Chapter XI: Part 11

Officially, Cairns is secretary, treasurer, and general counsel of the National Gallery of Art. His headquarters is a large, secluded and attractive office in a wing of the National Gallery on Constitution Avenue in Washington, D. C. It is from these improbable surroundings that Cairns advises Treasury and Customs on what is obscene and what isn’t, what should be refused entry into this country as plain trash, and what should be permitted to enter. The Treasury is under no obligation to follow his advice, but it does.

Cairns is a big, dark-haired, distinguished-looking man in his early sixties who is far more interested in Plato than in pornography. He is convinced that the ancient Greeks were the greatest people, intellectually, who ever trod the earth. Even their pornography, in his view, was superior to the modern product.

Cairns assumed the role of censor because of a curious chain of events, which began when he successfully opposed government censorship banning George Moore’s translation of _Daphnis and Chloe_--a book which shocked the sensibilities of many people, including the Customs collector who read it and ordered it banned.

A Baltimore book dealer had imported Moore’s translation with high hopes for a large and lucrative sale in Baltimore and in other cities. But Customs ruled the book was obscene under Section 305 of the Tariff Act of 1930. This act says: “(a) Prohibition of importation--all persons are prohibited from importing into the United States from any foreign country any book, pamphlet, paper, writing, advertising, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument or other article which is obscene or immoral.... No such article, whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry.... Upon the appearance of any such book or matter at any Customs office, the same shall be seized and held by the Collector to await the judgment of the District Court as hereinafter provided; and no protest shall be taken to the United States Customs Court from the decision of the Collector.”

Thwarted by this formidable language, the book dealer took his problem to Cairns, who was then practicing law in Baltimore. Cairns appealed the ruling by Customs to the Customs Court of Appeals. Then he cannily persuaded the judge to hear the case without a jury--and to hear the testimony of expert witnesses, including a psychiatrist, a professor of English, and a newspaper editorial writer then with the Baltimore _Sun_. Cairns tried to persuade a classics scholar from Johns Hopkins University to testify for him, but the professor replied, “No, I will not testify in defense of such a worthless book as George Moore’s translation of _Daphnis and Chloe_.”

The trial procedure broke legal precedent. Previously the rule had been that expert witnesses could not testify because they would usurp the function of a jury. But Cairns was permitted to put his witnesses on the stand.

Cairns wasn’t too sure of his psychiatrist and how he would react to cross-examination by the government attorney on the question of what effect the book would have on immature adults and children. The psychiatrist handled himself very well under direct questioning, but then the prosecuting attorney at the close of his cross-examination said to the psychiatrist, “Would you recommend this book to be read by everybody?”

At this point Cairns literally held his breath waiting for the reply of the psychiatrist. His heart sank when the psychiatrist replied, “No, I would not.”

The prosecuting attorney turned triumphantly and said, “That’s all, your honor.”

Cairns simply could not leave his case in that precarious position. He said to his witness, “Well, Doctor, would you recommend that everyone read the Bible?” The psychiatrist replied, “No, I would not.”

Cairns won this case. The book ban was lifted. The result of the trial, headlined in the daily newspapers, did not go unnoticed in Washington.

Soon after this case had been decided, Secretary of the Treasury Henry Morgenthau decided something had to be done about the adverse publicity received over the years by the Treasury Department and by Customs because of disputed rulings being made on books, art and other items being imported into the country. One of the most publicized cases had involved the attempt by an importer to bring into the country copies of James Joyce’s controversial _Ulysses_. The book had created a tremendous stir in literary circles in Europe and among those in the United States who could get their hands on a copy. Joyce’s use of four-letter words and his then-shocking treatment of sex brought howls of protest from many. There were outcries against any importation of the book into the United States. Likewise, there was an outcry against censorship among those who regarded Joyce’s work as an outstanding work of literature, written in a style and with a realism which they said raised it to a high level of art.

Joyce’s book went on Customs’ banned list. The case was taken to court and the judge wrote a blistering opinion against censorship. The court held that the book had to be viewed as a whole, and that one could not judge it by picking out isolated passages from the text; when the book was viewed in its entirety, it was not obscene.

About this time, also, Customs found itself in hot water because an examiner refused entry for a shipment of photographs of sculptures of nude men and women. The examiner took one look at the photographs and ruled that they were pornographic. The trouble was that the pictures were photographs of sculpture in the Vatican--a point which did not seem to impress the examiner but which was noted acidly in the protest against his ruling.

This combination of events, among others, persuaded Secretary Morgenthau to look for someone who could bring the situation under reasonable control. As Cairns tells the story: “Of course, I don’t know what went on in the Treasury or why they turned to me, except that I had beaten the government in the Baltimore case. I had been writing on books for the Baltimore papers for a number of years and Eli Frank, the chief counsel of Customs, knew about my work and my interests. The story I heard was that after the chain of adverse publicity, Secretary Morgenthau called on his counsel, Herman Oliphant, and said, ‘Find me a lawyer who has read a book.’ So Oliphant called up the chief counsel of Customs and passed on the word, ‘Find a lawyer who has read a book.’ That is how I got into it.”

Before “getting into it” Cairns decided to make a trip to New York to interview those who had had a voice in banning the controversial works. He wanted to know the Customs procedures and how those involved arrived at their decisions. He decided the best starting point would be to interview one of the Customs employees engaged in opening and examining packages from overseas.

Cairns opened the interview by saying, “Tell me on what grounds you act when you refuse entry for an item.”

The clerk replied, “Well, if I see a book with a naked woman in it, a photograph, I hold it up.”

“I can understand that,” Cairns said, “but tell me about some other cases that are not so clear-cut as a book having a picture of a nude in it.”

“Well, did you ever hear of this _Ulysses_ case?”

“Yes,” Cairns said, “I have heard of that case. Did you handle the book when it arrived?”

The man nodded. “Yes, I did. What happened was that when the book came in I admitted it. There was another shipment and I admitted it. There was a third shipment which I admitted, too. Then I began to get suspicious. Here’s a book bound in paper and it was selling for fifteen dollars. So I said to myself, it must be a dirty book. So I got my knife and cut the pages. I cut the pages and when I got to the end of the book, I saw the dirtiest words I had ever seen in my life. So I held it up.”

Cairns nodded. “Who was the book addressed to?”

“It was addressed to an actress. She came down to see me and said, ‘I want my _Ulysses_.’ I said, ‘Lady, I ain’t going to give it to you. It’s a dirty book.’ ‘Well,’ she said, ‘at least let me look at it.’ I looked at her and said, ‘Lady, are you married?’ She said, ‘No, I am not married.’ And then I said, ‘Well, lady, I ain’t even going to let you see it.’”

After this revealing interview, Cairns decided to work with the Treasury and Customs in an advisory capacity. A procedure was set up whereby questionable items were forwarded to him at Baltimore for his recommendation before the Bureau made any formal ruling. The procedure worked so well that it was continued through the years.

Cairns left Baltimore to join the Treasury in 1937 as the Senior Assistant General Counsel. He remained with the Treasury until December, 1942, when he came to the National Gallery in his present post. Over the years, Cairns’ work as a “censor” has become less difficult as the courts have become more liberal in their interpretations of what constitutes obscenity and what does not. Cairns now receives only about 5 to 7 per cent of the questionable imports and he does not consider them to be difficult cases.

More than 90 per cent of the questionable items are what Cairns refers to as “junk,” and “hard core” pornography. There never is any question about the hard-core pornography. It consists of filthy pictures and objects obviously manufactured with a lascivious and lewd intent. Customs examiners have learned over the years to recognize such shipments almost immediately by the wrapping of the packages, the names of the shipping companies, and the countries of origin. For a time France was the source of most of the pornographic material. Then it was Italy. Then the source shifted again back to France. Then to India. For a time Japan was the major supplier of pornography, and at present Sweden is a leader in this field.

In some cases, Cairns advised test cases so that the court might decide the issue and establish a legal precedent. One such case involved the importation of birth control items by a doctor in seeming violation of the law banning “any article whatever for the prevention of conception.” Did the statute mean such items could not be imported for medical purposes? Cairns thought it a point for the court to decide--and the decision was that the statute was not intended to exclude such imports by a medical practitioner.

Another such case involved the importation of acknowledged hard-core pornography in 1950 by Dr. Alfred C. Kinsey, the Indiana University professor whose controversial “Kinsey Report” on human sexual behavior created a stir in the late 1940s.

The Kinsey case developed when Dr. Kinsey had shipped from Europe to the Institute of Sex Research of Indiana University a case filled with pornographic books, sailors’ postcards, and photographs of males and females in the sexual act. Customs previously had banned such items with no voice raised in objection. But a nationwide interest was aroused when Collector of Customs Alden H. Baker at Indianapolis took one look at the Kinsey material and declared it “damned dirty stuff.”

Baker refused to release the shipment to Dr. Kinsey and defended his position by saying, “There is nothing scientific about it.... If you saw some of these pictures, you wouldn’t think they were scientific.” He shipped the material to Washington, where Customs officials--and Cairns--agreed with the collector that it was unadulterated pornography specifically banned by law.

Kinsey protested the material was necessary to his research and that since it was for scientific study the government had no right to withhold it from him and from his colleagues at the Institute. He issued a statement saying, “You can use the Bible or almost anything for obscene purposes. Any material you can think of can be made obscene by perverting it to erotic stimulations.... The Institute of Sex Research at Indiana University considers this issue is one that concerns all scholars the world over who need access to so-called obscene materials for scientific investigations which in the long run may contribute immeasurably to human welfare.”

Kinsey appealed to members of Congress for an amendment to the tariff laws which would permit him to have access to the material impounded by Customs. Then he went to see Cairns, to ask for his help. As Cairns recalled the meeting, “He came to see me about it and said that I had admitted the works of Havelock Ellis and he felt he was entitled to have the material on which Ellis based his studies. I said that may be, but before you came to see me, you had asked Congress to amend the statute to permit you to import hard-core pornography. How can I, as an administrator, say that the statute doesn’t cover you when you have already asked for an amendment which they have refused to grant?”

In any case, the test case served its purpose. The court held that since the material was intended for scientific use, the statute barring pornography did not apply in this case. The ruling did not mean that the court was lowering the bars for importation of pornographic material to everyone who wished to import it into the country. It only meant that the bars were being lowered for the Institute of Sex Research in its investigations.

Cairns considers it no great accomplishment to separate the obscene from the artistic. “I have long been of the view,” he once said, “that any man of letters can tell whether the impulse behind a book is literary or pornographic.”

Once when asked if reading and viewing pornographic material over a long span of years had had any effect on his own morals, Cairns grinned and said, “According to the theory of censorship I should be fairly corrupted by now--but I don’t believe I am. I just find the stuff boring.”

20

OF TOY CANARIES AND PIRATES

One day in 1957 an examiner in the New York Customs Appraiser’s Stores opened a packing case received from Switzerland. He lifted out a small brass object resembling a canary cage. On a tiny swing in the cage sat an extremely lifelike little bird. When the examiner wound a key in the bottom of the cage, the bird threw back its head, opened its beak, and burst into song. It ruffled its feathers and wagged its tail as it trilled its merry little time.

The examiner called to a colleague nearby and said, “Hey, Joe! Come and look at this one.”

He turned the key and they watched the little bird perform. The examiner said, “Cute, isn’t it?”

“If my wife sees it, she’ll want one,” the other examiner replied. “It certainly is beautifully made. How are you going to classify it?”

There was the rub. What was this tiny cage with the singing bird? Was it a toy, dutiable at 50 per cent of its value? Was it a musical instrument, subject to a duty of 35 per cent? Or was it, as the importer claimed, simply a “manufacture of metal,” subject to a duty of 20 per cent?

The examiner disagreed with the importer. He ruled that the little singing bird with the music box in the bottom of the cage was in fact a musical instrument. This opinion was sustained by the appraiser. The appraiser’s decision was supported by the Collector of Customs.

The importer took the case to court. His attorney called one company witness who testified the imports were designed as ornaments for home decoration. He said they could be used as a nice toy--but they weren’t toys. And he had “never known it to be used in an orchestra.” Therefore it could not be held to be a musical instrument.

After the court heard the testimony and listened to the trilling of the tiny bird in its small brass cage, the court was moved to lyrical language in its decision, saying:

It may be contended that this bird does not emit a continuous
melody, and that it is not an instrument upon which a chromatic
scale can be played.... Music is the one harmonious science that
dispells discord, softens the winds, and makes all nature kin. It
has quickened the step for the warrior in the field of battle; has
riveted the attention of the savage on the march of his enemy;
has stirred the ambitions of men to higher ideals; and caused the
beauty of the human heart to speak in friendliness and love....

Indeed, if it was not for sweet music, human life would be so
dreary as to be unbearable. It matters not whence it may arise,
from the throat of the opera singer or of the bird. From the
scintillating trills of the flute or the low notes of the Chinese
gong, music is yet the curious and most harmonious succession of
sounds conceivable. It is the anesthetic of life.

The instrument in question is a musical one, and the tuneful ear of
the Collector was correct in thus classifying it.

The protest is overruled.

The case of the Singing Canary underscores one of the most important functions of the U.S. Customs Bureau--the classifying of millions of imports which arrive in the United States and the determination of their dutiable value. The Customs Appraiser’s Stores--the port depots where the imports are examined--are sometimes a weird world in which things are not what they seem.

Every schoolboy is taught that a whale is a mammal. But when whale steaks reach the Customs examiners, they are classified as “fish cut to portions.” A tomato is a fruit to a botanist. But to every housewife and the Customs examiner it is a vegetable. Botanists classify rhubarb as a vegetable--but in Customs’ language it is a fruit.

Customs examiners are not just being arbitrary and ornery when they make these classifications in defiance of the botanist and the dictionary. The contradictions came about because the U.S. Court of Customs and the U.S. Court of Customs Appeals have made these rulings for the purpose of identifying imports so that a proper rate of duty may be paid upon them.

The courts have said over and over that in the language of commerce and in the everyday language of the streets, a whale must be considered to be a fish because it lives in the sea. Also, they have said the tomato is a vegetable because it is sold and eaten as a vegetable. And rhubarb in the legal world has become a fruit because it is bought and sold as a fruit.

In most cases, the appraisers have no difficulty in establishing the proper rate of duty to be paid on an import because the rate is fixed by law and the import is easily identified. But there are a great many imports not identified in any of the tariff acts or the amendments adopted by Congress, a lack which often creates difficulties, as it did when one importer brought in a shipment of Chinese mah-jongg sets.

The dominolike pieces used in playing the game were made of bone and bamboo. The importer and the government agreed that the material of chief value in the mah-jongg pieces was bone. The importer insisted that the duty should be 20 per cent of the value because the games were “manufactures of bone.” However the Collector classified these sets as “dominoes” and set the duty at 50 per cent. He ruled that the mah-jongg pieces came under the paragraph 341 of the Tariff Act of 1913 which provided for a duty of that rate on “dice, dominoes, draughts, chess men, and billiard, pool, bagatelle balls, and poker chips of ivory, bone or other material.”

This case also found its way into the Customs Court. The government attorneys argued that the mah-jongg pieces should be classed as “dominoes by similitude” even though they were not specifically listed under the acts passed by Congress.

The importer argued through his attorneys that the mah-jongg sets were not specifically named by Congress in any of the classifications established in the various acts and therefore the duty should be applied on the “component material of chief value.”

In this case the ruling went against the government. The court held that the mah-jongg sets were properly classifiable at 20 per cent as manufactures in which bone was the “component material of chief value.”

The appraisers’ staffs make millions of classifications each year on imported items, and there is remarkably little dispute over their decisions. Out of these millions, no more than 700 are disputed and contested in the courts annually.

Sometimes a seemingly obscure and innocuous ruling on a classification will blow up a storm across the country. Such a case developed when an importer brought in from Europe do-it-yourself kits containing parts of a miniature electric train and engine to be assembled by the purchaser.

The locomotives, freight cars, cabooses, passenger cars, track, and other equipment were precision-made scale models of larger railroad equipment. They were all made to a standard “HO” scale of 3.5 millimeters to one foot. The trains were designed to run at the scale speed, which meant that at maximum speed they would travel 60 feet a minute. At that speed, they would simulate the operation of a full-size train.

All of the equipment was manufactured according to the strictest standards set up by the National Model Railroad Association. This Association has been described as “an organization of adult model railroad hobbyists founded in 1935 to make and promulgate standards for wheels, flanges, rails, switches, and other working parts of model railroads, with the purpose of achieving interchangeability of equipment from different manufacturers.”

The examiner who inspected the imported miniatures classified them as “toys”--and as such subject to duty of 50 per cent of their value. In the Tariff Act of 1930, Congress had described a toy as “an article chiefly used for the amusement of children, whether or not also suitable for physical exercise or for mental development.”

The ruling brought a pained cry from miniature railroad hobbyists across the country.

Toys, indeed! The hobbyists were outraged that this import should be put in the same category with playthings and that anyone should have the affrontery to think that such railroad equipment--even though Lilliputian in size--could be put together, and operated, by a mere child.

When the Collector at the Port of New York supported the ruling of the appraiser that the miniature railroad equipment should be classed as toys, the ruling was appealed to the U.S. Court of Customs. And when the case came to trial the importer had behind him ranks of witnesses from all walks of life ready to dispute the government’s description of the equipment: dentists, technical consultants, salesmen in various lines of business, doctors, lawyers, editors, publishers, and writers.

One after another, the witnesses took the witness chair to deride this nonsense that the miniature trains were made “for the amusement of children.” They gave technical testimony on the operation of these miniatures to prove that no child could be trusted with them and in fact could not operate them.

To prove this point one witness testified, “It requires a knowledge of electricity and requires a thorough understanding of how the trains operate. For example, our accessories all operate on alternating current; our trains run on direct current. It is necessary to know the two types of current which our power-packs provide to connect up the wires correctly. In the case of the alternating current, they have two leads; one would be a common terminal, connecting all the different accessories and switches, and another would be a specific one which would go to each individual switch.... The locomotive can also be operated from an overhead wire with pantographs they have located on the roof. This makes it possible to operate two trains on the same track under independent control. To do this, it is necessary to set up a catenary system, which is an overhead wire system, such as the Pennsylvania and New Haven Railroad use in this area. This, naturally, requires wiring.”

The importer insisted that the miniatures should not be classified as toys but should be classified as electrical equipment subject to a lower rate of duty.

Under this barrage of expert testimony from adults who play with small trains, the court overruled the Collector. The court held that the model railroad sets were not “toys,” because they were used chiefly by adults or by grown-up children and that they “do not come within the legal meaning of the word toy.”

In years past, Customs officials tried to establish a detailed classification system in which the examiner could refer to a given page in a book and quickly come up with the answer as to classification and duty of any item. But the system broke down under the weight of a vast number of new products arriving on the market. Discussing this effort a Customs Bureau official said: “On tariff classification, a number of people, who call up and ask for rates, think there is a detailed, logical breakdown and that we just thumb through a book and come up with an answer. To someone who hasn’t worked with classification, that seems like the way to do it. That is the way the old-timers used to try to classify. They used to try to set up categories with a place for everything, and everything in its place. But every time anyone set up one of these classification systems, along would come some new item which didn’t fit anywhere. So the present tendency in classification systems is to set up a specific category for the more important items, and then to set up what might be called a basket category to catch everything else.”

The impossibility of achieving an easy index for classifying imports was illustrated in recent years when a machine arrived from Europe described by the importer as “printing machinery.”

The machine had the equivalent of a type font but, instead of type, the font contained pictures of type on a transparent plate. The type-setter, using a keyboard similar to that on a linotype machine, punched out sentences on a roll of perforated tape. Then the tape was fed into the machine, and as each perforation passed an electronic control, a transparent plate bearing the image of a letter dropped into place to be photographed by a high-speed camera. In this way a full sentence was formed with photographed characters. This process was continued, letter by letter, until a column of “type” was set up on a film. Then the film was developed and, by a photoengraving process, was reproduced on a metal plate ready for printing on paper. In all the process there was no actual type used.

Customs was baffled by this one. Was the machine to be classed as photographic equipment, printing equipment or as typesetting machinery? It did not set type. It did not actually print. And it was more than a mere camera. The Bureau decided this was a case in which the court should hear all the arguments and make a decision--and a decision has yet to be made.

When Congress passed the 1930 Tariff Act there were roughly 700 categories of imports. Since that time--with the adoption of the Reciprocal Trade Agreement Act--the number of categories has been increased by the thousands. Most of the increases were in categories created to help foreign countries expand their trade in the United States. The duty on a comparatively few imports has been revised upward as a measure of protecting some of the American industries from lower-cost foreign competition. In the vast majority of cases the revisions have been downward, following the trend toward removing tariff barriers by international agreement.

In arriving at the dutiable value of an import, Customs officials are bound by the Tariff Act, which lays down the rules under which they calculate the true value of an article. This system of appraisal is complex and varies from category to category. Congress has proclaimed that duty on certain items shall be fixed on the foreign value--that is, the selling price in the country of production. Some items are appraised on their export value--the price which the exporter pays for them. Others are valued on their United States value, which means the price at which the exporter sells them in the United States. Some appraisals are based on cost of production.

Duties based on the American selling price are designed solely to protect certain American industries from foreign competition. Among the leading industries receiving this protection are the rubber and coal-tar dye industries. For example, an importer may be able to purchase a pound of coal-tar dye in Switzerland for $2. But if that dye is competitive with a dye of a similar shade produced in the United States, then the import will be appraised at $5 a pound, notwithstanding the fact that the importer paid the Swiss manufacturer only $2 a pound for the product.

However, most appraisements are made on the basis of export value, the price charged by the manufacturer or the seller in the foreign country.

The imports brought to the Appraiser’s Stores for examination form a cross section of the commercial treasures of the world and they are unbelievably varied. The examiners--trained by years of study and on-the-job experience--have become experts in appraising the quality and the value of a staggering number of imports. Whether the import is wool, cotton, silk, sugar, hog bristles, furs, diamonds, ore, chemicals, exotic foods, or an antique table, there is someone with a background of knowledge on the subject.

One of the largest single sources of Customs revenue continues over the years to be duties collected on raw wool which has not yet been processed for manufacturing. The wool examiner is one of the most highly trained of the specialists within the Bureau. He must be--because the Tariff Act of 1930 requires him to be able to identify by type thirty different wools from all parts of the world, in addition to being able to determine whether a shipment of hair is from the Angora rabbit, the Cashmere goat, the Bactrian camel of Central Asia, or the llama and vicuna of South America.

The Bureau has found that the only way to obtain these specialists is to recruit young men who are interested in this field of work, and to train them under the guidance of experienced examiners. The recruits must spend hours with books outside their regular work hours, in addition to attending technical training schools and visiting manufacturing and processing plants throughout the United States.

As far as the Tariff Act is concerned, the term “wool” includes not only the fleece from sheep, but the fiber from other animals. This is why the examiner must be able to distinguish Cashmere goat hair from the hair of the Angora goat raised in the southwestern part of the United States; and to learn the subtle differences between two grades of coarse hairs as well as the variations between the finest of fleeces.

Wool is graded by numbers, starting with 36 for the coarsest and moving through the 70s to the very finest. A miscalculation in the grading can deprive the Treasury of revenues--or cause an injustice to an importer.

For years, examinations of wool were conducted on the piers by taking samples from the ends of the highly compressed bales, which were covered with burlap and bound by steel bands. The examiner had no way of knowing--except to have a bale of fleece opened--whether or not the outer fleece concealed a higher grade of wool in the center of the bale. In some isolated cases, examiners found that a coarse grade of carpet wool concealed extremely high-grade wool. Contraband such as narcotics also was found hidden inside suspect bales.

Perhaps of even greater importance, the examiner had no reliable method of determining the amount of dirt, vegetable fiber, grease and other foreign matter contained throughout the bale--and the duties were supposed to be assessed only on the “clean content” of the wool.

This haphazard method of examination drew the fire of Congress in 1930. To correct the situation, the Customs Bureau established the post of Wool Administrator in New York City. It was his job to coordinate the examinations throughout the country and to establish more uniform practices. Daniel J. Kelly was named Administrator, with three assistants--Morris Shuster in Philadelphia, Al Kelleher in Boston and John Walker in New York.

The Bureau assigned to Chief Chemist Louis Tanner of the Boston laboratory the job of finding a method to determine the “clean content” of wool shipments. He developed a special boring tool which enabled examiners to take samples, or cores, of wool from inside the bales, and to judge the uniformity of the fiber in an entire bale without disturbing the bindings. This method proved so simple and effective that it has been adopted by the commercial trade and by government agencies in other countries throughout the world.

Imports of all kinds and types reach the Appraiser’s Stores in this manner: When merchandise is ready for export from a foreign country to the United States, the exporter prepares a special customs invoice describing the merchandise and giving its value. This invoice is sent to the American importer. When the importer is notified that the merchandise has arrived at a port of entry, he turns over the invoice to his customs broker. The broker calculates the estimated rate of duty, then proceeds to the Customs House. There he makes what is called a formal entry of the merchandise, filing the information he has received from the exporter and paying the duty.

In the Collector’s office at the Customs House, the broker’s estimates of value and duty are reviewed for any errors. Then the invoice is transmitted to the appraiser’s office, where it is assigned to the expert who will examine this particular merchandise.

The Collector notifies the Customs inspector at the pier that he is to send a 10 per cent sampling of the imported merchandise to the Appraiser’s Stores to be physically examined by the specialist in that field. The specialist examines the samples of merchandise to see that they are correctly identified by the importer. Then he determines whether the broker’s estimates of value and duty are correct.

If the broker entered the merchandise at $100 a unit and the examiner believes that the appraised value should be $125 a unit, then the examiner makes the change. His report is then forwarded to the office of the Collector for final action, and normally the Collector accepts the examiner’s judgment.

The Collector then notifies the broker or the importer of the action that has been taken. The importer and broker may accept the ruling or they may take issue. If they disagree, they may appeal to the United States Customs Court. If either the importer or the government is dissatisfied with the lower court’s decision, an appeal may be taken to the U.S. Court of Customs and Patent Appeals. Usually the decision of the Appeals Court is accepted as being final, but either of the parties may carry the appeal further, to the Supreme Court.

* * * * *

It seems odd that piracy should be a concern of Customs in the 1960s, as it was in the days of Jean and Pierre Laffite. But piracy still exists in modern dress and is a troublesome problem. The only practical difference between the modern pirates and the cutlass-carrying freebooters of the past is that the pirates’ methods have changed.

There was the case that might be called “The Pirates of Taiwan”--a case which created an incident of international embarrassment between the governments of the United States and Formosa (Taiwan) and a potential threat to the U.S. book publishing industry.

The “pirates” of Taiwan were the owners of small printing shops who engaged in the business of publishing--without the consent of the authors or the original publishers--almost every book of any merit printed in the English language.

With fantastically cheap labor, cheap paper, and a photo-offset printing process, the publishers in Taiwan reproduced such extensive works as the _Encyclopaedia Britannica_, dictionaries, sets of medical and scientific works, volumes of the classics, standard reference books, best-selling novels and popular non-fiction. The books were carbon copies of the originals, even to the U.S. copyright numbers and the phrase “Manufactured in the United States.” Nothing was changed in the pirating process, not even the typographical errors. From a casual examination, there was nothing to indicate that the books had not been published in Philadelphia, Boston, or New York.

The pirating problem became acute in 1959 when the Chinese publishers arranged contacts with sales agents in the United States, men and women usually located on or near a campus of a university or college. These agents solicited orders primarily from professors and teachers, librarians, researchers, and students. A standard set of the _Encyclopaedia Britannica_--normally costing about $400--was offered for less than $50. The $35 _Columbia Encyclopedia_ was listed at $7.13. _Gray’s Anatomy_, a standard work for all medical students and normally costing $17.50, could be purchased for $2.50. Allen Drury’s best-selling novel of political life in Washington, _Advise and Consent_, cost $5.75 in American bookstores--but was advertised by the Chinese publishers at $1.25.

In some instances, the Chinese publishers obtained lists of likely customers and solicited them by mail. The prospects usually were men, women and organizations with modest incomes who were forced to operate on a very limited budget. And here they were being offered the opportunity to obtain expensive volumes of literary works--which they had long dreamed of owning--for only a fraction of the price being charged throughout the United States.

The books were shipped from Taiwan in individual packages. Even when the packages were opened for inspection by a Customs examiner, there was nothing to arouse suspicion of any irregularity. The first hint which Customs had of fraud was when a complaint was lodged in 1959 by the American Book Publishers Council and the American Textbook Publishers Institute.

The book publishers appealed for help to the State Department, the Customs Bureau, Congress and even to the White House. The sales of pirated books in the United States had become a multi-million-dollar business which threatened to destroy the American book market.

In theory, at least, the publishers could have protected themselves from the sales of pirated books in the United States by registering each title with the Customs Bureau and paying a fee of $75. The registration would have banned any import of a similar title without the publisher’s consent.

Such a procedure would have been prohibitive in its cost because each title produced is regarded by law as a different product. A single publisher might well have had to register as many as 2,000 titles annually to obtain total protection--at a cost of more than $150,000 in fees and incidental expenses. This cost would have been in addition to the $300,000 paid to copyright the works, at $150 per title.

When Customs agents opened an investigation they discovered that in the first half of February, 1960, sales of pirated books at Iowa State University alone totalled more than $1,200. It was obvious that American publishers and authors were literally being robbed of millions of dollars. Not only were the books being mailed to the United States in large quantities, but a great many sales were being made on Formosa to military personnel, to students, and to tourists who could not pass up such a bargain in literature.

Action was taken by Customs to halt the importation of the books through seizure at the ports of entry. Then the U.S. Ambassador to Nationalist China, Everett F. Drumright, took up the problem with Foreign Minister S. K. Huang in Taipei, seeking a ban on the export of the books.

The problem was not one presenting an easy solution because the laws of Taiwan technically tolerated such piracy. Many members of Chiang Kai-shek’s government were not entirely sympathetic to shutting off this lucrative trade which brought dollars into the treasury. There was the fact, too, that lack of any copyright agreement gave Chinese students access to cheap editions of technical books and famous works of literature.

However, an arrangement was worked out on the diplomatic level for a ban on the wholesale export of pirated books from Taiwan. The American publishers agreed to make available certain of their works to Chinese students. This agreement brought a halt to much of the illicit traffic, but the problem of pirated books continues to be troublesome.

Competition for world trade has also brought some sharp practices in which foreign manufacturers copy American-made automobile parts, tools, and other merchandise and then ship them into the United States. The articles are identical in appearance to the American-made product down to such small details as the American manufacturer’s registered trademark. But the price--and quality--are far below the American level.

The piracy in the field of trademarks is a continuing problem for Customs. There are approximately 5,000 trademarks registered with the Customs Bureau, including those registered by foreign firms. And each manufacturer guards his trademark jealously.

Many foreign trademark owners, for the protection of their representatives in this country, will not permit more than one of their trademarked articles to be imported into the United States by a tourist. Many tourists will go abroad and purchase an unusual bargain in a camera, perfume or some other item. They are dismayed when they return to this country to find that Customs will not permit them to keep more than one of the articles.

In these cases, Customs is following the letter of the law in preventing more than one article from being imported bearing the restricted trademark. It is only the trademark which Customs is interested in protecting. If the importer of the articles should obliterate or remove the trademark from the items he is carrying, Customs inspectors would have no objections to allowing them into the country.

The trademark prohibitions sometimes create unique problems. One of these developed when a Mexican cattle raiser shipped a herd of cattle to the Mexican border and was preparing to bring them into the United States at Nogales, Arizona. Before the cattle could cross the border an American cattle raiser rushed to Nogales and demanded that Customs halt the importation of the Mexican cattle. He argued that he was the owner of the cattle brand seared into the hides of the Mexican cattle and that any importation bearing this brand would be a violation of the trademark laws.

An investigation by Customs officers revealed that the American cattle owner was entirely correct. By chance, the Mexican cattle raiser had the same cattle brand as the American rancher. The American’s cattle brand was registered with the Customs Bureau, and his cattle brand was entitled to the same protection given to the trademarks of manufacturers. Eventually, the protesting American and the baffled Mexican got together and the American gave his consent for the importation of the cattle.

One section of the trademark law prohibits the importation of any articles which are marked in a manner to indicate a false country of origin. It also bans imports which are marked with false descriptions. To enforce this section of the law, Customs officers must police millions of imports to weed out the products of foreign manufacturers who engage in some shady and sharp practices.

In recent months there arrived from Japan a large shipment of boys’ baseball bats which were boldly marked with large letters burned into the wood, “American Model.” At the end of the bat in extremely small letters was stamped the word “Japan.” The Customs Service felt that the purchaser of these bats could only assume, by looking at them and seeing “American Model” in large letters, that they had been made in the United States. It ruled that before the bats could be entered, the word “Japan” would have to be stamped onto the bats in close proximity to the words “American Model,” to remove the taint of deception.

Another manufacturer shipped into the country flatware made of iron with a chrome plating. It was marked with the word “stainless,” implying that it was stainless steel. The courts and the Federal Trade Commission have held that the world “stainless,” when used in describing manufactured articles, has a very specific meaning: that the product has a great deal of resistance to normal corrosive elements and to wear and tear that other metals normally do not have. And to describe an article as stainless steel, it must be an alloy of steel mixed with chromium in approved percentages.

To protect the manufacturers of stainless steel products in this country, the Customs Bureau instituted a campaign to halt such sharp practices and to educate foreign manufacturers to the fact that they cannot mark products with the word “stainless” unless they meet the very severe test required for the use of this word. The shipment of cast-iron flatware was refused entry, and inspectors were alerted to guard against any such shenanigans in the future.

21

THE MIDDLE MEN

Mr. and Mrs. John Smith of Lima, Ohio, were strolling through the streets in Florence, Italy, enjoying their first European vacation, when Mrs. Smith noticed a beautiful, hand-blown glass bowl in the window of a small shop.

“John!” she exclaimed. “There is the bowl I’ve been looking for. It would be perfect for our Christmas eggnog parties. Let’s go in and price it.”

They stepped inside the shop and a clerk brought the bowl from the window to a table where Mr. and Mrs. Smith could examine it more closely. It was a lovely piece of glass and obviously the work of a fine Venetian craftsmen. After admiring the delicate etchings on the glass, Mrs. Smith asked, “How much is it?”

The clerk said the bowl was one of the best pieces in the house and that it was priced at $75.

“My goodness,” Mrs. Smith exclaimed. “That bowl would cost double the price at home. It’s a good buy.”

Mr. Smith said, “But how will we ever get it home? We can’t lug it all over Europe with us. We would be certain to break it.”

The clerk interrupted, saying, “Pardon me. You don’t have to worry about getting the bowl to your home. We will take care of everything for you--the packing and the shipping. And we will insure it against breakage. We ship hundreds of purchases every year for American visitors.”

Mr. Smith asked, “How much do you charge for that service?”

The clerk shrugged. “There is no charge for our service, sir,” he said. “There will be a small shipping charge which you can pay on receipt of the package, but as for the trouble of packaging and handling the shipment from here, that is merely a part of the service we give our customers.”

“We won’t be back home for another three weeks,” Mrs. Smith said. “What will happen if the bowl arrives before we reach home?”

“You need not worry about that,” the clerk said. “I’ll hold the bowl for several days and then ship it so that it will not arrive until after you have reached home.”

“Well, that seems simple enough,” Mr. Smith said. “As long as you can handle this for us, then we’ll buy it.” He pulled out his wallet and paid for the bowl. Then he carefully wrote out his home address in Lima, Ohio.

“Don’t worry about a thing,” the clerk said, smiling. “The bowl will arrive soon after you get home.”

As the Smiths left the shop, Mrs. Smith said to her husband, “Well, the Italians certainly do make it easy for the Americans to buy something and send it home. I had no idea there would be so little red tape to sending a purchase home.”

A month later Mrs. Smith was at home when the telephone rang. It was a long-distance call from New York. A strange man--someone she had never heard of--asked if she had ordered a glass bowl from a shop in Florence, Italy. He explained that he was a Customs broker, the bowl had been consigned to him, and he was prepared to clear the package and forward the shipment if she authorized him to do so. He explained there would be a nominal fee for his services in getting the package released from Customs and forwarded to the Smiths in Lima.

Mrs. Smith was so flustered she told the caller she would have her husband get in touch with him. What was this strange man doing with her bowl? The clerk in Florence had said he would take care of everything, and now this broker was saying something about having legal title to the shipment and that she would have to pay a fee to get her bowl shipped to her. He had explained that she could come to New York and arrange personally for the Customs clearance if she wished to do so.

Mrs. Smith telephoned her husband at his office and told him about the call from the broker in New York. She gave her husband the man’s name and his telephone number in New York.

And then Mr. Smith exploded with anger. “It’s a gyp deal of some sort,” he said. “I am going to call the nearest Customs office and see what this is all about. We didn’t tell that clerk to send the package to anyone in New York. I don’t know how he got into this picture. There’s something funny going on and I’m going to find what it’s all about.”

Within a short time, Mr. Smith learned--by checking with a Customs officer--that he was not being gypped. The broker in New York was a legitimate broker, licensed by the Federal government to act as a clearing agent for merchandise arriving in the port of New York. The call that had been made to Mrs. Smith was a routine call, because the package containing the bowl had been consigned to the broker in routine fashion either by the shipper in Florence or by the carrier which brought the package into the port of New York.

Mr. Smith asked why it was that Customs in New York could not forward the bowl directly to him without going through a broker. That seemed the easy way to handle the shipment without all this red tape and the payment of a fee to some stranger whose name he had never heard before this day. Mr. Smith declared heatedly that he didn’t have time to go running off to New York for a $75 glass bowl. As a matter of fact the bowl wasn’t worth all that trouble and expense. He and his wife wanted the bowl and they wanted it as quickly as possible.

The Customs officer explained that unless Mr. Smith or his wife went to the port of entry to clear the shipment with Customs--or unless they authorized the broker to act as their agent--the bowl would be held by Customs for five days. Then if it were not claimed, it would be sent to a warehouse. It would remain in the warehouse for one year, and if it had not been claimed within that period, then it would be sold at auction along with other unclaimed packages. The officer explained further that Customs was not authorized by law to act as the forwarding agent for anyone--except in cases where a shipment valued at less than $250 was received by mail from an overseas point.

“Now, if you had shipped the bowl by mail,” the Customs officer said, “it would have been delivered to your post office and you could have obtained its release with no difficulty at all.”

Smith retorted, “This is a fine time to tell me I should have shipped by mail. All I can say is it’s a hell of a way to run a railroad.” He slammed down the phone, cursing Customs and all of the government’s red tape. Then, reluctantly and angrily, he called the strange broker in New York and authorized him to clear the glass bowl. Thus the day was ruined for Mr. and Mrs. John Smith of Lima, Ohio.

The story of Mr. and Mrs. Smith is not unusual. Similar cases occur daily throughout the United States as returning travellers discover that they could have saved themselves worry, time, and money by familiarizing themselves with the Customs procedures governing the importation of foreign purchases into the United States. Had Mr. and Mrs. Smith taken the time to read a few relatively simple instructions--available to travellers in pamphlet form--they would not have gotten into the difficulty they did.