The opinion
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.
*202 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 *203 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. *204 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 *205 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.