J. C. DeJong & Co. v. United States , 52 C.C.P.A. 26 ( 1965 )

Worley, Chief Judge,

delivered the opinion of the court:

The imported articles are pole ends, used on the ends of curtain rods or poles. They were classified as articles of brass, not specially provided for, under paragraph 397 of the Tariff Act of 1930, as modified by the sixth Protocol of Supplementary Concessions to GATT, T.D. 54108, which in pertinent part reads:

Articles or wares not specially provided for, whether partly or wholly manufactured:

*******

Composed wholly or in chief value of * * * brass, * * * but not plated with platinum, gold, or silver, or colored with gold lacquer: * * *

Other, composed wholly or in chief value of * * * brass, * * * _19% ad val.

Appellant contends here, as before the Customs Court, that the pole ends should be classified as househould utensils, not specially provided for, in chief value of brass, under paragraph 339 of the Tariff Act, as modified by the Sixth Protocol, which reads:

Table, household, kitchen, and hospital utensils, and hollow or flat ware, not specially provided for, whether or not containing electrical heating elements as constituent parts:

* ❖ * *

Not plated with platinum, gold, or silver, and not specially provided for, composed wholly or in chief value of—

Brass-12%% ad val.

The evidence before the trial court includes the testimony of one witness for appellant and a stipulation of counsel that the pole ends are chiefly used in the household. Appellant’s exhibits consist of pole ends of 1-inch and %-inch size, and a collective exhibit consisting of a curtain rod, curtain pole rings, bracket, and pole ends together with a curtain or drapery.

The witness testified regarding the use of the pole ends:

On a curtain rod a pole end is needed for two reasons: First, to prevent that the last ring will fall off when the curtains are open; secondly, to prevent dampness and humidity and dirt to come into the room [rod], and thus preventing corrosion and rust.

The court observed that

The witness then demonstrated in more detail how the various exhibits would be put to practical use. A curtain, to which curtain hooks were fastened, was attached to the curtain rod by placing the hooks through the eyes of the pole rings. The witness explained that while there are many different ways of hanging a curtain rod to the wall, in this particular case, a bracket is attached to the wall, and between the bracket and the pole end a ring would be placed, the purpose of the pole end being to prevent the curtain from sliding off the end of the pole.

The court was of the opinion the pole ends serve “primarily a utilitarian purpose,” and that their decorative appearance would not necessarily deprive them of their utilitarian character.

The court found the issue to turn on whether the pole ends are utensils, it being stipulated, as previously noted, that they are chiefly used in the household.

In resolving that question, the court took particular note of Frank P. Dow Co., Inc. v. United States, 21 CCPA 282, T.D. 46816, which held that certain electric vacuum cleaners and floor polishers were household utensils. There it was stated that the terms “ ‘utensil,’ ‘instrument’ and ‘implement’ may be, and frequently are, used interchangeably.” The following definitions of those terms were quoted from Dow:

Utensil, n. An instrument or vessel, esp. one used in a kitchen or dairy. (Webster’s New International Dictionary.)

Utensil, n. Something that is used; a thing serving a useful purpose; formerly, a thing of varied use; as, utensils of war or observation; now, more especially, an implement or vessel for domestic or farming use; as kitchen utensils. (Funk & Wagnalls’ New Standard Dictionary.)

Utensil, n. An instrument or implement; as utensils of war; now, more especially, an instrument or vessel in common use in a kitchen, dairy, or the like, as distinguished from agricultural implements and mechanical tools. (Century Dictionary & Cyclopedia.)

Instrument, n. 2. A material thing or mechanical device for performing work or producing an effect; tool; utensil; implement; as, a mechanic’s instruments; astronomical instruments. (Webster’s New International Dictionary.)

Implement, n. 1. That which fulfills or supplies a want or use; esp., an instrument, tool, or utensil used by man to accomplish a given work; as, the implements of trade, of husbandry, or of war. (Webster’s New International Dictionary.)

Instrument, n. 1. A means by which work is done; an implement or tool, especially an implement or mechanism for scientific or professional purposes, as distinguished from a device, tool, or machine for industrial use; figuratively, any means of accomplishment; as, the hands are instruments of the will.

Implement, n. 1. Am instrument used in work, especially manual work; a tool or a utensil; as, the implements of husbandry; the implements of warfare. (Funk & Wagnalls’ New Standard Dictionary.)

The court then concluded:

It seems clear from the definitions quoted above that pole ends, such as exhibits 1 and 2, are not utensils or implements within the foregoing definitions. * * *

We are unable to agree that the instant merchandise does not come within the broad scope of those definitions. One definition of utensil is “something that is used; a thing serving a useful purpose.” Utensil is also defined as “an instrument or implement,” while one definition of an implement is “That which fulfills or supplies a want or use.” We think such broad definitions would include the merchandise at bar. Cf. Kroder Reubel Co., Inc. and Alltransport, Inc. v. United States, 44 Cust. Ct. 274, C.D. 2186.

Appellant cites numerous decisions to support its position that the provision for household utensils has been broadly construed, among which is F. W. Woolworth Co. v. United States, 26 CCPA 221, C.A.D. 20, where it was held that small silver-finished metal animal figures to which short mechanical pencils were attached by a chain were dutiable as household utensils.

Woolworth, was cited in Pramette Juvenile Furniture Co. v. United States, 36 CCPA 61, C.A.D. 398. Although children’s strollers or gocarts were there held not to be household utensils, apparently because they were chiefly used on streets and beaches, it was there stated:

The words “household utensils” as used in paragraph 339, * * * , have been consistently construed by this court to refer to articles which serve a utilitarian purpose and are chiefly used in the household for the care and maintenance of the home for the convenience and comfort of its members.

Also relied on is Davies, Turner & Company v. United States, 47 CCPA 129, C.A.D. 744, where water mixers used to connect hot and cold water faucets to provide a single spray of water were held to be household utensils. The water mixers had no use except when so connected and were readily detachable.

The Government bases its argument to a large extent on the contention that the imported pole ends are primarily ornamental and not utilitarian in character. Indeed, it attempts to distinguish on that basis from the Woolnworth and Davies cases, which it says related to articles which were utilitarian in their use and not ornamental, and also from the Kroder Beubel case. That contention, however, is directly contrary to the finding of the Customs Court that the pole end serves “primarily a utilitarian purpose.” We find no basis in the record for holding that finding to be in error, nor for disagreeing with the conclusion of the court that the decorative appearance “would not necessarily deprive it of its utilitarian character as a household utensil.”

In view of the stipulation that the pole ends are chiefly used in the household, the finding of the Customs Court that they serve primarily a utilitarian purpose, the dictionary definitions, and the broad construction prior decisions of this court have given paragraph 339, we are persuaded that the imported articles should be classified under that paragraph.

Since we find that the pole ends themselves are household utensils, it is unnecessary to review the Customs Court’s consideration of them as parts of poles.

The judgment is reversed.