As оriginally enacted, paragraph 1531 of the Tariff Act of 1930 provided for—
* * * manufactures of leather * * * or of which leather * * * is the component material of chief value, not specially provided for * * *,
at thе rate of 35 per centum ad valorem. By the provisions of the Presidential proclamation, reported in T. D. 51802, the rate of duty on such manufactures, other than certain named articles not here
* * * coin purses, change purses, billfolds, bill cases, bill rolls, bill purses, banknote cases, currency cases, money eases, cardcases, liсense cases, pass cases, passport eases, letter cases, and similar flat leather goods; strops and straps; buckles designed to be worn on the person, and other wearing apparel; and leads, leashes, collars, muzzles, and similar dog equipment * * *. [Italics added.]
The plaintiff in this case imported into the United States certain “crash helmets” used by amateur and professional motorcycle and auto racers. Duty was assessed thereon by the collector of customs at the 17% per centum rate under paragraph 1531, as modified, and the protest claim is for duty at the rate of 12% per centum ad valorem under the said paragraph, as modified. It is clear that the sole issue is whether or not the crash helmets in issue are within the meaning of the term “wearing apparel,” as used in the modification of paragraph 1531, supra.
There is no question but that leather is the cоmponent material of chief value of the helmets in question. A sample of the importation, received in evidence without objection as plaintiff’s exhibit 1, shows them to consist of a dome-shaped shell, said to be made of Fiberglas, with a leather liner, vizor, earlaps, and chinstrap. The uncontra-dicted testimony offered on behalf of the plaintiff is that such helmets are required by the rules of the national and international amateur and professional motorcycle and auto-racing associations to be worn by all drivers in races under the auspices or sponsorship of the said associations under penalty of disqualifiсation; that the helmets must be first approved by the governing bodies of the associations after laboratory tests; that the requirements of the associations as to the nature and extent of the protectiоn afforded by the helmets are such that they are heavy and uncomfortable to wear for any length of time; and that, because of those facts, they are not worn, even by the drivers, except while actually еngaged in a race.
Plaintiff’s argument that the helmets at bar are not included within the term “wearing apparel” is based upon the concept that the term embraces only articles which are ordinarily worn, in the sеnse of everyday, well-recognized, articles of dress. Plaintiff, consequently, argues that the term includes articles worn primarily for comfort or adornment, but does not include articles worn primarily for protection against occupational or sporting hazards, which, moreover, entail an element of discomfort in the wearing.
Dictionary definitions tend to indicate that wearing apparel refers to clothes or covering for the human body worn for decency or comfort, and common knowledge indicates that adornment is also an element of many articles of wearing apparel.
There have been many judicial decisions in which the term “wearing apparel” has been the subject of discussion. In many of the cases, however, the term has been discussed with particular reference to certain situations, such as the distribution of decedents’ estаtes under various state laws, and, as said by the late Surrogate Slater in In re Holden, 109 Mise. (N. Y.) 207, 208, 178 N. Y. S. 548,
The cases in the several states of the Union are not at all in accord upon what should be included as “wearing apparel” of a man or woman.
In that case, for example, a watch and chain were held to be wearing apparel, but not earrings, finger rings, a breastpin, or a bracelet. In a later case, In re Steimes’ Estate, 150 Misc. (N. Y.) 279, 270 N. Y. S. 339, cited and relied upоn by the defendant, the term was held to include two diamond finger rings. Such cases often go off on questions of the intent of the particular testator, public policy, local statutes, associated words, the presence or absence of residuary clauses, etc., and can hardly be relied upon, when taken out of context, as establishing the general understanding in common speech of the particular term.
Counsel fоr both parties cite, and rely upon, the decision of the Supreme Court of the United States in Arnold, Constable & Co. v. United States,
* * * The term "wearing apparel” is not an uncommon one in statutes, and is used in an inclusive sense as embracing all articles which are ordinarily worn— dress in general. * * *
Plaintiff intеrprets the term “ordinarily worn,” used by the Court, as meaning worn under ordinary circumstances, while defendant interprets- the term as meaning ordinarily worn on the human body, as
Similarly, the case of Cruger’s (Inc.) v. United States,
It is apparent from a reading of the decision of the appellate court and of this court in that case, as well as the briefs on filе in connection therewith, that the parties did not contend that the competing tariff provisions were mutually exclusive and opposed to one another, but tried and submitted the case upon the theory that bоth provisions applied to the merchandise, one being more relatively specific than the other. This, of course, is not a concession made by the plaintiff in this case, who contends vigorously that the instant mеrchandise is not included within the meaning of the term “wearing apparel.”
Both parties likewise cite and rely upon the decision of our appellate court in the case of Best v. United States,
* * * Plainly the article is not an ear cap to protect the ear against cold, nor is it possible to conceive of its being worn for adornment. As we must find that the prevention of physical misshape is what the сaps are intended for, it would be unreasonable to classify them as wearing apparel under section 314. * * *
It does not take any extension of the reasoning of our appellate court in the Best case, supra, to conclude that it also applies to articles worn as a protection against the hazards of a game, sport, or occupation, or the prevention of injury, rather than for reasons of decenсy, comfort, or adornment. In this category would be found such things as welders’ face masks, divers’ helmets and dress, policemen’s bullet-proof vests, and the lead aprons worn by X-ray technicians. All of these are worn for рrotection against injury and would not be considered in ordinary parlance to be “wearing apparel.” We think the crash helmets at bar fall into this category and are outside the scope of the term “wеaring apparel,” as used in the modification of paragraph 1531, supra.
Judgment will, therefore, issue sustaining the protest claim accordingly.
Notes
Funk & Wagnalls New Standard Dictionary, 1930, 1942: wearing apparel. Clothes for wearing; clоthing in general.
Webster’s New International Dictionary, 2d ed., 1945: wearing apparel. Clothing; clothes.
clothes. Covering for the human body; dress; vestments; vesture; — a general term for whatever covering is worn, or is made to be worn, for decency or comfort.