Will & Baumer Candle Co. v. United States

DISSENTING OPINION

Mollison, Judge:

I thoroughly agree with the conclusion reached by my colleagues in this case that the glass articles here involved are neither decorated nor ornamented, and also with their conclusion that the said articles are jars within the ordinary meaning of that term. I am constrained to dissent, however, from the holding that the jars in question are not “suitable for use and of the character ordinarily employed for the holding or transportation of merchandise,” for which reason alone the majority holds they are not classifiable under paragraph 217 of the Tariff Act of 1930.

The record shows that jars such as those before us are commonly and ordinarily used to hold and to transport a certain type of wax candle known as a “seven-day light.” The jar containing the candle is designed to be inserted into a lamp wherein it is burned for religious purposes. After the candle has been consumed, the jar is discarded. The evidence shows that the experience of the manufacturer of the candles (the importer of the jars here in issue) was that because of *155their nature as wax, considerable damage resulted to the candles from handling and temperature conditions when shipped without a protecting glass container. The.majority apparently assumes that this experience was confined only to the one manufacturer of candles. On the contrary, besides the fact that the damage resulted from the nature of the product and thus could not have been confined to the particular manufacturer, there is evidence to establish that other manufacturers of candles of the type in'question use a similar jar for the same purposes. Apparently the business is quite competitive, for it appears that the importer of the jars at bar also manufactures lamps in which the jar and candle are inserted for use, and so designed the lamps and jars that the similar jars of other manufacturers cannot be inserted in the lamps manufactured and sold by it.

I do not find the jars in issue to be “most extraordinary in design” as does the majority. Apparently the only feature which distinguishes them from similar jars made by other manufacturers is a fluting or indentation molded in the glass. The lamps sold by the importer herein have a lug on the inside (which is the subject of a patent) which fits into the indentation on the imported jars and prevents jars not having such an indentation from being used therein. This is, of course, a common device to insure renewal orders, but does not affect the character of the jars as “suitable for use and of the character ordinarily employed for the holding or transportation of merchandise.” The requirement of the statute does not import uniformity of design or interchangeability of use — indeed, it is well-known that uniqueness of design and distinction from the products of others are much sought after by those who present their wares to the public in glass jars, presumably of the type intended to be covered by paragraph 217.

In my view, the case of United States v. Julian Roberts, Inc., 23 C. C. P. A. (Customs) 300, T. D. 48166, cited by the majority, strongly supports the plaintiff’s position herein. In that case, certain bowl-shaped articles of glass designed for holding talcum powder were held to be excluded from classification under paragraph 217 because of the proviso hereinbefore referred to on the ground that the evidence showed that they neither held nor transported talcum powder while in the channels of commerce, but were filled with powder by the ultimate consumer, the user. Here, the evidence shows that as a commercial proposition the candle and jar are combined at the factory and always sold and shipped together.

The mere fact that besides being ordinarily used for holding and transporting wax candles of the type described, the jars in issue are also used during consumption of the candles, does not deprive the jars of their original character as “suitable for use and of the character ordinarily employed for the holding or transportation of merchandise.” We may take judicial knowledge of the fact that many, if not most, *156of tbe jars that are ordinarily employed for holding or transporting merchandise such as the “beverages, foodstuffs, chemicals, medicines, vaccines, antitoxins, and other commodities, such as scouring and cleansing creams, powders, polishes, and soaps” (which are named in the excerpt from the Summary of Tariff Information, 1929, quoted in the majority opinion), are also used during, consumption of the products contained therein.

With the statement from the Summary of Tariff Information before it, Congress must have enacted the proviso with the knowledge and understanding that the jars covered thereby had other uses besides holding or transporting merchandise. We are therefore not here concerned with any question of principal or controlling use. If in fact the jars are “suitable for use and of the character ordinarily employed for the holding or transportation of merchandise,” they are entitled to classification under paragraph 217, regardless of whether they also have another use or uses.

It appears that the jars in issue hold more than 1 pint, and I am of the opinion that they squarely fall within the provisions of paragraph 217, as modified by the Mexican Trade Agreement, T. D. 50797, and that the protest claim should be sustained.