Mattoon & Co. v. United States

BISSENTING OPINION

Oliver, Chief Jüdge:

I respectfully dissent from the conclusion reached by my colleagues, holding that the merchandise in question “consists of rags within the' common meaning of that term, and,' moreover, that it consists of such wool rags as are within the purview of paragraph 1105, supra.”

Much of the majority opinion is directed toward emphasizing that the statutory term, “wool rags,” includes new rags as well as old. While I recognize that well-settled judicial interpretation of the tariff *234provision under consideration, I do not agree with, tlie majority-opinion in applying certain cases, to which I shall now make brief reference. The case of United States v. Pearson & Emmott, 131 Fed. Rep. 571 (1904), as an examination of the record therein discloses, was based on the principle of commercial designation. Although that case was presented under the Tariff Act of 1897, the decision therein has never been cited in any case covering customs litigation. The case is not acceptable as an authority herein. Other cases cited in the majority opinion are completely disassociated with customs matters and have no bearing on the question before us. People on Complaint of Meltzer v. Sobel, 104 N. Y. S. 2d 162 (1950); Tenement House Department of the City of New York v. Hutkoff (Mun. Ct., N. Y., 1914), 149 N. Y. S. 457; People v. American Wool Stock Corp., 286 N. Y. 77 (1941); and People on the Complaint of Meltzer v. Nierman, 71 N. Y. S. 2d 598 (1947). All of those cases involved statutes and invoked jurisdictions wholly unrelated to tariff problems. They offer no support toward a proper determination of the present issue.

The present merchandise is acquired during the course of manufacturing sweaters. The so-called “noodles” (defendant’s exhibit 1) result from operations in the sewing department where the different parts of a sweater are stitched together. The “cutters” or “cuttings” (defendant’s exhibit 2) are the waste from cutting tables where the sweaters are cut to pattern. Plaintiff’s witness, manager of the importing company, identified all of the merchandise as “offal,” a characterization that aptly describes the items under consideration. The “noodles” are extremely narrow strips, largely resembling pieces of string. The “cutters” or “cuttings” consist of small irregular pieces varying in dimensions as well as narrow strips like the “noodles” (exhibit 1). The entire collection is refuse that is allowed to fall off in the manufacture of sweaters. Neither in appearance nor in general character is the present merchandise suggestive of a “rag,” defined in Funk & Wagnalls New Standard Dictionary as “A fragment of cloth torn or partly torn from its original connection; especially, a worn, frayed, or torn bit of a garment; hence, figuratively, a fragment, small amount, or semblance of anything; as, linen rags.” [Italics quoted.] (See also Train-Smith Co. v. United States, 140 Fed. Rep. 113, and Shallus v. United States, 2 Ct. Cust. Appls. 456, T. D. 32205.) All of the merchandise in question is waste, concededly composed of wool, and ultimately reduced to shoddy.

The imported merchandise is not “wool waste,” P. Silverman & Son v. United States, 32 C. C. P. A. (Customs) 99, C. A. D. 292. In that case, the merchandise consisted of “old paper-mill felts,” discarded from the paper-making industry, and which had outlived their usefulness in the manufacture of paper and were without any commercial value except for the recovery of their component wool *235fibers that were processed into shoddy. In excluding the merchandise from the provision for all other wool wastes, not specially provided for, in paragraph 1105, as amended by T. D. 49753, the court held, in effect, that the said provision was confined to wastes produced in woolen-manufacturing operations prior to the weaving process. Under that statutory construction, the items in question are removed from classification within that provision. Since the present merchandise is waste, and not being otherwise provided for, it is classifiable under the residuary provision for “Waste, not specially provided for,” in paragraph 1555, as amended by T. D. 49753, and dutiable thereunder at the rate of 7% per centum ad valorem.

This conclusion is consistent with the holding in the case of Maurice Lobsitz v. United States, 17 Cust. Ct. 191, Abstract 51341, affirmed in United States v. Maurice Lobsitz, 35 C. C. P. A. (Customs) 146, C. A. D. 386. There, as here, the competing provisions were “wool rags,” the classification adopted by the collector, and “Waste, not specially provided for,” the claim alleged by the importer. The merchandise consisted of strips of white wool felt, remaining from large sheets or rolls used in the manufacture of gaskets, washers, and other felt articles. There was testimony to the effect that the merchandise was a felt clipping or felt cutting or felt scrap. After considering the common meaning of the word “rag,” in conjunction with the character of the merchandise there under consideration, the classification as “Waste, not specially provided for” was held to be controlling, the same as I find to be applicable to the present merchandise.

Plaintiff's claim should be sustained.