
    The Manhattan Shirt Company, plaintiff v. United States; William von Raab, Commissioner of Customs; Dennis T. Snyder, Regional Commissioner of Customs (Region II); Anthony M. Liberta, Area Director of Customs, J.F.K. Airport, Jamaica, New York, defendants
    Court No. 81-12-01609
    (Decided December 30, 1981)
    
      Rode & Qualey, attorneys for plaintiff, by Michael 8. O’Rourke and Patrick D. Gill, for the plaintiff.
    
      J. Paul McGrath, Assistant Attorney General; Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, by Jerry P. Wiskin, for the defendants.
   Ford, Judge:

Upon the record and exhibit evidence presented at a hearing on plaintiff’s motion for a preliminary injunction in the above-captioned case which was reported as Slip Op. 81-115 and;

Upon the record and exhibit evidence presented at the trial on the merits of this case on December 29, 1981; and

Upon the basis of the annexed findings of fact and conclusions of law; and

Upon all other papers and proceedings had herein, it is hereby

Ordered, Adjudged, and Decreed that defendants, William von Raab, Commissioner of Customs, Dennis T. Snyder, Regional Commissioner of Customs (Region II), Anthony M. Liberta, Area Director of Customs, J.F.K. Airport, their delegates and any officers or agents subordinate to them are directed to release and allow entry of the merchandise which is the subject of warehouse entry 4701-82-354288-4 covered by protest number 1001-1-013244 and it is further

Ordered, Adjudged, and Decreed that defendants, William von Raab, Commissioner of Customs, Dennis T. Snyder, Regional Commissioner of Customs (Region II), Anthony M. Liberta, Area Director of Customs, J.F.K. Airport, their delegates and any officers or agents subordinate to them shall not deny entry or withdrawal from warehouse for consumption of John Henry men’s fitted dress shirts of man-made fibers, visaed under category 640-D, produced or manufactured in the Republic of Korea by reason of the presence of square shirttails or the fact that the shirts have square bottoms.

Findings of Fact and Conclusions of Law to Accompany DECISION AND JUDGMENT

Pursuant to an order of the Court dated December 28, 1981, plaintiff herewith submits the following proposed findings of fact and conclusions of law along with a proposed judgment annexed hereto, which the court hereby modifies and adopts.

Findings of Fact

1. Plaintiff is the importer of record of John Henry men’s fitted dress shirts of man-made fibers, manufactured in the Republic of Korea, which were excluded from entry at J.F.K. Airport and which are the subject of this action.

2. Similar John Henry men’s fitted dress shirts of man-made fibers, which are being manufactured in the Republic of Korea which plaintiff is importing and will continue to import, are also the subject of this action.

3. Pursuant to section 514 of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979, plaintiff filed a protest (as delineated on the summons filed with the complaint in this action) which was denied, in whole, pursuant to section 515 of the Tariff Act of 1930, supra.

4. John Henry men’s fitted dress shirts have collar sizes stated in specific inches (i.e., 15K) and sleeve lengths in combination (i.e., 32/33) and those sizes appear on a label which is sewn into the center portion of the collar band of each shirt.

5. In addition to collar and sleeve sizes, John Henry men’s fitted dress shirts are designed and sized so that each neck size has a corresponding waist measurement.

6. John Henry men’s fitted dress shirts have full collar bands which extend to the edges of the front openings of the shirts.

7. John Henry men’s fitted dress shirts have fused collars, a characteristic common with fitted dress shirts.

8. John Henry men’s fitted dress shirts have square shirttails, characterized by Customs as square bottoms, which are downward extensions of the back and front panels of the shirt, which, in use, are “tucked” into the trousers.

9. John Henry men’s fitted dress shirts meet all of the criteria set forth in C.I.E. 36/79, for classification as dress shirts, and, specifically, those set forth on page 30 thereof.

10. In addition to the design characteristics indicated above, John Henry men’s fitted dress shirts have the following characteristics:

A. Higher armholes than conventionally cut shirts,

B. Slimmer sleeves than conventionally cut shirts,

C. Tapered body, _

_ D. Lightweight shirtings, self-colored in solid, stripe or check,

E. One breast pocket,

F. A facing less than two inches in width,

G. A placket.

11. The merchandise in question is manufactured by Wonmi Apparel and Textile Ltd., C.P.O. Box 2102, Seoul, Korea, and the contract between plaintiff and the manufacturer describes the merchandise to be manufactured as follows:

Men’s Dress Shirts, L/S 2-top fused collar, top center, 1-chest pocket, 2-button adjustable romd cuff, straight bottom, double stitching on collar/cuff/top center/sleeve in-seam/side seam, single needle stitching on armhole;

12. Plaintiff’s office in Hong Kong, Manhattan Industries (Far East) Ltd., communicated directly to Wonmi Apparel and Textile Ltd. instructions for the manufacture of the merchandise now before the Court and will have a similar function for future entries.

13. Manhattan Industries (Far East) Ltd.’s cutting tickets or purchase orders indicate clearly that the merchandise to be manufactured is “John Henry dress shirt [s]”.

14. The numeral “6” appearing in the lot number in each of the cutting tickets is reserved for dress shirts and, in addition, the cutting ticket describes the merchandise as “John Henry European fit” and all collars are “with stay,” a dress shirt feature.

15. Plaintiff advertises the merchandise in the United States as a “dress” shirt.

16. John Henry men’s fitted dress shirts are marketed and sold in the United States as dress shirts, specifically, fitted dress shirts, and currently fitted dress shirts account for more that 25% of the total department store sales of dress shirts.

17. Department stores in the United States feature John Henry men’s fitted dress shirts, and other fitted dress shirts, in separate departments within the stores.

18. Plaintiff, through its John Henry Division, introduced the fitted dress shirt to the U.S. market and has been an innovator in this market since approximately 1973.

19. There is a substantial segment of the retail and consumer market which demands fitted dress shirts such as the John Henry men’s fitted dress shirts.

20. The square shirttails on the John Henry men’s fitted dress shirts are a design feature of fitted dress shirts.

21. John Henry men’s fitted dress shirts are indistinguishable in appearance from conventionally cut dress shirts with rounded shirttails which are conceded by the Government to be dress shirts.

22. John Henry men’s fitted dress shirts are bought, sold, advertised and marketed in the same way as conventional dress shirts; namely, as dress shirts.

23. On October 23, 1981, plaintiff attempted to make entry of the merchandise which is the subject of the protest in this action and which was imported into the United States on October 18 and October 21,1981.

24. On October 28, plaintiff’s attempted entry for consumption was rejected by the Area Director, J.F.K. Airport, Jamaica, New York.

25. Defendants aver that the entry was not rejected because the Customs Service was of the opinion that the John Henry men’s fitted dress shirts were other than dress shirts.

26. Defendants aver that the entry was rejected because it had what defendants contend is an “incorrect visa” notwithstanding the fact that the visa was a dress shirt visa (category 640-D).

27. Defendants contend that any dress shirt with a square shirttail, which defendants characterize as square bottom, should be visaed under category 640-0, the visa for other than dress shirts.

28. Defendants contend that even a fitted dress shirt designed for formal wear, a tuxedo shirt, having a square shirttail, should be described as a sport shirt and visaed under category 640-0.

29. On September 29, 1981, the Committee for the Implementation of Textile Agreements (“CITA”) caused to be published in the Federal Register (46 FR, 47649-50), an “adjustment” of the 1981 import restraint levels for Textile Category 640.

30. As a result of the notice published on September 29, 1981, imports of merchandise in Textile Category 640-0 (other than dress shirts) from Korea were embargoed because that category became filled.

31. At the time plaintiff attempted to enter the merchandise, the quota for dress shirts, Category 640-D (dress shirts), was unfilled.

32. The visa accompanying the entry papers submitted by plaintiff included the notation “640-D” not “640-0”.

33. On October 8, 1981, CITA caused to be published in the Federal Register (46 FR 49939-40) a notice:

ACTION: Advising that in order to meet the “correct category” requirement, visas for man-made fiber woven shirts in category 640, produced and manufactured in the Republic of Korea, must be visaed as follows on and after October 13, 1981 (part only).
1. Category 640-D (only T.S.U.S.A. numbers 380.0455, 380.8431 and 380.8433).
2. Category 64O-O (all T.8.U.S.A. numbers except 880.04-55, 880.8481 and 380.8488).

34. The only basis for Customs’ action with respect to the classification of the merchandise is the presence on John Henry men’s fitted dress shirts of square shirttails which defendants contend are not shirttails and Customs requires rounded shirttails for dress shirt categorization.

35. John Henry men’s fitted dress shirts have high armholes for better , fit and the square shirttails are designed to prevent the shirt from coming up out of the trousers of the wearer when he makes upward motions with his arms.

36. Items 380.0455, 380.8431 and 380.8433, TSUSA, the statistical classifications for dress shirts, do not contain a requirement that classification of dress shirts is to he determined by the presence or absence of round shirttails.

37. In arriving at its classification determination, defendants relied entirely on their interpretation of a description contained in C.I.E. 36/79 that square shirttails are square bottoms, rather than shirttails.

38. C.I.E. 36/79 is neither a statute nor a regulation and does not have the effect of same.

39. C.I.E. 36/79 and the disputed Customs’ interpretation thereof are not part of the Bilateral Agreement on Trade in Textiles and Textile Products with the' Republic of Korea, 29 U.S.T. 3835 et seg.

40. C.I.E. 36/79 contains on requirement that shirttails be rounded, rather than square.

41. C.I.E. 36/79 was published in part, to enhance the “accuracy of the statistical data collected” by Customs.

42. The continued misclassification of John Henry men’s fitted dress shirts in item 380.8443 (Category 640-0) rather than item 380.8433 (Category 640-D) will result in the collection of inaccurate statistical data.

43. C.I.E. 36/79 by its own terms is advisory and should not be “considered an immutable document,” and, as such, defendants must take cognizance of the change in men’s shirt design as exemplified by the John Henry men’s fitted dress shirts.

44. Plaintiff’s John Henry Division of Manhattan Industries, Inc., is one of the largest suppliers in the United States of better, men’s fitted dress shirts and its position in the market place will be seriously affected if it is unable to meet its sales commitments to its customers.

45. The John Henry men’s fitted dress shirts affected by the embargo (an embargo which will cease on January 1, 1982) wTere ordered by various retail locations and additional orders will be shipped from Korea to the United States throughout 1982 and thereafter.

46. Plaintiff will suffer substantial money damage if it fails to deliver the shirts.

47. If the Customs Service continues to misclassify John Henry men’s fitted dress shirts under Category 640-0 in 1982, plaintiff will sustain injury due to lost sales in the amount of $870,000 per month or $29,000 per day.

48. In addition to the specific lost sales caused by the embargo, plaintiff is likely to lose additional sales of other dress shirts both fitted and conventional cut arising from its inability to meet its commitments to the individual retail locations who have ordered the John Henry men’s fitted dress shirts.

49. For the past nine years plaintiff has manufactured and advertised the John Henry men’s fitted dress shirts as a shirt with a particular fit and, as a result, plaintiff’s customers have come to expect certain styling characteristics including square shirttails.

50. The dollar volume of sales of John Henry men’s fitted dress shirts has risen substantially from 1978 through projected sales for 1982.

51. Other manufacturers of men’s fitted dress shirts, both domestic and foreign, produce their shirts with square shirttails; therefore, if plaintiff were to change its design, specifically change the cut or shape of the square shirttail, it would run the risk of losing its customers to other manufacturers.

52. Because of the embargo placed on the merchandise in question, plaintiff is unable to obtain replacement goods from any other source, either domestic or foreign.

53. Currently, Korea accounts for approximately 23% of all imports of John Henry men’s fitted dress shirts and that production from other sources such as Taiwan or Hong Kong are at maximum levels, therefore, a shift to these resources would be extremely difficult, if not impossible.

54. If a shift of a supply from Korea to Taiwan or Hong Kong were possible, it would result in substantial additional costs to the American consumer because of the increased costs to plaintiff which would occur as a result of manufacturing in Hong Kong or Taiwan.

55. Plaintiff has expended a substantial amount of time and capital developing Wonmi Apparel and Textile Ltd. as a source in Korea, and that the loss of this facility as a source of supply will have a substantial impact on plaintiff’s ability to have available similar men’s fitted dress shirts for sale in the U.S. market in 1982.

56. On or after October 13, 1981, and for the foreseeable future, importations of category 640 merchandise from Korea will require a visa which agrees with Customs’ classification of the merchandise imported (i.e., 640-D merchandise classifiable under item 308.8433).

57. Plaintiff’s source of production in Korea does not hold “640-0” quota for the export of John Henry men’s fitted dress shirts, therefore, plaintiff will be unable to obtain “640-0” visas for its “640-D” merchandise currently embargoed or “640-D” merchandise shipped in the future.

58. The requirement to designate category 640 merchandise with a “D” or “O” coupled with Customs’ misclassification of plaintiff’s merchandise will preclude plaintiff from entering the John Henry men’s fitted dress shirts now embargoed and this situation will continue for the foreseeable future.

59. The John Henry men’s fitted dress shirt division of plaintiff is the principal profit maker of plaintiff and at times has been the only profitable division of plaintiff.

60. Any interruption in deliveries as a result of a Customs’ refusal to release John Henry men’s fitted dress shirts would have a devastating impact on plaintiff and would cause irreparable injury to plaintiff.

61. Among other things, a detention of John Henry men’s fitted dress shirts by Customs would likely lead to cancellations, now and for the future, of orders by plaintiff’s principal buyers.

62. Plaintiff’s credibility in the market place as a reliable source for fitted dress shirts will be lost and its reputation ruined.

63. John Henry men's fitted dress shirts are seasonal articles of apparel which must be imported and delivered on a timely basis in accordance with fixed delivery schedules.

64. If plaintiff’s delivery schedules for the coming seasons of 1982 are disrupted as a result of a Customs’ refusal to release the shirts accompanied by visas under category 640-D, plaintiff may be forced to go out of businesg.

65. Plaintiff’s anticipated shipments from Korea for 1982 are essential to its continued growth and profitability.

66. On December 18, 1981, CITA caused to be published in the Federal Register (46 Fed. Reg. 61692-93) a notice announcing new control levels for category 640-D and category 640-0 for 1982, and as a result, there will be no embargo on either category as of January 1, 1982, and for the foreseeable future.

67. Defendants will still preclude entry of John Henry men’s fitted dress shirts imported from Korea, not because the merchandise is embargoed but only because the merchandise is accompanied by visas under category 640-D rather than category 640-0.

68. The impact of permitting or denying entry to plaintiff’s John Henry men’s fitted dress shirts will be felt by plaintiff alone and will have no impact on defendants by reason of the fact that there will be no embargo on either category 640-D or 640-0 from Korea as of January 1, 1982.

69. The release of plaintiff’s John Henry men’s fitted dress shirts imported from Korea and accompanied by visas under category 640-D will have no impact or result in no harm to defendants even if an appeal is taken by defendants.

Conclusions of Law

1. The Court has jurisdiction and the power to grant the relief sought by plaintiff pursuant to 28 U.S.C. 1581(a), 28 U.S.C. 1581(h), 28 U.S.C. 1581 (i) (3) (4), and 28 U.S.C. 1585..

2. Plaintiff has standing to bring this action pursuant to 28 U.S.C. .2631(a), 28 U.S.C. 2631(h), and 28 U.S.C. 2631(i).

3. John Henry men’s fitted dress shirts are within the common meaning of the term, dress shirts.

4. Defendants have not introduced a scintilla of evidence that John Henry men’s fitted dress shirts are commercially or commonly understood to be other than dress shirts and concede in answer to paragraphs 22 and 23 of the complaint that they are dress shirts.

5. The decision to exclude John Henry men’s fitted dress shirts from entry when imported from Korea and accompanied by a visa under category 640-D is devoid of any rational basis in fact or law.

6. The continued exclusion of John Henry men’s fitted dress shirts from Korea when accompanied by.visas under category 640-D will result in harm to plaintiff.

7. John Henry men’s fitted dress shirts are properly classifiable as “other men’s or boys’ wearing apparel, not ornamented: of man-made fibers: Not knit: Other: Shirt: Dress: Other,” in item 380.8433, Tariff Schedules of the United States Annotated, as amended by the Trade Agreements Act of 1979 (1981).

8. Dress shirts imported from Korea classifiable under item 380.8433, TSUSA, must be accompanied by a. visa under category 640-D as is manifest from Finding of Fact 33.

9. John Henry men’s fitted dress shirts imported from Korea are entitled to entry when accompanied by a visa under category 640-D.

10. Customs improperly excluded from entry for consumption the merchandise which is the subject of entry number 4701-82-354288-4 and said merchandise should he released immediately.

11. Defendants may not deny entry or withdraw from warehouse for consumption of John Henry men’s fitted dress shirts of man-made fibers, visaed under category 640-D, produced or manufactured in the Republic of Korea, by reason of the presence of square shirttails. 
      
       This provision will become item 39/.9540,‘TSUSA, in 1982.
     