General Twine Corp. v. United States

DISSENTING OPINION

Ford, Judge:

The question presented to the court in this matter is whether certain merchandise which is conceded to be an article known as jute packing is within the common meaning of the eo nomine provision in paragraph 1729 of the Tariff Act of 1930 for oakum.

Based upon the record in this case, I am unable to agree with my associates that the imported product falls within this term. There has been no attempt upon either party to establish a commercial designation of the term “oakum.” Accordingly, the common meaning of the term “oakum” is controlling. It is well-settled law that the court may resort to dictionary definitions of the term as an aid.

*136Webster’s New International Dictionary of the English Language (unabridged 1929) gives the following definition:

oakum (ó'küm), n. [AS. á&wniba; á-(of. A-2) -\-oenvban to comb, cámb comb. See Comb.] * * *
2. Tbe material obtained by untwisting and picking into loose fiber old bemp ropes. It is used for calking tbe seams of ships, stopping leaks, etc.

From the foregoing, it is apparent that the very derivation of the word “oakum” from the Anglo Saxon word aoumba is contrary to the state of the product known as jute packing. The word aoumba means to comb out; hence, it is a process of straightening, whereas the jute packing involved herein is twisted,

While dictionary definitions may be resorted to for the assistance of the court, the basic duty of the court is to determine the legislative intent in enacting the provision involved. It would appear that a provision has been made for oakum since at least the Tariff Act of 1883.

The Summary of Tariff Information, 1929, at page 2466, describes oakum as follows:

Oakum, a tarred preparation of soft fibers, is classified according to its chief uses into marine oakum and plumbers’ oakum. Marine oakum, used for calking and packing joints or timbers of wooden vessels, and deck planking in ships, is usually made of old tarred ropes, although since 1914 domestic hemp tow has been used in its manufacture. Plumbers’ oakum, used for calking all kinds of pipes, is made from jute, jute butts, and jute wastes, principally old waste bagging.

The meaning at the time of the enactment of the tariff act is, of course, controlling herein. United States v. Belgam Corp. et al., 22 C.C.P.A. (Customs) 402, T.D. 47402. It is clear from the above description of oakum that there is a complete absence of the term “twist” as applied to the product. The mere fact that the Summary of Tariff Information, 1948, indicates the utilization of twist, is not controlling herein, unless it is established that the involved merchandise was not in existence on and prior to June 17, 1930, the date of the enactment of the tariff act, or there has been a change in meaning of the term “oakum.” The latter in my opinion would require proof of commercial designation.

It is not contended that the type of merchandise covered by these protests was not in existence prior to the enactment of the 1930 act. This fact is clearly established in the case of C. J. Hendry & Co. v. United States, 60 Treas. Dec. 1311, Abstract 17530, which included, among other items, one known as rope oakum.

It is contended by plaintiff herein that the jute packing is also ordered by at least 5 percent of the trade as rope oakum. I would have considerable reservation in holding that the designation by 5 percent of the trade would establish the common meaning of the term.

*137In addition, it would appear that the jute packing involved herein is at best more than oakum. I do not dispute that for all intents and purposes the uses of the two items are the same. However, it is established that the production of jute packing requires additional refinements, such as the twist and the combination of from 7 to 12 rovings. In addition, the packaging of the finished product is different.

I am of the opinion that oakum, as used in the Tariff Act of 1980, supra, is a state of a product, namely, loose fibers; consequently, the use is not a determinative factor. In order for plaintiff to prevail, it must establish a commercial designation of the term “oakum” which would indicate that jute packing is definitely, uniformly, and generally known, bought, and sold throughout the United States as oakum. See Nylos Trading Compamy v. United States, 37 C.C.P.A. (Customs) 71, C.A.D. 422.

Not only has plaintiff failed to establish this; the record, on the contrary, establishes that delivery of jute packing is not good delivery for oakum.

I would, therefore, overrule the protest.