Monday, June 29, 2015

91 Cups and Mugs, 2 Experts

One of the problems of trying to chronicle all modern American jurisprudence on customs law is that I need to read it all. Sometimes that hurts more than other times. In this case, G.G. Marck & Associates, Inc. v. United States, the blame for my current headache does not lie in the drafting. It may be that I spent the afternoon in tasting rooms at breweries. Or, it may be the substance of the case.

I rarely call out individual judges. In this case, I want to be clear that Judge Richard Eaton wrote a cogent opinion. The problem here is that there are 91 cups and mugs involved and two complicated issues. This decision is a yeoman's task of wading through facts and applying the law.

The imported merchandise is 91 styles of cups and mugs. At liquidation, Customs classified the merchandise either as "mugs" in 6912.00.44 (10%) or as "other" in 6912.00.48 (9.8%). The difference is that "cups," as opposed to "mugs," fall in the "other" category.

The importer protested and claimed that the correct classification for all of the merchandise is in 6912.00.39, which covers ceramic tableware, available in specified sets, in any pattern for which the aggregate value of the articles listed in additional U.S. note 6(b) of this chapter is over $38. The parties did not dispute that the goods are classifiable in Heading 6912, which covers ceramic tableware that is neither porcelain nor china.

The impact of Note 6 is to define the phrase "available in specified sets" as requiring that specific articles of particular sizes be sold or offered for sale in the same pattern. That is the meaningful legal principle to be explored in this case. Also of interest is the discussion of the role of experts in classification cases.

The Court of International Trade decided to follow the guidance from a Court of Customs and Patent Appeals decision to define "mug" and "cup." According to that case, which was decided under the TSUS, a mug is a relatively cylindrical drinking vessel that is not traditionally used with a saucer. A cup, on the other hand, is a bowl shaped drinking vessel usually used with a saucer. From there, it should not be terribly difficult to go through the 91 items and classify them.

But, there is a third option. The importer argued that because the items are offered for sale and sold with other ceramic items in the same pattern, they are sets classifiable in 6912.00.39. For this, you need the full text of the U.S. Note 6(b) to Chapter 69:

If each of the following articles is sold or offered for sale in the same pattern, the classification hereunder in subheadings 6911.10.35, 6911.10.37, 6911.10.38, 6912.00.35 or 6912.00.39, of all articles of such pattern shall be governed by the aggregate value of the following articles in the quantities indicated, as determined by the appropriate customs officer under section 402 of the Tariff Act of 1930, as amended, whether or not such articles are imported in the same shipment:
12 plates of the size nearest to 26.7 cm in maximum dimension, sold or offered for sale,
12 plates of the size nearest to 15.3 cm in maximum dimension, sold or offered for sale,
12 tea cups and their saucers, sold or offered for sale,
12 soups of the size nearest to 17.8 cm in maximum dimension, sold or offered for sale,
12 fruits of the size nearest to 12.7 cm in maximum dimension, sold or offered for sale,
1 platter or chop dish of the size nearest to 38.1 cm in maximum dimension, sold or offered for sale,
1 open vegetable dish or bowl of the size nearest to 25.4 cm in maximum dimension, sold or offered for sale,
1 sugar of largest capacity, sold or offered for sale,
1 creamer of largest capacity, sold or offered for sale.
If either soups or fruits are not sold or offered for sale, 12 cereals of the size nearest to 15.3 cm in maximum dimension, sold or offered for sale, shall be substituted therefor.
This means that for the mugs and cups to be classified as parts of a set under 6912.00.39, they must be of a single patterns and must be sold or offered for sale in that pattern. The government conceded that two collections sold under the "Cancun" trademark in cobalt blue and light blue meet this definition.

The problem is that there are other colors available but the creamer and sugar are only available in the two shades of blue. The sugar and creamer are necessary parts of the set and must be offered in the same pattern. So, this boils down to the question of whether tableware of differing colors but similar surface design are of the same pattern?

Good question. It turns out that the answer cannot be found in the HTSUS, the Explanatory Notes, or any prior court decisions. It is, however, discussed in a Tariff Classification Study from 1963. In that publication, the same pattern is said to mean "articles in coordinated shapes, colors, or decorations, including plain white articles, designed to be used together as sets."

The government's main contention on this point is that 77 of the items are not in the Cancun blue colors and, therefore, are not part of the same sets. The plaintiff's position is that a collection of separate vibrant colors, two-toned patterns, and special finishes make up an eclectic but coordinated set. Personally, I can buy this. At home, we have casual dinnerware that is in three or four coordinated colors with the same surface pattern. As it happens, the sugar and creamer are in a separate color not used on the plates. But sugar and creamer are clearly part of the set.

Plaintiff offered expert testimony to show that all of the imported item coordinate into sets. The role of experts in any court case is to help the jury or judge understand evidence through expert opinion based on sufficient facts and data and on reliable principles and methods. In other words, the expert is there to explain to lay jurors or a judge what they might not otherwise know or understand. This breaks down when the only issue before the Court is one that a reasonably insightful person might understand on his or her own. Such is the case here.

According to Judge Eaton, "a person of usual discernment does not need the assistance of an expert to make a decision of whether dinnerware items are in the same pattern. Were this not the case, an expert would be needed to accompany each shopper that enters a housewares store." That's not "jiggery-pokery," but it is a nice turn of phrase. Plus, the judge did not believe the testimony.

That left the Court to consider physical samples and catalogs. Doing so, the Court found that color is not the only important factor but is "largely determinative" of whether two items coordinate. Here, the Court found that the colors were so vibrant and varied that the items not in Cancun cobalt blue or light blue cannot be part of the same coordinated set.

With this framework, the Court was able to address the individual items. Looking at the sales literature for the merchandise, the Court found that only 16 of the 91 items were of the same pattern. Of those 16 items, five are available is sets and classifiable in 6921.00.39. Of the remaining mugs and cups, 58 are classifiable in 6912.00.44 as mugs and 28 in 6912.00.48 as cups in the "other" tariff item.

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