United States v. Mills , 1915 CCPA LEXIS 20 ( 1915 )

Smith, Judge,

delivered the opinion of the court;

Hair nets imported at the port of New York were classified by the collector of customs as silk hair nets made on the Lever or Gothrough machine, and were assessed for duty at 70 per cent ad valorem under the provisions of paragraph 350 of the tariff act of 1909, which paragraph. in so far as pertinent to the case, reads as follows:

350. Laces, * * * nets, nettings, * * * composed of cotton, silk, artificial silk, or otlier material (except wool), made on tfie Lever or Gothrough. machine, seventy per centum ad valorem: * * *.

The importers protested that the goods were not made on the Lever or Gothrough machine and claimed, among other things, that they were nets composed of silk, dutiable at 60 per cent ad valorem under the provisions of paragraph 402 of said act, which paragraph, in so far as material to the case, reads as follows:

402. Laces, * * * nets or nettings, * * * all of the foregoing composed of silk, * * * or of which silk is the component material of chief value, * * * sixty per centum ad valorem: * * *.

The Board of General Appraisers sustained the protests, and the Government appealed. .

The only point in the case is whether the nets, which are admittedly composed of silk, were or were not made on the Lever or Gothrough machine.

In support of their contention that the nets were not made on the Lever or Gothrough machine, the importers introduced the testimony of Felix Legendre, Louis Ponchon, Louis Poulmarch, and Henry Daumas. The .first three of these witnesses testified that they were members of the firms which manufactured the nets sold since January 1, 1910, to Mills & Duflot and Mills, Duflot & Co., and that the hair nets in question were not manufactured on Lever or Gothrough machines, but on a plain not machine, known as the “Grande vitesse.” These witnesses stated that the Lever or Gothrough machine ordinarily works with a Jacquard attachment, and that that feature of the machine distinguished it from the plain net machines, which are always equipped with a cut wheel. It further appeared from the testimony of importers’ witnesses that hair nets may be made on the Lever and Gothrough, but that the slowness with which such machines work and the depreciation which such a use produces in the machines themselves make their employment for that purpose commercially impracticable. According to these witnesses, Lever and Gothrough machines are usually transformed by substituting a cut wheel for the Jacquard attachment before they are employed in the manufacture of hair nets. Once transformed, however, the machines operate on a different mechanical principle from that, required by the Jacquard attachment, and can no longer be called Lever or Gothrough machines. All three witnesses positively declared that none of the nets were manufactured by Lever or Gothrough looms, whether supplied with the Jacquard attachment or transformed by substituting a out wheel for suck attachment, and that the machines upon which the nets were actually made were not at all the same thing as a Lever or Gothrough.

It further appeared from the importers’ testimony that the Jacquard attachment is a necessary part of the Lever and Gothrough looms, and that when a Lever or Gothrough is transformed it ceases to be known as a Lever or Gothrough.

Henry Daumas testified that the Lever and Gothrough machines were equipped with from 40 to 400 bars, and that the plain net machine required from 2 to 4 bars only. Pie said that in making hair nets' not more than 4 bars are used and generally but 2, but that in weaving a design more bars would be employed, and that the more complicated the design the greater would be the number of bars required. He further stated that all looms work on the same general principle, and that a Lever or Gothrough machine, unless furnished with a Jacquard attachment or transformed and supplied with a cut wheel, would not weave anything. He added that in transforming the Lever and Gothrough to a cut wheel, the fosse or slide must be regulated and the combs and other parts changed.

The Government, on its part, introduced four witnesses, who testified broadly that the Lever and Gothrough machines, transformed by substituting a cut wheel for the Jacquard attachment, were still Lever and Gothrough machines, and that all plain net machines were in truth and in fact neither more nor less than Lever and Gothrough machines and were so known. This evidence, however, was very materially qualified by other statements of the witnesses, as is shown by the following extracts from their testimony:

Francois Beraud:

Q. Describe a Lever machine. — A. It is a lace machine, low speed,, with a Jacquard on the right side, to make laces and veiling.

Q. What is the difference between Lever machines and Gothrough machines? — A. It is in the catch-bar moving. In Gothrough, it is double; and that is all.

Q. What principles of operation or construction distinguish Lever and Gothrough machines from other net-making machines? — A. The number of steel bars and the suppression of the Jacquard replaced by a cut wheel.

Q. Does the use of a cut wheel instead of a Jacquard take a machine out of the class of Lever and Gothrough machines? — A. It is in the plain net-machine category, but it is always a Lever or Gothrough machine.

Q. Does a machine using a cut wheel come within the operating principle of the Lever or Gothrough machine? — A. No; because the warp threads are not ordered in the same manner.

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Q. Are you familiar with fast speed (Grande vitesse) machines known as Johnson,-Sival, Hooton, or Jardine machines? — A. Yes, sir. * * *

Q. What is the significance of the names Johnson, Sival, Hooton, and Jardine?— A. The movements on the machine are not of the same form.

Q. Can the Jacquard move any number of bars at one time, according to the design desired? — A. Yes, sir.

Q. Can a moulin or cut wheel move more than two or four bars at one time?— A. No.

Auguste Johnson:

Q. Describe a Lever machine. — A. The Lever is a loom for making veiling, having a certain number of bars in the well (fosse) and a Jacquard attachment on the side, used for the manufacture of laces, veils, and armures, but this same loom transformed to obtain more speed by the suppression of almost all the bars, leaving only two to four of them, and suppressing also the Jacquard attachment, is able to weave the plain article, Malines or hair nets, and it is difficult after to malee laces again on this loom. 1 must say that all the looms can not he so transformed.

Q. What is the difference between Lever machines and Gothrough machines?— A. That is to say, all comes from the difference in the catch-bar movement, which carries along the carriage, thus permitting a little more speed.

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Q. Is a Jacquard attachment a necessary part of a Lever or Gothrough machine? — A. Yes; if you want to weave on this loom veilings, armures, or any fancy article.

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Q. Does the use of a cut wheel instead of a Jacquard take a machine out of the class of Lever and Gothrough machines? — A. By means of a cut wheel the loom, being transformed, falls into the category of Lever or Gothrough machines for plain goods.

Q. Does a machine using a cut wheel come within the operating principle of the Lever or Gothrough machine? — A. No; having replaced the Jacquard by a cut wheel the warp threads are not ordered in the same way.

Q. Are you familiar with the following machines used in making hair nets: “Plain net machine,” “plain not machine with Jacquard,” “plain net machine with cut wheel,” “fast speed {Grande vitesse) machine,” “Mechlin machine”? — A. Yes. All this is contained in two kinds of looms.

Q. If so, are such machines Lever or- Gothrough machines? — A. They are always Lever or Gothrough machines, transformed to make plain nets or hair nets.

Q. Are they known as Lever or Gothrough machines? If so, by whom and under what circumstances? — A. These looms are known by those who use them as Lever or Gothrough machines transformed to make plain net and hair nets.

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Q. Are you familiar with fast speed {Grande vitesse) machines known as Johnson, Sival, Hooton, or Jardine machines? — A. Yes.

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Q. What is the significance of the names JohnsoD, Sival, Hooton, and Jardine?— A. The shape of the looms is not the same, and neither are certain movements. Each maker has his own model and movements.

Joanny Ferret:

Q. Describe a Lever machine. — A. The Lever machine is a loom possessing a Jacquard and a well (fosse) large enough to hold a great number of bars for weaving fancy articles.

Q. What is the difference between Lever machines and Gothrough machines? — A. The difference is one of construction, as these looms weave the same thing. It is in the mechanical movement of the catch bars, which permits of a greater average speed.

Q. What principles of operation or construction distinguish Lever and Gothrough machines from other net-making machines? — A. Lever and Gothrough machines are all built to malee the fancy articles, and they need a Jacquard and a large number of bars, while the circular machines and the warp looms are not at all similar either as to construction or production.

Q. Is a Jacquard attachment a necessary part of a Lever or Gothrough machine?— A. To make fancy articles, yes.

Q. If not, what attachment can be used instead of a Jacquard in making hair nets?— A. The Jacquard can be replaced by a cut wheel.

Q. Does the use of a cut wheel instead of a Jacquard take a machine out of the class of Lever and Gothrough machines? — A. Mechanically, no; but as to weaving, yes.

Q. Does a machine using a cut wheel come within the operating principle of the Lever or Gothrough machine? — A. As an operating principle the threads are no longer ordered in the same way, and only plain articles can be woven.

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Q. Are you familiar with fast speed (Grande vitesse) machines, known as Johnson, Sival, Hooton, or Jardine machines? — A. Yes.

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Q. What is the significance of the names Johnson, Sival, Hooton, and Jardine? — A. These are the names of the manufactures of different veiling looms.

J. B. Moimet:

Q. Now, I will go back to my question. What is the difference between a Lever machine and a Gothrough machine? — A. The difference between a Lever and a Go-through machine is a question of the form of the machine.

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Q. Is the movement of the bobbins the same in the Lever machine as in the Go-through? — A. The catch bar is a little different.

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Q. Do you think you classified the Mechlin machine as a Lever or Gothrough machine? — A. That I don’t think I must answer now, because I already answered; we had a case before the board.

Q. How did you answer it 1hen? — A. I answered then that the Lever--

Q. My question is, if the board please-A. My answer was that before Levers, every lace machine was run only with one bar; Lever built a machine with two bars and a cut wheel. This machine was called a Lever machine. This machine is in the Nottingham Museum as a Lover machine.

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Q. (By General Appraiser Fisoi-iek.) What is the difference between a Lever and Gothrough machine and any other machine, the Mechlin or circular, or anything else? — A. There is a little difference in the catch bar.

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Q. As a matter of fact, what you referred to as a special Jacquard is nothing more or less than a cut wheel? — A. It is not a cut wheel.

Q. What is it? — A. With a cut wheel you can not change the work; you must always do the same tissue with the cut wheel, or you are obliged, if you want to change the tissue, to build a new cut wheel; you must change 25 per cent of the loom. What I call a special Jacquard is an arrangement giving a chance to produce all kinds of goods, like hair nets, like-

With the special Jacquard you may, instead of having cards of paper, very delicate to handle, you have a card of iron, and instead of having the holes difficult to punch you have a small screw just to screw so quickly. It can go a very high speed, higher than the cut wheel can go. This Jacquard is a new matter. The only limit to the speed is as fast as the loom itself can run.

From all the testimony in the case and the history of weaving machinery we conclude .that prior to the invention of the Lever loom every lace-making machine had only one bar. The original Lever machine was a loom with two bars and a cut wheel. The Gothrough improved the Lever by doubling the catch-bar movement and increasing the speed from 30 to 40 per cent. The Lever and Gothrough were improvements on what was known as the Brown machine, which, in its turn, was an improvement on the loom of Iieathcote, who, in 1809, first solved the problem of forming regular meshes by twisting threads one round the other. With the advent of the Lever machine, invention apparently did not stand still, however, and in 1840 the ingenuity of Deverill' succeeded in applying to the Lever the Jacquard attachment, which theretofore had been regarded as unsuited for lace-making machines. The application of the Jacquard attachment to the Lever loom meant that as many bars might be moved as the design required, and that of course signified an efficiency for weaving figured laces and fabrics far beyond anything that was possible for one-bar machines or for the original two-bar Lever. We think that the evidence and the history of weaving machinery cited by the Government fairly well establish that the successful application of the Jacquard attachment to the Lever loom was an improvement of that loom and that thereafter the machines ordinarily known as the Lever and Gothrough were those which were equipped with that attachment and which were especially fitted for the weaving of figured goods and other fancy articles. But, however that may be, the evidence puts it beyond debate that the machines upon which the hair nets in controversy were actually woven were cut-wheel machines which bore special names of their own, and which were not designated as Lever or Gothrough machines. True, the Government witnesses do say that all cut-wheel looms were known as Lever and Gothrough machines, but these very same witnesses make it clear that there were plain net cut-wheel machines which were designated as Johnson, Siv'al, Hooton, and Jardine machines, and which were distinguished one from the other by differences of form and mechanical movements. Indeed, the Government’s witnesses did not content themselves with stating that cut-wheel machines differed as to their movements and form, but went further and pointed out that the Lever and Gothrough looms did not order the warp threads in the same manner as the cut-wheel machines and operated on a different mechanical principle.

It is true that the Lever or Gothrough may be transformed by eliminating the Jacquard attachment and fitting it with a cut wheel, but in such case it appears from the testimony of the Government’s own witnesses that the change is so pronounced that the transformed machine no longer operates on the principle of the Lever or Gothrough, and that it is difficult ever again to use the loom for the making of laces. It may be that a transformed Lever or Gothrough is known as a plain Lever or Gothrough, but that fact can have no pertinency here, inasmuch as the testimony is clear and explicit that the nets in question were not manufactured on a transformed Lever or Gothrough but on plain net machines having their own special names and distinguished from the Lever or Gothrough by differences of form and mechanical movement. To denominate plain net machines as Lever and Gothrough machines simply because the original Lever was fitted with a cut wheel would imply that the cut-wheel machine of to-day is identical with the original cut-wheel Lever of a hundred years ago, and that we are not prepared to hold, inasmuch as it affirmatively appears that cut-wheel machines are not designated as Lever or Gothrough machines, and that they are distinguished not only by different names but also by differences of mechanical operation and, consequently, of mechanism.

In our opinion paragraph 350 was not designed by the Congress to protect domestic weavers of laces, nets, nettings, etc., against the product of cut-wheel looms capable of moving from 2 to-4 and possibly 6 bars, but against the tremendous efficiency of Lever and Gothrough machines improved by the Jacquard attachment and thereby made capable of moving any number of bars and consequently of weaving all classes of figured fabrics, however complicated the design might bo. This view, we think, is fully confirmed by the fact that paragraph 197 of the same tariff act provided that Lever and Gothrough machines should be admitted free of duty. The evident intention of that provision was to encourage the importation of high-grade machines and thus permit the American manufacturer to meet foreign competition in the production of fabrics which could not be manufactured to advantage on looms of an inferior or less efficient type. In fact, it affirmatively appears from the record that the Government has classified as Lever or Gothrough machines only those equipped with the Jacquard attachment and that cut-wheel machines have been denied free entry under the provisions of paragraph 197. In that behalf E. H. Weldon, examiner of machinery at the port of New York, who acts in an advisory capacity for the classification of machinery for his home port and other ports of the country, testified that since the passage of the tariff act of 1909 he had classified as Lever or Gothrough machines only those equipped with a Jacquard attachment, and that no machine without that attachment had, to his knowledge, been admitted free of duty at any port to which he made returns. Weldon's conclusion as to the machines which might be properly classified as Lever or Gothrough machines seems to have been approved by the board in the matter of the protest of the American Express Co., Abstract 31424 (T. D. 33217). The testimony of Weldon, of course, can not be regarded as establishing a long-continued departmental practice. Nevertheless, from the passage of paragraph 197 until the trial of the pending issue Weldon was the customs official charged in large measure with the duty of examining and finally'reporting on the classification of machines for the making of laces, nets, and nettings. Only those machines equipped with the Jacquard attachment were classified by him as Lever or Gothrough machines. Apparently his returns were uniformly approved by the collectors to whom they were made, and from that we conclude that his testimony as to the classification of such merchandise must be accepted as some evidence tending to support the decision of the board and the contention of the importers that a Lever or Gothrough machine means a machine equipped with a Jacquard attachment. If the Lever and Gothrough machines enumerated in paragraph 197 are those which are equipped with a Jacquard attachment, and we think they are, it follows that the laces and nets provided for in paragraph 350 must be made on Lever and Gothrough machines having that attachment, inasmuch as it seems clear to us that both paragraphs refer to the same machine.

The decision of the Board of General Appraisers is affirmed.