Bemis Bro. Bag v. United States

MartiN, Judge, delivered the opinion of the court: The importations now before the court consist of certain woven fabrics composed of single jute yarns, and the sole issue in the present case is whether they are colored or not colored, within contemplation of the tariff act of 1913. There are two paragraphs of the act which severally relate to merchandise of this character, to wit, paragraph 279, which imposes duty upon such goods if colored, and paragraph 408, which grants them free entry if not colored. These goods were classified and assessed with duty by the collector under paragraph 279, which assessment was protested by the importers upon a claim for free entry under paragraph 408. It is conceded by both parties in the case that the importations should be governed by one of the two paragraphs in question. The paragraphs read as follows: 279. Plain woven fabrics of single jute yarns, by whatever name known, bleached, dyed, colored, stained, painted, printed, or rendered noninflammable by any process, 10 per centum ad valorem. (Free list.) 408. * * * plain woven fabrics of single Jute yarns, by whatever name known, not bleached, dyed, colored, stained, printed, or rendered noninflammable by any process; * * *. The question as aforesaid is whether the imported goods are dutiable as colored fabrics, under paragraph 279, or are entitled to free entry as goods not colored, under paragraph 408. This question was submitted upon exhibits and testimony to the Board of General Appraisers, and the collector’s assessment was sustained. The importer has appealed from that decision. The fabric in question is known as jute padding. It is a stiff and heavy material, and is said to be manufactured and used solely as an interlining for men’s and women’s coats. It serves as a means of adding stiffness, body, and shapeliness to such garments, and when in place in a garment it is concealed from view. The fabric in the piece is plain-woven throughout, is about 24 inches in width, and has a selvage of jute or cotton yarn. It is con-cededly uncolored, except for two stripes composed of six warp threads each, either blue or red in color, the stripes being severally about one-quarter of an inch from the selvage edge, and running lengthwise throughout the piece. The stripe threads constitute pro tanto the warp threads of the fabric. Concerning these stripes the board said: ' Tt is true that the colored warp threads here in question servé no useful purpose either by way of ornamentation or to give [375] color effect, as tbe interlining is entirely concealed from view wben used in a garment.” It appears, however, from the testimony that the stripes serve the purpose of identifying this class of cloth in the trade. It is said that “it has been a practice for a good many years and it is sort of known in the trade that padding carries a colored border;” and again that the colored threads “serve as a brand or trade-mark to identify jute padding.” It is said, moreover, by the witness that the jute paddings or linings “would do just as well for all purposes * * * if there was not any color in them.” The two colored stripes aforesaid are the sole feature relied upon by the Government for the assessment of the goods as colored fabrics, the stripes being as aforesaid composed of six yarns each, each stripe being about three-eighths of an inch wide, each running the entire length of the piece at a distance of about a quarter of an inch from the selvage edge, but forming no part of the selvage itself. Otherwise, it is conceded, the goods are not colored, and the sole question therefore is whether the presence of the colored stripes in the fabric as aforesaid is sufficient to serve as a basis for the board’s finding that the goods are colored, within the purview of the statute. The importer answers this inquiry by the contention that “the issue here is solely whether the colored portion is of sufficient importance on any ground of ornamentation, use or necessary function to bring this fabric into the class of colored fabrics. It is submitted [continues the importer] that the colored threads here are of no significance.” In many cases arising under the various tariff revisions the board and the court have been called upon to decide whether certain imported goods came within the enumeration of colored fabrics within the purview of the law. The decisions perhaps have not been entirely uniform upon the subject. However, it has been accepted as elementary that the term “colored fabrics” is not limited in application to goods which are wholly and entirely colored, but applies also to many fabrics which are colored only in part. And in respect to such partly colored fabrics it is settled that if the colored part thereof be substantial, having reference to appearance, component quantities, and other like considerations affecting the character and condition of the cloth at the time of importation, the cloth itself should be held to be colored within the sense of the act; but on the other hand if the colored part be trifling, insignificant, or negligible, the cloth should be held to be not colored. The question therefore becomes one of fact in each case respecting the actual character and condition of the goods when imported. In this view, if imported goods be colored in a substantial measure according to the foregoing definition, it is not important whether the color be ornamental, or serves a useful purpose, or is permanent, or is visible [376] when in final use, or adds to the marketable value of the goods. For the only question asked by the statute in this particular is one relating to the actual condition of the goods at the time of their importation, and not the motive therefor nor the result thereof. This statement finds apt support in the decision of this court in Heyliger et al. v. United States (11 Ct. Cust. Appls. 90; T. D. 38735), relating to certain cotton cloth, the warp yarn of which, before weaving, had been treated with a so-called fugitive tint solely for the purpose of assisting the weaver to distinguish the two yarns. The tint' imparted color to a substantial portion of the cloth when imported. It appears that the tint was temporary; that it added absolutely nothing to the market value or final usefulness of the cloth, nor was it intended to, since it was invariably removed before the cloth was put to any use by the final consumer. Nevertheless the court held the cloth to be dutiable as colored cloth, since that was its condition when landed. The court said: “The tariff provision in question prescribes but a single criterion in this particular, and that is whether the cloth is colored or not at the time of importation. If so, it becomes dutiable as colored cloth, regardless of the means or motive with which it was colored, or the subsequent history of the article as intended by the importers.” The present inquiry therefore addresses itself solely to the condition of the fabric in controversy when landed, and the question is whether a substantial part thereof was in fact colored. The board has held in the affirmative, and we agree with that conclusion. It is clear that at times it may be difficult and uncertain in practice to find the dividing line between a substantial and an insignificant coloring of fabrics, and a review of the published decisions would amply sustain that statement. In this case, however, an inspection of the goods discloses that the colored stripes aforesaid, although covering less than 3 per cent of the surface, are not only clearly distinguishable from the uncolored part of the fabric but are in fact distinctly observable and even conspicuous. Both in appearance and structure they form a substantial part of the surface and body of the fabric. This statement comports also with the statements of the witness that the stripes serve the purpose of identifying the goods to the trade as padding, since manifestly that purpose would best be served by distinct and conspicuous markings. In support of this conclusion we refer to some of the cases upon this subject which have been adjudicated by the board and the courts. In Young et al. (T. D. 17255, G. A. 3517), decided May 12, 1896, the board said in part: The board has uniformly held that cotton cloths, when containing colored threads in the different forms of figures, stripes, checks, or otherwise, and whether covering [377] much or little of the surface of the fabric, were dutiable under the tariff provisions for colored cotton cloths, and these decisions accord with the action of the classifying officers of customs at the several ports and the rulings of the Treasury Department covering a period' of many years and under different tariff acts containing provisions for cotton cloths similar to those of the present act. In the Delta Bag Co. case (T. D. 23286, G. A. 4997), decided September 24, 1901, tbe board beld that certain jute bags having two stripes of colored yarns, constituting 7.5 per cent of the warp, were thereby excluded from classification as bags or sacks made from plain woven fabrics, not colored. Tbe board beld tbe stripes to be necessary, substantial, and integral parts of tbe bag, saying: What would amount to a necessary and substantial element or part of merchandise must depend largely upon the facts of each case, commercial usage, the use to which an article may be put, etc. From the record and samples in this case we find, as above stated, that the colored or dyed yarns constitute a necessary and substantial part of the fabric, and accordingly the protest is overruled and the decision of the collector is affirmed. In the Meyer & Co. case (T. D., 23618, G. A. 5105), decided March 24, 1902, tbe board beld that bags of single jute yarns,. containing a colored stripe 1 inch wide, were thereby excluded from classification as bags not colored; but that bags containing a single jute yarn of tbe warp were not so excluded. Tbe board said: “We further find that tbe stripe consisting of a single jute yam down each side of tbe sample mentioned does not constitute a necessary or substantial part of tbe article.” In the Adolf Fricke case (T. D. 25599, G. A. 5795), decided September 12, 1904, tbe board beld that certain cotton cloth containing a single colored yarn running near tbe edge of the fabric, was dutiable as “cotton cloth, colored,” under paragraph 304, tariff act of 1897, upon tbe ground that tbe coloring was “substantial.” See also the case of John C. Graffin Co. (Abstract 42793). The case of United States v. Bryant & Beinecke (10 Ct. Cust. Appls. 79; T. D. 38355) is relied upon by tbe importer as authority for its claim. In that case this court dealt with unbleached cotton duck or canvas about 30 inches wide having a single blue mark thread running lengthwise of the fabric about an inch from each side, tbe thread being equally visible on both sides. It was found that these threads were introduced into tbe fabric solely and merely as a helpful guide line for operators in overlapping and sewing tbe widths together in making sails, tents, wagon covers, tarpaulins, etc., for which duck with such colored lines is used almost exclusively; that tbe threads were not necessarily apparent in tbe canvas after being sewn together, as they might be obliterated by tbe stitching; that they were not a necessary part of tbe fabric, as they could be removed without appreciably impairing tbe integrity of it; that they were trivial in character and value, tbe cost of the duck being the same [378] with or without them; and that they represented and covered but an insignificant part of the surface area of the fabric. This court sustained the board in holding that the cloth thus described was not dutiable under the provision for colored cloth, and we think that the decision was plainly justified under the general principles above expressed, since the single colored thread in question was found to be an insignificant and not a substantial element in the fabric as imported. We can not see any inconsistency between the foregoing decision and that reached by us in the instant case. We have not overlooked the fact that it has been an administrative practice in the customs service since the enactment of the tariff act of 1913 to classify goods of this character as not colored and as entitled to free entry consistently with the claim made by the importer herein. That practice, however, was in contravention of the law, as we understand it, and it should not be given a controlling effect in the case. Nor has it continued a sufficient time to have received an implied legislative sanction. In accordance with the foregoing view we affirm the decision of the board. Affirmed.