It is stated on page 24 of the said report that "... item 700.55 would also include molded plastic shoes (other than those of the so-called waterproof type provided for in item 700.50" (now 700.53). [Emphasis supplied.] The underscored langauge seems to indicate an intention to exclude molded plastic shoes like exhibit 1 from item 700.55 and contain them in what is now item 700.53.

Also, page 25 of the said report indicates that "waterproof' footwear provided for in item 700.50" (now 700.53) is separated from the "non-waterproof" footwear provided "in item 700.55.”

Section 57 of Public Law 89-241 enacted October 7, 1965, in substituting item 700.53 for item 700.50, indicated that the "other" footwear covered in the item had reference to "protective footwear," and the legislative history indicates the object of the legislation is to cover "waterproof footwear" which competes with other such or similar footwear domestically produced."

The plaintiff places much emphasis on its argument that the imported merchandise is not ejusdem generis with the enumerated exemplars—hunting boots, galoshes and rainwear. Ejusdem generis means literally "of the same kind." The imported merchandise must possess the particular characteristic which unites all of the exemplars in order to be classified in the item containing the exemplars. Kotake Co., Ltd., American Customs Brokerage Co. v. United States, 58 Cust. Ct. 196, C.D. 2934, 266 F. Supp. 385 (1967). The courts use ejusdem generis as a rule to aid them in interpreting the intention of the legislature.

The common characteristic in the exemplars is that they are waterproof or water repellent and are worn in wet weather or wet areas, usually for protection against water. Exhibit 1 is waterproof and there is testimony that it is more similar to exhibit D, a vulcanized waterproof rubber shoe with metal spikes, than exhibit E, a welt leather golf shoe which is not waterproof. The most persuasive testimony is that exhibit 1 is a water shoe or a shoe worn mostly in wet weather, though it may be worn infrequently in fair weather.

Both the weight of the evidence and the legislative history which reconciles any apparent conflict between the two competing tariff items support the classification of exhibit 1 as "other footwear" which is waterproof, "designed to be worn... in lieu of, other footwear as a protection against water" (whether rain or dew), when playing golf; rather than an ordinary or general purpose golf shoe worn for playing golf in all kinds of weather. Plaintiff has not overcome the presumption of correctness attached to the district director's classifi

The Tariff Schedules Technical Amendments Act of 1965, P.L. 89-241, 79 Stat. 933 (1965). See Senate Report No. 530, U.S. Code Congressional and Administrative News 1965, Vol. 2, p. 3416, at pp. 3434-3435.

cation finding that the imported merchandise is dutiable under item 700.53, and its claim is overruled.

Judgment will be entered accordingly.

(C.D. 4557)

C. S. EMERY & COMPANY, INC. V. UNITED STATES

Stone products

Merchandise consisting of two-inch thick sawn slabs of black granite exported from Canada in 1964 was appraised on the basis of export value as defined in section 402(b) of the Tariff Act of 1930, as amended. Plaintiff's claim that the correct dutiable value was the ex-quarry price of the granite slabs, $2.10 per square foot, and not $3.015 per square foot, net packed, as appraised, overruled.

The appraiser's finding of value carries a statutory presumption of correctness. It was therefore incumbent upon plaintiff to establish that the appraised value was erroneous, and that such or similar merchandise was freely sold or, in the absence of sales, offered for sale to all purchasers at wholesale in the principal markets of Canada in the usual wholesale quantities and in the ordinary course of trade for exportation to the United States at the ex-quarry price of $2.10 per square foot. The record contains no evidence that such or similar merchandise was actually sold or offered for sale for export to the United States at an ex-quarry price during the period in issue. Plaintiff's willingness to sell ex-quarry to the defendant or to anyone else does not meet the requirements of export value as defined in the statute. See United States v. Bud Berman Sportswear, Inc., 66 Cust. Ct. 628, A.R.D. 287 (1971), aff'd, 469 F.2d 1107, 60 CCPA 34, C.A.D. 1077 (1972). Also, evidence of sales made in the home market to a Canadian purchaser several months after the merchandise at bar was exported has no weight in establishing either the price at which it was freely sold or offered for sale for export to the United States, or what the price was "at the time of exportation" as required by section 402 (b). See The A. W. Fenton Co., Inc. v. United States, 61 Cust. Ct. 437, R.D. 11556 (1968), application for review dismissed, 61 Cust. Ct. 613, A.R.D. 246 (1968).

Court No. R67/913

Port of Derby Line, Vermont

[Judgment for defendant.]

(Decided August 27, 1974)

Barnes, Richardson & Colburn (Joseph Schwartz and Irving Levine of counsel) for the plaintiff.

Carla A. Hills, Assistant Attorney General (James Caffentzis, trial attorney), for the defendant.

RE, Judge: In this appeal for reappraisement the merchandise consists of two-inch thick sawn slabs of black granite exported from

Canada on July 30, 1964 and entered at the border port of Derby Line, Vermont. The granite was shipped by truck from Alma, Quebec by the seller, National Granite, Ltd. (National) to the John Swenson Granite Co., Inc. (Swenson) at Concord, New Hampshire.

The customs and commercial invoices disclose that the granite was sold to Swenson at a delivered price ("FOB Concord N.H.") of U.S. $3.35 per square foot, including duties. It was entered at an invoiced unit value of U.S. $2.10 per square foot (selling price less claimed nondutiable charges of 97 cents per square foot for bracing and transportation, and 28 cents per square foot for duty and brokerage fees). The merchandise was appraised on the basis of export value as defined in section 402 (b), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, at U.S. $3.015 per square foot, net packed. According to the testimony of the appraiser, the appraised value was calculated by deducting 28 cents for duty and brokerage, and then deducting the freight charges within the United States from the border (Derby Line) to Barre, Vermont.

Plaintiff agrees that export value, section 402(b) supra, is the correct basis of appraisement, but contends that U.S. $2.10 per square foot, the alleged ex-quarry price of the granite slabs, represents the correct dutiable value. Plaintiff urges, alternatively, that if the appraiser's method of determining value is upheld, he should have made a larger allowance for duty, i.e., 36.4164 cents which, with the uncontested deductions for brokerage and freight, would result in a dutiable value of U.S. $2.91% per square foot, net packed.

The record consists of the official papers, the testimony of two witnesses called by plaintiff, and four exhibits also submitted by plaintiff.

Mr. Paul Robitaille, president and general manager of National, who supervised production, administration and sales, testified that National produces rough, semifinished and finished granite mainly for building work; that the imported granite came from a quarry located about 25 miles from its office in Alma, Quebec; and that the shipment herein was delivered pursuant to a contract (exhibit 1) with Swenson for the sale of granite slabs and blocks to be used in construction of a building in New York City. National used its own trucks and braces to transport most of the merchandise to Concord. Swenson, which has finishing facilities in Concord, New Hampshire, put the finish on the rough sawn slabs and cut them to size, ready for installation in the building then under construction.

The contract, which is dated March 21, 1963, in relevant part, provided that National "deliver sufficient wire sawed slabs so that Swenson may fabricate therefrom *** approximately 190,000 net square feet of 2 inch thick stones ***." Delivery of the two-inch slabs was to

commence on or about February 20, 1963 in quantities of "approximately 5,000 net square feet of 2 inch slabs each week until completion." Deliveries, Mr. Robitaille testified, commenced early in 1963 and ended about two years later.

The agreement called for payment of U.S. $3.35 per net square foot for two-inch slabs "delivered to and accepted by Swenson" with the proviso that—

"(8) The prices for slabs set forth in paragraph (7) include the costs of delivery to Swenson at its plants in Concord, New Hampshire. If Swenson shall direct delivery of slabs to other fabricating plants in New England, the prices shall be adjusted to reflect any increase or decrease in the cost to National of delivery. ***"

The contract provided that National could bill Swenson at the rate of $2.50 per square foot for any slabs in stock it had on hand at the end of any month. It also provided that in the event Swenson terminated the agreement for any cause except breach or default by National, Swenson would pay $2.50 per square foot for all slabs produced by National and in stock in Canada.

Mr. Robitaille, who had participated in the contract negotiations with Swenson, said that National "tried to arrive at a higher price, of course, and we came to this final price" of $3.35 per square foot. He had estimated that National would make a profit on the $3.35 price by figuring on 50 cents per foot for material, $1.50 for labor and 25 cents for depreciation and profit, which came to $2.25 in Canadian currency and $2.10 in United States currency. He then arrived at the $3.35 figure by adding 97 cents to cover the cost of bracing and transportation down to Swenson's plant, and 28 cents for duty and brokerage fees.

Mr. Robitaille testified that bracing was necessary to protect the brittle granite slabs against breakage during shipment. He admitted, on cross-examination, that in establishing a "cost of the price for the Swenson order, I took into consideration the volume of the job and the size of the stone."

The witness "would" have sold the merchandise ex-quarry to Swenson at a price of U.S. $2.10 per square foot. However, since the slabs were brittle and subject to excessive breakage if hauled by inexperienced people, Swenson wanted a delivered price so that National would be responsible for breakage.

Mr. Robitaille testified that, during the 1963-1965 period that National was delivering granite to Swenson, it had quoted a price of $2.25 per square foot, Canadian Currency, f.o.b. its plant to a Canadian firm for black granite slabs similar to those in issue. It produced three invoices (exhibits 2, 3 and 4) for sales in December 1964 and

February 1965 of two-inch black granite slabs at $2.25 per square foot to a firm in Quebec.

The witness was willing to sell the material at the $2.25 price to anybody at that time. But he could "not recall" whether he sold similar slabs to other firms during this period, stating that "[t]hese [Quebec invoices] are the only invoices we found." However, he noted that "[i]t does not mean that we did not sell more." He subsequently stated under cross-examination that he could not recall sales in 1963, but that "[w]e had other customers in 1964, I think," which sales were made "[p]robably by written orders."

When asked if he had entered into written agreements during 1965 with purchasers other than Swenson for the sale of two-inch granite slabs, Mr. Robitaille replied "[p]ossibly, but I do not recall either." Upon further questioning, he agreed that during 1963, 1964 and 1965 he sold to others than Swenson; that the sales were usually in the form of a written order; and that he would keep a copy of the order "[f]or a certain period of time * * *." However, he could not produce any contracts or memoranda of the sales made during this period.

The witness explained that it was not possible to have price lists, and that National seldom gave standard prices because they "vary with the type of granite, the finishes, the thicknesses, and the work involved in the stone."

Mr. Robitaille stated that the provision in the Swenson contract for payment of $2.50 per net square foot, for all undelivered slabs National had on hand at the end of the month, covered storage costs. It was also intended to assist National financially since its plant had burned down and the machinery had to be rebuilt. The provision for payment of $2.50 per net square foot, in the event of Swenson's default, for all slabs on hand was intended as compensation to National for spending "so much money to build machinery and equip a plant.”

Mr. William L. Thornton, the district director at St. Albans, Vermont, testified he had personally appraised the shipments of granite, including the one at bar, imported under the Swenson contract. The appraised value was arrived at as follows:

"They started off at $3.35, and the information I had at the time was that the brokerage and duty amounted to 28¢, and the difference between the two nets would be the inland freight. I allowed the freight only within the United States."

Although the entry papers show that the merchandise went to Concord, New Hampshire, Mr. Thornton deducted the prorated freight charge between Derby Line, Vermont and Barre, Vermont, stating that "a lot of them [shipments to Swenson] stopped off in Barre." He made the same deduction in all of the granite shipments from National.