United States (1 Ct. Cust. Appls., 374; T. D. 31456), and United States v. Burlington Venetian Blind Có. (3 Ct. Cust. Appls., 378; T. D. 32967).

In the earlier of these cases the issue as to the classification of the merchandise was between the provisions of paragraph 349 and paragraph 332 of the tariff act of 1909. The importer claimed that the articles were dutiable as manufactures of cotton under paragraph 332; that under the doctrine of noscitur a sociis it should be held that paragraph 349 related entirely to articles of personal or household use, ornamental in character; and that the ladder tapes, not being ejusdem generis with the merchandise named in the paragraph, should therefore be excluded from classification thereunder. It was not claimed that the articles were not in fact tapes, nor was there any claim of commercial designation. The merchandise had been assessed under paragraph 349, and the action of the board sustaining the collector's assessment was affirmed.

In the later case the same paragraphs were involved as in the former and the claim relied upon by the importer was that the merchandise was not in fact tapes within the meaning of that word as used in the paragraph. Although it was claimed by the Government that its evidence of commercial designation brought the articles within the meaning of the word "tapes" as used in the paragraph, this contention was not upheld and the judgment of the Board of General Appraisers ordering its assessment under paragraph 332, as a manufacture of cotton not specially provided for, was affirmed.

In the case at bar the evidence in the other cases has been imported into the record and it also contains the evidence of one additional witness whose testimony seems to be wholly directed to an effort to show that these articles are commercially known as "ladder tapes." The Government here contends in substance that if it shall be found that the trade knows and refers to this merchandise under the name of "ladder tapes" it is thereby brought within the meaning of the word "tapes" as used in paragraph 349.

We assume for the purposes of this decision that the trade and commerce dealing with this commodity designate it as "ladder tapes." It is established that the use of these ladder tapes is confined to the manufacture and repairing of Venetian blinds, to which they are attached, and by means of which the blind slats are turned, or raised and lowered.

It may here be stated that a ladder tape consists of two strips of woven fabric of indefinite length, about 1 inches wide, connected at regular distances by lighter woven fabrics about 2 inches long and inch wide, produced by the loom from cotton threads of suitable sizes. After coming from the loom certain small connecting threads are cut by hand, resulting in the product assuming the ladderlike shape which its name indicates.

For further information as to the production of the merchandise and discussion of the questions raised therein reference is made to the decisions above mentioned.

The collector assessed the merchandise in this case as tapes under said paragraph 349, while the importer here claims that it is dutiable as a manufacture of cotton not otherwise provided for under paragraph 332. The board sustained the protest.

The learned counsel for the Government strenuously contends that having established that the merchandise is known commercially as "ladder tapes" it is thereby embraced within the commercial meaning of the word "tapes" as used in paragraph 349.

Nothing has occurred to change our opinion, as expressed in the later of the cited cases, that these articles are not in fact tapes within the common meaning of the word.

While if the respective parts had been produced separately and had become a separate entity before being combined, as in the ladder tapes, they might perhaps with propriety be said to be manufactures of tapes, the truth is that there has never in fact existed the entity, tapes, in these articles. As first produced from the cotton threads they appear substantially as we find them here. To bring these articles within the commercial designation of tapes we think it must be shown that they are commercially known as such; but it is not so shown. On the contrary, the evidence plainly shows that instead of being commercially known as "tapes" they are known commercially as "ladder tapes," which is not the same thing. To illustrate: The tomato in earlier days, if not now, was frequently referred to in common speech as a "love apple." Suppose a paragraph of the tariff law had imposed a duty upon "apples" without further descriptive language. Would it be urged or ought it to be held that if the tomato was shown to be designated in commerce as a "love apple" that tomatoes by reason thereof were placed within the commercial meaning of the word "apples" as it might be used in the supposed paragraph without any evidence whatever as to the commercial meaning of the word "apples" itself?

We are unable to glean from the authorities cited by the Government or to find upon principle that such a supposed classification could or ought to be upheld.

One of the elementary principles in the construction of tariff statutes is that words describing merchandise are used in their commercial sense, but the common and commercial meanings are presumed to be the same unless it is otherwise shown, and upon him who claims a different commercial sense devolves the burden of making good his contention. To do that it is incumbent to show that the given word or term has a definite, uniform, and general meaning among those who are wholesale dealers therein which is

different from its ordinary meaning. United States v. Kwong Yuen Shing (1 Ct. Cust. Appls., 14; T. D. 30773); Acker v. United States (1 Ct. Cust. Appls., 328; T. D. 31431).

As pointed out in the decision of the board in this case, no effort has been made to conform to this rule, the Government contenting itself by showing that the merchandise is commercially known as "ladder tapes" without showing that the word "tapes" itself is used in commerce as referring to the merchandise in question, or that the commercial meaning of the word "tapes" is other than its ordinary meaning.

The judgment of the Board of General Appraisers is affirmed.

(T. D. 33372.)
Fruit.

MIHALOVITCH, FLETCHER & Co. v. UNITED STATES (No. 1060).

CHERRIES IN BRINE.

A saline solution used in packing fruit is used as a preservative simply and fruit of the kind is "in brine" in the language of paragraph 559, tariff act of 1909. Without undertaking to fix what percentage of salt in a solution will make that solution brine, the evidence here does not warrant the conclusion that the fruit of this importation was "in brine."

United States Court of Customs Appeals, April 22, 1913.

APPEAL from Board of United States General Appraisers, Abstract 30941 (T. D. 33018). [Affirmed.]

Brooks & Brooks (F. W. Brooks, jr., of counsel) for appellants.

William L. Wemple, Assistant Attorney General (William A. Robertson, special attorney, of counsel), for the United States.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. BARBER, Judge, delivered the opinion of the court:

The merchandise the subject of this appeal consists of cherries, a part of which were imported July 29 and a part September 11, 1907. They were assessed by the collector at 2 cents per pound under paragraph 262 of the tariff act of 1897 as edible fruit, and are claimed by the importers to be entitled to free entry as fruit in brine under paragraph 559 of the same act, which reads as follows:

559. Fruits or berries, green, ripe, or dried, and fruits in brine, not specially provided for in this act.

The Board of General Appraisers overruled the protests.

The only question litigated before the board and raised by the record here is whether or not these cherries, which were in casks or barrels, were or were not "in brine" as that expression is used in paragraph 559.

The Board of General Appraisers found that the cherries had been washed and put into barrels with salt and water after having been subjected to sulphur fumes. Quoting from an earlier opinion the board said, referring to paragraph 559:

The purpose of this provision of the statute, it seems to us, could only have been to enable importers to bring in certain fruits preserved by means of a saline solution, and any quantity of salt in water that would attain that end would very properly be termed "brine" within the intent of the law.

The board further said:

The testimony in the case before us here does not satisfy us that there was sufficient salt in the solution in which the cherries were immersed to act as a preservative.

We think the interpretation the board gave to the words "in brine" is correct, and proceed to consider whether the record discloses such a state of facts here that, applying the rule which we have in numerous cases adopted, that the judgment of the Board of General Appraisers upon a question of fact will not be set aside unless it appears to be either wholly unsupported by or clearly contrary to the weight of evidence as shown by the record, such judgment shall be reversed in this case.

We find it unnecessary to enter into any exhaustive review of the evidence.

There was testimony on the part of the importers which tended to show that at least 4 per cent of salt was put into the water in which these cherries were immersed at the time they were prepared for shipment, and we gather from the whole record that if that amount of salt had been so used it is probable the resulting solution would have been a brine of sufficient preservative qualities to have warranted the board in sustaining the importers' protests. The record also tends to show that sufficient preservative qualities may be possessed by a saline solution containing a little less than 4 per cent of salt.

But the Government upon its part introduced evidence which tended to show that the saline solution in which the cherries were found to be immersed when they reached this country was very much less than 4 per cent and varied from less than one-half of 1 per cent to a little over 2 per cent of salt, as shown by the analyses of the Government chemist, who tested samples of the liquid from various casks.

One of the importers, who was a practical chemist, also testified that he analyzed various samples of the solution taken from the casks and, if we understand correctly his evidence, his analyses showed that in every case the amount of salt was less than that which was supposed to have been put into the casks when the cherries were prepared for shipment. The importers contend that this discrepancy might result from the fact that in some of the casks the saline solu

tion leaked out during transportation, but it is not suggested nor is it apparent to us how the leaking process would diminish the percentage of salt in that part of the solution remaining in the casks. It is also urged by importers that if some of these cherries were not in fact preserved by the brine it involves the taxation of unsound and free entry of sound goods. If this be so, it does not warrant an unjustifiable classification, and the law provides a remedy for fruits damaged in importation transit.

Without undertaking to say what percentage of salt must be found in the solution to constitute it a brine within the meaning of the paragraph, it is sufficient for the purposes of this case to say that, the whole evidence considered, we do not think the judgment of the Board of General Appraisers should be reversed as either contrary to or unsupported by the weight of evidence, and it is therefore affirmed.

(T. D. 33373.)

Fountain pens.

SCHRADER & EHLERS v. UNITED STATES (No. 1068).

MANUFACTURES OF RUBBER AND FOUNTAIN PENS.

The legislative history of paragraph 187, tariff act of 1909, shows that the several parts of fountain pens are to be distinguished on assessment from fountain pens themselves; that a fountain pen is an ink-holding writing instrument with a pen and complete for use. The goods here were not fountain pens and were properly assessed under paragraph 464, tariff act of 1909.

United States Court of Customs Appeals, April 22, 1913.

APPEAL from Board of United States General Appraisers, Abstract 30437 (T. D. 32926). [Affirmed.]

Curie, Smith & Maxwell (Thomas M. Lane of counsel) for appellants.

William L. Wemple, Assistant Attorney General (William A. Robertson, special attorney, of counsel; Charles D. Lawrence, special attorney, on the brief), for the United States.

Before MONTGOMERY, SMITH, Barber, De VRIES, and MARTIN, Judges. SMITH, Judge, delivered the opinion of the court:

Certain assembled parts of the fountain pen, known as the feed barrel, feed bar, neck, and cap, were assessed by the collector of customs at the port of New York at 35 per cent ad valorem as manufactures of hard rubber under the provisions of paragraph 464 of the tariff act of 1909, which paragraph reads as follows:

464. Manufactures of gutta-percha, ivory, vegetable ivory, mother-of-pearl and shell, plaster of Paris, papier-mâché, and vulcanized india rubber known as "hard rubber," or of which these substances or any of them is the component material of chief value, not specially provided for in this section, and shells engraved, cut, ornamented, or otherwise manufactured, thirty-five per centum ad valorem.