
    Border Brokerage Co., Inc., plaintiff v. United States, defendant
    Court No. 81-10-01432
    Before Restani, Judge.
    
    
      (Dated May 10, 1985)
    
      George R. Tuttle (Gary C. Cooper) for plaintiff.
    
      Richard K. Willard, Acting Assistant Attorney General, Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Kenneth N. Wolf, United States Department of Justice, Commercial Litigation Branch, for defendant.
   Upon consideration of the evidence introduced at trial in the above action held without a jury on September 17, 1984, in Seattle, Washington, and upon consideration of all filings herein the court finds as follows:

Findings of Fact

1. The Dickinson boat stoves and heaters at issue were exported from Canada on January 6, 1981, and entered at the Port of Blain, Washington, on January 19, 1981.

2. Border Brokerage Co., Inc. was the importer of record for the entry, No. 81-310879-1.

3. The stoves were assessed duty by the customs Service upon liquidation at the rate of 7.2% ad valorem under item 654.01, TSUS, as articles not specially provided for of iron or steel or a type for kitchen use.

4. The heaters were assessed at 8.6% ad valorem under item 657.25, TSUS, as articles not specially provided for of iron or steel.

5. The imported boat stoves and heaters consist of models manufactured by Dickinson Marine, Ltd. of Vancouver, B.C., and are described on the commercial invoices for entry No. 81-310879-1 as follows:

Boat Stoves:
Bering Diesel Stove Incorporating Marine Float Flow Control Mechnism (No Draft Fan Included).
Bristol Diesel Stove Incorporating Marine Float Flow Control Mechanism and 12-Volt Draft Fan With Speed Control.
Atlantic Diesel Stove Incorporating Marine Float Flow Control Mechanism and 12-Volt Draft Fan With Speed Control.
Adriatic Diesel Stove Incorporating Marine Float Flow Control Mechanism and 12-Volt Draft Fan With Speed Control.
Pacific Diesel Stove Incorporating Marine Float Flow Control Mechanism and 12-Volt Draft Fan With Speed Control.
Beaufort Diesel Stove Incorporating Marine Float Flow Control Mechanism and 12-Volt Draft Fan with Speed Control.
North Sea Diesel Incorporating Marine Float Flow Control Mechanism (No Draft Fan Included).
Boat Heaters:
Antarctic Diesel Heater Incorporating Marine Float Flow Control Mechanism (No Draft Fan Included).
Chesapeake Diesel Heater Incorporating Marine Float Flow Control Mechanism (No Draft Fan Included).

6. The Customs classification of the merchandise was protested by Border Brokerage on June 1, 1981, protest no. 30041-000075. The protest was denied August 27, 1981.

7. A summons was filed in this action on October 20, 1981.

8. The stoves and heaters at issue are not of industrial or laboratory types.

9. The stoves and heaters at issue are not electrically operated.

10. The stoves and heaters at issue are not portable.

11. The stoves and heaters are of base metal and not coated or plated with precious metal.

12. The boat stoves and heaters have demensions as follows:

13. The boat stoves and heaters imported operate in essentially the same fashion. The stoves are used for cooking and heating in the living quarters of a boat. All the heaters are used primarily for heating the living quarters of a boat, and are designed for that purpose, but they can be used for cooking if necessary.

14. The stoves and heaters operate by means of a vaporizing pot burner which accepts oil in a raw state. The oil is then ignited and within a period of time rises to a specific temperature. The oil then turns into a vapor which rises in the burner and is joined by secondary and tertiary air. After combustion and a subsequent warm-up period, heat is radiated over the top of the stove or heater. The top is then used for surface cooking.

15. The fuel is typically supplied to the stove or heater through a gravity tank or an electric fuel pump. A metering valve controls the amount of oil which goes into the burner. When the valve is first turned on, a pool of oil forms at the buttom of the burner. The valve is then shut off and the pool of oil is ignited. The flames begin to rise up in the burner and vaporization is achieved. The control valve is then opened to allow oil to flow into the burner for a period of about 30 minutes until the operating temperature is achieved. Heat is then controlled by opening or closing the valve.

16. The stoves and heaters which are imported with a fan assembly use that fan assembly to provide a forced draft through the burner. The fan is optional in some models and is imported as a regular feature of some models. (See Paragraph 5, infra, for the breakdown.) A fan helps to provide a balanced draft to make a stove or heater easier to start and keep properly running in the case of adverse weather conditions.

17. There are three basic parts to the valve which is a part of each stove and heater and which regulates the flow of fuel to the stove: the needle and seat are located inside the valve and act to regulate the fuel level inside the metering valve itself. The fuel flow is controlled by the height of a knob which is attahed to a metering stem and float. The higher the float raises that knob as the float moves downward, the more fuel that flows into the valve and into the stove. As the fuel flows into the valve, the float is again raised to shut the valve off in an intermittent action.

18. The operation of the stove centers on this valve action, since there would be no control over the fuel entering the stove without it. Therefore, the stove’s proper functioning would be almost impossible absent a metering system.

19. The boat stoves and heaters at issue are generally used on medium to large boats which are used for extended periods of time by social groups or families. This would include commercial fishermen, other commercial users, and people who live aboard their boats. Sixty to seventy percent of the people who use the stoves are commercial fishermen or make other commercial use of their boats. These users are typically at sea for extended periods of 6 months or more. The rest are live-aboard users, although a small percentage (approximately 5%) would use the boats for shorter periods of time.

20. The advertisements used by the manufacturer and retailers of the products are aimed primarily at the commercial boat user or live-aboard. Advertisements in magazines for owners of smaller boats typically had no response for Dickinson Marine, Ltd. of Vancouver, B.C.

21. The users of the boat stoves and heaters at issue purchase them with the expectation that they will provide cooking and heating functions for extended periods of time on boats. The products are purchased through marine outlets, but would not generally be found in other channels of trade.

22. There are differences between the Dickinson stoves and a typical suburban stove. The fuel source is different. The surface which is used to cook is different. The Dickinson boat stoves have sea rails to keep pots from sliding off the stove. They are made of stainless steel which protects against the salt atmosphere of the marine environment. They also may take somewhat longer to warm up than a typical surburban stove.

23. The boat stoves at issue are, in a more general sense, similar in function and characteristics to a typical suburban stove. They are both non-portable devices to cook food, and like most household stoves, the boat stove has an oven and a stove.

24. The boat stoves at issue are similar in function and characteristics to a coal or wood burning stove which is often used in the household. The only major difference betwen the two is fuel source and perhaps the sea rails which are used to keep the pots and pans from sliding off the top in a marine environment.

25. The stoves are typically mounted in the galley area of a boat and would typically be counter level as the stove in a typical home.

26. The boat stoves at issue are sometimes used in households in remote locations such as Iceland and Alaska where there is no electricity. There, they are used in cabins or other primary residences.

27. The Dickinson stove does not create the moisture in a boat which a propane stove creates. The moisture makes day-to-day living more difficult and therefore use of an oil burning stove alleviates this problem for those on their boats for extended periods.

28. The boat stoves at issue are more suitable for extended use since they are also used for heating. Most people who use boats only on weekends would not require a stove for heating. They would use a small propane or alcohol stove which may be adequate for cooking.

Conclusions of Law

1. This court properly exercises jurisdiction over this civil action, as provided under 28 U.S.C. § 1581(a), which states that the Court of International Trade has jurisdiction over civil actions to contest the denial of a proper protest under 19 U.S.C. § 1515.

2. There is a class or kind of marine boat stoves and heaters used on medium to large boats which are typically at sea for extended periods of time and act as primary residences during that time. The stoves and heaters at issue fit within that class or kind.

3. The boat stoves and heaters at issue, as a class or kind, are used on boats which would be considered households for tariff purposes. Such use is the chief use of that class or kind since it exceeds all other uses combined.

4. Item 653.52, TSUS, more specifically describes the imported stoves and heaters than item 654.01 (as to the stoves) and items 657.25 (as to the heaters), and the stoves and heaters are not more specifically described elsewhere in the Tariff schedules.

5. The stoves and heaters at issue are properly classifiable under item 653.52 TSUS, as stoves and heaters of a type used in the household, hotels, restaurants or offices.  