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(T. D. 43462)

Hemp marline

NEW YORK CORDAGE Co. v. UNITED STATES

HEMP CORDAGE-HEMP CORDS, TWINES, ETC.

Hemp marline, consisting of two or three yarns of hemp twisted together and tarred, being three thirty-seconds of an inch in diameter, used for serving or winding around wire rope, and for worming, i. e., laying it between strands of rope, and for seizing on board ship, and also in connection with tents, tarpaulins, awnings, etc., is held dutiable as hemp cordage under paragraph 1005 of the act of 1922, and not as cords or twines under paragraph 1004, for the following reasons:

(1) On testimony showing that at and prior to the passage of the present tariff act hemp marline was known in the wholesale trade and commerce of this country as cordage as distinguished from cords, twines, etc.

(2) Under the doctrine of legislative sanction of judicial interpretations of tariff provisions by the subsequent reenactment of the same or substantially the same language, inasmuch as hemp marline of the same kind and character was held in Abstract 28429 to be dutiable as cordage under paragraph 339 of the act of 1909, instead of as twine under paragraph 340, as assessed by the collector, and Congress subsequently reenacted the same competing provisions in the same language, except as to the rates of duty, as paragraphs 268 and 269 of the act of 1913, and subsequently again reenacted the same corresponding provisions without material change of language in paragraphs 1005 and 1004, respectively, of the present Tariff Act of 1922. United States v. Bassichis Co. et al., 16 Ct. Cust. Appls. 410, T. D. 43133; also Kelly & Co. v. United States, 17 C. C. P. A.—, T. D. 43322.

(3) On the evident intent of Congress to regard hemp marline classifiable for tariff purposes as cordage and not as cords or twines, as gathered from Tariff Information Surveys, edition 1922, issued by the United States Tariff Commission on the subject of yarns, threads, and cordage, and transmitted to the Committee on Ways and Means in Congress when the framing of the present Tariff Act of 1922 was under consideration.

United States Customs Court, Second Division

Protests 187282-G, etc., against the decision of the collector of customs at the port of New York [Reversed.]

(Decided June 25, 1929)

Brooks & Brooks (Ernest F. A. Place of counsel) for the plaintiff.

Charles D. Lawrence, Assistant Attorney General (William H. Futrell, special attorney), for the United States.

Before FISCHER, WELLER, and TILSON, Justices

WELLER, Justice: The merchandise here in controversy was reported by the local appraiser as consisting of "hemp cord, two and three ply, not finer than 11 lea, tarred or otherwise treated." Duty was assessed thereon by the collector under paragraph 1004 of the tariff act of 1922, as "cords composed of two or more yarns of

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hemp

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twisted together, the size of the single yarn of which is not finer than eleven lea," at the rate of 184 cents per pound, and, in addition thereto, 5 cents per pound as being "otherwise treated." The merchandise is claimed to be dutiable by the plaintiff under paragraph 1005 of said act as "cordage,

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wholly or in chief value of hemp," at the rate of

221⁄2 cents per pound.

No official sample was taken from this particular importation, but Examiner Hughes testified that Exhibit 1 is representative of the merchandise in question, and that the merchandise is of the same kind and character as that passed upon by this court (then the Board of General Appraisers) in Abstract 28429, 22 Treas. Dec. 789, May 3, 1912, under the Tariff Act of 1909. In that case the merchandise was assessed for duty as hemp twine under paragraph 340 of that act, reading:

PAR. 340. Threads, twines, or cords, made from yarn not finer than five lea or number, composed of flax, hemp, or ramie, or of which these substances or either of them is the component material of chief value, ten cents per pound; if made from yarn finer than five lea or number, twelve cents per pound, and threefourths of one cent per pound additional for each lea or number, or part of a lea or number, in excess of five.

It was claimed dutiable as hemp cord age under paragraph 339 of said act, reading:

PAR. 339. Cables and cordage, composed of istle, Tampico fiber, manila, sisal grass or sunn, or a mixture of these or any of them, three-fourths of one cent per pound; cables and cordage made of hemp, tarred or untarred, two cents per pound.

This court, speaking through Judge Cooper, stated in said decision that it was established by the testimony that the merchandise in said cited case was not a "twine," but that it was known as "cordage" under the specific name of "marline," and that it was used for serving around wire ropes, cables, etc., and was accordingly held dutiable as hemp cordage under said paragarph 339.

We gather from the brief of the importer filed in the present case that it relies largely on the rule of statutory construction in customs jurisprudence that language employed by Congress is presumed to have been used in accordance with the construction given it by a long-continued practice of an administrative department of the Government or by the courts. Salomon v. United States, 2 Ct. Cust. Appls. 92, T. D. 31635.

It may be apropos at this time to refer to the fact that the competing statutory provisions considered in said Abstract 28429, namely, paragraphs 339 and 340 of the Tariff Act of 1909, were subsequently reenacted by Congress without change of language, except as to the rates of duty, as paragraphs 268 and 269, respectively, of the Tariff

Act of 1913, and that the same corresponding provisions were thereafter again reenacted without material change of language in paragraphs 1005 and 1004, respectively, of the present Act of 1922, under which the issue here in question has arisen.

We might here also mention that since the promulgation of our decision in said Abstract 28429 merchandise like that at bar was classified as hemp cordage, in accordance with the holding therein, until the Treasury Department, in T. D. 39970 and T. D. 40114, dated January 22 and April 10, 1924, respectively, issued instructions to collectors of customs ordering a departure from such practice. The theory of the Government's case seems to be, primarily, an insistence upon the dogma that the commercial meaning of the term "cordage" does not contemplate, under any circumstances, anything with a diameter less than three-sixteenths of an inch, and the Government, in support of such contention, relies on the case of Monroe Foreign Forwarding Co. v. United States, G. A. 9053, 48 Treas. Dec. 291, T. D. 41158, affirmed by the Court of Customs Appeals, 14 Ct. Cust. Appls. 185, T. D. 41699, wherein 2-ply sisal and manila wrapping twines under three-sixteenths of an inch in diameter were held not to be "cordage" within the tariff provision of paragraph 1005 of the act of 1922, on testimony showing that commercially the word was not used to include anything smaller than three-sixteenths of an inch in diameter. The Court of Customs Appeals, however, in that case expressly limited the effect of their decision to the precise merchandise covered thereby.

The importer in the present instance has introduced the testimony of nine witnesses, which, briefly, is to the effect that the hemp marline here in question is used chiefly for winding or serving around wire ropes, and for worming, i. e., laying it between strands of rope, and for seizing on board ship, although its use in connection with tents, tarpaulins, awnings, and such other outdoor purposes, where resistance to weather and water is required, was also conceded; that it is known in the wholesale trade and commerce of this country as cordage, especially as that in the rigging of a ship; that it is not a twine, as twine is ordinarily used for tying packages and bundles, and that marline would be too expensive to use for such purpose, and that, besides, it would not be practicable for such use on account of being tarred; that it is neither a thread, string, nor cord, although some of the importer's witnesses did admit that as a general rule the term "cordage" was restricted to merchandise three-sixteenths of an inch or more in diameter; that marline is always tarred, and that it is classed aboard ship as small-stuff cordage; that cordage covers ropes and ship's fittings such as Exhibit 1 and similar tarred things. Most of the importer's witnesses accepted Webster's New International Dictionary definition of the word "cord" as "a string, or small

rope, of several strands twisted or woven together," and that of the word "cordage" as "ropes or cords, collectively; especially the ropes in the rigging of a ship."

The Government, on the other hand, produced 10 witnesses to refute the claim of the importer, their testimony being to the effect that the imported merchandise represented by Exhibit 1 is used for tying articles that are exposed to water and weather, such as tents, tarpaulins, awnings, and for serving wire ropes and for the rigging of ships; that marline is twine treated with tar; that if it were not tarred it would sell as twine; that cordage has reference to a rope construction of three or more strands, each of which is composed of two or more yarns, and being of a diameter of three-sixteenths of an inch or more. Some effort was made to show that the merchandise, on account of being of a less diameter, was known as twine, and one of the Government's witnesses stated that if marline was over three-sixteenths of an inch in diameter it would be cordage.

There is no dispute that the imported merchandise as represented by Exhibit 1 is composed of three hemp yarns twisted together, and is tarred; that each yarn is under 11 lea, namely, about 2 to 21⁄2 lea, although a lea specification does not seem to enter as a factor in the manufacture or sale of the article; that marline usually comes in two or three strands; and that the diameter of said Exhibit 1 is three thirty-seconds of an inch. It is also quite evident that the hemp marline answers to the dictionary definitions of both the terms "cord" and "cordage." Therefore, as it has already been held that the provision for "cords" in said paragraph 1004 of the act of 1922 is less broad and more specific than that for "cordage" in paragraph 1005, the merchandise in question can only be excluded from said paragraph 1004 by evidence showing that by commercial designation and understanding hemp marline at and prior to the passage of the present Tariff Act of 1922 was always regarded and dealt in as of the general class of merchandise known as cordage as distinguished from that known as cords or twines. Geo. S. Bush & Co. et al. v. United States, T. D. 43460, 52 Treas. Dec. 308, affirmed by the Court of Customs and Patent Appeals in Sunde & D'Evers Co. et al. v. United States, 17 C. C. P. A.-, T. D. 43321.

The Government's testimony was, however, mainly directed to showing that the imported merchandise was not bought and sold in the trade as cordage, but as marline. We fail to see in what respect such fact alone disproves that marline is not of the class of merchandise known as cordage, for, as said by Martin, Judge, in Austin, Nichols & Co. v. United States, 4 Ct. Cust. Appls. 261, T. D. 33483, "It is clear that many articles belonging to well-known classes may nevertheless always pass in trade under more specific names, but this fact alone would not necessarily withdraw them

for tariff purposes from the larger class to which the species may belong." Note also Revillon Frères v. United States, 2 Ct. Cust. Appls. 209, T. D. 31948. It was even admitted by some of the Government's own witnesses that they knew of nothing sold simply under the name of cordage. This fact was fully recognized in our decision in said. Abstract 28429, wherein we stated that the merchandise there in issue was known as "cordage" under the specific name of "marline." While the testimony herein as to the trade understanding of the term "cordage" and its uses might be considered as not altogether definite, uniform, and general, we think, nevertheless, that, taken as a whole, including the numerous printed price lists, trade journals, catalogues, and photostatic copies of parts thereof, it fairly makes out an exception to the general rule that cordage ordinarily is something three-sixteenths of an inch or over in diameter, and that the hemp marline here under consideration is such an exception.

This view, we think, is very much strengthened by the doctrine of legislative sanction invoked by the importer, as herein before referred to. Under that doctrine it has been pretty well settled that Congress is presumed to have approved of judicial interpretations of tariff provisions by the subsequent reenactment of the same or substantially the same language. Such doctrine has been adhered to in the determination of tariff classifications even in cases where the courts have plainly intimated that a different conclusion might otherwise properly have been arrived at were the question at issue an initial one. Note United States v. Bassichis Co. et al., 16 Ct. Cust. Appls. 410, T. D. 43133, and the numerous cases therein cited. That case would seem to justify holding the hemp marline here under consideration dutiable under the tariff provision for "cordage," as construed by this court in said Abstract 28429 which arose under the act of 1909, even though the evidence in the present instance were deemed insufficient in itself to support such claim. Note also Kelly & Co. v. United States, 17 C. C. P. A. -, T. D. 43322.

As bearing on another point raised in the present instance, we quote from the case of United States v. Bassichis Co., cited supra, as follows:

We do not mean to be understood as saying that this rule of construction is so all-powerful as to be controlling as against all other rules of interpretation, since the intention of Congress might be so clearly shown in another way as to preclude the application of the rule. To illustrate, let us suppose the committee reports of both House and Senate definitely stated that it was not the intention in the reenactment of the three subsequent provisions to sanction or approve of a classification of broken glass under the "all glass" provision. It is obvious, under the supposed state of facts, that it would be erroneous to conclude that the reenactment in substantially the same language showed that Congress approved of the previous judicial interpretation.

In the case at bar, however, the importer's claim is not only supported by said doctrine of legislative sanction, but seems to be still

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