individual share in the premium, reserve, and current loss funds of all such years.

2. On "Schedule of Deposits" accompanying such statements they will enter the following details:

Undivided share in New York excise-reinsurance funds as follows:

3. They will also accompany such statement with Schedule A completed in the following form:

SCHEDULE A

made a part of quarterly statement to United States Treasury Department by Company as of

191-.

1 As included in amount extended on line 35, p. 3, of accompanying statement.

As included in amount extended on line 36, p. 3, of accompanying statement. On Dec. 31 the unearned premium reserve will be 75 per cent of gross premiums in force on bonds current; on Mar. 31, 50 per cent; on June 30, 25 per cent; on Sept. 30, nil. But if a company chooses to maintain any higher reserve at any time it may do so and make deductions accordingly.

4. They will enter in statement on page 3, under the heading "Deduction of assets not admitted by the Government," a new line reading as follows:

$

" and

"23. Excess of New York excise reinsurance funds over liabilities as per accompanying Schedule A enter an amount equal to the sum total of the "balances" for the

several years as shown by such schedule, which amount will be treated by this department as a nonadmitted asset because the company's share in the premium fund is not subject to its direct control or check, and its shares in the reserve and current loss funds stand specially pledged by the reinsurance agreements to the payment of claims and intercompany liabilities.

5. As the limit of time for suit or claim on New York excise bonds does not attach until nine months after expiration of the bond period, it is manifest that each company should, upon lapsing the unearned premium reserve on expiration of the term of the bond, put up and maintain among its liabilities until expiration of such nine months a special reserve or a contingency provision as against anticipated further claims on expired excise bonds. Such a reserve or provision, fairly estimated, will be required for such an amount as may be approved by the excise reinsurance committee.

The foregoing information for the quarter ended September 30, 1912, must be furnished not later than October 31, 1912.

Το

Respectfully,

SHERMAN ALLEN, Assistant Secretary.

(T. D. 32871-G. A. 7396.)

Ladder tapes.

1. LADDER TAPES-MANUFACTURES OF COTTON.

So-called "ladder tapes" are not tapes within the common meaning of that term, nor are they articles made from tapes. Therefore they are not dutiable under paragraph 349, tariff act of 1909, but are dutiable as manufactures of cotton, not specially provided for, under paragraph 332.

2. COMMERCIAL DESIGNATION.

Evidence that the articles were bought and sold in the wholesale trade at the time of the passage of the act under the name of “ladder tapes" is not sufficient to prove a commercial meaning of the term "tapes" different from the ordinary meaning.

United States General Appraisers, New York, October 14, 1912.

In the matter of protests 388367, etc., of Burlington Venetian Blind Co. et al. against the assessment of duty by the collectors of customs at the ports of Burlington and New York.

Before Board 2 (FISCHER, HOWELL, and COOPER, General Appraisers). COOPER, General Appraiser: These protests challenge the assessment of duty on so-called ladder tapes. The classification of such articles was passed upon in G. A. 7360 (T. D. 32503), which is here quoted:

The articles in question are so-called ladder tapes made of cotton and used in the manufacture of venetian blinds. They were classified as "tapes" under paragraph 349, tariff act of 1909, and assessed with duty at the rate of 60 per cent ad valorem and are claimed to be dutiable as "manufactures of cotton, not specially provided for," under paragraph 332 of said act, at the rate of 45 per cent ad valorem.

Articles of the same description were the subject of decision in G. A. 7021 (T. D. 30614), which was affirmed in Burlington Venetian Blind Co. v. United States (1 Ct. Cust. Appls., 374; T. D. 31456). The only contention raised by the importers in that case was that the articles, assuming them to be tapes, were not ejusdem generis with the tapes enumerated in paragraph 349, and that for that reason they were excluded from classification thereunder. This contention was overruled both by the board and the Court of Customs Appeals.

It is now urged that the articles are neither "tapes" within the meaning of that term as used in said paragraph 349 nor articles made from tapes; and that they are therefore not dutiable under that provision either directly or by virtue of the first proviso of said paragraph.

The word "tape" is defined as follows:

Century Dictionary:

1. A band of linen; an ornamental fillet or piece. 2. A narrow strip of linen or of cotton, white or dyed, of different colors, used as string for tying up papers, etc., or Bewed to articles of apparel, to keep them in position, give strength, etc. 3. A narrow, flexible band of any strong fabric, rotating on pulleys, which presses and guides the movement of sheets in a printing machine or paper-folding machine.

Webster's Dictionary:

A narrow fillet or band; a narrow piece of woven fabric used for strings and the like. Standard Dictionary:

A narrow, stout strip of woven fabric, forming a flat cord; much used for tying together various parts of apparel, or binding different objects in parcels; also in printing presses and paper-folding machines, for guiding the movement of the paper. 2. A flat braid or strip of paper or thin metal, as used in a tape line. 9. A band or fillet of linen.

It needs no extended discussion to show that these definitions do not cover an article made of two narrow strips of cloth, each about 1 inches in width, united at regular intervals by means of strips of cloth 24 inches in length and three-eighths of an inch in width, designed for the purpose of holding slats, and with such slats constituting a blind or curtain.

Counsel for the Government urges, however, that the fact that throughout the proceedings before the board the articles were referred to by everybody as "ladder tapes" justifies the conclusion that they are tapes. We can not assent to this. There is no testimony in the record on which a finding could be based that the articles are commercially known as tapes. The fact that they are commonly called "tapes," qualified by some adjective, is unimportant. The question is whether they are in fact tapes as commonly understood or as defined by the dictionaries. The Court of Customs Appeals in United States v. Prosser (1 Ct. Cust. Appls., 22; T. D. 30848) refused to hold ball mill plates, or lining plates, dutiable as plates. They stated:

It must be correct to say that although an article may be called a plate yet it can not be described as one unless it is a plate.

In Sheldon v. United States (T. D. 31657) the Court of Customs Appeals held that clippers were not "shears," saying:

While it might be technically correct to order these hair clippers as clipping shears or shears, nevertheless we doubt if an order for shears of any given size were made without accompanying language suggesting that these tools with rotating or reciprocating knives or cutters were what was desired such order would be filled by sending hair clippers like those involved here.

Dynamo brushes are not dutiable as brushes. G. A. 5390 (T. D. 24593). Currycombs are not dutiable as combs. McCoy v. Hedden (38 Fed. Rep., 89). Giant umbrellas of paper are not dutiable as umbrellas. United States v. China & Japan Trading Co. (71 Fed. Rep., 864).

Paper fans are not dutiable as fans. Downing v. United States (141 Fed. Rep., 490; T. D. 26454).

Toy magic-lantern slides are not dutiable as magic-lantern slides. United States v. Borgfeldt (1 Ct. Cust. Appls., 370; T. D. 31455).

Toy parasols are not dutiable as parasols. Pacific Mail Steamship Co. v. United States (T. D. 32361).

The question, then, presents itself whether the first proviso to paragraph 349 operates to make the goods dutiable at the same rate as tapes. Said proviso reads:

Provided, That no article composed wholly or in chief value of one or more of the materials or goods specified in this paragraph shall pay a less rate of duty than the highest rate imposed by this section upon any of the materials or goods of which the same is composed.

A commission was issued to take the depositions of the manufacturers of these articles for the purpose of ascertaining the method of their manufacture. From thesg depositions it appears that they are wholly the product of the loom, the process beine described as follows:

This ladder tape, so called, is made by the use of eight different warps, which are drawn in the loom in such a way that when they come in connection with the shuttles they are divided into four distinct pieces; the weft is then introduced into the warp and forms the four webs, namely, the top and bottom broad webs and the two inner narrow webs, which are called the straps. It will, of course, be obvious that, in order to bring the inner straps into the broad webs at regular intervals, some special process is required, and this is done by the use of a Jacquard machine, which is placed on the top of the loom, and lifts the shafts through which the warp ends are drawn into the exact position required to form the ladder web. * * * The loom in which these goods, the ladder tapes, are made is similar to an ordinary web loom, with the addition of either Jacquard machine or dobby, to regulate the movements of the shafts controlling the warp ends for the straps or inner webs. For the manufacture of a woven ladder tape eight warps are required, namely, two for each of the two broad or outer webs and two each for the straps or inner narrow webs. All these four webs are woven at one and the same time with the aid of four shuttles containing the weft, these shuttles being placed in the batten or lathe one above the other. The top and bottom webs, being the broad webs, are woven in the same way as ordinary webs, but the shafts which control the warps of the inner webs or straps are so manipulated by the Jacquard machine, or by the dobby, whichever is used, that they admit of the weft contained in the middle shuttles being woven in, and so form the narrow straps for a certain length, after which these warps are alternately lifted or dropped into the top or bottom broad webs, as required, and so form the ladder web. After this, the small connecting threads are cut by hand, at a very small cost, and the ladder tape is then fit for use on the blind.

The trimming or cutting away of the connecting threads by hand is not, in our opinion, of sufficient importance to control the classification of the articles. Except for this, they are wholly the product of the loom, and not made from tapes.

The importers rely on the following statement contained in the opinion of the Court of Customs Appeals in the Burlington case, supra:

Obviously, if the importations are made from tapes previously manufactured, they would, under the first proviso of paragraph 349, when read in connection with paragraph 332, be subject to the same rate of duty as that imposed by the collector. If, however, the importation in its present form is the product of the loom alone, and has been subjected to no other processes, a different question might be presented.

It is claimed that this is authority for holding that the articles in question are not affected by the proviso to paragraph 349 above quoted. While this might perhaps be considered dictum, we think it is good law. In our opinion, the object of this provise is to prevent the anomaly of taxing articles at a lower rate than is imposed upon the materials of which they are composed. If this construction is proper, then the provise would not affect this article, which is not made from a previously constructed tape, but directly from yarn. The protests are sustained.

The protests now before us were submitted upon the record in said G. A. 7360, and the additional testimony of one witness in

behalf of the Government to the effect that the articles are known in trade as ladder tapes.

It is contended by counsel for the Government that the record now supports a finding that the merchandise in question was commercially known as tapes at the time of the passage of the tariff act. The gist of the testimony relied upon is that the articles before us were bought and sold in the wholesale trade at the time of the passage of the act under the name of "ladder tapes." In seeking to fix the classification of an article for dutiable purposes on the theory of commercial designation a number of facts must be proved. The record before us is lacking in the following particulars:

1. It does not show that the term "tapes" has a definite, uniform, and general meaning in the wholesale trade. In fact, no attempt was made to show this. United States v. Kwong Yuen Shing (1 Ct. Cust. Appls., 14; T. D. 30773).

2. It does not show that the term "tapes" has a meaning in the wholesale trade different from its ordinary meaning. Acker v. United States (1 Ct. Cust. Appls., 328; T. D. 31431).

3. It does not show what articles are included within the term "tapes" by the wholesale trade. Acker v. United States, supra.

The testimony is open to every one of the objections made by the Court of Customs Appeals to that in the Acker case, supra, wherein the court pointed out what facts it is essential to prove in order to make out a case on the theory relied on by the Government. We quote from their opinion:

The further requisite, however, is necessary in assigning to a phrase a commercial limitation or application that it must be proven not alone that the imported merchandise is not classed therewithin, but there must be assigned by proof to that phrase a scope and meaning which is clearly, definitely, and uniformly understood throughout the United States, which includes some other merchandise and excludes the imported merchandise. It likewise must be shown in such cases that such meaning of the phrase in trade and commerce should differ from the ordinary dictionary meaning or that of common speech.

* * *

*

*
*

In this record there is no testimony assigning to the language employed by the statute any general and uniform scope or application in trade and commerce different from its ordinary accepted and dictionary meaning. Nor is there any testimony whatsoever assigning or attempting to assign to the phrase a general and uniform meaning and understanding in trade and commerce including any other particular merchandise as well as excluding the imported merchandise.

While in the Acker case the importer was relying on commercial understanding to exclude the merchandise from the collector's classification, whereas in the case at bar the Government is relying on such understanding to fasten the collector's classification upon the articles in question, the language of the court is so applicable to the facts before us that further comment on this branch of the case is unnecessary. The other questions presented by the record were decided in G. A. 7360, herein before quoted.

The protests are sustained.