
    (C.D. 4349)
    Birns & Sawyer Cine Equipment Co., Inc. v. United States
    United States Customs Court, First Division
    (Decided April 4, 1972)
    
      Stein é ShostaJc (Leonard M. Perlman of counsel) for the plaintiff.
    
      L. Patrick Gray, III, Assistant Attorney General (Urdan S. Mulveliill and Andrew P. Vance, trial attorneys), for the defendant.
    Before Watson, Maletz, and Be, Judges
   Maletz, Judge:

This case involves the dutiable status of an importation from Japan in 1967 that was invoiced as a “Director’s zoom range finder for cameras.” The import was assessed by the government with duty of 45 percent under item 708.89 of the Tariff Schedules of the United States as other optical appliances and instruments not provided for elsewhere in part 2 of schedule 7.

Plaintiff claims that the merchandise is properly dutiable at only 25 percent under item 722.78 as range finders designed to be used with photographic cameras.

The relevant statutory provisions are contained in part 2, schedule 7 of the tariff schedules, and read as follows:

Classified under:
Optical appliances and instruments not provided for elsewhere in part 2 of this schedule; * * *
* * * * * ■ * *
708.89 Other appliances and instruments _ 45% ad val.
Claimed -under:
722.78 Range finders designed to be used with photographic cameras, and parts thereof_ 25% ad val.

The import consists of a black cylinder 8% inches in length and 214 inches in width at its longest and widest points. It contains an eyepiece through which the user views a desired subject in a clearly defined rectangle. It also contains a movable outer ring which, when turned by the viewer, varies the height of the rectangle to correspond in size to various camera formats, such as Standard, Vista Vision TV, etc. In addition, the import contains a movable inner ring which, when turned, changes the size of the image in the rectangle. Thus, by turning the inner ring, a close-up or long shot is viewable in the rectangle. Once the particular composition is chosen (e.g., a close-up or long shot), calibrated numbers on the inner ring, in conjunction with tables affixed to the barrel, are used to ascertain the appropriate camera lens for that composition.

The import is used by a motion picture or television film director to select for a particular scene the field of view and composition he desires be seen on the finished film. When that is done, the director confers with the cameraman who thereupon inserts in the motion picture camera a lens that will provide the field of view and composition desired by the director. In short, the import is used to delineate the field of view and the composition of the scene to be filmed, and thereby assists in the selection of the proper lens for the motion picture camera. As explained in an instruction sheet issued by the plaintiff: “Because most motion picture cameras are equipped with several lenses of different focal length, the Director’s Finder [i.e., the import in issue here] helps in two ways. First, it can show what views the camera reveals through its available lenses, and second, it can select the best composition and to achieve it, determine what focal length lens should be used.”

It is to be noted that the import has no practical application for determining how far an object is away from the lens of the camera; on the contrary, the camera must be independently focused to insure that a clear image will emerge at the distance the subject is from the camera. Indeed, it is undisputed that the import does not measure distance.

Turning now to the legal aspects, plaintiff says in its brief (p. 11) that it “does not deny that there is merchandise in use commonly referred to as range finders which have as their function the measurement of distance.” However, plaintiff argues that “that is only one type of ‘range finder’ and that the merchandise in the case at bar is also a ‘range finder’ as that term is commonly understood.” Ibid. In this context, our problem is to determine whether imported articles such as those involved here which delineate the area to be viewed and assist in the selection of the proper lens for motion picture cameras are within the common meaning of the item 722.78 statutory language “[rjange finders designed to be used with photographic cameras * *

It is basic that in the absence of a showing of commercial designation, the language of a tariff provision will be given its common meaning. E.g., United States v. John B. Stetson Co., 21 CCPA 3, 4, T.D. 46319 (1933). And it is equally basic that the court may refer to dictionaries and other lexicographic authorities to assist it in ascertaining the common meaning of the words used in a statute. E.g., United States v. Tropical Craft Corp., etc., 42 CCPA 223, 227, C.A.D. 598 (1955); Floral Arts Studio, et al. v. United States, 46 CCPA 21, C.A.D. 690 (1958); United States v. Sandoz Chemical Works, Inc., 46 CCPA 115, C.A.D.711 (1959).

In an effort to establish the common meaning of the term “range finder,” plaintiff refers to various dictionaries which define the words “range,” “scope,” “compass” and “finder,” as follows:

Webster's Collegiate Dictionary, Fifth Edition (1938), defines the word “range” in part as follows:

* * * 7. Extent or space taken in or covered; compass; reach; scope; sphere * * *.

Webster's Third New International Dictionary (1963) defines the word “range” in part as follows:

* * * 8a: the space or extent included, covered, or used * * * b: a field of operation; an area actively occupied or used * * * c: the scope or span usu. of activity, experience, or knowledge * * *

Synonyms given in this lexicographic work for the word “range” include the words “compass” and “scope.”

Webster's Collegiate Dictionary, Fifth Edition (1938), contains the following definitions:

scope * * * 4.a Range of view, intent or mental activity, b The range within which an activity displays itself; * * *. Syn. range.
compass 1. The enclosing limit, boundary, or circumference of any area. 2. An enclosed space; area; hence, limits, reach, sweep, or capacity * * *. Syn. See Range.

And Webster’s Third New International Dictionary (1963) contains the following definitions:

scope * * * 4a: the general range or extent of cognizance, consideration, activity, or influence * * * b: the limited field_ or subject under consideration: the range of the matter being treated: the marked off area of relevancy * * *.
compass * * * b: an enclosed or delimited space or area often circumscribed * * * c: range or limit of perception, cognizance, knowledge, interest, concern, or treatment * * *.
finder * * 5: a device attached to or forming a part of a camera for showing the area of the subject that will be included in the picture * * *.

Plaintiff further points out that at trial the two witnesses who testified agreed that the importations performed functions which are encompassed in the definitions of “range,” “scope” and “compass,” above quoted.

We think, however, that plaintiff has taken a rather circuitous method to establish a common meaning for the term “range finder.” A more direct and accurate approach would have been to use as a basis of common meaning the dictionary definitions for the entire term “range finder.” Thus, in Webster's Third New International Dictionary (1963) — a dictionary cited by plaintiff — the term “range finder” is defined, as follows:

range finder * * * 3. a camera attachment for measuring by optical means the distance between the camera and the object.

To similar import are the definitions of “range finder” contained in the following dictionaries and lexicographic authorities:

Webster's New World Dictionary of the American Language, College Edition (1962):
range finder, any of various instruments for determining the distance of a target or object from an observer, from a gun * * *.
Britannica World Language Dictionary, Yol. II (1963) :
range finder. An instrument with which to determine the distance of an object or target from a given point, as from a gun.
The American Heritage Dictionary of the English Language (1969-70) :
range finder. Any of various optical, electronic or acoustical instruments used to determine the distance of an object.

Finally, under the title “photography,” the Encyclopaedia Britannica, Yol. 17 (1951 ed.), p. 826, provides the following explanation of range finders:

Range Finders. — Range finders are used in photography to measure accurately the distance of the subject from the lens. They may. be separate from or attached to the camera and are small versions of those designed for military use. They are of the split-field and coincidence types. In coupled range finders, the range finder is mechanically coupled to the camera lens so that when a distance is determined in the range finder, the camera lens is automatically focused on that distance. The field of the range finder sometimes forms part of the full field of the view finder, so that it is only necessary to look through one eye lens to focus and compose.

In brief, all the foregoing authorities make it clear that the function of a range finder is to determine or measure distance. Similarly, in Willoughbys Camera, Stores, Inc. v. United States, 30 Cust. Ct. 76, C.D. 1499 (1953), the court, in holding that pocket range finders were optical instruments under the provisions of paragraph 228 (b) of the 1930 Tariff Act, explained the use of a range finder as follows (pp. 78-79) :

* * * Thus, the primary purpose of these range finders is to aid in properly focusing a photographic camera. By the use of this range -finder, the operator is enabled to ascertain the distance between the point where the operator is standing and the object to be photographed. Accordingly, we find as a matter of fact that the. pocket range finder under consideration, being admittedly designed for use with a photographic camera, is primarily an aid to the operator, enabling him to set the lens of the camera more accurately than he could if he relied merely on his judgment of the distance between a given object and the camera. * * * [Emphasis added.]

Prior to Willoughbys, the court in United States v. E. Leitz, Inc., 26 COPA 418, C.A.D. 49 (1939), held that a photographic range finder, designed to be detachably mounted on a camera but capable of being used separately, was not a part of a photographic camera by reason of the fact that even when the finder and the camera for which it was designed were used together, each performed its separate function without loss of any of its essential characteristics, and each was a distinct entity. The court described the operation of this range finder and the camera as follows (p. 421) :

The manner in which the two exhibits are used together, whether the range finder be mounted on the camera or used separately, is as follows: the operator selects an object which he desires to have in critical focus; the object is viewed through the range finder as hereinabove described, the adjusting wheel being rotated until a single image is visible. The distance indicated on the wheel is then noted and the operator proceeds to rotate the lens mount collar until the position of the index line thereon registers with, the proper distance mark on the lens flange, or, in case of a distance between indications, as closely as he can by judgment approach thereto. Having done so, the camera is focussed for critical focus at the distance of the object to which attention is being directed. It will thus be observed that, in using the range finder in question with the camera? two distinct manual operations are requisite; first, the manipulation of the rotating wheel on the range finder to get the proper distance indication, and second, the setting of the lens in accordance with that indication.

These descriptions of range finders are in sharp contrast tó the functions performed by the import before us which does not measure distance.

The two important features necessary in a quality photograph are clearness of image and the proper centering or composition of the image within the four walls of the film. In this connection, a range finder is employed to measure the distance to the subject so that the camera can be adjusted to insure a clear, sharp image. As previously discussed, the present importation does not aid in measuring the distance to the subject or in focusing the camera for a sharp image. In fact, according to the testimony, after the imported finder is used and the proper lens chosen, the camera must then be focused.

Additionally, defendant suggests that the importations are not range finders but are articles commonly known as “view finders” or “finders.” Thus it points out the striking similarity between the present imports and the so-called “finders” involved in United States v. Mitchell Camera Corp., 22 CCPA 544, T.D. 47553 (1935). In that case, the “finders” were held to be complete instruments in themselves, and hence the lens portions of these finders were not parts of photographic cameras. What is particularly significant is the court’s excerpt of the following testimony of the importer’s witness indicating how the “finder” was used in connection with a motion picture camera (p.546):

A. Well, it doesn’t seem to be used in connection with the camera. For instance, if a director is going out looking for locations, he would take this along, this finder itself, illustrative exhibit A. He would take that along to look through that, and that delineates his field, and he could pick out his composition from that. * * *

This description, it is to be noted, describes precisely the function of the import before us here.

Further, consulting dictionaries, we find the following definition of “view finder” in Webster's Third New International Dictionary (1963):

viewfinder n: FiNDER 5.

The term “finder” is in turn defined in the same edition of Webster’s as follows :

finder * * * 5: a device attached to or forming a part of a camera for showing the area of the subject that will be included in the picture * * *.

The American Heritage Dictionary of the English Language (1969-70) also defines the term “view finder” by referring to “finder,” which is defined, in part, as follows:

2. Photography. A device on a camera that indicates to the photographer, what will appear in the field of view of the lens. Also called “view finder.”

Funk & Wagnalls New Standard Dictionary of the English Language (1952) defines “view finder” as follows:

view-finder, n. Phot. An appendage to a camera which duplicates in miniature on a ground glass or by the formation of an image in space the view to be photographed, and by means of which the camera is more conveniently adjusted.

From the foregoing, we conclude that the importations before us are not range finders, but rather are view finders which perform an entirely different function. And since there is no provision in the tariff schedules for view finders, it necessarily follows that the importations in issue were correctly classified under item 708.89 as other optical appliances and instruments not provided for elsewhere.

The protest is overruled, and judgment will be entered accordingly. 
      
       Paragraph 228(b) was later modified by T.D. 52373 to include a provision for “[r]ange finders designed to be used with photographic cameras.”
     