The opinion
DISSENTING OPINION
Smith, Judge:
I regret very much that I find myself unable to concur in the opinion of the majority.
A hand-woven fabric, invoiced as' a rug, imported at Buffalo, N. Y., was classified' by the collector of customs as a hand-woven oriental silk rug, and assessed for duty at 55 per centum ad valorem under that part of paragraph 1116 of the Tariff Act of 1922 which reads as follows:
1116. Oriental * * * and other carpets and rags not made on a power-driven loom * * * all the foregoing plain or figured, 55 per centum ad valorem.
The importer protested that the merchandise was not a rug or floor covering but was an antique tapestry or silk wall piece entitled to free entry under section 201 and paragraph 1708 of the free list, the pertinent parts of which read as follows:
201. That on and after the day following the passage of this act, * * * the articles mentioned in the following paragraphs, when imported into the United States * * * shall be exempt from duty:
1708. Works of art (except rags and carpets), collections in illustration of the progress of the arts * * * artistic antiquities * * * which shall have been produced more than one hundred years prior to the date of importation * * *. (Italics not quoted.)
The United States Customs Court sustained the protest and the Government appealed.
The report of the appraiser shows that the merchandise was examined by J. D. Wolf and that it was returned by him as “one oriental silk rug, hand woven, designed and of sufficient depth of pile to be used for floor coverings.”
On the hearing before the United States Customs Court the following colloquy took place between Mr. Tompkins, counsel for the importer, Mr. Wolf, examiner of merchandise, and Mr. Kavanagh, counsel for the Government:
Mr. Tompkins. As I understand from my. conversation with Mr. Wolf, the examiner, we can stipulate and agree in open court that the merchandise is an *312 artistic antiquity, but it was excluded, as I understand, from the free list, paragraph 1708, by reason of the specific exception from that paragraph of rugs and ■carpets. Is that correct, Mr. Wolf?
Mr. Wolif. Yes, sir.
Mr. Kavanagh. Did you say that was an artistic antiquity, Mr. Tompkins?
Mr. Tompkjns. Yes, sir.
Whereupon Mr. Kavanagh, counsel for the Government, moved to dismiss the case on the ground that the affidavits failed to state the name of the producer, the name and residence of the person from whom acquired, and the date of production.
The motion to dismiss was reserved by Justice Young for decision by the division of the court to which the case was assigned for determination.
On the trial the importer introduced in evidence without objection the certificate of the seller and the affidavit of the owner as proof of compliance with Treasury regulations. It appears from the certificate which was sworn to before the American consul at Shanghai, first, that Jack Mason was the seller of one Chinese rug produced in Pekin, and that the rug was acquired by him in October, 1923; second, that the name of the producer and the date of production were unknown; third, that to the best knowledge and belief of said Mason said rug was over 100 years old. The affidavit was made by Mrs. Jennie C. Fassett and stated that she was the owner of the rug; that she had investigated the ownership and history of the article and verily believed the same to be produced more than 100 years prior to the importation thereof at Buffalo, N. Y., on the 5th of February, 1924.
Arthur B. Sliter testified that ho was private secretary to Hon. J. Sloat Fassett during his lifetime and that after the death of Fassett he became one of the executors of Fassett’s estate; that the silk fabric was hung on the wall of the Chinese room of Fassett’s home by means of little staples attached to the edge of the fabric; that the importation was never used as a floor covering and always as a hanging; that the silk lining was worn arid in some places threadbare; that the witness was not an expert on rugs or tapestries.
C. N. Kierst testified that he was merchandise manager of William Hengerer Co.; that he had been buyer of domestic and oriental rugs for a period of 20 years and that he had handled thousands of such rugs; that in all his experience with domestic and oriental rugs he had never seen an article of the kind imported or of the type of weave used in making it; that as to the “weaving, the embossing on it, •on the ingrain, the construction on it, is nothing as to the Chinese rug. So far as the Persian rug is concerned, it has no appearance of a Perisan rug”; that the article could be put upon the floor but that it would go to pieces; that the importation is such an unusual type and such an unusual piece that it appeared to be a panel and more nearly *313 resembled those rugs or tapestries which, though less artistic than the importation, were used as panels; that the importation was a work of art and in the opinion of the witness would not bear floor use; that the article imported was threadbare around the edge but that that effect could be produced in other ways than by walking-on it; that besides rugs which are floor covering there are rugs which are not designed jor the floor, particularly steamer rugs and table rugs; that in some places on the fabric the nap was gone.
J. J. Fitzgerald testified that he had been buyer of floor coverings for William Hengerer Co. for eight years; that he had bought thousands and thousands of rugs and that on account of the construction of the importation and the material used in making it, it was unsuitable for floor use; that the witness would say that the fabric was used mostly as a hanging; that is to say, as a panel. On cross-examination the witness stated that the most expensive rug he had ever purchased was one that cost $15,000, which was made of wool; that he had purchased very expensive Chinese rugs; that the damaged places on the article in issue might have been produced by moths; that he had purchased silk rugs that cost as high as $1,000 and that the majority of such rugs were made and were fit for hanging purposes only.
The Standard Dictionary seems to bear out the witnesses in their statement that the term “rug” is not limited to floor coverings. According to that authority Caucasian, Chinese, Indian, Persian, Turkish, and Turkoman rugs are the six main classes of oriental rugs, some of which are used as hangings or portiéres. The Chinese rug design consists of detached natural motifs on lattice and fret ground, pile usually wool, occasionally silk in antiques. See “Rugs,” Standard Dictionary.
I am of the opinion that the weight of the testimony in this case establishes that the article which is the subject of protest is not designed or fit for use as a floor covering and is suitable for use as a panel or hanging. Indeed, the undenied fact that the importation has a silk backing strongly indicates a hanging rather .than a floor fabric.
Three witnesses for the importer, who were cross-examined by the Government, testified that the article imported was not a rug and was a hanging or panel. The United States Customs Court found as a fact on the weight of the testimony that the importation was not a rug or carpet but a hanging or tapestry which was an antique. On the evidence in the case and the finding of the United States Customs Court I think that the collector erred in classifying the merchandise as a rug.
The collector accepted the affidavits of Jack Mason and Mrs. Sloat Fassett and presumptively investigated the facts set out therein. *314 He classified the merchandise as an oriental rug, and while he made no finding as to the age of the rug he did say that it was excepted from the operation of paragraph 1708. Grimm, the appraiser, and Wolf, the examiner, in answer to the protest, stated that the importation w'as an oriental silk rug, hand woven, of a sufficient depth of pile to be used as a floor covering and that antique rugs over 100 years old were excepted from the provisions of paragraph 1708. Wolf, the examiner, in open court in the presence of counsel for the Government, admitted that the rug was an artistic antiquity. Apparently the collector, the appraiser, and the examiner were satisfied that the rug was more than 100 years old and that it was dutiable solely because it was a rug or floor covering. The affidavits of the seller and the owner were admitted in evidence, and those affidavits state that to the best knowledge and belief of the affiants the rug was more than 100 years old. The affiants may have been incompetent to prove the age of the merchandise, but as the affidavits were admitted without objection they must be regarded as evidence tending to prove that the antique was produced more than 100 years prior to importation.
Notwithstanding that the name of the producer and the date of production of an artistic antiquity may be unknown, the actual age of an artistic antiquity may be proven by competent expert testimony .on the trial of the issues raised by the protest. The fact that the name of the producer of antiques and the date of their production were unknown to the owner and seller, and therefore, not stated in the affidavits presented to the collector, does not necessarily mean that there has been no compliance with the regulations. To hold otherwise would result in the denial of free entry of many artistic antiquities, the age of which could be proven by competent expert witnesses. The dates of production and the names of producers of antiquities are often unknown even to the ablest of antiquaries, and to require owners and sellers to set out such dates and names is unreasonable and would preclude the admission, free of duty, of most valuable antiquities found hundreds and maybe thousands of years after their production in cities that were buried centuries ago.
In the case of United States v. Tsai, 9 Ct. Cust. Appls. 42 , the importer presented a certificate of a person designating himself as agent or attorney. The certificate did not set out the name of the party from whom the alleged antiquity was acquired. The regulations prescribed that where a certificate or affidavit was made by an agent or attorney the document would not be accepted. The articles were returned by the appraiser as artistic antiquities. The collector, upon liquidation of the entry, declined to accept the certificate of the foreign shipper as complying with the regulations on the ground that it failed to specify the names of the producers, the places and *315 dates of production, and the names and residences of the persons from whom and the dates when the artistic antiquities were acquired by the shipper. The importer thereupon gave bond to produce a certificate containing the information demanded. He failed to furnish the information demanded at the time fixed in the bond. In that case it is apparent that the collector rejected the certificate and allowed the importer to give bond that he would produce, within six months, a certificate containing the information required. In this case, however, the collector accepted the certificate and raised no question as to the antiquity of the article. The importer was given • no opportunity whatever to furnish the name of the person from whom the seller acquired the article.
In my opinion the judgment of the United States Customs Court should be affirmed.