(C. D. 426)

#### Wilbur Ellis Co. *v.*United States

United States Customs Court, Second Division

(Decided January 29, 1941)

*Lawrence & Tuttle (George B. Tuttle*and *Charles F. Lawrence*of counsel) for the plaintiff.

*Charles D. Lawrence,*Acting Assistant Attorney General *(Richard F. Weeks,*special attorney), for the defendant.

*58Before Tilson, Kinchelob, and Dallinger, Judges

DalliNGeu, Judge:

This is a suit against the United States, arising at the port of Los Angeles, brought to recover certain customs duties alleged to have been improperly exacted on a particular importation of so-called wire netting. Duty was levied thereon at the rate of 60 per centum ad valorem under the specific provision therefor which was incorporated in paragraph 397 of the Tariff Act of 1930 by virtue of the Presidential Proclamation promulgated February 5, 1931, in T. D. 44605, 59 Treas. Dec. 288, the pertinent part of which reads as follows:

> Now, therefore, I, Herbert Hoover, President of the United States of America, do hereby approve and proclaim the following rates of duty found to be shown * * * to be necessary to equalize such differences in costs of production:

> An increase in the rate of duty expressly fixed in paragraph 397 of Title I of said act on woven-wire fencing and woven-wire netting, all the foregoing composed of wire smaller than eight one-hundredths and not smaller than three one-hundredths of an inch in diameter, coated with zinc or other metal before weaving, from 45 per centum ad valorem to 50 per centum ad valorem;

> And an increase in the rate of duty expressly fixed in paragraph 397 of Title I of said act on woven-wire fencing and woven-wire netting, all the foregoing composed of wire smaller than eight one-hundredths and not smaller than three one-hundredths of an inch in diameter, coated with zinc or other metal after weaving, from 45 per centum ad valorem to 60 per centum ad valorem.

It is claimed that said merchandise is properly dutiable at but 45 per centum ad valorem under said paragraph 397 on the ground that it is not woven and therefore not covered by said Presidential Proclamation.

The case was submitted upon a stipulation entered into by and between counsel for the respective parties in open court, “that the merchandise consists of wire netting with no weft or filling wires.”

Upon this record counsel for the plaintiff in their brief filed herein rely upon the case of *Cron & Dehn Hardware Corp. et al.*v. *United States,*18 C. C. P. A. 445, T. D. 44699, in which the appellate court held that certain galvanized wire netting composed of steel wire with meshes approximately 1 inch in size, and used as reinforcement in cement walls and other structures, was properly dutiable at the rate of 40 per centum ad valorem under paragraph 399 of the Tariff Act of 1922 as manufactures of metal not specially provided for, as assessed by the collector, rather than at the rate of 25 per centum ad valorem under paragraph 318 of said act as woven wire cloth. In that case the appellate court said:

> The involved merchandise consists of warp wires twisted together. There are no weft or filling wires. The meshes are not fine, but, on the contrary, are approximately one inch in size.

> As commonly understood, the terms “weave” and “weaving” contemplate both warp and weft threads. They are defined as follows:

> *59weave, * * * 1. To entwine or lace together (threads or strips of pliable material) into a texture, especially by interlacing woof-threads among warp-threads, as in a loom; also, to insert by intertwining; as, to *weave*fibers, yarns, etc. (Funk & Wagnalls New Standard Dictionary.)

> weaving. The process of weaving consists in interlacing, at right angles, two or more series of flexible materials, of. which the longitudinal are called warp and the transverse weft. * * * (Encyclopedia Britannica.)

On the agreed facts we are satisfied that the cited case is here controlling. We are confirmed in this view by the following definition set forth in Knight’s American Mechanical Dictionary, Volume II, page 1351:

> A woven fabric consists of yarns called the warp laid in one direction, and crossed by yarns laid transversely and known as the *woof.*The *warp*is also called the *chain.*The words *woof, weft, filling,*are synonyms.

We have been able to find no definition of the terms weave or woven that does not contemplate both warp and weft threads, wires, cords, etc.

Upon the established facts and the law applicable thereto we hold the imported wire netting not to be covered by the Presidential Proclamation, T. D. 44605, *supra,*but to be properly dutiable at the rate of 45 per centum ad valorem under paragraph 397 of the Tariff Act of 1930 as manufactures of metal not specially provided for, as alleged by the plaintiff. That claim is therefore sustained; but as to all other merchandise the claims are overruled. Judgment will be rendered accordingly.