
    (C.D. 3942)
    M. Hohner Inc. v. United States
    United States Customs Court, First Division
    (Decided December 22, 1969)
    
      Brooles & Brooles (M. Barry Levy of counsel) for the plaintiff.
    
      William D. Rucleelshaus, Assistant Attorney General (Sheila N. Ziff and Pat-rióle D. Gill, trial attorneys), for the defendant.
    
      Before WatsoN, Maletz, and Be, Judges
   Maletz, Judge:

These 18 protests consolidated for trial involve musical instruments invoiced as “Melódicas” that were imported from West Germany. The importations were classified by the government under item 725.26 of the Tariff Schedules of the United States as “other wind instruments” and assessed duty at 17 percent ad valorem. Plaintiff, seeking refund, claims that the imported articles are “mouth organs” and are therefore dutiable at only 14 percent ad valorem under, item 725.18 of the tariff schedules. We sustain the protests.

The pertinent provisions of the tariff schedules read as follows:

Schedule 7, Part 3, Subpart A, Musical Instruments
Claimed under:
Wind musical instruments:
725.18 Mouth organs_ 14% ad val.
Classified under:
725.26 Other wind instruments-17% ad val.

The imported merchandise consists of “piano” and “alto” Melódicas, both of which were invented in 1958. The “Piano 26” Melódica, which is made of grey and white metal and plastic, is rectangular in shape (16" x 2%" x with a mouthpiece at the top and a bottom that gradually widens into a slight “S” curve variation from the rectangle. Located on the front side of the instrument is a piano-type keyboard consisting of 26 black and white notes; on the underside there is a hand strap and a button to control moisture. The “alto” Melódica, which is made of red and white metal and plastic, is also rectangular in shape (13%" x 214" x 2") and likewise has a mouthpiece at the top. The front side contains 25 separated black and white buttons grouped in a fashion similar to a piano keyboard, the black buttons being arranged in groups of two and three, and the white buttons in a continuous line below.

The Melódica is constructed with free-swinging reeds affixed to a brass plate that is encased in the body. More particularly, the reeds are made of brass alloys which are made of particular lengths and ground to certain thicknesses and affixed at one end to brass plates that contain corresponding slots into which the other or free end of the reeds swing when they are vibrated. Each of these reeds is pre-tuned at the factory to emit a single given tone when vibrated, with the pitch determined by the length and thickness of the reed. The tone is actually produced by the operation of air pressure, channeled to the instrument through the mouth and blown into the mouthpiece. The air pressure thus generated activates the free-swinging reeds causing them to vibrate. The selection of tones is accomplished by depressing the various buttons or piano-type keys.

Chromatic and diatonic harmonicas have a number of features similar to the Melódica. Thus, as in the case of the Melódica, the construction of all chromatic and diatonic harmonicas consists of a number of free-swinging metal reeds affixed to a brass plate, with each reed producing a single factory pre-tuned tone. When one blows into the instrument, the air pressure vibrates one or more reeds and this in turn produces one or more notes. The essential diffemrce between the harmonica and the Melódica is that the harmonica has a number of air slots while the Melódica has a single mouthpiece, and hence tone selection on the harmonica is obtained by movement of the mouth while tone selection on the Melódica is accomplished by depressing the buttons and keys.

According to the expert testimony of two witnesses for plaintiff, the distinguishing characteristics of mouth organs are the presence of multiple metal free-swinging reeds affixed to a metal plate, with each reed producing a factory pre-tuned tone by the operation of air pressure from the chest, channeled to the instrument through the mouth. In this context, the witnesses consider the following to be mouth organs: (1) diatonic harmonicas; (2) chromatic harmonicas; and (3) Melodica-type instruments. Their expert testimony indicated further that other reed wind instruments are distinguished from mouth organs on the basis that the former (1) are single-reed instruments and (2) the single reeds therein are not pre-tuned and thus do not have a fixed pitch.

Finally, the record shows that in the trade neither harmonicas nor Melódicas are offered for sale or ordered by customers under the name “mouth organ.”

Against this background, we consider first the legislative history of items 725.18 and 725.26 of subpart A, part 3, schedule 7 of the tariff schedules dealing with musical instruments. It is to be noted that paragraph 1541 of the Tariff Act of 1930 — the predecessor provision for musical instruments — contained eo nomine provisions for certain musical instruments but not for the instruments in issue here. All instruments not specifically covered by paragraph 1541 were covered by “basket” provisions for musical instruments not specially provided for. After the advent of the trade agreement program in 1934, certain of those instruments which had been dutiable under the basket provisions were carved out by the General Agreement on Tariffs and Trade (GATT) for separate rate treatment. In 1941, the word “harmonica” appeared for the first time, being specifically excluded from rate reductions granted other musical instruments. See 82 Treas. Dec. 305 (167), T.D. 51802 (1947). Subsequently, the rate of duty on harmonicas was reduced by the Torquay Protocol to the General Agreement on Tariffs and Trade. See 86 Treas. Dec. 121, 213, T.D. 52739 (1951). The final rate reduction on harmonicas under the 1930 act became effective in 1963. See 98 Treas. Dec. 51, 174, T.D. 55816 (1963).

When the U.S. Tariff Commission prepared the new proposed tariff schedules pursuant to Congressional mandate, certain significant changes were suggested by the Commission and adopted by Congress. Insofar as the proposed statutory scheme for musical instruments is concerned, the Tariff Commission reported in the Tariff Classification Study, Schedule 7 (Nov. 15, 1960) at page 227 that:

* * * The proposed schedule brings together all musical instruments and parts thereof and most accessories in an arrangement which conforms more closely with the usual grouping of these mstrwments in the trade than the existing schedule does. * * * [Emphasis added.]

In accordance with this announced scheme, the Tariff Commission and the Congress dropped the provision for “harmonicas” in favor of the term “mouth organs.”

In this setting, plaintiff argues that this change in language from “harmonicas” to “mouth organs” evidences a Congressional intent to expand the provision for harmonicas and include all types of-mouth organs — which class, plaintiff insists, includes Melódicas. Defendant, on the other hand, maintains that Congress intended to limit the term “mouth organs” solely to mouth harmonicas, and adds that plaintiff has failed to prove that Melódicas are mouth harmonicas. As underpinning for this argument, defendant relies on the Explanatory Notes to the Brussels Nomenclature, Vol. III, Chapter 92, heading 92.04, p. 1122 (1955), which provide for “Accordions, Concertinas and Similar Musical Instruments; Mouth Organs” and states in part:

The present heading also includes mouth organs (harmonicas). These small instruments, generally rectangular in shape and made of metal and wood, produce sound by means of vibrating reeds. Some may be fitted with a small metal amplifying trumpet. [Emphasis in original.]

On the basis of this provision of the Brussels Nomenclature, defendant asserts that the term “mouth organs” is limited to “harmonicas.” In addition, defendant points out that the parallel French translation of heading 92.04 in Brussels is “harmonicas a bouche,” which translates into English as “mouth harmonicas.” Therefore, defendant states that the intention of Congress in adopting the phrase “mouth organ” was to contract rather than expand the provision for harmonicas. To further support this latter argument, defendant shows that the word “harmonica” is an inexact term which also embraces a class of instruments quite distinct from the classic mouth harmonica. This is illustrated by the following definitions:

Webster's International Dictionary, Second Edition, Unabridged (1955) :

harmonica: Music a. An instrument invented by Benjamin Franklin, consisting of a series of hemispherical glasses turning on an axis and played by touching the edges with the dampened finger, b. An instrument of graduated strips of glass or metal hung on two tapes, or mounted on a resonance box, and struck with hammers. c. A small wind instrument played by the mouth in which the tones are produced by free metallic reeds, -one set being sounded by exhaling, another by inhaling; a mouth organ, d. A labial organ stop of 8-foot pitch and delicate quality.

The Oxford Universal Dictionary, Revised (London 1955) :

Harmonica 1. a. An instrument consisting of a row of hemispherical glasses fitted on an axis turned by a treadle and dipping into a trough of water, played by the application of the finger.
b. An instrument consisting of a row of glass plates mounted on a resonance box and struck with hammers.
c. A kind of mouth organ. 2. Name given to different organ-stops 1840.

The Neto Standard Dictionary, Funk & Wagnalls Company (1937) :

harmonica — Any one of several musical instruments: (1) A set of musical glasses. See glass. (2) A series of oblong pieces of glass or metal, played by striking with a small mallet. (3) A reed instrument played by the breath; a mouth organ, harmonicon. (4) A mixture organ stop * * * flute harmonica, one having a mouthpiece at the end instead of openings at the side. * * *

In short, because of the presence of various varieties of harmonicas in the definitions of “harmonica,” the defendant concludes that the term “mouth organ” was used by Congress to distinguish the diverse instruments, such as Ben Franklin’s glass harmonica and other instruments referred to as harmonicas from mouth harmonicas.

We do not accept these arguments of defendant which are based on the Brussels N omenclatwee. It is true that the Brussels Nomenclature is a useful and helpful source of legislative history with respect to the tariff schedules when a nexus can be found between it and the tariff schedule provisions by the use of identical or similar phraseology. See e.g., J. E. Bernard & Co., Inc. v. United States, 60 Cust. Ct. 296, 282 F. Supp. 476, C.D. 3372 (1968); Pitney-Bowes, Inc. v. United States, 59 Cust. Ct. 181, 273 F. Supp. 403, C.D. 3116 (1967). On the other hand where the order, language and phraseology of Brussels differ from the provisions of the tariff schedules, Brussels does not serve as a guide to the intention of Congress. See e.g., W. R. Filbin & Co., Inc. v. United States, 63 Cust. Ct. 200, C.D. 3897 (1969). In the present case the language and arrangement of the provisions in Brussels are so dissimilar to the provisions of the tariff schedules with which we are concerned that Brussels cannot be relied on as an accurate indication of the legislative intent underlying item 725.18.

Furthermore, had Congress intended to limit item 725.18 solely to mouth harmonicas, it could have so provided simply by amending the word “harmonica” in paragraph 1541 of the Tariff Act of 1930, as amended, to include the adjective “mouth” before that word. Instead, Congress dropped the word “harmonica” entirely and substituted the term “mouth organs.” For these reasons, we conclude that the term “mouth organs” as used in item 725.18 is not limited to mouth harmonicas.

This brings us to the next question — whether a Melódica is a mouth organ within the common meaning of the term. The term “mouth organ” has been defined as follows:

'Webster’s Third New International Dictionary of the English Language (1963) :
mouth organ n. la: PaNpipe b. or mouth harp: HarmoNICa
panpipe n. * * * a primitive wind instrument that consists of a graduated series of short vertical flutes bound together with the mouth pieces in an even row and that is played in the manner of a harmonica — called also month organ, syoHnx.
harmonica * * * n. 1: Glass HarmoNICa 2: an instrument of graduated strips of glass or metal struck with hammers 3: a small rectangular wind instrument with free metallic reeds recessed in adjacent air slots along its length from which alternate tones of the scale are sounded by exhaling and inhaling and chords or single notes are produced depending on the number of slots covered by the mouth — called also mouth organ.
5 Grove’s Dictionary of Music and Musicians (5th ed. 1954) :
Mouth OrgaN (or Mouth Harmonica) A small and simple “free reed” instrument invented about 1829 by the London firm of Wheatstone and called Aeolina by them. It consisted of a few free reeds, which were fixed into a metal plate and blown by the mouth. As each reed was furnished with a separate aperture for supplying the wind, a simple melody could be played by moving the instrument backwards and forwards before the mouth. There was a double row of reeds, which had the advantage that tunes could be played in thirds, but the much greater disadvantage that thirds occurred, unless the player was fairly skilled, where they were not wanted. The same reed played two different (adjacent) notes when the breath was blown out or drawn in respectively.
Hi ❖ ❖ ❖ ❖ Hi *
HARMONICA (1). See Armónica. Organ Stops. (2). A term recently adopted for the mouth organ, but not to be recommended, since it is already current for a very different instrument, even though that is more properly called “armónica.”
Watson, A Concise Dictionary of Music (1965) :
Mouth OrgaN. (See Harmonica.)
Harmonica. A small wind instrument, sometimes called a “mouth organ.” It is shaped like a narrow rectangular bos and is equipped with one or two rows of small square holes, one hole for each pitch. The holes lead to metal reeds. The player changes pitch by moving the harmonica from side to side so that air is forced through his lips into the various pitch channels, both as he exhales and inhales. * * * (See also Glass Harmonica.)
Funh c& Wagnalls Neto “Standard” Dictionary of the English Language (1956) :
mouth organ, n. 1. A harmonica; also a set of Pan’s pipes.
harmonica, n. Any one of several musical instruments: (1) A set of musical glasses. See glass. (2) A series of oblong pieces of glass or metal, played by striking with a small mallet. (3) A reed instrument played by the breath; a mouth organ.
The Col/ambia Encyclopedia (2ded= 1950) :
mouth organ: see Harmonica 1.
harmonica. 1 The simplest of the musical instruments employing free reeds? also known as the mouth organ or French harp. It was probably invented in 1829 by Sir Charles Wheatstone, who called his instrument the aeolina. The reeds are set in a small narrow case of wood or metal. For each reed there is a hole, through which one draws or blows air with the mouth. Commonly the instrument is diatonic, having a compass of about two octaves, but its comparatively few virtuoso players use larger instruments having the full chromatic scale. * * *

Defendant argues that the foregoing definitions of “mouth organ” unequivocally establish that “mouth organs are harmonicas, and only harmonicas.” Plaintiff, on the other hand, points out that the provision in the tariff schedules for mouth organs did not become effective until 1963 and Melódicas were not invented or commercially known until 1958. Noting the dearth of lexicographic and technical material available, plaintiff suggests that only technical and encyclopedic aids written after the introduction of the Melódica into the commerce of the United States would be of value. In this connection, plaintiff places great reliance on one such, work entitled Musical Instruments: A Comprehensive Dictionary by Sibyl Marcuse (Doubleday and Company, Inc., 1964), which defines mouth organ at page 345:

Mouth organ * * * the Modern Western mouth organ is a small *free-reed instr. consisting of a grooved rectangular metal box on which free reeds are mounted, played by moving it back and forth in front of the player’s mouth while breathing into it. * * * Hohner of Trossingen, Germany, has made mouth organs since 1857, and recently introduced the ^Melódica, with single blow-hole and piano-like keys.

At page 336, supra, the term “Melódica” is defined by Marcuse as follows:

Melódica, 1. 20th-c. successor to the Psallmelodikon, manufactured by Hohner of Trossingen. A *mouth organ with a rectangular body held like a recorder, encasing free reeds and terminating-in a detachable, beaked plastic mouthpiece. The upper surface carries 2 octs. of push keys disposed like piano keys, the diatonic keys being played with the right hand, the chromatic with the left. Made from 1959 on in soprano and alto sizes, with a 2-oct. compass; 2. organ stop identical with the melódica. Not to be confused with Melodika.

While plaintiff argues that the Marcuse reference supports its position that Melódicas are but a type of mouth organ, defendant contends that that reference is not controlling because the definition therein is inconsistent with the common meaning of the term “mouth organ,” and in such cases the common meaning of the term must control. United States v. Merck & Co., 8 Ct. Cust. Appls. 171, 176, T.D. 37288 (1917). Defendant has produced no witnesses at trial, and accordingly its argument with respect to the common meaning of the term “mouth organ” is necessarily based on its cited lexicographic definitions. These definitions, however, are admittedly “inexact” and inconsistent, and thus insufficient to establish a common meaning for the term “mouth organ.” For example, the cited definitions of “mouth organs” refer to harmonicas and not to “mouth harmonicas”- — in which connection, the term “harmonica,” as defined by the cited authorities, refers to instruments other than mouth organs. Added to this, the cited definitions of “mouth organs” refer to both harmonicas and panpipes. Yet even defendant is of the opinion that panpipes may only “possibly” be included within the common meaning of the term “mouth organs.”

In view of this inexactitude of the cited definitions, we next examine the testimony in the record as it pertains to the common meaning of the term “mouth organ.” To begin with, the testimony shows (as previously set out) that Melódicas and harmonicas are not bought and sold under the name “mouth organs” and are not commercially known as mouth organs. Therefore, the fact that Melódicas are not commercially known as mouth organs is of no significance because the term “mouth organ” is simply not used in commerce.

Beyond this, the expert testimony shows (as we have seen) that there are physical characteristics which are common to all types of mouth organs and which distinguish this class of musical instruments from other classes of wind instruments. Some of these distinguishing characteristics are (as pointed out before) the presence of multiple metal free-swinging reeds affixed to a metal plate, with each reed producing a factory pre-tuned tone by the operation of air pressure from the chest, channeled to the instrument through the mouth. Defendant, however, points out that there is another physical characteristic essential to all mouth organs which Melódicas do not have, viz: “The mouth is used both to supply air and to select the note or notes to he played on what is commonly understood to be a mouth organ.” [Emphasis quoted.] The question thus raised is whether it is an essential characteristic of mouth organs that the notes or tones be selected by moving the mouth to the desired tone.

On this aspect we have consulted various authorities as an aid to the court. These authorities make clear (i) that a wind instrument which has multiple free-swinging, pre-tuned reeds and a single blow-hole and whose notes are selected hy movement of the fingers rather than the mouth, is a mouth organ, and (ii) that, in fact, this very kind of instrument was the original form of a mouth organ. One such authority is Musical Instruments Through the Ages edited by Anthony Baines (Walker & Co., 1961). Section 13 of that work covers “Free Reed Instruments” and traces the history of such instruments back to the sheng which is referred to as a Chinese mouth organ that was in use over 3,000 years ag;o. The sheng is described as follows (id., pp. 287-88) :

* * * The Chinese mouth-organ sheng and its closely similar Japanese form sho (Fig. 83) are
numbered among these nations’ classical instruments, the sho still contributing its silvery, high-pitched chords above the strange ensemble of the ancient Japanese court music, while an actual specimen of the sixth century A.D. is preserved among other Sino-Japanese instruments at the Imperial Treasure House at Nara. These mouth-organs employ brass reeds, each tongue cut with extreme skill by a scriber and a knife in the actual metal of its frame. Each reed is cemented over a slot near the base of a wooden pipe, camphor-scented and carved to resemble bamboo, and closed at this lower end. Higher up, the pipe is pierced with a vent slot (of which two are on the outside of the pipe (Fig. 83, I), the others being on the inside). Each pipe thus provides a tuned air-column, to which its reed is acoustically coupled. The pipes rest in sockets in a lacquer wind-chest (originally a gourd), from the side of which protrudes the mouthpiece (2). As the instrument has so far been described, when it is blown all the pipes would sound together. But in fact all would be silent, since their fingering holes (3) remain uncovered. These destroy the acoustic coupling of reed and pipe; to make a pipe sound, its fingering hole must be closed with finger or thumb, and this is how the instrument is played. The reed tongues are not sprung up, but are extremely flexible and vibrate equally freely whether the player exhales or inhales through the mouthpiece. Elsewhere over Eastern Asia, from Assam to Indo-China and in Borneo, are many different, cruder forms of this mouthorgan, possibly representing earlier stages of its development. Their bamboo pipes, from one to about twelve in number, are waxed into a gourd. Their reeds are cut in thin brass or copper, and their pentatonic scale is usually deeper-pitched than on the sheng, e.g., e, g, a, 5, d', e', and the natural reediness of their tone is pleasantly mellowed by the resonance of the pipes, which are fingered both separately and in chords; Sachs has truly described the harmony of the Laos mouth-organs as “one of the most attractive musical styles in the Orient”. In some examples, the reeds are made from thin plates of bamboo, which can be cut with a knife of bamboo, so that the Oriental mouth-organ could ante-date the Metal Age, though on grounds of distribution Sachs has assigned it to the Metal Age strata of his scheme. [Emphasis in original.]
if* Hí

It is interesting to note that in 1177 a sheng was sent from China to Paris where it aroused great interest and touched off a series of experiments. Id., pp. 289-93. Following that a number of mouth organs were invented in Europe in the 1820’s which are described as follows (ibid) :

* * * The father of the Mund-harmonioa (mouth-organ) and the Hand-harmonica (accordion) is generally recognized to have been C. P. L. Buschmann (1805-64) of Berlin, whose patents were taken out in 1821-2 for instruments variously named aura, aeoUne, etc. Following Buschmann, Cyril Demian brought out his Accordion in Vienna in 1829, and in London in the same year Cliarles Wheatstone (1802-75) patented his “Symyhonium”, a mouth-organ in which the reeds, one for each note and sowiding only on the “Mow”, were contained in a small metal box with blowing hole m the front and finger buttons on each side (Fig. 84). Wheatstone’s work in this field was notable for its technological advances, shown for instance in his continual search for the best alloys for the reeds in order to give the steadiest pitch to the notes; the reeds for the Symphonium were first of silver (he even tried gold), quickly followed by steel. He experimented with bellows for this instrument, and his early bellows design, the Concertina, was perfected in 1844. [Emphasis added in part.]
* * * * * * *
Meanwhile, the German Mund-harmonica was especially taken up by the firm founded at Trossingen in 1857 by Matthias Hoh-ner. An important addition to it was the slider stop, which switches the instrument to a second diatonic set of reeds tuned a semitone above the first. Many techniques for the harmonica are based upon masking unwanted reed-chambers with the tongue, and it is interesting to find that it is upon this little instrument (the one on which the performer possesses the nearest to direct contact with his sound-producers, the reeds, and the one which remains closest to the free-reed family’s various presumed ancestors) that the highest peak of artistry has been achieved and the widest fame won, namely in the playing of Larry Adler, who has been described as one of the greatest living artists on any musical instrument, and for whom concertos have been written by A.V. Berger, Vaughn Williams, Gordon Jacob, and others. Among many variations upon the harmonica theme brought out by the indefatigable Hohner, the “Melódica?'’ is a chromatic mouth-organ held like a recorder and 'fingered with a miniature piano-style keyboard. [Emphasis added in part.]

A further factor worthy of note is that the Symphonium — one of the first mouth organs to appear in Europe — bears a marked similarity to the alto Melódica in having a single blow-hole and a button arrangement for tone selection.

In view of the foregoing descriptions and definitions of the sheng, the sho and the Symphonium — all of which are unquestionably mouth organs — it is clear that a single blow-hole instrument whose tone is varied by movement of the fingers rather than the mouth can be a mouth organ. And since an eo nomine provision without limitation or contrary legislative intent includes all forms of the article, we are left with no doubt that the imported Melódicas are mouth organs under item 725.18.

The protests are therefore sustained and judgment will issue accordingly. 
      
       A chromatic harmonica is one capable of playing sharps and flats and a diatonic scale— i.e., a scale containing only those notes corresponding to the white notes on a piano. The diatonic harmonica can play only a diatonic scale.
     
      
       The chromatic harmonica also has a slide mechanism which governs the entrance of air into certain channels, thus producing sharps 'and flats. Accordingly, in the chromatic harmonica, selection of sharps and fiats is obtained by movement of the slide in conjunction with the mouth.
     
      
       Plaintiff does not attem.pt to show that Melódicas are harmonicas. Rather it maintains that the Melódica is a mouth organ and as such is classifiable under item 725.18.
     
      
       The sheng is similarly defined as a “free reed mouth organ” in Musical Instruments. A Comprehensive Dictionary by Marcuse, supra; 7 Grove’s Dictionary of Music and Musicians (5th ed. 1954) ; and The International Cyclopedia of Music and Musicians, edited by Oscar Thompson (Dodd Mead & Company, 1964).
     
      
       Tile Symplioniran is defined by Marcuse as “an early form of mouth organ, patented by Charles Wheatstone in 1829.”
     
      
       There is no dispute that item 725.18 covering mouth organs is more specific than item 725.26 covering other wind instruments.
     