I Can't Contain Myself


Sometimes, I hate this job.

Pacific Northwest Equipment is a beautifully written, very logical decision of the Court of International Trade that just leaves me thinking it came to the wrong result. It's kind of like reading Hamlet except that in the end everyone lives happily ever after.

The issue is an apparently simple classification question involving intermodal shipping platforms, which the plaintiff refers to as "platform containers." I am not 100% certain, but I think we are talking about that thing in the picture. It has no sides and no top. According to NAC International Group's web site, platform containers" Platform containers are basically flat rack containers with no bulkheads or posts, just a 20' x 8' or 40' x 8' piece of steel." The second picture is from their web site, although it shows a slightly different product, which has collapsible ends.


So here is the question: Is a shipping platform a "container" for purposes of 8609? That heading covers "Containers (including containers for the transport of fluids) specially designed and equipped for carriage by one or more modes of transport."

The obvious problem here is that an open platform does not "contain" anything in the ordinary three-dimensional sense of the word. What it does, in this case, is secure things for transport.

Following a perfectly cromulent analysis, the Court turned to a dictionary definition of "container" and found that "to contain" can be defined as "hold back or hold down." The platform certainly does that. Hence, the Court agreed that it is classifiable as a container and found for the plaintiff.

The Explanatory Notes are similarly expansive. They describe containers as having "fittings (hooks, rings, castors, supports, etc.) to facilitate handling and securing on the transporting vehicle, aircraft or vessel. They are thus suitable for the 'door-to-door' transport of goods without intermediate repacking and, being of robust construction, are intended to be used repeatedly." That would seem to cover the merchandise.

But, the EN also says that 8609 containers are "packing receptacles" that usually consist of "a large box equipped with doors, or with removable sides." That does not sound like the platform containers, but they might be "unusual" containers. Finally, the EN says that containers "usually" vary in capacity from 4 to 145 cubic meters. All of that makes me think a "container" should be a defined three-dimensional space bounded on all sides and the bottom, but possibly open on the top.

Generally, I am not a big fan of the Explanatory Notes. I suspect that the people responsible for drafting the Harmonized System used them as a crutch. I image someone raising a legitimate concern about the nomenclature and other saying, "Don't worry, we will clear that up in the Explanatory Notes."

In this case, the language seems unclear to me. The Explanatory Notes talk in terms of measuring containers in cubic meters. They also compare a container to a large box with removable sides. To me, that sounds like a container that is three-dimensional and bounded. But, the dictionary definition the Court applied does not contain those factors. That makes me wonder whether other dictionaries would have been helpful. Is this a case of the commercial meaning over taking the common meaning?

Comments

Anonymous said…
"Cromulent"... really?
Jun 23, 2010, 10:28:00 AM
mrbarky said…
Your blog embiggens us all.
Jun 24, 2010, 3:57:00 PM
Leroy F. Berven said…
The question really turns on the conceptual status of the unit as, fundamentally, either a two-dimensional or a three-dimensional piece of equipment. Unloaded, its essential character is at least arguably two-dimensional. Loaded, being used for its designed and intended function, its essential character is unequivocally three-dimensional in nature. So, in my own professional opinion, the CIT got it right this time.
Jun 27, 2010, 9:38:00 PM
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