
    (C.A.D. 1251)
    No. 79-40
    The United States v. Seagull Marine,
    (627 F. 2d 1083)
    
      U.S. Court of Customs and Patent Appeals,
    July 31, 1980
    
      Alice Daniel, Assistant Attorney General, David M. Cohen, Director, Joseph I. Liebman, Attorney in Charge, Field Office for Customs Section, Susan C. Cassell, Commercial Litigation Branch.
    
      Edward N. Glad, attorney for appellee.
    [Oral argument on May 5, 1980, by Susan C. Cassell for appellant, Edward N. Glad, for appellee.]
    Before: Markey, Chief Judge, Rich, Baldwin, and Miller Associate Judges, and Winner,
      Judge.
    
    
      
      The Honorable Fred M. Winner, Chief Judge, U.S. District Court for the Dist-ict of Colorado, sitting by designation.
    
   Baldwin, Judge.

This is an appeal from the judgment of the U.S. Customs Court, 83 Cust. Ct. 10, C.D. 4814, 475 F. Supp. 158 (1979), sustaining appellee’s claim that the goods in issue, inflatable rubber liferafts, are vessels and as such are intangibles and not dutiable under the Tariff Act of 1930. We reverse.

The Imported Merchandise

The merchandise in this action consists of inflatable rubber liferafts exported from Wales and entered in California in early 1977. These liferafts have a carrying capacity of from 4 to 16 persons, are made of rubber covered fabric with sides consisting of two inflatable tubes with inflatable arches which support a double-wall canopy having an opening at one end, and are inflated by means of a carbon dioxide cylinder. The liferafts are imported in a deflated condition packed in low profile canisters or valises and come equipped with various survival gear, e.g., sea anchors, first aid kits, seasickness tablets, flashlights, etc. The parties concede that the merchandise in issue is, in all material respects, the same as that in Thornley & Pitt v. United States, 48 Cust. Ct. 134, C.D. 2325 (1962), which appellee avers is stare decisis of the issue here.

Statutory Provisions

The merchandise was initially classified by the U.S. Customs Service under item 696.05 of the Tariff Schedules of the United States (TSUS) as a yacht or pleasure boat. In the court below, the Government conceded tbat sucb classification was erroneous and contended that the merchandise should be classifiable under item 696.35, as pneumatic craft, at the duty rate of 6 percent ad valorem. The court agreed with appellee that the liferafts are vessels and, consequently, are not dutiable.

The pertinent TSUS subpart is:

Subpart D. — -Pleasure Boats; Floating Structures
Subfart D headnote:
1. This subpart does not cover—
* * * * * * *
(ii) vessels which are not yachts or pleasure boats (see general headnote 5(e)). Yachts or pleasure boats, regardless of length or tonnage, whether motor, sail, or steam propelled, owned by a resident of the United States or brought into the United States for sale or charter to a resident thereof, whether or not such yachts or boats are brought into the United States under their own power; and parts thereof:
Yachts or pleasure boats:
696.05 Valued not over $15,000 each___ 2% ad val.
696.10 Valued over $15,000 each_ 6% ad val.
696.15 Parts_ 7% ad val.
Canoes, racing shells, pneumatic craft, and pleasure boats not specially provided for which are not of a type designed to be chiefly used with motors or sails; and parts of the foregoing:
696.30 Canoes and canoe paddles, of wood or bark_ 5% ad val.
696.35 Pneumatic craft_ 6% ad val.
696.40 Other_ 12% ad val.
General headnote 5(e) mentioned in the subpart D headnote provides:
5. Intangibles — For the purposes of headnote 1 — $ ‡ ‡ ‡ ‡ ‡
(e) vessels which are not yachts or pleasure boats within the purview of subpart D, part 6, or schedule 6 are not articles subject to the provisions of these schedules.

The term “vessel,” when used in subpart D and in general headnote 5(e) oí the Tariff Act, is defined by 1 U.S.C. 3 as including every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.

Customs Court

After receiving appellee’s motion for summary judgment and the Government’s cross-motion for summary judgment, the Customs Court held that Thornley & Pitt v. United States, supra, was stare decisis of the issue and granted appellee’s motion for summary judgment. The court rejected the Government’s contention that the decision in Thornley & Pitt was clearly erroneous and in direct contradiction of precedent thus making the doctrine of stare decisis inapplicable.

The liferafts were seen to be specially provided for under the vessels provision of general headnote 5(e) and hence nondutiable. The Government’s argument that United States v. Bethlehem, Steel Co., 53 CCPA 142, C.A.D. 891 (1966) modified the statutory definition of vessels by requiring that they be used in a commercial or maritime service was not considered persuasive. Bethlehem Steel was seen as going no further than saying that watercraft designed and intended for purposes other than transportation do not come within the meaning of the term “vessel.” The vessel part or midsection involved in Bethlehem Steel was designed for use in construction rather than in maritime service. Bethlehem Steel was, therefore irrelevant to the questions in Thornley & Pitt and the case at hand.

Additionally, the court concluded that, contrary to the Government’s contention, the provision in item 696.35 for pneumatic craft was not evidence that the legislature desired to change the status of liferafts, that item being only a redistribution in the TSUS of articles previously classified under paragraph 1537(b) of the Tariff Act of 1930 and was not a substantive change.

OPINION

The issue is whether the imported merchandise, i.e., inflatable life-rafts, is a vessel within the meaning of 1 U.S.C. 3, general headnote 5(e), and subpart D headnote 1 (ii), TSUS, and entitled to duty-free status or whether the merchandise is dutiable under item 696.35 as pneumatic craft.

As to the law announced in Thornley & Pitt, it is not stare decisis here. A prior decision of the Customs Court is not binding upon this court. Lafayette Radio Electronics Corp. v. United States, 57 CCPA 62, C.A.D. 977, 421 F. 2d 751 (1970). Thus, we are free to come to an independent conclusion in this matter.

As seen in 1 U.S.C. 3, supra, the definition of the term “vessel” is quite broad. However, judicial precedent has limited the definition of vessel for tariff purposes and has established that not every watercraft meeting the bare terms of the definition is entitled to entry into the United States duty free. In particular, the scope of the term “vessel” has been narrowed to limit duty-free treatment to watercraft that are instrumentalities of commerce as opposed to articles of commerce. See The Conquerer, 166 U.S. 110 (1897); United States v. Bethlehem Steel Co., supra; Hitner Sons Co. v. United States, 13 Ct. Cust. App. 216, T.D. 41175 (1922); and Thayer v. United States, 2 Ct. Cust. App. 526, T.D. 32252 (1912).

In comparing the subject merchandise with the criteria set forth in The Conquerer and its progeny, supra, we see that the appellee’s liferafts cannot be considered vessels within the meaning of general headnote 5(e). The subject liferafts are undocumented, incapable of use as commercial transportation, and do not serve as' vehicles for importation of other merchandise. The merchandise is carried as equipment on yachts, pleasure boats, and the like. Therefore, the liferafts are articles of commerce rather than instrumentalities of commerce and as such are not vessels under general headnote 5 (e).

Articles excluded by general headnote 5(e) are those excluded from subpart D headnote 1 (ii); therefore, the term “vessels which are not yachts or pleasure boats” in headnotes 5(e) and 1 (ii) must be given the same scope of interpretation. If, in construing general headnote 5(e), the term “vessels” is broadly interpreted to include the subject liferafts, then headnote 1 (ii) must be so construed or the intended interrelationship between general headnote 5(e) and subpart D headnote 1 (ii) would be destroyed. But if headnote 1 (ii) is given the broad construction of headnote 5(e), i.e., to include the subject liferafts in the definition of vessels, then subpart D would be rendered internally inconsistent. “Canoes, racing shells (and) pneumatic craft” expressly provided for in subpart D separately from “yachts or pleasure boats,” would be excluded from subpart D by headnote 1 (ii) as “vessels which are not yachts or pleasure boats.”

Applying The Conquerer and its progeny construction to general headnote 5(e) as discussed above avoids the intolerable result of sub-part D headnote 1 (ii) being internally inconsistent. The Conquerer construction excludes canoes, racing shells and pneumatic craft from the duty-free status of headnote 5(e) thus allowing those articles to be properly classified under items 696.30-696.40 where they are specially provided for.

Additionally, it must be noted that Congress has specifically directed in item 853.10 that lifeboats and lifesaving equipment are to be afforded duty-free status when imported for use by institutions established to encourage the saving of human life. By such congressional action, it is evident that Congress did not intend to exempt all lifeboats, including liferafts, from duty.

Since the subject liferafts are not vessels within the meaning of general headnote 5(e), since they do not meet the provisions of item 853.10, and since they are specifically provided for in item 696.35 as pneumatic craft, the Customs Court improperly held the subject liferafts to be nondutiable vessels. The subject liferafts are dutiable as pneumatic craft in item 696.35. Accordingly, we reverse.

Winner, C.J., dissents. 
      
       General headnote 1 provides that all articles imported into the United States are subject to dutyunless excepted under another general headnote.
     
      
       There the Customs Court held that inflatable liferafts, imported as cargo, were vessels within the definition of that term as codified in 1 U.S.C. 3 and exempt from duty under the Tari ff Act of 1930.
     