the eo nomine provision for rafts.' And it is to be noted that these vehicles of burden were not among the classes of watercraft referred to in dicta in The Conqueror, supra, at pages 117-118, i.e., pleasure boats, as indicative of boats responding to tariff descriptions of "manufactures" or "other articles." The decision of our appellate court in United States v. Bethlehem Steel Co. et al., supra, does not overrule the decision of this court in Thornley & Pitt. Bethlehem Steel went no further than to hold that watercraft designed and intended for uses other than as a means of transportation on water do not come within the meaning of the term "vessel," the court there concluding that a part of a vessel (midsection) is not a "vessel." However, in Thornley & Pitt, as in the case at bar, the liferafts, although considered a species of inferior craft, were unquestionably designed and intended for use solely as a means of transportation on water, albeit for temporary, emergency use. And since size and structure per se are not determinants of the status of a structure as a "vessel" under statutory definitions of the term (see United States v. Bethlehem Steel Co. et al., supra, at p. 152), the service performed by these liferafts, whether or not actually used on a voyage, must be regarded as a useful and valuable "maritime" service. By contrast, the service performed by the midsection in Bethlehem Steel was not a "maritime" service, but merely the fulfillment of a "construction" service. The attempted differentiation between the competing tariff provisions before the Thornley & Pitt court and before this court vis-a-vis the instant case is more illusory than real. The provision in item 696.35 for pneumatic craft is residual, being qualified, among other things, by the limitation "not specially provided for" which appears in the superior heading preceding the item. And the provision merely reflects a redistribution under the TSUS of articles theretofore classified under paragraph 1537 (b) of the 1930 Tariff Act from which item 696.35 was derived in part without rate change. See "Tariff Classification Study" (1960), "Submitting Report," page 21, "Proposed Provisions," page 519, and "Schedule 6, part 6," page 327. Consequently, item 696.35 was not intended to represent a change in classification practice from the 1930 act; and can in no wise be said to be a legislative assault upon the efficacy or impact of Thornley & Pitt in excluding pneumatic liferafts from classification under paragraph 1537(b). Thus, unless shown to be erroneous, Thornley & Pitt continues to be viable precedent under the TSUS for the holding that liferafts 1 The articles most readily called to mind as falling within this dutiable category would be the stationary raft one frequently sees at a bathing beach anchored offshore in deep water, and not utilized for the transportation of people or things. of the pneumatic variety are specially provided for under the provision for "vessels" in general headnote 5(e). Since no such error has been shown, for the reasons stated, the holding in Thornley & Pitt, C. J. Hendry Co. v. United States, supra, is stare decisis of the issue bere, and the court so holds. See United States v. L. Batlin & Son, Inc., 61 CCPA 17, 19, C.A.D. 1111, 487 F. 2d 916 (1973). Plaintiff's motion for summary judgment is granted, and defendant's cross-motion for the same relief is denied. Judgment will be entered accordingly. (C.D. 4815) SIMMON OMEGA, INC., PLAINTIFF v. UNITED STATES, DEFENDANT Phototypesetters Court No. 71-12-02126 PHOTOTYPESETTING MACHINES-MORE THAN ENLARGERS Phototypesetting machines capable of photographic enlargement as an incident to their typesetting function, but not used for photographic enlargement per se, are classifiable as typesetting machines under item 668.25, TSUS, as claimed by the importer, rather than as photographic enlargers under item 722.18, TSUS, as classified by the Government. The imports are specially designed to utilize a patented photocomposing process, the essence of which is to permit the optical control of letter positioning during the photographic setting. The machines' type selection and positioning features, which utilize the patented photocomposing process, make the imports more than simply "enlargers," as that term is commonly defined, and consequently they are beyond the intended scope of item 722.18, TSUS. Cf. E. Green & Son (New York), Inc. v. United States, 59 CCPA 31, C.A.D. 1032, 450 F. 2d 1396 (1971); United States v. Milton Diamond et al., 42 CCPA 9, C.A.D. 561 (1954). COMMON MEANING In the absence of a special commercial designation, the language of a tariff statute is to be construed in accordance with its common meaning. Further, the common meaning of a tariff term is a matter of law to be determined by the court; and in making such determination, the court may rely upon its own understanding of the word or term used and may consult standard lexicographic and scientific authorities. The testimony of witnesses respecting common meaning is advisory only and has no binding effect on the court. United States v. National Carloading_Corp. et al., 48 CCPA 70, C.A.D. 767 (1961); United States v. E. Besler & Company et al., 64 CCPA 121, 124, C.A.D. 1193, 557 F. 2d 270 (1977); United States v. Corning Glass Works, 66 CCPA 25, C.A.D. 1216, 586 F. 2d 822 (1978). LEGISLATIVE HISTORY-EXPLANATORY NOTES The "Explanatory Notes to the Brussels Nomenclature" may properly be referred to as an aid to interpreting the provisions of the TSUS where there is a "close similarity in the wording" of the two provisions. United States v. Abbey Rents, 66 CCPA 2, n.5, C.A.D. Î213, 585 F. 2d 501 (1978). On the basis of similarity of wording, the court finds no nexus between TSUS items 668.25 and 722.18 and Brussels headings 84.34 and 90.09. SAME AMBIGUITY Since the TSUS provisions for typesetting machines and enlargers in items 668.25 and 722.18 are clear and unambiguous, resort to legislative history is unnecessary and would be erroneous. United States v. Corning Glass Works, 66 CCPA 25, C.A.D. 1216, 586 F. 2d 822 (1978); C. J. Tower & Sons v. United States, 41 CCPA 195, C.A.D. 550 (1954); Continental Manufacturing Co. et al. v. United States, 82 Cust. Ct. 187, C.D. 4800 (1979). BURDEN OF PROOF In a classification case, the importer has a dual burden of proof: First, it must be shown that the Government's classification is erroneous; second, the importer must establish the correctness of its claimed classification. Daisy-Heddon, Div. Victor Comptometer Corp. v. United States, 66 CCPA 97, C.A.D. 1228, 600 F. 2d 799 (1979). TYPESETTING MACHINES-KEYBOARD OPERATION Keyboard operation is not a sine qua non of a typesetting machine classifiable under item 668.25, TSUS. Technological advancements in the typesetting art will be judicially recognized in determining whether a particular device is classifiable as a typesetting machine, and such classification is not restricted to machines that operate in a particular mode. Lanston Industries, Inc. v. United States, 49 CCPA 123, C.A.D. 807 (1962); United States v. Consolidated International Equipment & Supply Co., 58 CCPA 145, C.A.D. 1018, 442 F. 2d 376 (1971). EO NOMINE PROVISION FOR TYPESETTING MACHINES INCLUDES SPECIAL PURPOSE PHOTOTYPESETTERS The fact that the imports are special-purpose display phototypesetters without a keyboard and are suitable only for typesetting jobs involving a small amount of text, such as for a headline or advertisement, in contrast to the high-speed keyboard machines used for voluminous standardized text for newspapers or books, does not preclude classification of the imports under the eo nomine provision for typesetting machines, in accordance with their design and function. Cf. United States v. E. Besler & Company et al., 64 CCPA 121, C.A.D. 1193, 557 F. 2d 270 (1977). EO NOMINE DESIGNATION An eo nomine designation without limitation includes all forms of the article. United States v. National Carloading Corp. et al., 48 CCPA 70, C.A.D. 767 (1961). SUMMARIES OF TRADE AND TARIFF INFORMATION The "Summaries of Trade and Tariff Information" are used as an aid in determining the scope of tariff provisions. Cases cited. STATUTORY CONSTRUCTION-TARIFF ACTS WRITTEN FOR FUTURE Even assuming that at the time the TSUS became effective, phototypesetters were operated by means of a keyboard, it is inconceivable that Congress would have intended to foreclose from classification under item 668.25, TSUS, future innovations in typesetting, since tariff acts are written for the future. Lanston, supra, 49 CCPA at 128. [Judgment for plaintiff.] (Decided August 7, 1979) Serko & Simon, Esqs. (Joel K. Simon, Carl R. Soller and Margaret H. Sachter, Esqs., of counsel) for the plaintiff. Stuart E. Schiffer, Acting Assistant Attorney General, Joseph I. Liebman, Attorney in Charge, Field Office for Customs Litigation, Edmund F. Schmidt and Jerry P. Wiskin, trial attorneys, Esqs., for the defendant. NEWMAN, Judge: Plaintiff challenges the classification by customs of certain phototypesetting machines imported from West Germany in 1969, 1970, and 1971. The machines were classified as "Other [photographic] enlargers" and assessed with duty at the rate of 10 or 9 per centum ad valorem, depending upon the date of entry, under item 722.18, TSUS, as modified by T.D. 68-9.1 Plaintiff claims that the imports are entitled to entry free of duty under the provision in item 668.25, TSUS, for typesetting machines. I have concluded that plaintiff's claim should be sustained. Statutes Involved Tariff Schedules of the United States, 19 U.S.C. 1202: Photographic cameras (other than Claimed under [schedule 6, part 4, subpart D]: Part 4 headnotes: 1. This part does not cover * [9%, 10% ad val. depending on date of entry] 1 In one of the eight entries covered by this civil action, No. K-236030, customs classified the merchandise under the provision for cameras in item 722.16, TSUS. The record in this case comprises the testimony of two witnesses on behalf of plaintiff and one witness on behalf of defendant. Plaintiff's witnesses were Lawrence D. Klein, training manager for Berthold of North America, a subsidiary of H. Berthold, A.G. of Germany, manufacturer of the imported machines, and Kenneth Harlan Owen, products specialist for Berkey Marketing Cos. Defendant called Joseph D. Fielder, an instructor in graphic arts and related subjects at New York City Community College. Each party submitted various exhibits. The pertinent facts are: In controversy are two machines sold under the names of "Staromat" and "Starsettograph." The Staromat and its less automatic counterpart, the Starsettograph, are phototypesetters designed to generate headline or display type, viz, type of one fourth inch in size or larger. Each machine has an upright bar affixed to the rear of a platform to which is attached a platen. The platen is in the shape of a shallow tray and is designed to hold sensitized paper or film bathed in developer fluid.2 The platen can be swiveled, and can be moved from side to side and from front to back on geared rollers, according to markings calibrated in millimeters for precise settings. Clamped to the upright bar is the head of the machine, containing a projection lamp, the light from which passes through a series of condenser lenses and mirrors to sharpen it, and then through a shutter mechanism containing a red filter. Below this point, the head of the machine contains a specially designed carrier with a slot on either side into which may be inserted a "font" 2 inches wide and 30 inches long,3 consisting of a strip of acetate encased in clear plastic. The font contains upper- and lower-case alphabets, punctuation, numerals, and symbols. Below each letter on the font is a "foundry bar" (a bracket turned on its side) that aids the operator in proper spacing of the type. In addition to using the foundry bars, proper spacing of the type characters is achieved by means of a millimetric ruler that is on the front of the machine, or by use of his eye the operator can place a letter any distance from the preceding letter. The font carrier has guides, In a photographic enlarger, the photosensitive paper or film is held by an easel. • Owen testified that he had never seen photographic negatives or slides of this size used in a photographic enlarger. |