
    United States v. O. Brager-Larsen
    (No. 4577)
    
    
      United States Court of Customs and Patent Appeals,
    April 2, 1948
    
      Paul P. Bao, Assistant Attorney General {Joseph F. Donohue and Richard F. Wjseks, special attorneys, of counsel), for the United States.
    
      Barnes, Richardson & Colburn {Albert MacC. Barnes, Samuel M. Richardson, and Hadley S. King of counsel) for appellee.
    
      Charles Cold for American National Fox and Fur Breeders Association as amicus curiae.
    
    [Oral argument February 11, 1948, by Mr. Donohue and Mr. Barnes; submitted on brief by amicus curiae]
    Before Gaeeett, Presiding Judge, and Hatfield, and Jactcson, Associate Judges
    
      
       C. A. D. 388.
    
   JacKsoN, Judge,

delivered the opinion of the court:

The United States appealed from a judgment of the United States Customs Court, First Division, C. D. 1042, sustaining the protest of appellee in which it was claimed that an importation of fox furs was entitled to entry duty free as undressed fur skins not specially provided for under paragraph 1681 of the Tariff Act of 1930. The Collector of Customs at the port of New York assessed the merchandise for duty under the provisions of paragraph 1519 of the act as “silver or black fox furs or skins, dressed or undressed,” at the rate of 37K per centum ad valorem pursuant to the Canadian Trade Agreement, T.D. 49752.

The pertinent portion of paragraph 1519 reads as follows:

(c) Silver or black fox furs or skins, dressed or undressed, not specially provided for 50 per centum ad valorem (reduced by the Canadian Trade Agreement to 37}i per centum ad valorem).

Paragraph 1681 provides for free entry of undressed furs and fur skins not specially provided for.

It is agreed by the parties that the imported merchandise was ■ undressed skins.

The fox skins were imported from Oslo, Norway, and were invoiced as raw platinum fur skins.

The appellee (importer) testified that he was a representative of the Norges Platina Association, a cooperative body engaged in the breeding of foxes in Norway. He came to the United States to sell the imported fox skins at auction, which appears to be the method employed in selling all fox skins. The involved goods were sold in that maimer as Norwegian super platin or platina fox skins.

Appellee testified that fox skins of the same character as those imported were first produced in Norway in 1934. He testified that he has been intimately connected with the production of such skins, “Since the fox was born in 1933.” It appears from the record that at tbe time of passage of the involved tariff act, fox skins, such as those imported, were not known.

Appellee in his testimony gave a highly informative and meticulously complete record concerning the first platinum fox born in Norway, the history of the breeding of that fox with silver foxes upon which the claim of mutation or change of color phase from the silver to platinum was based, and described the changes present in the platinum fox which differentiated it from the silver fox from which the platinum fox was bred. That appellee is highly skilled and thoroughly experienced in the fox raising industry is clear. It is also clear that he was familiar with such industry in all of the countries of the world where silver foxes are produced and their pelts sold.

There is no issue here with respect to commercial designation. The question to be decided is simply whether or not the merchandise involved is properly embraced within the common meaning of the words "silver or black fox skins.” It is unnecessary to relate in detail the testimony of the witnesses. The trial was started in New York, transferred to Milwaukee, and finally completed in New York. Twenty-seven witnesses appeared on behalf of appellant and 15 for appellee. In addition to the testimony of men engaged in the fox raising business and those in the fox pelt dealing industry, two expert geneticists gave testimony, one for appellant and one for appellee. A great number of paper exhibits comprising advertising material, accounts, letters, and the like were received in evidence.

In order to sustain his burden of proof, appellee was only obliged to present evidence to prove that the imported platinum fox sldns were not silver or black fox furs or skins within the common meaning of that expression.

It is well settled that the common meaning of a tariff term is not a question of fact, but a question of law. United States v. Shalom Co., 33 C. C. P. A. (Customs) 29, 35, C. A. D. 311; Stephen Bug Mills v. United States, 32 C. C. P. A. (Customs) 110, 115, C. A. D. 293; United States v. Florea & Co., Inc. 25 C. C. P. A. (Customs) 292, 296, T. D. 49396.

In determining the common meaning of words, courts may receive evidence as to such meaning and as to the name to be applied to a given article in common acceptance, but such evidence is merely advisory to the court. Courts may consult dictionaries and other authorities and also draw upon their own knowledge of materials within the common understanding in making their determination of common meaning. Absorbo Beer Pad Co., Inc. v. United States, 30 C. C. P. A. (Customs) 24, 30, C. A. D. 209; United States v. John B. Stetson Co., 21 C. C. P. A. (Customs) 3, 9, T. D. 46319; United States v. Flory & Co., 15 Ct. Cust. Appls. 156, 159, T. D. 42219.

The common meaning of the eo nomine designation “silver or black fox furs” must be determined as of the date of the enactment of the tariff act. W. J. Lake & Co., et al. v. United States, 27 C. C. P. A. (Customs) 247, 251, 252, C. A. D. 94; United States v. Belgam Corp. et al., 22 C. C. P. A. (Customs) 402, 405, T. D. 47402.

The levying of duty on silver or black fox skins appeared first in paragraph 1420 of the Tariff Act of 1922, and seemingly was placed there for the protection of the silver fox raising industry which, at that time, was in its relative infancy. Shortly after the effective date of the act of 1922, to wit June 30, 1923, the United States Department of Agriculture issued its Bulletin No. 1151 entitled “Silver Fox Farming” by Frank G. Ashbrook, Biologist in Charge, Division of Fur Resources, Bureau of Biological Survey, in which appears the following:

What is a Silveb Fox?
The name silver fox, as commonly used by furriers, includes the dark phases of the ordinary red fox, variously called silver, silver-gray, silver-black, or black (PL I). The color of the red fox of the northeastern States and of its allies of the colder parts of North America varies from red to black, and these extremes, with the gradations between them, form four more or less distinct phases, known, respectively, as red, cross or patch, silver, and black.
The silver fox, therefore, is a color phase of the red ior. It is dark all over, with silver hairs intermixed, but no red, and the tip of the tail is generally, but not always, white. The guard hairs which give the silver appearance to the pelage are not entirely white, but are black with a white band, and some guard hairs are entirely black. .Variation in guard hairs is shown in Figure 1.

In the year of 1922, “silver fox” was defined by William E. Austin, B. S., a recognized authority, in bis book, “Fur Dressing and Fur Dyeing,” as follows:

Silver fox 30 x 10”. The under hair is close and fine, and the top hair, which is black to silvery, is 3” long. The fur on the neck usually runs almost black, and in some cases the black extends over half the length of the skin. When all black, it is a natural black fox, and is exceedingly rare and high priced. * * * The tail is always tipped white.

In his book on “Fur Farming for Profit,” 1929, Mr. Ashbrook quotes the second paragraph of the foregoing quotation from Bulletin No. 1151 in identical language. In the revised edition of his book, published in 1948 (Orange Judd Publishing Co., Inc., New York), we find the following:

It is true that the luxurious -platinum fox and mutations such as the white face, white marked, and others are holding the attention of the fur trade and bringing the highest prices.
The fur of a fox or mink should be perfectly and evenly furred all over the body, both on the back and on the belly. It should be reasonably long, lustrous, and silky in appearance. These characters determine the quality. In the case of silver fox, the guard hairs, whether silver handed or black, should he long, fine, and silky and of greater length in the region of the nape than on other parts of the body. The under fur should he abundant, soft and dark in color — the darker the better. Matty or wooly underfur is not desirable.
When prime, a silver fox should be black and silver, the glossy black shading to blue-black. The silver bands on the guard hairs should be bright. The color must be clear, whether the fox is classed as hlach, extra dark silver, dark silver, silver, pale silver, or full silver, for clearness of color is one of the most important factors in determining quality. Clearness and distinctness of color must also prevail in the mutation foxes whether the color is black, white, blue, blue-black, slate blue, pearl blue or platinum. [Italics ours.]

It may be noted that Mr. Ashbrook not only continues in bis latest book the essential features of bis definition of a silver fox, but also that be recognizes mutation in foxes, from which one of the products is a platinum fox.

The publication, “Fur,” 1930, (three reprints, the last in 1937) by Max Bacbrach, a Government witness in this case, gives the following definition:

Silver fox, black fox. This animal is as much a red fox as if its color were red. Therefore, it has no other zoological classification than red fox. It is found in the litters of the red fox in certain sections of North America, and is simply a black freak or melanism of the red fox. * * *
Color and character: The general color of the silver fox is black, but there are several tones or shades depending on the time of the year in which the peltry was taken. * * * Character is determined by the silvery hairs that are sprinkled throughout the peltry. These silvery hairs are of the guard hair variety and are not silvery throughout. If a silvery hair be examined, it will be seen that the lower 3/5ths are black, the next fifth white, and the upper fifth or tip again black. In a full silver type of peltry, the silvery hairs extend from the gills to the rump usually with no center black line.

The same author in “Fur Digest” published in 1939 by the Retail Fur Council of the National Retail Dry Goods Association defines a silver fox as follows :

Page 46 :

Fox, Silver: Species found originally among litters of Red Fox having dark-pigmented fur and guard hair. Some of the guard hairs have a silvery band about the middle section; hence the name “Silver Fox.” This species is recessive and is bred on farms and ranches. See also Black Fox.

Page 44:

Fox, Black: Melanie or black “sport” type of Red Fox. It is found in the Red Fox litters and is a color phase. Formerly very valuable, now only ranched and rarely found in the wild state. With silver hairs it is known as Silver Fox; with reddish tinge, it is the Cross Fox.

Page 113:

Silver, )í, Yi, %> Full, Etc.: Descriptive trade term designating approximate “silvery” area on Silver Fox Peltries.
Silvery: Term designating area or general aspect of peltries having white or “silvery” hairs against darker background.

We have not found in any authoritative or other publication on furs or fur bearing animals a description of silver foxes which does not conform to the definitions hereinabove set out. The dictionaries in defining the term “silver fox” do not at any time differ from the definitions given by the authors of the fur publications we have mentioned. As illustrative of dictionary definitions, we quote the following:

The Encyclopedia Americana (1903):

Fox: All the typical foxes are inhabitants of northerly latitudes, and well represented by the common red fox, which may be regarded as distributed throughout the whole Northern Hemisphere * * *. Thus a fox marked with a dark line along the spine and another over the shoulders is called a “cross” fox and fine specimens are worth an extra price. Wholly black ones are uncommon, but the rarest and most valuable pelt is that of a “silver” fox, that is, a black one in which so many of the hairs are white tipped that a hoary or a silver appearance is given to the skin.

Encyclopaedia Britannica, Eleventh Edition (1910):

Fox.
The “foxy red” colouring of the typical race of north-western Europe is too well known to require description. From this there is a more or less nearly complete gradation on the one hand to pale coloured forms like the white-footed fox (V. alopex loncopus) of Persia, N. W. India and Arabia, and on the other to the silver or black fox (Ya argentatus) of North America which yields the valuable silver-tipped black fox.

The Century Dictionary and Cyclopedia (1911):

Silver fox, the common red fox, Yulpes Fulvas, in a melanistic variation in which the pelage is black or blackish, overlaid with hoary or silver grey ends of the longer hairs. * * *

Nelson’s New Loose Leaf Encyclopedia (1915):

Fox
The common fox is Canis vulpes, which is widely distributed over Europe, Asia and America and occurs in a number of color varieties. Among these are several esteemed of great value in the fur trade, as jet black; “silver,” in which the hairs are black with white tips, giving a frosted appearance; and “cross,” in which a reddish pelt is marked with blackish stripes along the spine and across the shoulders.

Funic & Wagnalls New Standard Dictionary of the English Language (1918):

Silver
S. Fox, a variety (argentatus) of the common fox, black mixed with silver. • It is valuable on account of its rich fur.

Webster’s New International Dictionary (1920):

Silver
S. Fox, a phase of the American red fox in which the fur is nearly black with silvery white tips. The silvery white sometimes covers the whole body.

The New International Encyclopaedia (1926), page 109, after describing the rod fox, states:

American foxes * * *. In the Far North occur more rarely two other varieties — the cross and the silver fox. The former is simply a more or less normal red fox marked sometimes strongly, sometimes indefinitely, with a dark cross on the back and shoulders, fine specimens of which are given a superior value by traders in peltries. The latter or silver fox (var. argentata), is much rarer, and is black with a silver or hoary appearance due to many of the hairs being tipped with white * * *. That both these are merely phases of the red fox is plain from the fact that they may be born in the same litter with normally red cubs. Foxes totally black also appear in the Hudson Bay region.

Webster’s New International Dictionary (1927):

Same definition as appeared in Webster’s New International Dictionary of 1920.

Nelson’s New Loose Leaf Encyclopedia (1928):

Same definition as appeared in Nelson’s New Loose Leaf Encyclopedia published in 1915.

Encyclopaedia Britannica, XIY Edition (1929):

Fox * * *.
In the North American race (V. v. fulva) for instance, there are three main varieties, the red, the cross and the silver, the cross fox being intermediate between the other two. The silver, a black fox sprinkled with white, provides valuable furs; * * *

Universal Dictionary of the English Language (1932):

Silver fox, n. A variety of N. American fox, with black fur tipped with silvery white.

The Encyclopedia Americana (1932):

Silver Fox, a glossy black variety of the Canadian red fox (Vulpes fulvus) with a silvery grizzle on the forehead, and on the flanks passing upward to the rump. It is extremely rare in the wild state and the fur is very valuable.

Nelson’s New Loose Leaf Encyclopedia (1932):

The same definition as appeared in Nelson’s New Loose Leaf Encyclopedia of 1915 and 1928.

The Columbia Encyclopedia (1935):

Fox.
The most abundant species is the red fox, found over most of Canada and the United States. In its various color phases it is known as red, cross, black, silver, and silver gray, the color ranging from golden yellow to black. The black and the silver-black with white or black-tipped white guard hairs — are the most highly valued, single fine skins bringing thousands of dollars.

Webster’s New International Dictionary, 2d Edition (1936):

Fox — 1. a Any of certain carnivorous mammals of the family Canidae, smaller than the wolves, with shorter legs, more pointed muzzle, erect ears, and long bushy tail. The foxes were formerly included in the genus Canis, but are now usually placed in different genera, of which Vulpes is the most important. The common fox (V. vulpes) of Europe and the red fox (V. fulva) of North America are very similar, and each exhibits color phases in which it is known as cross fox, silver fox, black fox, etc.
Silver Fox — 1. A red fox (Vulpes fulva) of a color phase in which the fur is mostly glossy black, with a certain number of the guard hairs banded with white near the tips of the hairs, giving a silver-tipped appearance; also its fur or pelt.

Encyclopaedia Britannica (1941):

Same as definition contained in the Encyclopaedia Britannica, XIV Edition, published in 1929.

The Encyclopedia Americana (1941):

Same definition as tbe Encyclopedia Americana of 1932.

Funk & Wagnalls New Standard Dictionary (1942):

Silver fox. A variety (argentatus) of the common fox, black mixed with silver. Note: See illustration.

Webster’s New International Dictionary, 2d Edition (1944):

Silver Fox — 1. A red fox (Vulpes fulva) of a color phase in which the fur is mostly glossy black, with a certain number of the guard hairs banded with white near the tips of the hairs, giving a silver-tipped appearance; also, its fur or pelt.

It is clearly apparent tbat tbe common meaning of “silver fox,” as contained in tbe dictionaries, bas not changed from 1903 up to and including tbe date hereof, and all those definitions may be summarized by stating tbat tbe characterizing feature of silver fox fur is tbat it is all dark, at least in background, intermixed with silver found in many of tbe guard hairs. We do not believe tbat, if tba common meaning of “silver fox” bad changed since tbe effective date of tbe involved tariff act, such change would not appear in the dictionaries and standard works on furs.

It was intended by tbe Congress tbat fox pelts should be classified by their appearance or character alone, as appears from tbe Summary of Tariff Information, 1929, page 1991, reading as follows:

* * * Fox pelts should be classified under paragraph 1420 [Act of 1922] solely with reference to the character of the pelt, and therefore without any attempt to ascertain whether it is produced as a result of the crossing of a black or silver fox with any other breed. (C. I. E. 3685, of 1928.)

Seven illustrative exhibits, 1-A to 1-G inclusive, were received in evidence as representative of tbe character of tbe involved importation. Many other pelts were also received in evidence, some of which were silver foxes with varying degrees of silvery effect, a white ring necked pelt, and a red fox skin.

Tbe trial court bad tbe fur exhibits before it and they were before us at tbe argument on appeal.' From a visual examination of tbe furs and a consideration of tbe uncontradicted pertinent testimony, the trial court listed in parallel columns tbe differentiating characteristics of tbe silver fox and tbe imported merchandise as follows:

Silver
Under Fur: Black to dark gray.
Guard Hairs: Black with white band and all black.
Belly: Dark gray to black.
Paws: Black.
Ears: Blackish.
Snout: Black.
Tail: Small white tip.
Inside of Mouth: Black.
Average Size: Smaller than platinum.
Over-all Effect: Dark background with silver veil.
Platinum
Under Fur: White to pale gray.
Guard Hairs: White with black tips to all white.
Belly: White to pale gray.
Paws: White to bluish white.
Ears: Pale bluish or pale gray.
Snout: Light.
Tail: Large white tip.
Inside of Mouth: Pinkish.
Average Size: Larger than silver.
Over-all Effect: Light-colored background with darker veil.

We agree tbat tbe differences, as set out by tbe trial court, are correct.

In reaching our determination as to the common meaning of the expression “silver fox,” we cannot state otherwise than that such fox fur is predominantly dark, while the involved merchandise is predominantly light. Therefore, the involved goods do not respond to the common meaning of silver fox fur, and consequently should have been classified as free of duty as claimed by appellee.

Very interesting testimony on animal genetics appears in the record from the expert geneticists. However, none of their testimony is relevant to the issue and will not be discussed.

We have examined with care the excellent brief of appellant and also that of amicus curiae, who filed briefs at the trial and here on behalf of the “American National Fox and Fur Breeders Association.” We have also scrutinized the cases cited in those briefs as supporting the Government contentions, but since we find them of no avail to appellant, it would merely unduly lengthen this opinion to discuss those cases here.

For the reasons herein given, the judgment of the United States Customs Court is affirmed.

By reason of illness, O’Connell, Judge, was not present at the argument of this case and did not participate in the decision.  