Borab Bros. v. United States , 12 Cust. Ct. 13 ( 1944 )

Laweence, Judge:

Plaintiff imported ladies’ handbags and belts frota China. The handbags were classified by the collector of customs as manufactures in chief value of rayon, as provided for in paragraph 1312, and the belts were classified as wearing apparel in chief value of rayon, pursuant to the provisions of paragraph 1311, of the Tariff Act of 1930. Duty was levied in each instance at the rate of 45 cents per pound and '65 per centum ad valorem.

It is asserted by the plaintiff that the collector erred in not deciding that both articles are “in part” of braid and otherwise answer the appropriate terms of paragraph 1529(a) of said act, and therefore are dutiable at 90 per centum ad valorem, relying upon Alfred Kohlberg, Inc. v. United States, 27 C. C. P. A. (Customs) 354, C. A. D. 111, and Akawo & Co., Inc. v. United States, 6 Cust. Ct. 370, C. D. 498, in support of that contention.

We find no evidence in the record disclosing the method of manufacturing the bags and belts. Neither is there any direct evidence as to the method employed in producing the material from which the bags and belts were fabricated. However, plaintiff introduced a sample of merchandise which the evidence indicates is similar to the material appearing in the bags and belts. This was received in evidence as plaintiff’s collective illustrative exhibif A, and will be hereinafter referred to as exhibit A.

In our opinion the articles in controversy are not in part of braid, either in fact or in law. Before stating our reasons for this conclusion, we shall briefly review the salient portions of the record.

Plaintiff’s first witness, Michael J. Borab, a partner in the importing company, conceded that'he had no knowledge of the method of producing the bags and belts in controversy, and the only practical value to be attributed to his testimony is the identification of samples of said bags and belts, which were received in evidence as exhibits 1 and 2, respectively.

Plaintiff’s second witness, Abraham Rabinowitz, testified that he had been in the business of manufacturing and selling braids for about 20 years. It was through him that exhibit A was introduced in evidence, and he testified that it was made on a braiding machine and was knovn as a tubular braid. He explained that exhibit A was a looser “braid” and .a little heavier than that appearing in exhibits 1 and 2, but that “it was made on the same machine,” with a “core” on the inside of the “braid.”

It is not clear from the record whether the core or filler is separately made, and the covering subsequently braided or woven around it; or whether the filler and the covering are produced simultaneously. When asked if the “material is woven around the inner core?” the witness replied “The core goes on the inside of the braid,” the implication being that the core was made first and then fed into the tubular braider to produce the covering. However, in view of the conclusion we have reached in this case, it would seem of little moment which order of production prevailed.

On cross-examination be testified tbat tubular braid is hollow, and tbat exhibit A is not hollow. Nevertheless, he insisted tbat exhibit A is tubular braid. He further testified tbat “we do not manufacture any cords”; tbat tbe only thing that is made on a braiding machine is a braid; and tbat cord is never made on a braiding machine. Tbis latter statement is flatly contradicted by defendant’s two witnesses, as will appear infra.

Defendant’s first witness, Sigmund Heller, testified that be has been in tbe business of manufacturing braids and trimmings since 1931; tbat tbe material from which exhibits 1 and 2 were made “is a sort of cord made on a braiding machine”; tbat he'has manufactured very similar material in his plant; and tbat it is rayon cord made on a braiding machine. With reference to tbe covering óf tbe cord tbe witness said “tbe outside is definitely rayon braid.” It is clear from bis entire testimony, however, tbat what he apparently meant was tbat if it were by itself it would be a braid. “You couldn’t call it tubular; tubular would bave to be hollow. But it is made on a tubular braiding machine; it goes around and covers a filler.” He testified that “in tbe trade we term a tubular braid something tbat is hollow, and it is round and hollow. * * *. If it has a filler we term it as a cord”; tbat defendant’s illustrative exhibit B—

* * * is known in the trade as a sash cord, used on windows, and Venetian blinds. It is also woven on a braiding machine, but it is a cord — a cord machine made by the New England Butt Machine Co.-who manufacture machines of this type that make this cord. It is only known as a cord. The trade calls it sash cord.

Furthermore, that it is braided in the same fashion as the material which' composes exhibits 1 and 2, and on tbe same type of machine. Tbis directly refutes tbe testimony of plaintiff’s witness Rabinowitz tbat tbe only thing made on a braiding machine is a braid.

Heller also testified tbat tbe samples in exhibit A are tubular cords, and continued as follows:

Judge Kincheloe : It is your answer that a tubular braid is one that is hollow?

The Witness: Yes.

Judge Kincheloe: And if it is filled up it is a cord?

The Witness: Yes, that is right.

The witness produced a sample of merchandise manufactured in bis factory as a “tubular cord” containing a filler wbicb be said was made on tbe same type of machine as was tbe material from wbicb exhibits 1 and 2 were produced. Tbe sample was marked in evidence as defendant’s collective illustrative exbibit D-l.- He produced another sample of merchandise manufactured by bis company described as a gimp cord edge, used by the United States Army to designate the color of the service, and known as a cord. He stated that “we have to make the cord and then make a flat braid which is sewed on to it, that goes on the soldier’s overseas cap to designate the branch of service which he is in.” This was received in evidence as defendant’s collective illustrative exhibit D-2. It is likewise made on a braiding machine.

A third sample of cord manufactured by the witness, and similar to the material in exhibits 1 and 2, made on a braiding machine, was received in evidence as defendant’s collective illustrative exhibit D-3.

The witness then testified that exhibits D-l, D-2, and D-3 contained fillers, and for that reason they are kno\yn as cords.

Defendant’s second and last witness, A. W. Uellendahl, testified that he had been a braid manufacturer for about 35 years, and was familiar with the various types of machines which manufacture braids and cords; that the material of which exhibits 1 and 2 were made was a cord “because it has a filler; it is padded”; that a tubular braid is a hollow braid. When asked if exhibits 1 and 2 were composed of hollow braid, he answered “No, it is a filled; it is a padded braid, or a cord.” He identified exhibit B as a sash cord or a Venetian blind cord made on a tubular braider in about the same manner that the material in exhibits 1 and 2 was manufactured; that exhibit A was “another padded tubular, a cord” and was “known as a cord in the trade * * * because all cords are round and have a padding, whereas a tubular braid is flat”; that exhibit A was made by the same type of machine as that which manufactured the material in exhibits 1 and 2; that exhibit C is a twisted cord made on a “slide cord machine,” and that there are two types of cord, one a twisted cord, and the other a braided cord. He identified collective illustrative exhibits E-l, E-2, and E-3 as different types of cord made on a braiding machine of the same type as that used to manufacture the material which composes exhibits 1 and 2. In response to questions by the court the witness testified as follows:

Judge Hínchelos: What is your distinction between braid and cord, like that made in Exhibits 1 and 2?

The Witness: Whenever the cord is padded, your Honor, when the tubular braid is padded it is known as a cord, and if there is no padding, or no warp threads in the tubular, then it is a tubular, it is a flat tubular, such as they use for shoelaces or corset laces, and any of those items.

Judge Kincheloe: In your judgment all braids are flat and the cord is solid?

The Witness: The moment it is padded it is a cord, known as a cord in the trade.

The witness was also shown a sample marked defendant’s illustrative exhibit F for identification, which he described as a “cord edge braid. * * *. It bas a cord on one edge and a braid, a flat braid on the other. The flat braid is used to fasten the cord to the garment, or cap, or whatever it may be used for.” When asked by the court if it was woven simultaneously, he replied: “It is"braided simultaneously.” He described the flat part of the article as a braid, and the round part as a cord, because the latter contained a filler, and stated that the article was made on a braiding machine.

This is a striking description of a cord in part of braid, wherein the portion that constitutes the braid is used as a binding for the cord when attached to an article of wearing apparel.

The testimony of both of defendant's witnesses definitely refutes the testimony of'plaintiff’s witness Rabinowitz that braids only are made on braiding machines.

The weight of the evidence establishes that the material of which exhibits 1 and 2 are composed is a cord, and that it is in no part of braid, either in fact or in law.

As stated earlier in this opinion, plaintiff contends that the outer covering of the cord is in fact tubular braid; that if the cord is in part of braid it necessarily follows that the bags and belts made therefrom are articles in part of braid within the meaning of the statute.

The evidence when carefully analyzed does not sustain this conclusion. While some of the witnesses referred to the braided portion of the cord represented by exhibit A as tubular braid, it is clear from an examination of the entire record that such portion could not possibly become tubular braid until after it has been removed or separated from the filler. There is no suggestion that such a segregation is ever resorted to as a practical or commercial measure. Indeed, it would be a reasonable assumption that it is never done, and we believe that the opinion may well be ventured that any such thought or design may not be attributed to the manufacturer of the cord. What he apparently set out to make, and did in fact produce, was a cord, and it was merely incidental to that purpose that braiding was the process employed, from which the article doijbtless acquired the name braided cord. What is of the essence is that braid, as such, never appeared at any time in the construction of the cord. The record fails to disclose that the cord was ever separated into its components — the filler and its covering. On the contrary, it appears that as a result of manufacturing processes the two parts became permanently merged and integrated in the cord, and ipso facto braid, as such, was never created. Hence, bags and belts made from such cord are not in fact in part of braid. Even should we regard, in its literal implications, the testimony of the witnesses who characterized the covering of exhibit A as tubular braid, it would not necessarily foreclose the court from concluding as a matter of law that it was not braid within the commonly accepted meaning of the term.

The factual situation here is quite different from that presented in Alfred Kohlberg, Inc. v. United States, and Akawo, Inc. v. United States, supra, relied upon by plaintiff. It appears from the opinion of the court in the Kohlberg case that it was stipulated, and agreed between the parties that certain net gloves with lace cuffs, the entire product being made in one continuous operation, were gloves in part of lace. The cuffs were constructed as lace and served the purpose of lace. Consequently, the gloves were held to be properly classifiable as articles in part of lace within the intendment of said paragraph 1529 (a). On the other hand, it may not be said with the same propriety that the covering of the cord represented by exhibit A is braid, because it never was, nor will it ever become, braid, in any correct sense of the word. Moreover, it can never serve the purpose of braid. It logically follows, therefore, that the bags and belts are not in part of braid in the tariff sense.

The Akawo case, supra, while differing factually from the Kohlberg case, was decided upon the same legal principle, and therefore need not be discussed.

Our conclusion that the bags and belts are not in part of braid is fully supported by the reasoning of our appellate court in United States v. Macy & Co., 7 Ct. Cust. Appls. 8, T. D. 36256.

It appears from the opinion of the court in the Macy case that the merchandise there under consideration was described on the invoice as “lead and cotton clo-clo braids”', that it was reported by the appraiser to consist of “dress trimming composed of a cotton braid wound around lead, the cotton braid chief value”; that it was returned for duty as a manufacture in chief value of braid; and that it was conceded in importer’s brief to be an article in part of braid. Nevertheless, for reasons that will appear infra the court held that the article was not in part of braid within the meaning of paragraph 358 of the Tariff Act of 1913. [Italics supplied, except the word “infra.”]

It further appears that the article had a linear corn or center composed of flax cord on which were molded at regular intervals uniformly shaped pieces of lead; that the whole article was completely covered with so-called tubular cotton braid; and that lead was the component of chief value in the article.

After pointing out that the collector’s assessment made in accordance with the advisory classification of the appraiser was sufficiently rebutted by the evidence showing that the article was not in chief value of braid, and that the correctness of the appraiser’s report was further assailed in that it was clearly shown that the article was neither a trimming nor used as such, the court stated:

There remains, then, for determination the ‘precise issue as to whether it can be said that the article is composed in part of braid. In order to declare that a thing is made in part of braid, it must appear that braid, as that word is commonly understood, has been brought into existence and is one of the materials used in making the article under examination. [Italics supplied.]

To quote further from the opinion of the court:

The importers’ concession would obviate a consideration of this question, but we are not disposed to accept the same, because it would place this court in the attitude of regarding as a braid something which we do not think has ever attained that status, condition, or entity. * * *. [Italics supplied.]

The court then discussed the common meaning of the term “braid,” referred to several lexicographic definitions thereof, together with various judicial authorities on the subject, and expressed its views as follows:

The fact that the merchandise before us is referred to as a “elo-clo braid” does not, in view of the record, bring that article within the common meaning of the word “braid” as is in effect conceded by the Government, and we are unable to conclude that the entity braid within the common meaning of the term has ever existed or is found in the merchandise under consideration here. The nearest approach thereto is its covering, and this is the basis of the Government’s claim as to component material. The appearance of the finished article shows that this covering was braided or woven upon the cord after the lead had been molded thereon. The covering, then, never had the entity of braid; it never had an independent, separate existence as an article or material; it never was designed to be used for trimming, for ornamentation, or for binding; it was never either a flat band or tape, nor was it a tubular tape or braid. Its first appearance was in the completed article before us, and it never had any other existence. [Italics supplied.]

It seems equally convincing to us that the entity braid, as that. term is commonly employed, is not to be found in, nor has it ever existed in, the merchandise before us. Hence, the following language of the appellate court above quoted is a very precise and accurate description of the merchandise in this case:

* * *. The covering, then, never had the entity of braid; it never had an independent, separate existence as an article or material; it never was designed to be used for trimming, for ornamentation, or for binding; it was never either a flat band or tape, nor was it a tubular tape or braid. Its first appearance was in the completed article before us, and it never had any other existence.

We are not unmindful of the rule which prevailed at the time of the Macy decision, which required that an article to be made in part of braid, for instance, should have had a pre-existence as such. However, in determining that fact, the appellate court found that at no point of time was the article before it in part of braid. In this connection we quote further from the Macy opinion as follows:

Now, we think it is clear that the quoted part of paragraph 358 requires that an article to be made in whole or in part of braids thereunder must be made in whole or in part of something which has already attained a status or condition entitling it to be regarded as a braid in and of itself. But neither the covering to the article before us nor any other part of it has ever attained that condition or status; neither has it attained the status or condition in which it could be used, nor is it designed to be used, for any of the purposes to which braids are commonly devoted, namely, for binding, for trimming, or for ornamentation. [Italics supplied.]

The reasons which impelled the court to find that the so-called clo-clo.braid was not in part of braid under the “pre-existence” rule were just as compelling to find that the article before it was not in part of braid under any other rule, in the absence of an established commercial meaning differing from the judicially approved common meaning of the term braid.

The accepted facts of the Macy case bear a striking analogy to the facts now before us, to the extent that in both instances the outer covering of the article was produced by a braiding process, and in both cases the covering practically served the same purpose.

In United States v. Marshall Field & Co., 17 C. C. P. A. (Customs) 1, 5, T. D. 43309, the court distinguished the Macy case, and in so doing quoted with evident approval the following significant language from its opinion in the latter case:

The covering, then, never had the entity of braid; it never had an independent, separate existence as an article or material; it never was designed to be used for trimming, for ornamentation, or for binding; it was never either a flat band or tape, nor was it a tubular tape or'braid. Its first appearance was in the completed article before us, and it never had any other existence.

In Swedish Venetian Blinds Co. v. United States, 24 C. C. P. A. (Customs) 20, 25, T. D. 48291, our appellate court again had occasion to quote with approval from the Macy case as follows:

Now, we think it is clear that the quoted part of paragraph 358 requires that an article to be made in whole or in part of braids thereunder must be made in whole or in part of something which has already attained a status or condition entitling it to be regarded as a braid in and of itself. But neither the covering to the article before us nor any other part of it has ever attained that condition or status; neither has it attained the status or condition in which it could be used, nor is it designed to be used, for any of the purposes to which braids are commonly devoted, namely, for binding, for trimming, or for ornamentation.

While the court in the Swedish Venetian Blinds Co. case was primarily concerned with applying the “pre-existence” rule to a provision in the Tariff Act of 1930, nevertheless, it reveals express approval of its reasoning some 20 years earlier in the Macy case. ■

The language we have quoted at length from the Macy case leads unerringly to the conclusion that, upon the reasoning therein, the bags and belts in controversy are not in part of braid within the common meaning of that term, which must prevail in the absence of a different, commercial meaning, and none is here claimed or proved.

For the reasons expressed herein the protest is overruled and the decision of the collector of customs is affirmed.

Judgment will be entered accordingly.