F. Rosenstern & Co. v. United States

LACOMBE, Circuit Judge. The tariff act defines the word “wool” as follows: “Par. 383. Whenever in any schedule of this act, the word ‘wool’ is used in connection with a manufactured article of which it is a component material, it shall be held to include wool or hair of the sheep, camel, goat, alpaca or other animal, whether manufactured by the woolen, worsted, felt, or any other process.” Act July 24, 1897, c. 11, § 1, Schedule K, 30 Stat. 185 (U. S. Comp. St. 1901, p. 1668). The Board was convinced by the testimony before it that the fabric imported, besides a cotton warp and calf-hair filling, contained a substance used to hold the calf-hair fibers in place, either coarse East India wool, wool waste, or mohair noils.- It was classified, therefore, under— “Par. 366. On cloths, knit fabrics, and all manufactures of every description made wholly or in part of wool, not specially provided for in this act, valued at not more than forty cents per pound, the duty per pound shall be three times the duty imposed by this act on a pound of unwashed wool of the first class; valued at above forty cents per pound and not above seventy cents per pound, the duty per pound shall be four times the duly imposed by this act on one pound of unwashed wool of the first class and in addition thereto, upon all the foregoing, fifty per centum ad valorem.” Further testimony was taken in the Circuit Court, and upon the record as it now stands we fully concur with the conclusion of the [73] judge who heard the cause below that it does not satisfactorily appear that wool, goat hair, or mohair enters into the manufacture of the articles in controversy. The results of the chemical analyses and the report from the confidential agent of the Treasury Department in Berlin cannot be disregarded because manufacturers in this country testify lhat they cannot produce the fabric upon the machines they use without the use of some “wool” to hold the calf-hair fibers in place. There being no special provision covering this fabric, the question is: How shall it be classified? It is not within that part of section 7 which deals with nonenumerated articles manufactured of two or more materials, because both of the materials of which the fabric is composed are on the free list; the cotton under paragraph 537 and the calf hair under paragraph 571. The importers contend that they are dutiable as a nonenumerated manufactured article under section 6. The government contends that they are dutiable by similitude to articles enumerated under paragraph 366, supra. The Board and the Circuit Court so held. We concur with both tribunals in the conclusion that as to these goods this court is controlled by the decision of the Supreme Court in Arthur v. Fox, 108 U. S. 125, 2 Sup. Ct. 371, 27 L. Ed. 675. In that case the importations were composed of cow or calf hair, vegetable fiber, and cotton, an imitation of sealskin, and used for manufacturing hats and caps. Here the fabric is composed of calf hair and cotton, an imitation of pony fur, and used for manufacturing cloaks. In the Fox Case they were found to be substantially similar to manufactures of goats’ hair and cotton, made to imitate sealskin, and used for the purposes for which sealskin is used. The goods in suit bear a like similarity to certain manufactures of calf hair and cotton, with a substantial percentage of wool or mohair noils, which are used for cloaks, but, being of a better grade and more durable, are also used for other purposes (such as car-seat coverings), which involve more wear and tear. In our opinion these additional uses of the standard with which these importations are compared do not disprove a similarity in use, and the weight of the testimony establishes a similarity in texture and quality as well. Nor does the circumstance that: the goods with some wool in them are of a better grade and command a higher price prevent the application of the similitude paragraph. The decision is affirmed.