American Net Twine Company v. Worthington

Action by the American Net & Twine Company against Roland Worthington. There was judgment for defendant, and plaintiff brings error. Judgment reversed.

STATEMENT BY BROWN, J. This was an action against the collector of the port of Boston to recover back certain duties upon gilling twine, paid under protest. By written stipulation of the parties, the case was heard by the court without a jury, and the following facts were found:

'The plaintiff corporation, whose business is the manufacture of fishing nets and seines, in the months of February, March, April, and May, 1885, made seven different importations of gilling into the port of Boston from Liverpool,-in all, forty-five cases. The merchandise was invoiced and entered at the custom-house as gilling twine. Upon the appraisement by the custom-house officials here, the merchandise was classified as 'linen thread,' and the collector assessed upon it a duty of 40 per cent. ad valorem. The plaintiff in each instance paid the assessed duty under protest, claiming that the article was dutiable at twenty-five per cent. ad valorem as gilling twine. Upon appeals to the secretary of treasury, the decisions of the collector were affirmed, and the plaintiff then brought this suit to recover back the alleged excess, which amounted on all the importations to $1,685.85. All the proceedings in respect to the plaintiff's protests and appeals were regular, and taken in due season, and this suit was commenced within the time limited by law for bringing such suits. The merchandise, after its importation, was used by the plaintiff in the manufacture of gill-nets, and was imported expressly for that purpose.

'The article in question is No. 35 three-cord, unbleached linen thread of superior quality, put up in half-pound balis, and was manufactured by the Scotch firm of W. & J. Knox at their works in Kilbirnie, Scotland. For more than twenty years thread of this description has been used by the plaintiff and other net-makers in this country for the manufacture of gillnets, principally for the fisheries on the great western lakes; the numbers of the thread used for this purpose ranging from 10 to 60. For many years before the tariff act of 1883, this kind of thread, of the manufacture of W. & J. Knox and other foreign makers, was imported under the name of 'gilling twine,' to be used in making gill-nets, and was invoiced and entered at the custom-house under that name, and was so designated on price-lists and trade circulars of the foreign makers. For many years before the act no other imported article was known by the special name of 'gilling twine.' One of the custom-house officers testified that he never heard or knew of any other imported article that was called 'gilling twine.'

'On the other hand, the article is clearly not twine. It is not suitable for the uses which twine is commonly put to. It is made of flax from which the gum has been removed by boiling. It is flexible, without the stiffness of twine, highly finished, capable of being used for sewing, and is largely used for machine sewing in many trades. It is not claimed by the plaintiff in this suit that, in a general sense, it is anything else than linen thread, or that it differs in material or quality or mode of manufacture from other similar threads. For many years linen thread of the same kind and quality has been both imported from abroad and made here in large quantities for many other purposes than for gilling. It is used by boot and shoe makers, upholsterers, book-binders, saddlers, and in many other trades as sewing thread. When imported for this purpose, it is invoiced and entered as linen thread, and is so known in commerce and designated on price-lists and trade circulars. That which is made here for these uses is known only as 'linen thread.' It is also made here for gilling purposes, and in such cases is invariably called 'gilling thread;' never 'gilling twine.' Of all that is made here or imported, at least nine-tenths, and probably nineteen-twentieths, is used for other purposes than as gilling. It also appears that there is a large, coarse twine made of hemp, which is imported under the name of 'salmon twine,' and is made into nets for gilling salmon. This article seems never to have acquired the name of 'gilling twine' in the trade. There is also a cotton gilling twine which is made in this country, but never imported.'

Upon the foregoing facts the court decided that the plaintiff could not maintain the action, and ordered judgment for the defendant, with costs.

The plaintiff thereupon sued out a writ of error from this court. The opinion of the court below is reported in 33 Fed. Rep. 826.

Edward Hartley, W. H. Coleman, and C. P. Searle, for plaintiff in error.

Asst. Atty. Gen. Parker, for defendant in error.

BROWN, J.