VON BERNUTH v. UNITED STATES

VON BERNUTH v. UNITED STATES. (Circuit Court, S. D. New York. December 12, 1904.) No. 3,346. 1. Customs Duties — Classification—Imitation Silk Yarn — Similitude. Imitation silk yarn, which is made from cotton waste subjected to a chemical process, whereby it loses its identity as cotton, and which resembles silk yarn in quality, texture, and use, is held, by virtue of the similitude clause in section 7, Tariff Act July 24, 1897, c. 11, 30 Stat, 205 [U. 8. Comp. St. 1901, p. 1693], to be dutiable at the rate applicable to silk yarn, under paragraph 385 of said act (chapter 11, § 1, Schedule L, 30 Stat. 185 [U. S. Comp. St. 1901, p. 1668]). On Application for Review of a Decision of the Board of General Appraisers. The decision in question (G. A. 5,257, T. D. 24,155) relates to an importation at the port of New York by Hardt von Bernuth & Co. The opinion filed by the Board of General Appraisers is as follows: FISCHER, General Appraiser. The protest is against the assessment of duty at the rate of 30 per cent, ad valorem, under paragraph 385, Schedule E, § 1, c. 11, Act July 24, 1897, 30 Stat. 185 [U. S. Comp. St. 1901, p. 1668], on certain so-called artificial silk yarns. This assessment was made In accordance with the board’s decisions (G. A. 4,939, T. D. 23,110, and G. A. 5,081, T. D. 23,528), where merchandise of the character here in question was held not to be dutiable as manufactures of pyroxylin, under paragraph 17, Schedule A, § 1, c. 11, Act July 24, 1897, 30 Stat. 152 [U. S. Comp. St. 1901, p. 1626], but dutiable at the rate here complained of, by virtue of the similitude clause; the board finding that the article was similar in quality, texture, and use to silk yarn. The importers now claim that the merchandise is more similar to cotton yarns, and is therefore dutiable as such under paragraph 302, Schedule I, § 1, c. 11, 30 Stat. 175 [U. S. Comp. St. 1901, p. 1655], by virtue of the similitude clause. The alternative claim is made that it is dutiable at the rate of 20 per cent, ad valorem under section 6, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693], as a nonenumerated manufactured article. At the hearing the importers introduced testimony to show that the yarns are made from cotton waste, that they require treatment in dyeing more nearly resembling the dyeing of cotton yarn than that of silk yarn, and that they are woven in the same manner as cotton yarns. It appears, however, from all the evidence in this case, and from the evidence in G. A. 4,939, which is made a part of this case, that all yarns of this character, whether made from silk waste or from cotton waste, are known as imitation silk, and that the fabric woven therefrom is known and sold as “nearsilk.” It further appears that the yarns are produced by a process which is described in the letters patent covering the same and offered in evidence, as follows: “The process, which consists in dissolving cellulose, without decomposing the same, and causing the solution to flow in a thread or fiber like stream into a bath containing a precipitant of cellulose, whereby the latter is precipitated from its solution in a thread or fiber like form.” From this it follows that the merchandise as imported no longer consists of cotton, even though it may have been originally cotton waste, and not silk waste. Note Meyer v. Arthur, 91 U. S. 570, 23 L. Ed. 455. The contention that the yarns produced by the patented process are dyed and woven in a manner similar to such processes with regard to cotton yarns we do not consider as of weight; for this similarity, if in fact it exist, does not relate to material, quality, character, or use, which are the only points of similarity referred to in section 7, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1694]. The yarns are similar, however, to silk yarn (as was found in G. A. 4,939) in three of those characteristics, namely, quality, texture, and use, and are not similar to cotton yarns as to any of the characteristics named in section 7. We therefore see no reason for modifying our ruling laid down in G. A. 4,939 and G. A. 5.081, and accordingly overrule the protest, and affirm the decision of the collector. Frederick W. Brooks, for the importers. Charles D. Baker, Asst. U. S. Atty. [MAJORITY — Platt, District Judge.] Platt, District Judge. Judgment affirmed on the decision of the Board of General Appraisers.