(C. D. 947)

#### Cohn & Rosenberger, Inc. *v.*United States

United States Customs Court, First Division

(Decided September 13, 1945)

*Puckhafer, Bode & Rode (John D. Rode*of counsel) for the plaintiff.

*Paul P. Rao,*Assistant Attorney General *(Robert C. O’Orady,*special attorney, for the defendant.

Before Oliver and Cole, Judges

Oliver, Presiding Judge:

The merchandise the subject of this action consists of irregular-shaped pearlized beads which were assessed with duty at the rate of 60 per centum ad valorem plus one-half of 1 cent per inch under paragraph 1503, Tariff Act of 1930, as “imitation solid pearl beads, * * * valued at more than one-fourth of 1 cent and not more than 1 cent per inch.” Several claims are made but the one principally relied on by the importer is that the beads in question are properly dutiable at the rate of 35 per centum ad valorem under the same paragraph as “beads * * * not specially provided for.” The question of value is not in issue.

*79Two witnesses testified in support of plaintiff’s contention that the imported articles (exhibits 1 to 4) were not imitation solid pearl beads, which they claim would refer only to round beads. However, on cross-examination, and in reply to questions by the court, Mr. Rosen-blatt, a' director, buyer, and salesman for the plaintiff, when shown samples of the imported beads, testified as follows (R. 15, 16):

> X Q. When- you were telling some of the workmen how to put a necklace together, you would tell them to get certain pieces of metal, certain pieces of glass, or other imitation stones, and then you would have to describe that in your hand; now, how would you describe that?

> A. How would I describe it?

> X Q. Yes. .

> A. I would describe it, to use these baroque-

> X Q. To your workmen.

> A. I would tell them to use these baroque pearls, because I could not describe it any other way. That is right. How could I tell her any other way?

and again (R. 18):

> Presiding Judge Oliver^ Would you call it a baroque pearl?

> The Witness. Would I personally? No, I wouldn't.

> Presiding Judge Oliver. If you wanted an imitation baroque pearl design, ■for a design, and you wanted somebody to bring it to you, would you want him to bring you merchandise similar to that sample, Exhibit 2?

> The Witness. Not having-anything else, that is what he would have to bring me.

> Presiding Judge Oliver. Is that what you were looking for?

> The Witness. That is correct.

Both Mr. Rosenblatt and plaintiff’s second witness, Mr. Friedman, agreed tbat these baroque-shaped, pearlized beads would not be a good delivery if a buyer simply ordered imitation solid pearl beads.

Defendant’s four witnesses, all duly qualified dealers in precious and semiprecious stones and imitation and cultured pearls, agreed that two of the imported beads (exhibits 1 and 2) were imitation baroque pearl beads and that the other two samples (exhibits 3 and 4) were imitation pear-shaped pearl beads.

The issue thus presented is whether the merchandise at bar is excluded from classification under the provision for “imitation solid pearl beads” by reason of its so-called baroque or irregular shape.

The summary of Tariff Information (1929), in commenting on solid imitation pearl beads, said (p.. 1894):

> * * * The indestructible imitation pearl beads are made in a great variety of shapes and sizes * * *.

Encyclopaedia Britannica (14th ed., vol. 17, p. 421) on the general subject of pearls, states:

> * * * Solid pearls of irregular form are often produced by deposition on rough objects, such as small fragments of wood, and these, and in fact all irregular-shaped pearls, are termed *perles baroques,*or “barrok pearls.”

*80“The Book of The Pearl,” (1908) by Kunz and Stevenson, a work comprising over 500 pages, in chapter IV, covering the structure and forms of pearls, states:

> Pearls assume an almost infinite variety of forms * * *. The most usual— and, fortunately, also the most valuable — is the spherical ** * **(p. 55).

> Slight departures from the perfect sphere, result in egg shapes, pear shapes, drop shapes, pendeloque, button shapes, etc. Some of these are valued quite as highly at the present time as the spherical pearls, 'and many of the most highly prized pearls in the world are of other than spherical form * * *.

> Wider departures from the spherical form result in cylindrical, conical, top-shaped, etc. * * * (p. 56).

> Some *irregular pearls or baroques*are very large, weighing an ounce or more (p. 59).

> Baroque (Wart pearls *in*German).: when pearls are not of any perfect form such as round, pear, ovate, or any regular form, they are termed *baroque** * * (p.353). [italics supplied.]

Other authorities agree that pearls are found in shapes other than round. In the Century Dictionary we find (p. 4344):

> *Pearl.*1. A nacreous concretion, or separate mass of nacre, of hard, smooth lustrous texture, and a rounded, oval, pear-shaped, or irregular figure, * * *.

and in Webster’s New International Dictionary, 1930 edition:

> *Pearl.*1. * * * The form is variable; * * *

In “A Hand-Book of Precious Stones” (1905) by Rothschild, we find (p. 74):

> In form, the perfectly round shape comes first in value, then a finely formed drop or pear shape, and lastly the oval or egg shape.

> $ ‡ ‡ ‡ ‡ $

> When a pearl is rough and odd-shaped it is called a baroque, and some extremely fantastic shapes are found, especially in fresh-water oysters.

The contention of plaintiff that solid imitation pearl beads must conform to an arbitrarily stated standard as to spherical or symmetrical shape is without merit, since it is apparent that pearls occur naturally in a wide diversity of shapes.

Upon this record the protest will be overruled and the classification of the collector sustained.

Judgment will issue accordingly.