United States v. Twin Wintons

535 F.2d 636, 63 C.C.P.A. 84

• Court: Court of Customs and Patent Appeals
• Decided: June 10, 1976
• Docket: No. 75-29 C.A.D. 1171
• Status: Published

Opinions

Rich, Judge.

This appeal is from the judgment of the Customs Court, 74 Cust. Ct. 115, C.D. 4594, 395 F. Supp. 1397 (1975), sustaining appellee’s claim that its imported ceramic decanters are dutiable under the Tariff Schedules of the United States (TSUS), as modified by T.D. 68-9, item 533.31, as fine-grained stoneware articles at the rate of M per dozen plus 20% ad valorem for the entries made in 1969 and H per dozen plus 17% ad valorem for the- entries made in 1970. The merchandise was classified under TSUS item 533.71 as articles of nonbone chinaware and assessed with duty at the rate of 36% or 31% ad valorem, depending on date of entry. We reverse.

The merchandise was invoiced as “Hillbilly Decanters” and tops, or “Rebel Yell Decanters” and tops. The parties stipulated that it is fine-grained ceramic ware, that all of the merchandise is identical in composition and production, that no color additives were used prior to the addition of any glaze in the production of the decanter bodies, and that the bodies absorb less than 0.5 percent by weight of water when tested according to the procedures set forth in ASTM C373-56, the test method prescribed in Schedule 5, Part 2, headnote 2(k).

Schedule 5, Part 2, TSUS, in pertinent part, reads as follows:

Part 2 headnotes:

1. This part covers ceramic wares, and articles of such wares and, in addition, certain unshaped refractory material (subpart A) closely related thereto.

2. For the purposes of the tariff schedules—

* * * *

(c) the term “stonewareV embraces ceramic ware whether or not glazed or decorated, having a fired body which contains clay as an essential ingredient, is not commonly white, will absorb not more than 3.0 percent of its weight of water, and is naturally opaque (except in very thin pieces) even when fully vitrified;[¹]

* * * *

(e) the terms “chinawares” and “porcelain" embrace fine-grained ceramic ware (other than stoneware), whether or not glazed or decorated, having a body which is white (unless artifically colored) and will not absorb more than 0.5 percent of its weight of water;

(f) the term “bone chinaward’ embraces chinaware or porcelain the body of which contains by weight 25 percent or more of calcined bone;

(g) the term “nonbone chinaware?’ embraces chinaware or porcelain other than bone chinaware;

* * * *

(i) the term “fine-grained!’, as applied to ceramic wares, embraces such wares having a body made of materials any of which had been washed, ground, or otherwise benefi-ciated; and

(j) the term “bodtf’ includes any engobe or body slip, except engobe or body slip applied to the body as a decoration; * * *

* * * *

Subpart C. — Table, Kitchen, Household, Art and Ornamental Pottery * * * *

Articles chiefly used for preparing, serving, or storing food or beverages, or food or beverage ingredients:

of fine-grained earthenware * * * or of fine-grained

stoneware:

* * * *

Not available in specified sets:

533.31 Steins, mugs, candy boxes, decanters, punch bowls***. 8é per doz. pcs. + 20% ad val. [or] li per doz. pcs. + 17% ad val.

♦ * i}S ifc

Of nonbone chinaware or of subporcelain:

* * Jfs *

533.71 Steins, mugs, candy boxes, decanters, punch bowls ***.36% [or] 31%' ad val.

The record consists of the testimony of two witnesses and four exhibits offered on the importer-appellee’s behalf, and the testimony of three witnesses and two exhibits offered on appellant’s behalf. Ap-pellee’s Exhibit 1 is a “Hillbilly” decanter identified as representative of the imported merchandise. It is elaborately decorated with glazes of various colors. During the trial it was broken to enable appellant’s witnesses to testify about the color of the decanter body, beneath the glaze.

Appellee’s first witness, Ross H. Winton, was associated with his twin brother, owner of appellee, The Twin Wintons & Associates. He was involved in the negotiations with the Japanese manufacturer of the decanters. He testified that though appellee desired to import porcelain decanters, the Japanese manufacturer indicated it was not set up for porcelain manufacture and suggested instead the use of stoneware which would not be white but off-white in color. The order was placed following approval by appellee’s customer. Winton testified that neither he nor appellee specified what materials were to be used in the manufacture and that he did not know what went into the composition of the decanters.

Appellee’s other witness, Lewis F. West, was employed by the United States Testing Company, an independent testing laboratory, as a chemist and laboratory supervisor. He stated that he had experience in testing chinaware and stoneware and that he supervised the testing of the head portion of one of the imported decanters sent to his company by Winton. He identified the report of the testing, plaintiff’s Exhibit 2, which he said he had read and approved.² He stated that he personally had performed the water absorption test and that, from a physical examination of the sample body, “We found the material to be clay, to be opaque, and to be an off-white.” He admitted that the report said the color of the body is “white” and added: “Yes, the body is white. It is an offwhite. It does not come up to a hundred percent white.” He said the test for color was visual: “We simply looked at it.” Water absorption was found to be less than 0.3%. Metal content determination was farmed out to another laboratory for spectrophotographic analysis which showed silicon 29%, aluminum 14%, calcium 1.9%, potassium 3.0%, and sodium 1.7%, accurate within the range of 10%.

The conclusion of the report, which conforms to West’s testimony, is:

Since the color (white) and water absorption (less than 0.3%) of the sample material is in the range of both stoneware and porcelain, the determining factor is the opacity of the material.

The submitted sample is opaque and therefore classified as stoneware.

That, in sum, is appellee’s case.

Appellant’s three witnesses were persons experienced in various phases of the ceramics industry. Harry W. Thiemecke had worked as an engineer for Westinghouse Electric Company on porcelain insulators and afterward, until he retired, for Homer-Laughlin China Company. Clifford R. Stowell, Jr., was currently vice president of Western Stoneware Company, manufacturer of bean pots, whiskey jugs, dinnerware, bowls, cups, mugs, and jars. He had much prior experience in the field with other manufacturers. But, he said, he was not an expert on stoneware body composition. Edith Heath was artist-ceramicist who had studied and taught in the field and had had her own company, Heath Ceramics, since 1947, manufacturing a variety of stoneware articles. We find it unnecessary to examine in detail the testimony of these government witnesses.

The Customs Court, after reviewing the stipulated facts, the evidence, and the arguments of the parties and the amicus, noted that classification is controlled by the statutory definitions contained in the headnotes, quoted above. It discerned three factors to be considered: the whiteness of the body, whether clay is an essential ingredient of the body, and the opaqueness, or otherwise, of the body.

On the question of the color of the decanter body, the Customs Court concluded that it is not determinative of whether the decanter is classifiable as chinaware or stoneware because the phrase “not commonly white” in the headnote 2(c) definition applicable to item 533.31 “does not preclude the possibility that stoneware bodies may fire white.” The court noted that the color of a stoneware body appeared, on the evidence of record, to be a function of the potter’s intention, manifested through ingredient control, stating:

And this is apparently reckoned with in the statutory language “not commonly white”, which certainly leaves the door open for the admittance of white-bodies [sic] stoneware, whether a visual examination leads one person to describe an article as “white” or “off-white”.

As for meeting the headnote 2(c) requirement that stoneware “contains clay as an essential ingredient,” the Customs Court found that the evidence shows the main part of the body to be clay material and therefore held that the merchandise has clay as an essential ingredient.

On the third point, opaqueness, the Customs Court said:

All of the witnesses, for both the plaintiff and the defendant, conceded that exhibit 1 is opaque.

On that assumption, the court decided the case, holding that because the merchandise has clay as an essential ingredient, is off-white in color, and is opaque, it is within item 533.31 and classifiable as fine-grained stoneware.

OPINION

We are in full agreement with the conclusions of the Customs Court on the first two points, that the decanter body is white or off-white but that classification cannot be determined on the basis of whiteness, and that the decanter body contains clay as an essential ingredient. We are constrained to disagree with its finding of opaqueness on the basis of the evidence of record and reverse the decision on classification for that one reason.

Our first point of disagreement is with the finding that all the witnesses conceded that Exhibit 1 is opaque. As the court noted, there were five witnesses. Ross Winton said nothing about opaqueness. West said the sample he tested was opaque and introduced a report of his company which so stated. That report, Exhibit 2, gives no information on how the sample was determined to be opaque other than to say that it was “visually examined * * * for opacity/translucency characteristics.” Thiemecke testified on cross-examination about an examination he made on the witness stand, as follows:

Q. Mr. Thiemecke, only one question. In your opinion, looking at Exhibt 1, is it translucent or opaque? A. Translucency is a function of thickness.

Mr. Glad: Would the witness be asked to be responsive to the question?

Q. Is it translucent or opaque? A. I would like to have a source of light, if I may. The object that I have in my hand, including the glaze, is opaque.

The record fails to show whether Mr. Thiemecke was supplied with a source of light and, if so, what it was, or what the lighting in the courtroom was, or how the witness examined the exhibit. All the record shows as a basis for Thiemecke’s opinion is what is quoted above. Mr. Stowell gave no testimony on the question of opaqueness. Mrs. Heath, the last witness, gave the following testimony on cross-examination:

Q. How thin do you think Exhibit 1 is? A. Oh, I would say it averages about 3/16ths.

Q. Would a chinaware plate that is 3/16ths thick be translucent? A. Some could be.

Q. Would you tell me whether or not that [Exhibit 1] is translucent? A. I can’t.

Q. Why not? A. I don’t have enough light, and it is too thick. This is not typical.

Q. You are saying that it is not translucent? A. I can’t tell.

Mr. AST [for the Government]: Your Honor, she didn’t say it was not translucent. A. (Continuing) If I could have a 500 watt bulb and could find a real thin section in here, I might be able to tell you. Otherwise, I can’t.

On the foregoing evidence, we fail to see, as the Customs Court saw, that all of the witnesses conceded that Exhibit 1 is opaque.

At the conclusion of the case, plaintiff’s attorney, in a colloquy with the court, made this statement:

And it is our contention that the only difference between stoneware and porcelain ware is the translucency or opaqueness of the two articles.

He introduced exhibits and testimony to establish opaqueness, the controlling characteristic. He concluded his brief in this court with this paragraph:

As to the opacity of the decanters herein, not only does the unrebutted testimony of record show that the body of exhibit 1 is opaque (West, R-25; and Thiemecke, R-37), a visual examination of exhibit 1 will show that it is opaque. In this respect, exhibit 1 can be a very potent witness. United States v. The Halle Bros. Co., 20 CCPA 219, 221, T.D. 45995 (1932).

This court has so often repeated the statement for which the Halle case is cited as to make it axiomatic. See R. Sturm, A Manual of Customs Law 394 (1974). Wrapped in the words of this one paragraph is the ultimate in irony and the denouement as to what the decanters are made of. Exhibit 1 (the sample decanter) is indeed a very potent witness; visually examined, pursuant to appellee’s invitation, it contradicts all other evidence that it is opaque.

How does one examine for opacity? As the report, Exhibit 2, implies, the opposite of opacity is translucency, a word derived from the Latin “translucere” meaning to shine through. The definition appropriate here is given in Webster’s New International Dictionary (2d ed. 1937) as follows:

3. Specif, and usually, admitting passage of light but diffusing it so that objects beyond cannot be clearly distinguished; partly transparent; as translucent glass is unsuited for most windows.

The Random House Dictionary of the English Language (1967) defines translucent thus:

1. Permitting light to pass through but diffussing it so that persons, objects, etc., on the opposite side are not clearly visible (distinguished from opaque) * * *.

As defined in a more technically oriented dictionary, Hackh’s Chemical Dictionary (3d ed. 1944):

translucent. Semi-transparent; permitting the partial passage of light.

To determine whether the decanter sample, Exhibit 1, is opaque one must therefore find out whether light — ordinary visible light — will pass through it, partially, being diffused in its passage. Nothing in the record tells us exactly how translucency tests were or should be conducted or that translucency and its opposite, opacity, have any special meaning in customs law. Appellee introduced part of a china plate (Exhibit 3) which was tested by the Bureau of Customs Laboratory at San Pedro, California, and reported to be translucent except for 25% of the foot, due to thickness. How it was tested is not disclosed. Exhibit 1 was tested for the account of appellee, as Mr. West testified, by, United States Testing Company, Inc., California Division. The report, Exhibit 2, states only that “the submitted sample is opaque.” The only explanation of what the test for opaqueness was is that it was “Visual Examination.” Mrs. Health was asked on cross-examination whether Exhibit 1, which she accurately estimated to be about three-sixteenths of an inch thick, was or was not translucent. She said she could not tell because she did not have enough light; that if she could have a 500-watt bulb she might be able to tell if she put it down inside the decanter and could find a “real thin section. ” There is no evidence that any part of the decanter is “real thin,” or “very thin” as headnote 2(c) says, and the sample does not show any such part.

Appellee’s challenge to the court in its brief is that by “visual examination” we can see that Exhibit 1 is opaque. Accepting the challenge and using sources of visible light consisting of a penlight type of flashlight powered by two “AA” cells and a Christmas tree bulb of white glass of approximately 7 watts (not 500), our “visual examination” shows that Exhibit 1 has a translucent body. It clearly is not opaque. Our examination involved the elementary operations of taking the pieces of the broken decanter, Exhibit 1, into a dark room, placing each light source inside the hollow bodies, and observing the visible light which penetrates or passes through the bodies. This required no more technical ability or training than is necessary to enable one to recognize light when it is present. Considerable light passes through Exhibit 1 from the aforesaid relatively weak sources of light; therefore, it is translucent rather than opaque, and on appellee’s theory of the case it is not classifiable as stoneware.

To give additional illuminating detail, we make these further observations. On the essentially flat bottom of Exhibit 1, which is of a cream color, is some writing.³ The 7-watt bulb inside the decanter produces sufficient luminosity of the base in a darkened room to enable the observer to clearly read all of the writing by the transmitted light. When the penlight flashlight, which produces a spot of light, is moved about inside the decanter adjacent the base, the location of the light is clearly visible through the base. The 7-watt bulb, placed inside the head of the “Hillbilly” decanter, all light being masked off save that transmitted through the body, clearly illuminates all of the hillbilly’s features.⁴ All of the foregoing phenomena of translucency have been observed by all members of the court. The potent witness, Exhibit 1, though silent, appears to be irrefutable and a complete refutation of all other evidénce of record on alleged opacity. Since, on the present record, the one proposition not open to dispute and not contested by anyone is that if the imported decanters are not opaque they cannot be stoneware, there is no reason to consider any other question.

Appellee’s burden of proof was to show that its importations are “stoneware” under the TSUS definitions. It endeavored to carry that burden by trying to establish opaqueness. It failed primarily because the evidence shows translucency; secondarily, having failed to introduce any evidence that the imported decanter has any “very thin” section, and Exhibit 1 indicating the contrary, the translucency cannot be explained by thinness. Finding, as we do, that appellee simply failed to sustain its burden of proof does not raise any new issue.

The judgment of the Customs Court is reversed.

1 Neither the parties nor amicus curiae (representing the United States Potters Association, of East Liverpool, Ohio, domestic manufacturers of ceramic wares, chinaware, earthenware, stoneware, etc.) have argued the question whether the imported merchandise is fully vitrified.

2 Exhibit 2, the test report, is addressed to “Twinton, Inc.” It identifies the sample tested thus:

One sample was submitted and identified by the Client as the “head” of a decanter. The “head” is that of an old man with a beard and wearing a hat. The top of the hat is the pour spout.

As indicated above, Exhibit 1 is a decanter which has been broken and the parts collectively are now Exhibit 1. The head portion conforms to the Exhibit 2 description of the sample to the laboratory.

3 The writing is in black and appears to be, or to be covered by glaze. It reads “Original Design from the Cabin Still Collector’s Gallery 1969” plus a central mark reading “Stitzel Weller Distillery.”

4 The features are apparently painted on with glaze of unspecified composition in various flesh tones and brown with black eyes. The glaze variably reduces the amount of light transmitted.