Pacific Mutual Sales Co. v. United States

DonloN, Judge: Counsel have by stipulation, dated November 29, 1955, withdrawn the previous submission and resubmitted this case on that date to the third division as now constituted. The merchandise in dispute is a product of Japan. It was stipulated on trial: * * * that the merchandise consists of Sazae, known as Top-Shell; that it is a marine snail known as Turbo (Batillus) Cornutus Solander, a gastropodous mollusk which creeps on the floor of the ocean near Japan; packed in airtight containers; that this species belongs to the Turbinidae family. The collector had classified the merchandise as snails, prepared, an unenumerated manufactured article, dutiable at 20 per centum ad valorem under section 1, paragraph 1558, of the Tariff Act of 1930. Plaintiff protested the collector’s classification, claiming that the merchandise is shellfish, not specially provided for, and, therefore, duty free under section 201, paragraph 1761, of the Tariff Act of 1930. Plaintiff subsequently amended its protest to claim further, and at the trial introduced evidence and argued in support thereof, that there was an established and uniform practice of exempting this merchandise from duty as shellfish, not specially provided for, under paragraph 1761; that change in this practice could not be effected without the 30-day notice provided in section 315 of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938, which notice was not given; and that Article X of the General Agreement on Tariffs and Trade, T. D. 51802, and especially paragraph 2 thereof, likewise makes improper an advance in a rate of duty or other charge on imports under an established and uniform practice, unless notice of such advance is promptly published. [102] The first question for decision is whether this merchandise is, in fact, an unenumerated article or whether it is shellfish, not specially provided for, as the plaintiff’s original protest claims. Snails, according to the evidence and as a matter of common knowledge, may be either terrestrial snails or marine snails. The Government cites De Jonghe v. United States, 5 Ct. Cust. Appls. 134, T. D. 34189, in which the merchandise consisted of terrestrial snails, imported from France. They were held dutiable at 10 per centum under paragraph 480, Tariff Act of 1909, the predecessor to paragraph 1558, supra. The merchandise we are now considering consists of marine snails, as stipulated, imported from Japan. In the Tariff Acts of 1890 and 1894, there was provision for free entry, under items separately stated, both of snails and shellfish; but in the Tariff Act of 1897 and in subsequent tariff acts, while continuing free entry of shellfish is provided, snails eo nomine are omitted from the free list. Diligent research fails to disclose, in reports and notes relating to the 1897 revision, any mention of snails. We do not know, therefore, why the eo nomine provision was omitted in that revision. In the absence of congressional intent to the contrary, marine snails are not to be deemed excluded from their proper classification as shellfish. The De Jonghe case, supra, considered the dutiable status of terrestrial snails, subject of the protest in that case, and held they are not included in the free list as shellfish, not specially provided for. Is there such a difference between terrestrial snails and the marine snails, which are the merchandise in this case, that the De Jonghe case is not necessarily controlling? We think there is such a difference. However, even if there were not such a difference in law, it is clear that “a mistake of yesterday should not be perpetuated and thus continue to be the law of today and tomorrow.” Pitcairn Corp. v. United States, 39 C. C. P. A. (Customs) 15, C. A. D. 458, at page 34. There are numerous decisions to like effect. Shellfish is, of course, not fish. The Tariff Act of 1930 expressly so states. The term “fish”, as used in this Act, does not include shellfish. [Par. 720 (e).] Shellfish is defined in Webster’s New International Dictionary, second edition, as— * * * Any aquatic invertebrate animal having a shell, esp. a mollusk, as an oyster or clam, or a crustacean, as a lobster. Crab meat, clams, oysters — generally classed as shellfish — are dutiable, as provided in paragraph 721. Shrimps, lobsters, “and other shellfish * * * not specially provided for” are on the free list, paragraph 1761. Snail is defined in Webster’s New International Dictionary, second edition, as— [103] * * * Any of numerous gastropod mollusks; esp., when used without a qualifying term, one of terrestrial habits having a well-developed spiral shell into which the animal can withdraw for protection. * * * Also, often with a qualifying term, any of various other gastropods, particularly if having a spiral shell. Mollusks are, by definition in the same work, a large division of the animal kingdom “containing most of the animals popularly called shellfish * * * which have a soft unsegmented body, * * *,”thatisto say, mollusks are invertebrate animals. Sea snail is there defined as — ■ Any creeping marine gastropod with a spiral shell * * *. Turtles, like snails, by express language were on the free list in earlier tariff acts, and are now so enumerated. Turtles, like snails, may be either terrestrial or marine. The periwinkle is a European and American species of marine snail; sazae is a Japanese species of marine snail. The record in this case is confused both by Japanese and English language problems. The merchandise was variously described as sazae, snails, prepared snails, top shells, and prepared shellfish. However, to resolve this language confusion so far as possible in deciding proper classification, my decision rests on the merchandise description that was stipulated on trial, as quoted above. In the De Jonghe case, supra, our appellate court rejected a contention that snails were dutiable under the classification of “live animals” and then proceeded to consider whether they were exempt as “shellfish.” On this point, the Court of Customs Appeals said: * * * As snails and shellfish, were separately provided for on the free list in the tariff acts of 1890 and 1894, it is evident that snails were not regarded by Congress as shellfish, and that snails and shellfish must be considered as distinct entities for tariff purposes. From this it follows that the designation “shellfish” does not embrace snails, and that as snails were omitted from the free list of the tariff act of 1909 they must be held to be dutiable and not entitled to free entry. Snails are not provided for eo nomine or by description in the dutiable list, and apparently they can not be made dutiable by similitude in material, quality, texture, or use to any enumerated article therein provided for. We think, however, that they may be classified as a raw article, designed to be converted into a food, and not enumerated or provided for. We therefore hold that edible snails are dutiable at 10 per cent ad valorem under the provisions of paragraph 480. Whether or not our appellate court would have arrived at the same conclusion if the merchandise had been marine snails, as here, instead of terrestrial snails, as there, it is not necessary for us to speculate. The holding itself does not extend beyond the facts before the court in that case. It may be observed also that, in the instant case, the Government does not wholly follow the classification ruling laid down in the De Jonghe case, on which it relies, claiming that the marine snails, which are the merchandise in this case, are a manufactured article. However, with that exception, the position now taken by the Government seems to be that snails, whether terrestrial or marine, [104] alike are not shellfish and, therefore, not on the free list under paragraph 1761. The fact is that marine snails fall squarely within the definition of shellfish, for they are an aquatic, that is, marine, invertebrate “animal having a shell, esp. a mollusk * * They are, indeed, aquatic mollusks. We find they are shellfish, not specially provided for, in the Tariff Act of 1930. It is, therefore, not necessary to consider the similitude rule that was discussed by the court in the De Jonghe case, supra. Shellfish, not specially provided for, is itself an enumerated classification, and there is no need to resort to similitude. There remains for consideration the question whether/ notwithstanding that this merchandise is shellfish, not specially provided for, and, therefore, within the terms of paragraph 1761, there is some rule of construction or precedent that calls on us to exclude the merchandise from the terms of paragraph 1761. We find no such rule or precedent. The De Jonghe case, supra, is not controlling, because the merchandise in that case was not marine snails, which this merchandise is. The rule of construction, for which the Government argues, was decided adversely to its contention in United States v. Hurst & Co. et al., 14 Ct. Cust. Appls. 85, T. D. 41584. There, our appellate court had to decide whether the eo nomine omission of bleached shellac in the 1922 tariff act resulted in bringing bleached shellac into the unenu-merated classification, or whether, as the plaintiffs claimed, it came within the continuing tariff classification of “lac,” even though by longstanding administrative practice it had not been so classified. The position of the Government in this respect was stated by the court as follows: It is argued that from that time [i. e., the Tariff Act of 1894] until the enactment of the Tariff Act of 1922 the administrative practice must have been to impose a duty on bleached shellac, from which it is insisted that the same must still be dutiable. * * * It may be presumed * * * for the purposes of this case * * * that such classification was adhered to during all the subsequent tariff acts down to and including that of 1913 * * *. The court held that shellac was properly classified under the Tariff Act of 1922 as lac and not as unenumerated, regardless of any previously prevailing administrative practice, whether erroneous or not. While not necessarily determinative of correct classification, there is evidence in the record that sazae has been entered over a considerable period of time in west coast ports as shellfish. Since marine snails actually are shellfish, they are properly classifiable as such, and it is irrelevant whether or not they have, by some [105] administrative practice, been held dutiable as unenumerated. They are on the free list by provision of paragraph 1761. In view of our decision that marine snails are shellfish, not specially provided for, and not an unenumerated item, I am of opinion that it is not necessary to decide whether or not there was, as the plaintiff claims and the defendant denies, an established and uniform administrative practice so classifying them. There is no claim as to any established and uniform practice classifying marine snails as something other than shellfish. It is, therefore, likewise unnecessary to hold, as I would have to hold, that the provisions of the General Agreement on Tariffs and Trade may not be invoked to affect the classification of merchandise imported from Japan in April 1949. We make the following findings of fact and law: Of fact: 1. That the merchandise, subject of this protest, is “sazae,” a product of Japan. 2. That “sazae” are marine snails that creep on the ocean floor near Japan. 3. That marine snails are aquatic invertebrates — mollusks—and are shellfish. 4. That the Tariff Act of 1930 makes no eo nomine provision for snails. 5. That shellfish, not specially provided for, are on the free list in the Tariff Act of 1930, paragraph 1761. Of law: 1. That the merchandise covered by the subject protest is properly free of duty under paragraph 1761 of the Tariff Act of 1930 as shellfish, not specially provided for. The protest is, therefore, sustained. Judgment will be rendered accordingly.