The opinion
DISSENTING OPINION
Ford, Judge:
The determination by the majority that the involved brass pole rings are properly dutiable at 15 per centum ad valorem under the provisions of paragraph 339 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305 , T.D. 51802, and T.D. 51909, would appear to be based primarily upon their interpretation of the recent decision of our appellate court in United States v. The Baltimore & Ohio R.R. Co. a/c United China & Glass Company, 47 C.C.P.A. (Customs) 1, C.A.D. 719. The appellate court, in that case, made the following observation:
We believe that where, as here, classification is to be determined on the basis of chief use, that determination should be made at the time of importation, whether or not the tariff provision in question explicitly requires classification by chief use.
From this paragraph, the majority are apparently of the opinion that our appellate court has repudiated the principle of law that where the statute mentions an article by a name which implies use, then chief use must be established as of the date of the enactment of the tariff act. It should be noted that the appellate court, in The Baltimore & Ohio R.R. Co. case, supra, before making the above-quoted statement, first cited the case of United States v. C. J. Tower & Sons, 26 C.C.P.A. (Customs) 1, T.D. 49534, as standing for that principle of law which requires that the meaning of an eo nomine designation be determined as of the date of the enactment of the tariff *280 act. However, the Tower case, supra, also stands for the basic proposition that the determination of chief use on or about the date of the enactment of the tariff act is required for the classification of an article designated by a use provision. See also Goldsmith’s Sons v. United States, 13 Ct. Cust. Appls. 69 , T.D. 40932. The court further cited the case of H. J. Baker & Bro. v. United States, 37 C.C.P.A. (Customs) 52, C.A.D. 419, and the principle of law that where the statute expressly makes an article’s classification dependent upon chief use, the chief use on or about the date of importation controls. The court then cited the case of Wilbur-Ellis Co. et al. v. United States, 18 C.C.P.A. (Customs) 472, T.D. 44762, and quoted the following from page 479:
* * * if there be an eo nomine designation, the common meaning thereof must be determined as of the date of the enactment of the tariff act, but if it is further provided that the thing designated shall be classified under a given provision only if chiefly used for a specified purpose, the question of use should be determined, not as of the effective date of the tariff aet hut as of the date of the importation of the particular merchandise involved or immediately prior thereto. (Emphasis ours.) [Italics quoted.]
While the portion of The Baltimore & Ohio R.R. Co. case, supra, relied on by the majority, may be subject to the interpretation placed upon it by my colleagues, I am of the opinion that the citation of the cases relating to chief use by our appellate court and the record made .therein which will be discussed, infra, do not amount to a repudiation of long-established law on the subject of chief use. The review of the record by the court, in its decision in The Baltimore & Ohio R.R. Co. case, supra, is indicative of the fact that the after-dinner cups and saucers involved therein, although denominated as such, were, in fact, not the same articles of commerce as after-dinner cups and saucers used for drinking coffee. The record, as digested, seems to clearly indicate that 6 or 7 years prior to 1954, the importer found an excessive demand for these items, while there had been no material change in the demand for the after-dinner cups and saucers that matched dinner sets. In addition thereto, the method of packing six different shapes with three different decorations and the fact that they were cheaply decorated and would not endure washings, all led the court to conclude that the items under consideration were not the same as the tableware after-dinner cups and saucers. These factors also clearly established that the items were a new article of commerce which developed as a fad and were used for display purposes.
The law is well settled that where an article of commerce comes into existence subsequent to the enactment of a tariff act and a tariff provision does not contain special language, such as, chiefly used for, the determination of chief use is controlled by the use of said article on or about the date of importation. United States v. Paul G. Down *281 ing et al. (1929), 16 Ct. Cust. Appls. 556 , T.D. 42394; United States v. Geo. Wm. Rueff, Inc., 41 C.C.P.A. (Customs) 95, C.A.D. 535. I agree with the basic principles of law relative to the determination of chief use, as cited by the court in The Baltimore & Ohio R.R. Co. case, supra, and the additional cases cited herein, as well as with respect to the law relative to new articles of commerce. The statement relied upon by the majority does not appear to be controlling of the decision in The Baltimore & Ohio R.R. Co. case, supra, since it is clear, as indicated, supra, that the after-dinner cups and saucers involved therein were new articles of commerce, which, ordinarily, under the law as it presently stands, require evidence of chief use on or about the date of importation and not on or about the date of the enactment of the tariff act. This is the law with respect to the time controlling chief use when an eo nomine provision implying use is involved, and it has been so construed for at least 35 years, as indicated in the Goldsmith case, supra. I do not feel that the court, in The Baltimore & Ohio R.R. Co. case, supra, intended to change the law generally with respect to the controlling time of chief use, but merely applied it to that case, since it involved a new article of commerce.
In addition to the question of the controlling time of chief use, another problem presents itself in this case. It is incumbent upon plaintiffs herein to establish that the imported merchandise was chiefly used as a household utensil throughout the United States. Local or partial use is insufficient. Pacific Guano c& Fertilizer Co. et al. v. United States, 15 Ct. Cust. Appls. 218, T.D. 42240.
In the case at bar, the only witness called testified that he had personally observed the use of merchandise such as the imported articles in New York, Chicago, Philadelphia, Boston, and in the homes of many of his friends. In the absence of testimony which would establish that New York, Chicago, Philadelphia, and Boston are the principal markets in which the imported articles are used, the court may not assume or presume their use would be the same throughout the United States. The latter principle, as enunciated in the case of United States v. F. W. Woolworth Co., 23 C.C.P.A. (Customs) 98, T.D. 47765, cited by the majority, requires such evidence “in a large area of the country.” I do not feel use in four cities represents a large area of the country. I am not unmindful of the fact that the witness testified that his company sold such merchandise throughout the United States. However, he testified, on cross-examination, that he did not have personal knowledge of the ultimate use of the merchandise, other than that which he had seen so used. A case with quite a similar record was decided adversely to the party asserting a classification requiring chief use. California Wool Growers Assn. *282 and Frank P. Dow Co., Inc. v. United States, 34 Cust. Ct. 295 , Abstract 58797. In that case, the witness also testified that he had sold the merchandise throughout the United States, but indicated that he had not followed up its use or seen it used other than in California.
In view of the statement by the witness on cross-examination, I do not feel that the case of Klipstein v. United States, 1 Ct. Cust. Appls. 122 , T.D. 31120, relied upon by the majority, is controlling herein, although I agree with the principles in the Klipstein case, supra, that, in some instances, one witness may be sufficient to establish chief use of an imported commodity, and that an importer or merchant has every incentive for knowing the uses to which his wares are put. However, as indicated, supra, the evidence herein does not warrant such a conclusion nor establish chief use.
Following the above-cited cases, I am of the opinion that the record herein has not satisfactorily established chief use, either with respect to the time controlling or the geographical representation. I would, therefore, overrule the protest.