me? — A. It would all depend on the season of the year that you sent the order.

X Q. In May?- — -A. If you were an intelligent retailer or jobber and you sent an order in May, you would specify Valencia oranges or navel oranges.

X Q. But you say the trade has an understanding of the term “orange,” as I understood it, so I am just using the understanding of the trade, oranges. — A. But the intelligent retailer will ask for Valencias or navels. He will not come in and ask simply for oranges. He will ask for Valencia oranges or navel oranges.

X Q. And “orange” itself as a term would not have an adequate or sufficient meaning to the trade? — A. Well, we wouldn’t know, if a man came in and asked for oranges, we wouldn’t know what variety he wanted unless he mentioned Valencias or navels, if the two varieties were in the market at the same time.

The following pertinent evidence was correctly summarized by the trial court—

The case was transferred to New York and the Government called Frank J. Cuneo, president of G. B. Raffeto, Inc., manufacturers of fruit preserves and canned fruits. He testified that “orange” was a class of fruit; that there were many kinds of oranges; that kumquat was one of them; that he never used the term “orange” alone but asked for Valencia oranges or seedless oranges or kumquat oranges, depending upon the type orange he was interested in; that he never bought or sold oranges by the word “orange” alone except where the supplier happened to know what type he always ordered.

The testimony of Fred H. Howard in the case incorporated as a part of the evidence in this case and relied upon by the importer, is to the effect “that commercially as well as commonly a kumquat falls within the general classification of ‘orange’.”

One of the witnesses for the Government stated that there are “500” different varieties of oranges and it stands to reason that it would not be necessary for Congress in drafting 'the statute to specially provide for each variety in order to establish its intent to include all varieties within the provision for oranges. Of course, a kumquat is different in many respects from the common variety of oranges, such as navels or Valencias, but it does not follow from that fact that Congress did not intend to include all varieties of oranges in the one classification for tariff purposes.

It is true, as pointed out by the court below, that although certain witnesses for the Government testified that the term “orange” had a commercial meaning different from its common meaning, they did not inform the court as to such commercial meaning. The most that those witnesses testified to was that the term “kumquat” was excluded from the commercial meaning of the term “orange.”

In the absence of any testimony as to the commercial meaning of the term “orange,” the statement of the witnesses that the involved merchandise was excluded from that term is insufficient to prove commercial designation. See Jas. Akeroyd & Co. et al. v. United States, supra; Acker v. United States, 1 Ct. Cust. Appls. 328, T. D. 31431; Lamont, Corliss & Co. et al. v. United States, 16 Ct. Cust. Appls. 488, T. D. 43224; United States v. Schoemann & Mayer, 17 C. C. P. A. (Customs) 349, T. D. 43778; Passaic Worsted Co. et al. v. United States, 17 C. C. P. A. (Customs) 459, T. D. 43916, and authorities therein cited; United States v. Armand Schwab & Co., Inc., et al., 30 C. C. P. A. (Customs) 72, 78, C. A. D. 218.

In the interpretation of the tariff act the function of the court is to ascertain and carry out the intent of Congress. One of the rules to be followed in discovering that intent is the rule of commercial designation. It.was established almost a century ago and has been uniformly adhered to by all the courts down through the years. It has been described by the courts as a wise rule “often claimed in customs litigation and rarely established,” Jas. Akeroyd & Co. et al. v. United States, supra.

The suggestion has been made that the rule is too technical in scope and therefore should be modified by relaxing the requirements as to the character and extent of the required proof. As the rule now stands and has stood for a century, any lawyer or judge knows what those requirements are and may predict with reasonable certainty the outcome of the application of the rule. To relinquish those requirements at this late date would open up a new line of judicial interpretation. In our opinion no basis calling for a revision of the rule has been established.

Appellant in its assignment of errors alleged that the Customs Court had erred in not holding that the preserved as well as the dried kumquats here involved were dutiable under paragraph 752 or under that paragraph as amended by the trade agreement with France. That question was not mentioned by either party in its oral argument or its brief on appeal. Apparently it was not argued by either side in the court below.

The Government has confined its argument here to the sole question of commercial designation and has not relied on any other assignment of error as a ground of reversal. Under the circumstances the appeal as to assignments of error other than the one that was argued before this court is deemed to be abandoned by the Government and therefore need not be considered. United States v. Joseph G. Brenner Co., 19 C. C. P. A. (Customs) 105, T. D. 45243.

The judgment of the United States Customs Court is accordingly affirmed.