The opinion
Rich, Judge,
concurring.
The factual record created in this case plus established law seem to compel the conclusion reached. However, I feel that it should be clearly stated that this is not a ruling that all after-dinner coffee cups are outside the category of “tableware,” or even that the cups here involved are forever and necessarily outside of that category.
The corollary to Judge Martin’s opinion is that if after-dinner coffee *8 cups are, at tbe time of importation, chiefly used for drinHng coffee then they are “tableware.” It troubles me somewhat to realize that we are imposing on the Collector the duty to evaluate contemporary socio-economic mores in order to determine whether or not coffee cups are tableware, since what we are deciding is that if they are being bought by consumers as a result of a fad or craze for collecting, they are not tableware; but if they are bought, chiefly, to be drunk out of they are tableware.
If the current fad dies down (and a fad, by definition, will), I suppose this might be reflected in diminishing imports and then the Collector would realize that these selfsame cups and saucers were being bought chiefly for drinking rather than exhibiting, and had become “tableware.” The same legal result could ensue, however, from a craze for drinking demitasse, so the Collector must determine what current custom is chiefly responsible for the importation. I see no way to avoid such a result where a “use” provision is involved and the merchandise is such as to be subject to temporal shifts in use. It is essential, however, that we show the Collector where his duty lies and not lead him to think he can classify wares, such as those here involved, merely by inspecting them. He must familiarize himself with the contemporary behavior of purchasers with respect to the wares. The problem here is not unique. We recently held that what appeared to be baskets were really table tops, and that was determined by what they were being used for. The United States v. Quon Quon Company, supra.