
    Mills & Gibb Corporation v. United States
    (No. 2688) 
    
    Woven Figured Cotton Cloth — Sateen Stripes.
    Whether or not cloth is figured is judged by its appearance to the eye, and a stripe is a figure. “ Woven-figured ” (par. 903, Tariff Act of 1922) refers to a figure which was produced in the weaving. Cotton cloth, made on a plain loom with a sateen attachment, which makes the warp of threads which have been twisted alternately, part to the right and part to the left, so that, notwithstanding that the threads are all white and the same size, that there is no raised effect, that only warp and weft threads are used, and that there are no threads added or omitted, the cloth presents a sateen-striped appearance on either side, varying with the light according to the angle from which it is viewed, is “woven figured” under paragraph 903.
    
      United States Court of Customs Appeals,
    May 29, 1926
    Appeal from Board of United States General Appraisers, G. A. 9039, T. D. 41127
    [Affirmed.]
    
      Curie, Lane & Wallace (Samuel Isenschmid of counsel) for appellant.
    
      Charles D. Lawrence, Assistant Attorney General (John A. Kemp, special attorney, of counsel), for the United States.
    [Oral argument March 18,1926, by Mr. Isenschmid and Mr. Lawrence]
    Before Gbaham, Presiding Judge, and Smith, Barber, Bland, and Hatfield, Associate Judges
    
      
       T. D. 41703.
    
   Bland, Judge,

delivered the opinion of the court:

The merchandise in question is bleached cotton cloth. Duty was assessed thereon under the third subdivision of paragraph 903 of the Tariff Act of 1922, as woven-figured cotton cloth. The importer protested the classification and claimed it to be dutiable under the second subdivision of paragraph 903 as bleached cotton cloth.

The Board of General Appraisers overruled the protest from which action the importer has appealed to this court.

The pertinent portions of paragraph 903 are as follows:

Par. 903. Cotton cloth, not bleached, printed, dyed, colored, or woven-figured, containing yarns the average number of which does not exceed number 40, forty one-hundredths of 1 cent per average number per pound. * * *
Cotton cloth, bleached, containing yarns the average number of which does not exceed number 40, forty-five one-hundredths of 1 cent per average number per pound. * * *
Cotton cloth, printed, dyed, colored, or woven-figured, containing yarns the average number of which does not exceed number 40, fifty-five one-hundredths of 1 cent per. average number per. pound. * * *

There is no dispute as to the average yarn number of the cloth. The sole question in the case is whether or not the cloth is- woven-figured.

The importation is made on a plain loom with a sateen attachment. The warp threads are wound on a beam. Part of these threads are twisted to the right and part of them are twisted to 'the left. There are no threads dropped or omitted, and the fabric contains no threads except the warp and weft threads. The cloth, when turned in certain directions, has the distinct appearance of being striped, and, in fact, upon close examination a striped appearance may be detected when viewed from any angle, and this is true whether it is viewed from the back or the front. At certain angles the striped appearance is quite apparent and gives to the cloth the effect of having bright sateen stripes, about one-eighth of an inch wide, running lengthwise of the fabric. When the cloth is turned in one direction a sateen-appearing stripe of about one-eighth of an inch shows in. somewhat darker color than the two stripes of equal width on each side of same. Upon viewing the cloth from another angle, the order is reversed and the stripes which had looked the darker from the other angle now appear lighter in color.

With reference to the manner in which the cloth is made, the record contains the following:

Q. What is a sateen attachment? — A. Well, I am not technical enough to explain that. We have a technical witness here. These yarns are wound on the beam' with a twist to the right, one bunch of threads with a twist to the right and another with a twist to the left.
Q. You are speaking now of the thread from which the cloth is woven? — A. Yes, sir.
Q. Some of it is yam twisted to the right, and some of it is yarn twisted to the left? — A. Some of the yarn is twisted to the right and some to the left.
Q. And that yarn is fed alternatively into the- A. No, that is wound on the beam.
Q. That is wound on the beam? — -A. What we call the warp, giving a reflection there which makes it appear striped. In holding it up to the light you can see nothing at all.
Q. Is that what produces that seeming shadow stripe there? — A. Yes, sir.
. Q. You say when you hold it up to the light — what was that you said about holding it up to the light? — A. There is no perceptible stripe in it.
Q. So, as I understand, the striped effect which appears on one side of the surface of Exhibit I. — A. Does not appear on the back.
Q. And does not appear on the back, is simply due to the fact that the yarn that was used in the weaving we will say for one-eighth of an inch was wound to the left and for the next eighth of an inch was wound to the right? — A. Yes, sir.
Q. And that alternating produces either a shiny or a dull effect as the light falls upon it? — A. Yes, sir.
Q. Are there any threads added in the weaving process except the regular weave as produced by the loom? — A. No, the loom is exactly the same as on a plain sateen.
Q. Are there any threads omitted? — A. No.
Q. You spoke of a plain sateen, have you a sample of the plain sateen? — A. Yes, sir; it is the same construction as that other sample.
Q. By that you mean it is woven on the same machine? — A. It could be woven on the same machine.
Q. And that sample which you now produce is woven of cotton all twisted the same direction, I take it? — A. Yes, sir.
* * * * * * *
Q. Will you look again at Exhibit I and tell us if you can how the surface eflect is produced which manifests itself in alternating shiny and dull stripes of about an eighth of an inch wide? — A. That is an optical reflection which is caused by a reverse of the twist in one stripe as compared with the other.
Q. Reverse of twist of what? — A. Of the yarn.
Q. Of the cotton yam used- A. In the warp.
Q. In the warp? — A. Yes, sir.
Q. Can you explain a little more fully and technically how that is done? — A. Yes, sir. The operations right through the mill are identical up to the spinning frame. When they go to the spinning frame the band is reversed-
Q. That is in preparing the cotton for the machine? — A. The operation up to spinning is identical in all respect. The band is taken from the wheel of the spindle. The spindles are run by bands running from a central drum to each spindle individually, known as a spinning band. The direction that the band is running governs the direction in which the spindle is turning. That band is slipped off and crossed over and then slipped back again on the wheel, thereby changing the direction of the spindle, and consequently after that turn is put in the band the spindle reverses the direction in which the cotton fibers are twisted around each other.
Q. That is all preparatory to the weaving? — A. All preparatory to the weaving, yes, sir. That is known as a reverse twist.
Q: So, as I understand you, then, as the cotton is fed into the machine for weaving, into the loom, part of it is twisted in one way and part is twisted the other way? — A. In this piece of cloth, yes.
Q. In Exhibit I?- — A. Yes, sir.
Q. So that Exhibit I and Illustrative Exhibit A are produced in exactly the same way on the same kind of a loom with all the same weaving operations?— A. Yes, sir.
Q. And that the only difference between the two cloths is that in Illustrative Exhibit A you use cotton which is all twisted in one way, whereas in Exhibit I you use cotton alternating twisted to the right and to the left? — A. Yes, sir.
Q. And it is the twist of the cotton that produces that sheen effect on the one side of Exhibit I? — A. Yes, sir.
jji A A * A
Q. What is the purpose of the reverse twist? — -A. To give an effect different from a regular twist.

It is undisputed that the striped effect is not occasioned by either a difference in size or color of the threads, but that it is solely due to the fact that in one stripe the thread is twisted to the right and in the other stripe the thread is twisted to the left.

In Wilson & Son, Inc., v. United States, 14 Ct. Cust. Appls. 234, T. D. 41717, this court had under consideration several different kinds of cloth involving a determination of the issue as to what constituted woven-figured cloth, and there we held that whether a cloth is figured or not is judged by its appearance to the eye. Citing Naday cfe Fleischer, G. A. 8405, T. D. 38606, 30 Treas. Dec. 43, and United States v. Douglas & Berry, 6 Ct. Cust. Appls. 100. It was there held that a stripe is a figure, following the dictionary definitions of á figure and quoting from certain decisions therein cited.

We think, to the eye, the exhibit before us has the appearance of being striped, and, therefore, has the appearance of being figured, and is, therefore, figured cloth.

The cloth is figured, and we think that it is clear that it is woven-figured. By woven-figured Congress certainly meant a figure that was woven; that is, a figure that was produced in the weaving. That this figure was produced in the process of weaving surely can not be questioned. It is argued that the variation in the twist of the threads was produced before weaving and, therefore, the figures were not woven. The figures were not produced when the threads were made nor after the cloth was finished, but were the direct result of the manipulation of the threads in the weave. It is contended that the stripes are only imaginary ór illusionary to the eye. In appear-anee they are real and are not imaginary. If it were conceded that the stripes are not constant but only appear when the cloth is viewed from a certain angle, it does not render the cloth less figured. If it is striped when viewed from any angle and is not physically changed, it is striped, notwithstanding the fact that the stripe may not be as plainly observable from another angle.

It is argued that woven-figured fabrics must be made by the weave and not by a trick of the light. In the case at bar, the woven figures in the fabric are made by the weave. A trick of the light may prevent one from seeing the figures distinctly when viewed from one angle, but the cloth nevertheless remains figured.

At the hearing illustrative Exhibit A and Exhibit I were submitted. Illustrative Exhibit A is the cloth with the threads all twisted the same way, having no striped effect. This was admitted to be plain cloth. Exhibit I is the cloth in controversy. It is obvious that the weaving of the figured cloth is a more complex operation than the weaving of the plain cloth, and it evidently requires a departure from the methods used in weaving the plain cloth. It is more elaborate than the plain cloth. Is it fair to assume that Congress contemplated that both should take the same rate of duty? We think not.

The judgment of the Board of General Appraisers (now the United States Customs Court) is affirmed.

DISSENTING OPINION

Smith, Judge:

Merchandise imported at the port of New York and classified by the collector of customs as woven-figured cotton cloth was assessed for duty according to the average number of yarns found in the importation and as prescribed by paragraph 903 of the Tariff Act of 1922. The part of paragraph 903 under which the collector held the goods to be dutiable reads as follows:

Par. 903. * * * Cotton cloth * * * woven-figured, containing yarns the average number of which does not exceed number 40, fifty-five one-hundredths of 1 cent per average number per pound; exceeding number 40, 22 cents per pound and, in addition thereto, sixty-five one-hundredths of 1 cent per average number per pound for every number in excess of number 40; * * *

The importers protested that the importation was not woven-figured and that it was cotton cloth bleached, subject to duty as provided in that part of paragraph 903 which reads as follows:

Par. 903. Cotton cloth, bleached, containing yarns the average number of which does not exceed number 40, forty-five one hundredths of 1 cent per average number per pound; exceeding number 40, 18 cents per pound and, in addition thereto, three-fifths of 1 cent per average number per pound, for every number in excess of number 40.

The Board of General Appraisers overruled the protest and the importers appealed.

There are three kinds of primary weaves, known as the plain, the twill, and the satin. All other weaves are either variations or combinations of the primary weaves.

A plain weave is the interlacing of warp and weft threads by passing the weft thread under one warp thread and over the next until all* of the threads of the warp and the weft have been interlaced. With the plain weave fancy and figured effects may be produced by using different sized or different colored warp and weft threads. Knight’s American Mechanical Dictionary, Vol. II, 1350; Technology of Textile Design (Posselt), page 14; see “Weaving”- — -New International Encyclopedia, pages 385, 386.

The simple twill weave is produced by three harnesses which alternately lift or lower two or more warp threads, thereby permitting the passing of the filling thread under or over two or more warp threads with one shot of the shuttle, each shot being like its predecessor, with the exception that it is stepped one thread to the right or to the left of the preceding thread. That means that if the first shot ties the first warp thread the second shot ties the second warp thread and the third shot ties the third warp thread. A stepping to the right produces a right twill and a stepping to the left results in a left twill. The three harness twills are technically known as one up and two down or “filling-face” weaves, and two up and one down or “warp-face” weaves. The four harness twills are called, the three up and one down, a warp face weave, and one up and three down, a filling face weave, and two up and two down, an even-sided weave.

The distinguishing mark of the twill weave is a series of little ridges or wales which are made to run obliquely or diagonally across the cloth by stepping each throw of the shuttle to the right or left of the preceding thread. See “Weaving” — New International Encyclopedia, Volume XX, pages 385, 386; see “ Twills ” — Technology of Textile Design (Posselt), page 6. By changing the number of threads passed over or under or stepped the wales or little ridges may be given a curve, thereby producing curved and possibly figured twills instead of plain diagonals. By combining right twills and left twills in the same piece of cloth a fancy weave and possibly figured effect known as the “herring bone” may be made. Fancy and figured ladies’ dress goods in endless variety may be twill woven by using different colored warp and weft threads. Technology of Textile Design (Posselt), page 22.

The satin weave requires five harnesses and is distinguished from the plain weave and twill weave by distributing the interlacing of warp and weft threads in such a way that no two intersections are adjacent. The ordinary satin weave is warp faced and the warp threads stitch, down to but one filling thread in a repeat, thereby producing a smooth face fabric. See New International Encyclopedia, Volume XX, page 386. Satin weaves differ from twill weaves only in the particular that the warp threads are separately but not successively lifted or depressed. See “Weaving” and “Satins,” Encyclopedia Britannica. A sateen weave is a modification of the satin weave and differs from the latter to the extent only that it produces a filling faced fabric, that is to say, a fabric which has more weft than warp on its face. See New International Encyclopedia, Volume XX, page 386. The use of a warp faced satin for the ground and the filling faced satins for the figures produces damask. See Volume XX, New International Encyclopedia, page 386; see Weaving, Satins, Sateens, Encyclopedia Britannica. Warp and weft threads may be floated irregularly to the surface in such a way as to produce the figured cloth known as brocades. See Weaving, Satins, Sateens— Encyclopedia Britannica. Using threads- of substantially the same color and size, the plain weave, the plain twill weave, the plain satin weave, and the plain sateen weave, do not produce woven figures and make a plain fabric which presents practically no contrasts. By modifying the twill or satin weave, or by combining weaves, figures may be developed.

Woven fabrics may also be figured by weaving in threads in addition to the ordinary warp and weft threads or by omitting, in whole or in part warp and weft .threads, or by using various mechanical devices such as the Jacquard, lappet, swivel and similar attachments or adjuncts to the loom.

The undisputed testimony in this case establishes and the board found that the cloth is woven on a plain loom with a cam or sateen attachment, which is used for the weaving of sateens. The cam motion or sateen attachment omits none of the warp or weft threads and introduces no threads in addition to the warp and weft threads. The warp and weft threads are not manipulated in any way during the weaving process except to produce the straight, plain, ordinary sateen weave. The loom with the cam or sateen attachment is just a cam loom — that is to say, a loom the harness of which is worked by a cam (see “Cam loom” — New Standard Dictionary), The yarns are substantially of the same color and size. Before weaving, some of the warp yarns are twisted to the right and some to the left, with the result that upon the cloth woven out of such yarns a glossy stripe appears when the cloth is held to the light at a particular angle. The stripe becomes dull when presented to the light at a different angle and disappears completely when submitted to the direct fall of the light. Indeed, the cloth when held opposite to the light appears to be homogeneous, presents no contrasts, and looks like ordinary sateen, having all the warp threads twisted in the same direction. The style of weave is consistent throughout the cloth, and it is clear that the right-hand twist of some warp threads and the left-hand twist of others before weaving produce the illusion of a stripe, but not a. real stripe.

I am of the opinion that woven designs, patterns, or figures are woven into a fabric either by using different sized or different colored warp or weft threads, or by omitting .warp or weft threads, or by introducing threads other than the ordinary warp and weft threads, or by modifying the style of weave, or by combining weaves, or by using a loom adjunct or attachment designed to figure textiles. Figures, designs, and patterns so evolved are real woven figures, designs, and patterns, not illusions resulting from a particular play of light on a fabric woven by the ordinary plain, the ordinary twill, or the ordinary satin weave. In other words, woven-figured fabrics must be made by the weave and not by a trick of the light. See United States v. Douglas, 6 Ct. Cust. Appls. 100, 101. In this view I am confirmed by the fact that prior to the act of 1913 none of the tariff acts provided for either woven figured cloth or for woven-figured cloth. Paragraph 257 of the act of 1894, paragraph 310 of the act of 1897, paragraph 320 of the act of 1909 and paragraph 252 of the act of 1913, defined cotton cloth to be all woven fabrics or cotton in the piece or otherwise, whether figured, fancy, or plain. Paragraph 252 of the act of 1913 for the first time in tariff history, so far as I can find, laid a duty on woven figured cotton cloth, and subjected such woven figured cloth to the same duty as that imposed on cotton cloth which was bleached, colored, painted, or printed.

Remembering that figures may be imposed upon cotton cloth by painting, printing or coloring, it is apparent to me at least that Congress made, and intended to make, a distinction between cloths which were figured by weaving and those which were figured by coloring, painting or printing. The cases of Naday v. Fleischer, T. D. 38606, and Wilson & Son v. United States, 14 Ct. Cust. Appls., 234, T. D. 41717, cited in the prevailing opinion, are not in point. In the Naday case a checkered and striped effect was produced on the cotton cloth by the omission of a warp and weft thread at regular intervals in the process of weaving. In the Wilson case raised dots on the surface of the cloth were produced by the introduction of extra threads. The omission of threads and the introduction of extra threads are recognized by this dissent and the art as methods of producing a woven figured cloth. United States v. Douglas & Berry, 6 Cust. Appls. 100, upon which my distinguished associate, Judge Bland, relies, doespiot, in my opinion, support his contention. As I read that case it does not hold that whether a cotton cloth is figured or not, must be determined by the appearance of the fabric. It does hold that “whether an article falls within the term ‘plain ivoven fabrics ’ is to be 'determined by the appearance presented by the fabric as produced by the weave,” and I think very clearly supports the dissent. A cloth which presented an appearance of a figure to the eye, might possibly be regarded as figured, but it certainly could not be regarded as woven-figured unless that effect was produced by the weave.

The shadow stripes of the importation which appear or disappear as the light falls have no actual outline or substance and are not produced by any of the methods, recognized by the art, for the weaving of figures, designs, or patterns into fabrics. The testimony and an examination of the cloth here in controversy discloses beyond debate that it is the product of the ordinary unmodified sateen weave and that .its weave is identical with that of the ordinary plain sateen cloth. Whether the importation is plain, fancy, or figured, I am not ready to say, but I am satisfied that it is not woven-figured cloth. See United States v. White, 3 Ct. Cust. Appls. 382, 383.

The judgment in my opinion should be reversed.

DISSENTING OPINION

Baeber, Judge:

I am unable to concur in the majority opinion.

The Board of General Appraisers found that when “the cloth is held up to the light and looked through it presents a perfectly plain and uniform weave, and no stripes are then distinguishable.” My inspection of the cloth confirms that conclusion.

In addition to this, the evidence quoted in the main opinion demonstrates that all there is to the supposed stripe is “a sheen effect” that appears, grows dim, or disappears according to the position and light in which it is viewed, so that the court in holding, as it apparently does, that the stripe is constant, goes further than the board or the witnesses, one of whom was a technical expert on the subject of weaving.

Webster defines a stripe as—

■ 1. A line, a long narrow division of anything of a different color or structure from the ground; hence any linear variation of color or structure.
2. Weaving: A pattern or cloth with such stripes differently colored, or raised or depressed, from the ground.

Assuming, without conceding, that every stripe produced by the weaving process may constitute woven-figured cloth, I am unable to conclude that the cloth here is woven-figured because I do not find any stripe therein as above defined.

In giving the definition of figure, which of course has a great variety of meanings, Webster uses the following:

A pattern in cloth, or other manufactured article.

The Standard Dictionary defines figured, ■

As adorned or marked with figures or designs; having figures upon the surface or wrought into the texture.

Every meaning which I can attribute to the word woven-figured implies that the figure produced by weaving must be constant, persisting in all lights and positions, and not an optical illusion produced by the reflecting or refracting powers of the fabric threads which constitute the supposed figured appearance.

In my opinion the judgment below should be reversed.  