
    Goldschmidt-Thermit Co. v. United States
    (No. 835).
    
    Manganese Metal not Ferromanganese.
    Without meaning to imply that no alloy is entitled to he called ferromanganese in case its manganese content exceeds in any measure 80 per cent of the entire article, yet where the manganese is so considerable and the iron and carbon so slight, as in the present importation, the commodity is not to be deemed ferromanganese as that term appears in the law. The importation was properly assessed as metal un-wrought, not specially provided for, under paragraph 183, tariff act of 1909.
    United States Court of Customs Appeals,
    April 17, 1912.
    Appeal from Board of United States General Appraisers, Abstract 27213 (T. D. 32046).
    [Affirmed.]
    
      Brown & Gerry for appellant.
    
      William L. Wemple, Assistant Attorney General (Martin T. Baldwin, special attorney, of counsel), for the United States.
    Before Montgomery, Smith, Barber, De Vries, and Martin, Judges.
    
      
       Reported in T. D. 32467 (22 Treas. Dec., 748).
    
   Martin, Judge,

delivered the opinion of the court:

The merchandise involved in this case was imported under the tariff act of 1909; it consists of an alloy of iron and manganese. The importers invoiced the article as ferromanganese, and claimed assessment under that name at $2.50 per ton, according to the provisions of paragraph 118. The appraiser reported that the importation was commercially pure manganese metal, and upo th return the collector classified the same as metal unwrought, not specially provided for, dutiable at 20 per cent ad valorem under paragraph 183.

The importers duly filed their protest, which was heard upon evidence by the Board of General Appraisers and was overruled.

The single question at issue in the case is whether the importation is ferromanganese, dutiable at $2.50 per ton under paragraph 118, or unwrought metal, not specially provided for, dutiable at 20 per cent ad valorem under paragraph 183.

The following is a copy of the two paragraphs just named:

118. Iron in pigs, iron kentledge, spiegeleisen, and ferro-manganese, two dollars 'and fifty cents per ton; wrought and cast scrap iron, and scrap steel, one dollar per ton; but nothing shall be deemed scrap iron or scrap steel except waste or refuse iron or steel fit only to he remanufactured by melting, and excluding pig iron in all forms.
183. Metallic mineral substances in a crude state, and metals unwrought, whether capable of being wrought or not, not specially provided for in this section, twenty per centum ad valorem; monazite sand and thorite, four cents per pound; thorium, oxide of and salts of, gas mantles treated with chemicals or metallic oxides, and gas mantle scrap consisting in chief value of metallic oxides, forty per centum ad valorem.

At the hearing before the board the importers introduced evidence of a chemical analysis of the article, made at their instance, which gave the following table of contents, viz: Manganese, 93.92; silicon, 1.56; iron, 2.33; aluminum, 1.58; carbon, 0.10; unstated residue, 0.51. On the other hand, the Government produced testimony of a chemical analysis made by the official chemist, which gave the following result, viz: Manganese, 96.80; iron, 1.40; silicon, 1.40; undetermined, carbon, etc., 0.40.

The Government also submitted evidence tending to prove that the term “ferromanganese” has a commercial signification which excludes any alloy having so high a percentage of manganese as that at bar. The importers, on the other hand, submitted no testimony in regard to commercial designation.

The following quotations from standard authorities tend to establish the meaning of the term ferromanganese:

Campbell’s The Manufacture and Properties of Iron and Steel (p. 8):

When the silicon and carbon are all burned, a certain amount of manganese is added in"order that the steel shall be tough while hot, and be able to stand the distortions it is subjected to in the rolling mills. If soft steel is wanted, this manganese is obtained by using a rich alloy called ferromanganese, containing 80 per cent of manganese, while if rail steel is being made, the usual method is to make a liquid addition of spiegel iron — a pig iron containing about 12 per cent of manganese.
* * * * * * * *

(P. 82:)

Manganese: Iron ores generally contain more or less manganese, but usually in small proportion. Moreover, it is not all reduced in the furnace, some of it passing away in the slag. The ordinary pig iron of commerce carries less than 1 per cent, but 2 per cent is not uncommon. In the manufacture of steel a large amount of spiegel iron is used, by which is meant an iron containing from 10 to 26 per cent of manganese. Ferromanganese is also used containing up to 80 per cent. Manganese causes the carbon to remain in combination so that spiegel iron is bard and brittle. Tbe total content of carbon is higher in manganiferous irons, being often up to 7 per cent in 80 per cent ferromanganese.
* * * * * * *

(P. 351:)

Ferromanganese containing 80 per cent of manganese holds about 5 per cent of carbon.

Thorpe, Dictionary of Applied Chemistry, vol. 2, p. 358. Title, Iron:

Manganese is always present in pig iron. ' Its reduction is favored by hot working and basic slags. Spiegeleisen is a white iron, containing upward of 5 per cent of manganese. With 20 per cent of manganese or upward, the metal is known as ferromanga-nese, which occasionally contains as much as 86 per cent of metallic manganese. Both spiegeleisen and ferromanganese are used in steel making as additions at the end of the operation, the object being to add a little manganese to the bath of metal to prevent red-shortness.

Watt’s Dictionary of Chemistry, vol. 3, p. 179. Title, Manganese, Alloys of:

3. With iron. Alloys of Mn and Fe, containing from 8 to 80 per cent Mn, are used in the manufacture of steel, under the name of spiegeleisen and ferromanganese. These alloys are prepared by heating Mn02 with iron filings and charcoal in the blast furnace, or in graphite crucibles, or by reducing a mixture of FeO and MnC03 on the hearth of a Siemen’s furnace and then fusing under a reducing flame.

Standard:

Ferromanganese. — An alloy of iron and manganese, containing over 25 per cent of manganese and being rich in carbon. It is used in making Bessemer steel.

Century Dictionary:

Ferromanganese. — A variety of white pig iron containing a relatively large amount of carbon, from 3$ to 6 per cent, and over 25 per cent of manganese. It is largely used in the manufacture of Bessemer steel.

The foregoing definitions are consistent with those given by other recognized authorities, and are in line with the testimony submitted at the hearing before the board.

One of the witnesses before the board was the Government assayer. He testified that standard ferromanganese contains 80 per cent of manganese; that the highest percentage of manganese he had ever known in the alloy was 90 per cent; that the actual importation is an excellent grade of manganese metal. The assayer testified as a chemist only, and did not profess to know of the commercial usage of the term ferromanganese. The importers met this testimony, to some extent, by the testimony of an expert witness, also a chemist, who testified to a contrary effect. However, the Government called witnesses having a knowledge of the commercial usage of the term ferromanganese, and their testimony stands uncontradicted in the record, the importers having submitted no testimony along that line.

One of the commercial witnesses had been engaged over 20 years in importing and manufacturing chemicals and dealing in ferroman-ganese and other alloys. He testified that an alloy containing so high a percentage of manganese as shown by either analysis would, commercially, be called manganese metal and not ferromanganese.

A second commercial witness called by the Government had dealt in ferromanganese and other ferro alloys for 10 years. He testified that, commercially, the standard ferromanganese contains 80 per cent of manganese; that this is the commercial way the steel works use it and is the meaning of the term in the trade; that an article containing 96 or 97 per cent of manganese would be manganese metal and not an alloy; that he had never known commercially of a ferro-manganese having more than 85 per cent of manganese metal composing it.

It seems clear from the definitions and the testimony in the case that the use which fixed and determined the meaning of the term ferro-manganese was its use in the making of Bessemer steel, and that this use is most effectively and economically subserved by an alloy containing about 80 per cent of manganese with approximately 5 per cent of carbon and the residue iron. Such an alloy therefore became the standard and the use of the term ferromanganese without qualification properly applied to this standard. It is therefore reasonable to believe that the word was used substantially in that sense in the tariff act, and this belief is strengthened by the fact that it is there found collocated with iron in pigs, iron kentledge, and spiegeleisen.

The importation in this case contains, a much greater percentage of manganese than that above indicated as the common standard and a much less percentage -of iron, while carbon hardly appears as a substantial component. It seems unnecessary to decide between the two chemical analyses appearing in the testimony. Each departs so far from the standard in common use as to make the foregoing statements applicable alike to both.

It is not intended by these statements to imply that no alloy is entitled to be called ferromanganese in case its manganese content in any measure exceeds 80 per cent of the entire article; but where the manganese is so considerable and the iron and carbon so slight, as in the present importations, the article does not substantially come within the application of the term as used in the tariff act. It appears that manganese does not figure in commerce in a chemically pure form, but always in combination with other elements; and foreign additions so slight as those stated in the analyses are correctly regarded as mere incidental impurities. Such an article is therefore manganese, and not ferromanganese.

In this view of the case the assessment made by the collector was correct and the decision of the board sustaining the same is affirmed.  