Star-Kist Foods, Inc. v. United States

Wilson, Judge: This protest against the classification of the imported merchandise is filed pursuant to section 516 (b) of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938. Section 516 (b), supra, provides in part as follows: Classification. — The Secretary of the Treasury shall, upon written request by an American manufacturer, producer, or wholesaler, furnish the classification of, and the rate of duty, if any, imposed upon, designated imported merchandise of a class or kind manufactured, produced, or sold at wholesale by him. If such manufacturer, producer, or wholesaler believes that the proper rate of duty is — 172 — not being assessed, lie may file a complaint with the Secretary, setting forth á description of the merchandise, the classification, and the rate or rates of duty he believes proper, and the reasons for his belief. * * * Within thirty days after the date of mailing to the complainant of notice of such liquidation, the complainant may file with the collector at such port a protest in writing setting forth a description of the merchandise and the classification and rate of duty he believes proper. * * * At the trial of this action, plaintiff introduced in evidence certain documents, purporting to establish compliance with the provisions of section 516 (b), supra (plaintiff’s exhibits 1 to 7, inclusive). The suit is brought by the plaintiff herein, an American manufacturer, producer, and wholesaler of tuna fish, packed in oil. The merchandise the subject of this protest (plaintiff’s exhibit 8) consists of tuna fish, packed in brine, in airtight containers weighing with their contents not over 15 pounds each. It was classified under paragraph 718 (b) of the Tariff Act of 1930, as modified by the trade agreement with Iceland, T. D. 50956, at the rate of 12% per centum ad valorem as “Fish, prepared or preserved in any manner, when packed in air-tight containers weighing with their contents not more than fifteen pounds each (except fish packed in oil or in oil and other substances).” Counsel for the defendant made a motion to dismiss the protest herein upon the ground that plaintiff had failed to show that it was a “proper party” to maintain the cause of action alleged in the protest and that, accordingly, it had not brought itself within the jurisdiction of this court. Counsel, in this regard, page 45, stated as follows: Mb. FitzGibbon: The Government moves to dismiss on the ground that the importer has not shown that he has come within the jurisdiction of this Court. * * * Section 516 (B) under which the importer invokes the jurisdiction of this Court provides that an American manufacturer, producer or wholesaler may file a protest if he is such an American manufacturer, producer, or wholesaler of merchandise of the same class or kind as the merchandise which is imported. The record here affirmatively shows that this American manufacturer is not a manufacturer of the merchandise of the same kind or class as that which was imported. Therefore, I move to dismiss as not having been brought within the jurisdiction of the Court. In the above connection, counsel for the plaintiff, in its brief (page 3), states: * * *.there can be no question but that the grounds for this motion is the single premise that the plaintiff, although packing the identical tuna fish to that imported, uses only oil as the additive, whereas the imported merchandise uses brine as the additive. In other words, the success of his [Government’s counsel] motion depends solely upon the determination of the Court of whether identical tuna fish, when packed in oil, is merchandise “of a class or kind”, as that packed in brine. — 173 — A number of exhibits were introduced in evidence, which will be hereinafter referred to as the discussion of the case requires. Plaintiff’s first witness, Donald P. Loker, vice president of the plaintiff concern, stated that he was familiar with the process of preparing and packing tuna fish from the time they are caught until sealed in tins and then put in warehouses. The witness stated, however, that his company does not pack such (merchandise) commodity in brine; that it is necessary to use a liquid in the packing of tuna fish to retain the moisture (R. 23-34), testifying in this connection as follows: We never pack tuna by itself without either distilled water or some oil or some additive. There is always some additive, but it is the same tuna, the same type of tuna, the same kind of cooking preparation, the same processing, the same packing, and the same thing but it just has a different additive. Mr. Loker further testified as to the process employed by his company in the packing of tuna fish, substantially as follows: After the fish is caught, it is put in brine tanks, and, after unloading at the dock, it is weighed, thawed out, then cleaned, eviscerated, and washed. The material is then cooked and, after cooking, is slowly cooled down. Thereafter, the fish is cleaned, scaled, and the skin, heads, and tails taken off, the bones taken out, and the blood meat cleaned, leaving the cleaned loin. The fish is then packed in cans, at which time “either oil, or a pinch of salt or distilled water” is added. The cans are hermetically sealed, washed free of any trace of oil or salt, sterilized, and, subsequently, put in cases and stored in the warehouse (R. 28-32). Plaintiff’s witness testified that the process described above, as used in his plant in the production of Star-Kist white meat tuna (plaintiff’s exhibit 9), was “substantially” the same as that employed in the processing of the imported tuna fish (plaintiff’s exhibit 8) in Japan (R. 34-35). He further stated that the product put out by his company and that imported is sold to the same trade (R. 49) — “They are sold on the same markets and on the same shelves to the same consumers and for the same purpose” and that he had seen them sold at retail in delicatessens and in larger markets in New York City, Chicago, and Los Angeles (R. 50-54). Plaintiff’s second witness was Gerald George Scharer, vice president in charge of sales and advertising with the plaintiff firm. He also testified that his company never packed tuna fish in brine (R. 56) and then stated that “I have not sold Plaintiff’s Exhibit #9 to my knowledge to the same stores that carried Plaintiff’s Exhibit #8” (R. 57). This witness then admitted that there was a differential in price between the imported tuna product and that produced by his company and that, when a wholesaler orders, the nature of the pack is indicated — “He orders usually with that as a recognized factor” (R. 61). — 174 — While it may be true that the process employed in the country of exportation in the canning of the imported tuna fish, as described, sufra, was substantially the same as that used by the plaintiff in the canning of its product, with the exception that brine is used as an additive in the case of the imported merchandise, whereas oil is used as an additive by the plaintiff, that factor is not decisive of the issue here involved. In Parodi, Erminio & Co. v. United States, 8 Ct. Cust. Appls. 395, T. D. 37644, the merchandise consisted of tunny fish, cut in large cross-sections, packed in oil in tin packages of 5, 12, and 22 pounds’ capacity. It was assessed with duty under paragraph 216 of the Tariff Act of 1913 at the rate of 25 per centum ad valorem as fish “packed in oil” in tin boxes or cans and was claimed properly dutiable under the same paragraph of the said act as “all other fish, * * * in tin packages, not specially provided for in this section,” at the rate of 15 per centum ad valorem. The importer there contended that the first enumeration of paragraph 216 of the involved act for fish, packed in “bottles, jars, kegs, tin boxes, or cans,” under which assessment was made, applied only to retail packages of the several kinds named, such as were delivered with their contents to the ultimate consumer, and that, accordingly, the importation there involved did not come within its terms, since, according to the court’s findings, the containers in question were wholesale packages, the contents of which were broken up and parceled out to consumers in retail quantities. The importer further contended that the provision for fish in “tin packages,” contained in the second enumeration of the paragraph, included wholesale packages and that said provision governed the importation in question. The appellate court, in the Parodi, Erminio & Co. case, supra, affirmed the decision of the Board of General Appraisers in holding that tunny fish, packed in oil, in large tins were properly dutiable under the first clause of paragraph 216 of the Tariff Act of 1913, providing for “fish * * * packed in oil or in oil and other substances, in bottles, jars, kegs, tin boxes, or cans,” rather than under the second clause of the same paragraph providing for “all other fish * * * in tin packages,” there being nothing in the language used to indicate that Congress intended to limit the involved fish-in-oil provision to the small or retail sizes. In so holding, the court, page 398, commented: * * * It seems clear that Congress intended by means of the provisions in question to impose a higher rate of duty upon fish when packed in oil than upon similar fish when not packed in oil. But if paragraph 216, supra, be construed so as to apply to retail packages only, then all wholesale packages of fish packed in oil in bottles, jars, and kegs would be wholly excluded from its operation, with — 175 — the result that they would be admitted free of duty under paragraph 483 of the act. This would follow because the second enumeration of the paragraph, alleged by the importers to be the provision for wholesale packages, provides only for fish when in tin packages and not for such as are in bottles, jars, and kegs. And while it may be true that at present fish packed in oil are not commercially imported in wholesale bottles, jars, or kegs, yet it may also be true that fish thus packed are capable of being imported in such containers and may hereafter be so imported. The unambiguous language of the governing paragraph does not favor a construction which would result in admitting fish packed in oil free of duty, if imported in so-called wholesale packages of glass, stoneware, or wood. While the specific questions presented in the Parodi, Erminio & Co. case, supra, had to do with the nature of the containers of the imported merchandise for duty purposes, it appears significant to observe that our appellate court there pointed out the congressional intent to distinguish between fish “packed in oil or in oil and other substances” and fish not so packed. In United States v. Post Fish Co., 13 Ct. Cust. Appls. 155, T. D. 41022, the merchandise consisted of fish roe for food purposes, which was classified by the collector at 30 per centum ad valorem under paragraph 721 of the Tariff Act of 1922 as fish roe for food purposes “packed in ice.” It appeared that the fish roe in question, after extraction from the roe sturgeons, was placed in open pails or containers and, in that condition, imported. The court therein held that the involved merchandise was not classifiable under the provisions of said paragraph 721, supra, either directly or by similitude, and, in disposing of the question of the application of the similitude provisions of the pertinent act to the imported goods, at pages 159-161, stated: The Congress, in framing the language of paragraph 721, supra, used, the language “fish roe for food purposes, packed in ice or frozen, prepared or preserved, by the addition of salt in any amount, or by other means.” If it had been intended to include all fish roe for food purposes, simple and plain language to that effect would have been sufficient. But the tariff rates of that paragraph were specifically restricted to certain kinds of fish roe, or that imported in a certain condition. Having thus excluded from the language used words which would have included the fish roe in question here, it will be assumed the Congress did not intend to include it within the scope thereof, but under some other provision. [Italics ours.] :f: ‡ sj: Testing the case at bar by the rule of law just quoted, we are unable to conclude that the goods imported here are classifiable under paragraph 721 by similitude. The court may properly take judicial notice that fresh fish roe for food purposes, in pails or containers, is the same in' material, quality, texture, and use, as fresh fish roe packed in ice. The only difference is that Congress imposed a certain rate of duty upon it under paragraph 721 if it was packed in ice, and failed to impose the same rate of duty upon it under that paragraph if it was not so packed in ice. The same material being involved and the only difference being one of packing, the claim for classification by similitude can not be allowed. * * * [Italics ours.] — 176 — In United States v. Fenton Co., 13 Ct. Cust. Appls. 538, T. D. 41426, the involved merchandise consisted of frozen sea herring, which the importer claimed was entitled to free entry under paragraph 1656 of the Tariff Act of 1922 for “Fresh sea herring and smelts and tuna fish, fresh, frozen, or packed in ice.” In holding that fresh sea herring were the only herring entitled to free entry under the pertinent paragraph of the act and that sea herring which had been frozen or packed in ice were not so entitled, the court, page 539, stated: After a careful examination of the subject including a review of previous tariff acts and various applicable decisions, we came to the deliberate conclusion that Congress in enacting paragraph 270 of the act had intended to distinguish between fresh mackerel and mackerel frozen or packed in ice, even though in some senses the latter might be called fresh mackerel; that is to say, that by using the terms fish fresh, fish frozen, and fish packed in ice, Congress had differentiated between these three classes of fish. In that conclusion we agreed with the Board of General Appraisers in that case. The same distinction is found in paragraph 1656 as well as in 717 of the present act. If Congress intended that sea herring frozen, or packed in ice, should be given free entry under paragraph 1656, it were unnecessary to insert the word “fresh” before “sea herring” in the paragraph as first enacted by the House. The insertion of that word at the beginning of the paragraph, and its retention where it was first placed by the House, clearly indicates that Congress intended to continue its former distinction between fish fresh, fish frozen, and fish packed in ice. The first use of “and” in the paragraph also makes against the importers’ contention. [Italics ours.] Tlie decisions cited above clearly indicate, in our opinion, that Congress, in prior tariff acts, has made a distinction between fish when imported in various conditions and has differentiated between classes of fish. So, too, in the present tariff act, Congress has differentiated between classes of fish, providing specifically for [tuna] “fish, prepared or preserved in any manner, when packed in oil or in oil and other substances” (paragraph 718 (a)) and [tuna] “fish, prepared or preserved in any manner, when packed in air-tight containers weighing with their contents not more than fifteen pounds each {except fish packed in oil or in oil and other substances)” (paragraph 718 (b)). [Italics ours.] It would, accordingly, appear that tuna fish, packed in oil or in oil and other substances, is a different class or kind of merchandise than tuna fish, weighing with their contents not more than 15 pounds each, packed in brine, and we so hold. In E. C. Miller Cedar Lumber Co. v. United States and Border Brokerage Co. et al., 69 Treas. Dec. 330, T. D. 48161 (affirmed in E. C. Miller Cedar Lumber Co. v. United States (Border Brokerage Co. et al., Parties in Interest), 24 C. C. P. A. (Customs) 272, T. D. 48701), a motion was made to dismiss the protest of the plaintiff, an American manufacturer, producer, or wholesaler, which was filed under the .pro — 177 — visions of section 516 (b) of the Tariff Act of 1930. The grounds upon which said motion was based were that the court had no jurisdiction to review the action complained of in the protest, for the reason that the issue purported to be raised by it was not one subject to protest by American manufacturers, producers, or wholesalers, in that it did not raise either a question of classification or the rate or rates of duty assessed upon imported merchandise, and, therefore, did not fall within the purview of section 516 (b), supra. The merchandise there in question consisted of certain lumber, which was returned by the appraiser as being free of duty under the provisions of paragraph 1803 of the Tariff Act of 1930, but which was assessed with duty at the rate of $3 per thousand feet, board measure, under the provisions of section 601 (c) (6) of the Revenue Act of 1932. The court, in the E. C. Miller Cedar Lumber Co. case (T. D. 48161), supra, page 332, stated: The language of the protest raises no question either as to the classification or rate of duty assessed. All that the protest claims is that the ascertainment of the quantity of lumber upon which duty should have been assessed was made upon a wrong basis of measurement. The merchandise involved is sawed lumber less than one inch thick, and the claim is that the board feet measure should have been ascertained by measuring the merchandise as though it were one inch thick throughout, and not by the rule laid down for the ascertainment of board feet measurement in T. D. 46250 and T. D. 47621. In granting tbe motion to dismiss the protest, the court, page 333, commented: A careful reading of section 516, supra, leads us to the conclusion that the term “classification” and the words “rate of duty” must be construed in the light of tariff history. We quote with approval the following from the brief of counsel for the defendant parties in interest: In enacting a Tariff Act, Congress forms classes of merchandise by grouping them together into schedules, paragraphs, sub-paragraphs, sections, etc. Classification by the administrative officers consists of the determination, according to legal rules and standards, of the narrowest particular class or division or category thus prescribed into which the imported merchandise falls. [Italics ours.] As to this lumber, the collector definitely fixed its classification before the rate of duty was assessed, and following such classification decided that it was free under paragraph 1803 but subject to the definite rate of duty of $3 per thousand feet, board measure, under section 601 (c) (6) of the Revenue Act of 1932. As before indicated, the regularity of neither of these acts, that of classification or assessment of rate of duty, is made an issue in the protest, and these are the only two grounds upon which an American manufacturer, producer, or wholesaler is given the right under section 516 (b), supra, to protest. In granting this right to protest to American manufacturers, producers, or wholesalers, Congress extended an extraordinary privilege, and the rule is well settled that the language used in extending such a grant must be strictly construed against the grantee. Zinberg v. United States, 16 Ct. Cust. Appls. 268, T. D. 42870, and cases therein cited. — 178 — The construction adopted by our appellate court in the E. C. Miller Cedar Lumber Co. case, supra, with respect to section 516 (b) of the Tariff Act of 1930 here under consideration, is equally applicable in the situation in the case at bar. As indicated in the cited case, Congress, in its enactment of a tariff act, forms classes of merchandise by grouping them together into schedules, paragraphs, subparagraphs, sections, etc. Paragraph 718 (a) of the Tariff Act of 1930 provides for fish, prepared or preserved in any manner, “when packed in oil or in oil and other substances,” whereas subdivision (b) of paragraph 718 of the said act, under which the imported merchandise was classified, provides for fish, prepared or preserved in any manner, “when packed in air-tight containers weighing with their contents not more than fifteen pounds each (except fish packed in oil or in oil and other substances).” Each subsection of the said paragraph 718 is mutually exclusive, and each embraces a class or kind of merchandise different from the other. Accordingly, merchandise within subdivision (a) of the paragraph in question is not of a class or kind of merchandise as that within the provisions of subdivision (b) of said paragraph, and a manufacturer, producer, or wholesaler of merchandise classifiable under paragraph 718 (a) of the Tariff Act of 1930 is not a manufacturer, producer, or wholesaler of merchandise of the same class or kind of merchandise classifiable under the provisions of section 718 (b) of the said act. Counsel for the plaintiff, in its supplemental brief, directs our attention to the decision of our appellate court in the case of Nootka Packing Co. et al. v. United States, 22 C. C. P. A. (Customs) 464, T. D. 47464, as decisive of the issue herein. The merchandise there in question consisted of clam meat, washed, and cut into small pieces, which) according to the testimony of the importers, could be readily identified as parts of clams, then canned in brine and cooked. The imported product was classified under the provisions of paragraph 721 (b) of the Tariff Act of 1930 at the rate of 35 per centum ad valorem for “clams, clam juice, or either in combination with other substances.” Plaintiffs claimed the merchandise properly free of duty under paragraph 1761 of the said act as shellfish, prepared or preserved. The court therein held the merchandise properly dutiable, as classified, holding that the language in paragraph 721 (b) of the Tariff Act of 1930 is not restricted to clams in their raw or natural state nor is it restricted to entire clams, but includes clams in any condition, so long as they are clams. In so finding, the court held applicable the principle that “an eo nomine statutory designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative practice to the contrary, and — 179 — without proof of commercial designation, will include all forms of said article.” The holding of our appellate court in the Nootka Packing Co. case, supra, is not, in our opinion, controlling in the determination of the issue here. In the case at bar, unlike the situation in the Nootka Packing Co. case, supra, we are not concerned with an eo nomine provision without limitation. While it is true that both subdivision (a) and subdivision (b) of paragraph 718 of the Tariff Act of 1930 provide for “fish,” each subsection is limited to a particular class or kind of fish with respect to the condition in which imported. The merchandise in the Nootka Packing Co. case, supra, although cut into small pieces, was still “clams” and properly classifiable as such under the eo nomine provisions of the pertinent paragraph of the tariff act in question. Here, the imported tuna fish, packed in brine, is not classifiable under a provision embracing [tuna] fish, prepared or preserved, “when packed in oil or in oil and other substances,” and the reasoning employed by the court in the Nootka Packing Co. case, supra, is not applicable to the present case, and, as stated, that case is not controlling in our present determination. The provisions of section 516 (b) of the Tariff Act of 1930, as amended, supra, must be strictly construed. Reed & Barton et al. v. United States, 63 Treas. Dec. 941, T. D. 46422. The plaintiff in the case at bar has conceded that its company does not manufacture, produce, or sell at wholesale tuna fish, packed in brine. Holding, as we do, for the reasons heretofore expressed, that tuna fish, packed in oil, the product produced by the plaintiff herein, is not of the same class or kind of merchandise as tuna fish, weighing with their contents not more than 15 pounds each, packed in brine, it follows that the plaintiff in this case is not an American manufacturer, producer, or wholesaler of the same class or kind of merchandise as that imported. Accordingly, plaintiff is not entitled to invoke the provisions of section 516 (b), supra, as amended, with respect to the merchandise here imported. The motion to dismiss the protest herein is granted. Accordingly, the protest in this case is hereby dismissed. Judgment will issue accordingly.