author: inch, District Judge.

text:
    KING v. RED STAR TOWING & TRANSPORTATION CO.
    District Court, E. D. New York.
    Jan. 10, 1931.
    William F. Purdy, of New York City (John E. Purdy, of New York City, of counsel), for libelant.
    Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Paul Tison, of New York City, of counsel), for respondent.
   inch, District Judge.

Libelant King brings this suit against the Red, Star Towing & Transportation Company to recover alleged damages which he asserts was sustained by his coal boat Mifflin through negligence on the part of said respondent. The respondent denies any such negligence. The issue is one of fact,

The allegations of the libel assert, in substance, that respondent agreed with libelant to tow the Mifflin from the College Point t, - , „ 0 „ , . T T ^ ^ °/n^|any S. /ar„’ ,on? Island, N. Y., to a berth alongside of a boat ^own as 1-K at Luekenbach Basin, N. J., and that respondent, instead of doing this, “ a-&\th& Pler.head at Luekenbach Basin with her stern projecting out into the Hudson River,” m spite of the fact that respondents’ tug eaptains were there warned of the danger, and tbat> when tbe tide fell, the Mifflin “rested on a submerged bank” which caused “her stem ^roP” below the surface of the water, causinS ber to smk 811(1 sustam tbe images complained of.

The specific faults alleged are that respondents “failed to plaee the Mifflin in a plaee agreed upon, that she was left in a dangerous and exposed place without anyone to care for her. That the captains of the tugs did not heed the warning at Luekenbach Basin. That the Mifflin was not placed in a place of safety.”

At the trial the sole witnesses for libelant were King, who was not present at the time of the towing, and a Marine surveyor who subsequently surveyed the Mifflin but who had never seen the Mifflin before.

The burden of proving the negligence of respondent rested upon libelant. Aldrich v. Penn. R. Co. (C. C. A.) 255 F. 330.

Libelant’s testimony fell fax short of the allegations above set forth. In fact, it would not be difficult to find that libelant failed to sustain the burden of proving any damage to the Mifflin directly caused by any act of respondent.

However, it is not necessary to rest this decision on any such finding, for libelant has likewise failed to prove, by a fair preponderanee of evidence, that respondent was guilty of any negligence.

The mere fact that the Mifflin sunk some time after she had been tied up, and the tags had departed, is not sufficient to prove negligenee. Aldrich v. Penn. R. Co. (C. C. A.) 255 F. 330, 331.

The facts as I find them to be are that Ihe tacts, as I hnd tnem to be, are that some time m August, 1926, King brought over to the College Point dock his coal boat Mifflin. She had been damaged in some way on her port side forward, “10 or 15 feet back from her bow about 7 feet above light water mark.”

King says he wanted some place to lay her up for repairs, but there is nothing to indicate any such repairs. He made an arrangement by which he was to pay some sum, not indicated, for wharfage, payable monthly,

When the northeast wind came the swells would break over her.

King allowed her to remain in this place from August, 1926, to December, 1927, when the respondent notified King to take her away.

During all this time King says he paid the monthly wharfage bill and it is plain that he knew the situation.

In December, 1927, therefore, and when respondent notified King to take her away, the Mifflin was in a condition which can readily be imagined from her unrepaired damage previously sustained before she came to respondent’s dock, and from the ordinary wear and tear produced by the circumstances above stated during a period of more than a year.

On December 20,1927, an oral agreement was entered into between respondent and King which, in substance, was as follows: The respondent told King that it would tow the Mifflin, free of charge, if he would find some other place within reason around the harbor. King said to take the Mifflin to Luckenbaeh Basin, N. J. Respondent said that this would be all right and for King to a man on t,oard the Mifflin the follow-iwy morning (December 21).

Ring then replied that he couldn’t “very well get a man out ther,e.” The respondent replied that then they would undertake the towage under such circumstances without a captain, provided King would have a man meet the Mifflin at Luckenbaeh Basin.

Later the same day King came back and asked if the respondent would put the Mifflin alongside of a boat called the 1-K. The respondent agreed that they would do so “if we could get to it but to be sure to have his *ere to take cbarSe o£ the boat” To “us agreed.

^ these two conversations nothing was said about where the boat 1-K was actually lying at Luckenbaeh Basin, and so far as re-spondent was concerned it apparently relied entirely upon Ring to have Ms man there.

This tow service was performed without charge to King in order to get rid of the Mifflin. It does not seem to me, however, that this makes much difference for, having undertaken the towage, it was under the duty to use due care to perform it.

Accordingly, respondent that afternoon (December 20) gave an order to-one of its tug captains to take the Mifflin to Luckenbach Basin and, if they possibly could, get it in alongside of the 1-K.

Captain Barber to whom this order was given is dead. Shultis, marine superintend-ent of respondent, was, however, an eyewitness to all that occurred, and from his testimony it appears that about 8 o’clock of the following morning (December 21) the Mifflin was pumped out, a canvass patch was placed over her damaged side, and two tugs, the Greenwich/and the Flushing, one. on each side, earned her safely over to Luckenbaeh Basin, where they arrived about 4 or 5 o’clock that afternoon. King failed to have any one at Luekenbaeh Basin.

His present excuse that he did not know when the boat was to be towed should not avail in view of his conversation of the previous day.

I have not overlooked the interest of witness for the respondent or of King which perhaps colors somewhat the testimony.

When they reached Luekenbaeh Basin, they found the slip was full of boats. They did the best they could and duly tied up the Mifflin fore and aft to a earfloat “about 25 feet inside the pier head line.” It was the safest berth apparently available.

It subsequently appears that the boat 1-K had been lying back in the slip where there was only a foot and one-half of water, and that it would have been impossible for the tugs, drawing 9 feet, to have reached it. !t was not accessible to the tugs when they arrived had they found it and King had no one present to point out where the 1-K was.

King now claims that they should have pulled the Mifflin in by hand, but it is apparent that up to that time he had paid little attention to the matter. In fact, even after he was informed, the following day, that the Mifflin was sunk, he did not go over, but says he sent a man named Perry. The latter was not called as a witness.

Finally King did himself go over.

If Perry did go over, what he did is speculative, for, according to a witness, the Mifflin, when she was examined, after her submersion, was not in the same position in which the tugs had left her. It is entirely possible that Perry or others had moved or attempted to move the Mifflin after the departure of the tugs.

However, this also would not excuse the respondent if its tugs had been careless in their selection of a proper berth.

The only eyewitnesses to sueh selection are witnesses for respondent. King was not present. He had no one there to represent him. Perry was not produced as a witness. Two days elapsed between the tying up of the Mifflin and the visit of King.

The proof of the. respondent therefore shows that the tug captains exercised reasonable care and skill under the circumstances to place the Mifflin in as safe a berth as they could at Luekenbaeh Basin.

, She had been safdy towed a long distance from Long Is and to New Jersey, and she had been safely placed as near as conditions permitted to her designated berth. Schoonmaker-Conners Co. v. New York Tidewater Corp. (C. C. A.) 11 F.(2d) 470; The Milton (C. C. A.) 235 P. 287.

The only duty resting on respondent was to take the Mifflin to a reasonably-safe berth and, she having no captain on board, to tie her np in a seamanlike manner. The Britannia (C. C. A.) 252 F. 583.

Libelant has failed to prove that this did not take place. On the contrary, respondent’s testimony shows that it did. The Willie (0. 0. A.) 184 P. 279.

As I have said, the testimony for respondent indicates that the damage now claimed was the same as the Mifflin had sustained pri- or to the towage. “She looked the same to me as she did when tve towed her. There was no change.” (Shultis.)

If ndent was without fault in plae_ £ ber at her bert]l the subseqilent «cost of raigi b to t her ont of the way, cannQt be e]larg.ed to it.

For the foregoing reasons, therefore, it seems to me evident that, aside from the fact 0f failure to sufficiently show damage, libel-an£ has failed to prove, by a fair preponderanee of evidence, that respondent neglected any resting upon it under the cireumstances.

LiM ^miased> witb costs.


source: Caselaw Access Project

author: SANBORN, District Judge.

license: Public Domain

text:
    In re BLOOMBERG.
    District Court, D. Minnesota, Fifth Division.
    April 9, 1931.
    J. J. Courtney, of Duluth, Minn., for petitioners.
    A. R. Smythe, of Duluth, Minn., for trostee.
   SANBORN, District Judge.

It would serve no useful purpose to state in detail all of the facts shown by the record, which is quite voluminous. The bankrupt herself is twenty-two years old and a clerk in a store in Duluth. She lives at home with her father, Sam Bloomberg, and her mother. Her father managed the business of the Rothschild Shirt Shop, and she was merely the nominal proprietor. He left Rumania when he was about fourteen years old, came to Minneapolis in 1901 > or 1902, where he went into the restaurant business with a brother, and then came to Duluth shortly afterwards, where he went into the clothing business. After the store burned in which he was department manager, he became a salesman for Riehman Clothes, and in March, 1929, opened up the Rothschild Shirt Shop, Por a time he operated other stores in and near Duluth. It is claimed that he received goods for these stores on consignment from the Manhattan Woolen Milla and then sold them. He had an arrangement with the woolen mills for a 5 per cent, commission on the sales. His stores, aside from the one in Duluth, were subsequently taken over by the Boston Mills, a subsidiary of the Manhattan Mills, and he was made the buyer for the Boston Mills. The Manhattan Mills was a eoncern operated by a Mr. Cohen. Mr. Cohen and Mr. Bloomberg were closely associated in business. When Mr. Bloomberg reached a point where he could not or would not pay the creditors of the Rothschild Shirt Shop, he sent out first a circular letter asking the ereditors for an extension of time. Thereafter an involuntary petition in bankruptcy was filed against his daughter; and thereupon, and before schedules were filed, he gave to Mr. Cohen a list of all of the creditors with, the amounts of their claims and their addresses, and Mr. Cohen sent to them a circular letter stating that he was a creditor, and that he was anxious that the creditors should reeeive as large dividends as possible, and solieiting powers of attorney. Mr. Bloomberg called up a large number of the outside creditors on the long-distance telephone and requested them to send powers of attorney to Mr. Cohen. It is apparent that at that time Mr. Cohen and Mr. Bloomberg believed that they could put through a composition with the creditors of the Shirt Shop. At the first meeting of creditors, Mr. Cohen had powers of attorney from a majority of creditors, both in number and amount. The offer of composition was not accepted, and thereupon the creditors proceeded to the election of a trustee. Certain of the creditors objected to Mr. Cohen’s voting the claims for which he held powers of attorney, on the ground that these ha<i been procured through the active solieitation and interference of the bankrupt. He voted all of them for Mr. Paul A. Miller, Ihe other creditors who y/ere represented voted for Mr. E. G. Robie. Tiie appointment-of Mr. Miller was thereupon approved by the referee, in the following language:

“I will say this, that the action of Mr.. Cohen in helping to save time in the administration of the estate, and his action in nomi-' nating a Trustee entirely disinterested, so far as any of the controversies in this proceeding are concerned, robs the charge of undue activity of the bankrupt of any partieular sting. So that even if it was conceded that the bankrupt has been overly active, and that that had some disqualifying effect, I could not refuse, I do not believe at this time, to approve of the Trustee that Mr. Cohen has-nominated. If there was any indication here that there was anything that should be investigated that would not be investigated by the party proposed, or if there should be any intimation at all that the bankrupt would be in any way able to cover up things through the connivance with the Trustee proposed by Mr. Cohen, I might use my discretion by disapproving of the selection. It just happens that Mr. Miller is in bed, and I do not know whether he has been consulted in this matter or n°tj hut my relations with Mr. Miller have been such just as they have been with Mr. Robie, that I have entire confidence in him carrying but his duties as Trustee without fear or favor. Both Mr. Robie and Mr. Miller have been extremely satisfactory to work with, and I am really glad to appoint either one or the other rather than some outsider, so that I will approve this nomination and permit the votes of Mr. Cohen to be received and given full value. In view of this decision 1 will make no ruling on the objections of Mr. Smythe.”

It is conceded by everyone that Mr. Miller is a man of high character and thoroughly qualified for the position of trustee. Mr., Cohen’s activities and those of Bloomberg would appear to have been directed more to securing a composition with the creditors than to influencing the selection of a trustee friendly to the bankrupt or Bloomberg. The trustee, under the circumstances, contends that the approval of his appointment was a matter within the discretion of the referee, an¿ that no abuse of that discretion is shown,

The rule applicable was stated by Judge Lochren in the case of In re Hanson (D. C.) 156 F.717, 718. There it appears that the referee, over objection, had approved the appointment of a Mr. Anderson as trustee. The court said :

“As even the objecting creditors freely admit that Mr. Anderson is a man of responsibility, integrity, and high standing, it seems unfortunate that his appointment was brought about by such improper 'interference on the part of the bankrupts as should have caused it to be disapproved. But it is well-settled by all the authorities that the trustee represents the creditors, and not the bankrupt, in the administration of the estate; and that it is improper that the bankrupt shall actively interfere with the matter of his selee-. tion and appointment; and that, if he does interfere and the person aided by him is appointed by votes procured by such interference, the appointment should for that reason be disapproved. In re McGill, 106 F. 57, 45 C. C. A. 218; In re Rekersdres (D. C.) 108 F. 206; In re Henschel (D. C.) 109 F. 861.
“More cases to the same effect might be cited, and none to the contrary are found. The rule is a salutary one, and based on obviously sound reason. It often happens that it becomes the duty of the trustee to actively antagonize the bankrupt by efforts to discover secreted assets, or to set aside conveyances as fraudulent, or to recover preferences. There should be no color of basis for suspicion of any partiality or sense of obligation on the part of the trustee toward the bankrupt. Hence, however high the character of a proposed trustee may be, the active interference of the bankrupt in favor of his appointment will render him practically ineligible to appointment as trustee in that bankruptcy.”

In re Lloyd (D. C.) 148 F. 92, 93, Judge Quarles said:

“By applying to the bankruptcy court, the bankrupt voluntarily surrenders all control over his estate, and the same passes to the officers of the law, under the act. Any effort on his part to control the selection of a trustee, or to shape any of the proceedings of the court, must be resented and rebuked. It is a pernicious intermeddling which cannot be too strongly condemned. Referees should be vigilant to detect, and take all lawful means to prevent, any such interference by the bankrupt in court proceedings. No attorney should be permitted to vote any claim that has come to him through the instrumentality of the bankrupt.”

The same rule is either recognized or applied in the following cases: In re Lewensohn (D. C.) 98 F. 576; In re Rekersdres (D. C.) 108 F. 206; In re McGill (C. C. A. 6th) 106 F. 57; In re Machin (D. C.) 128 F. 315; In re Cooper (D. C.) 135 F. 196; Birmingham Coal & Iron Co. v. Southern Steel Co. (D. C.) 160 F. 212; In re Morris (D. C.) 154 F. 211; In re Sitting (D. C.) 182 F. 917; In re Ployd (D. C.) 183 F. 791; In re Kreuger (D. C.) 196 F. 705; In re Stowe (D. C.) 235 F. 463; In re Fisher (D. C.) 193 F. 104, 26 A. B. R. 793; In re White (C. C. A.) 15 F.(2d) 371; In re Stradley & Co. (D. C.) 187 F. 285; In re Rothleder (D. C.) 232 F. 398; Bollman v. Tobin (C. C. A. 8th) 239 F. 469; Petition of Safran (C. C. A. 1st) 275 F. 819; In re Day Lumber Co. (D. C.) 8 F.(2d) 146.

As a practical matter, I am satisfied that in this proceeding Mr. Miller could administer the estate as well as any other person, and that the creditors’ interests might even be better subserved by him than by any other person, in view of the fact that he has now had charge of the estate for some two months. However, the complaint is not against him, but against the method used in securing his appointment. There is no question that Cohen, with the assistance of Bloom-berg, solicited powers of attorney, and no question that Bloomberg himself solicited certain of the creditors to give powers of attorney to Cohen. Had it not been for Bloom-berg’s activities, there is no reason to suppose that Cohen could have controlled the appointment of a trustee. In no ease should the appointment of a- trustee ever be approved, regardless of who he is, when it appears that his selection has been, directly or indirectly, brought about by the bankrupt himself or those acting in his behalf.

The order approving the appointment of Mr. Miller is reversed, and the appointment disapproved.


author: CUSHMAN, District Judge

text:
    SUNDQUIST v. GRAY et al. THE FRANK LYNCH.
    No. 7210.
    District Court, W. D. Washington, S. D.
    Dec. 22, 1930.

      Huffier, Hayden, Merritt, Summers & Bucey, of Seattle, Wash., for claimants.
    Lord & Moulton, of Portland, Or., for libelant.
   CUSHMAN, District Judge

(after stating the facts as above).

The question first to be considered by the court is as to the propriety of the exceptive allegations of the claimants and the resistance affidavits of the libelant.

Admiralty courts, within the sphere of their jurisdiction, act as courts of equity. Plummer v. Webb, Fed. Cas. No. 11,233, p. 893, decision by Justice Story; Benedict on Admiralty (5th Ed.) § 70.

Among the principles controlling courts of equity recognized and applied in admiralty are matters of estoppel and laches. Higgins v. Anglo-Algerian S. S. Co. (C. C. A.) 248 E. 386 at pages 387 and 389; Benedict on Admiralty (5th Ed.) §§ 70 and 470.

Whatever may be the propriety of ex-ceptive allegations in admiralty, pleas of the statute of limitations and laches are in the nature of pleas in abatement. In equity, demurrers and pleas were abolished by rule 29 (28 USCA § 723), and it was further therein provided:

“ * * * Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in' the bill may be called up and disposed of before final hearing at the discretion of the court. * * * ”

Decision of Judge Hough in L. Little-john & Co., Inc., v. United States, 49 E. (2d) 467.

There would, therefore, appear to be no occasion for the court to attempt to determine in this ease the question of laches upon affidavits in which the affiant states what he pleases and leaves unstated what he pleases. The exceptive allegations and resistance affidavits will not be further considered.

There remain the .claimants’ exceptions and further exceptions and motion to elect."

Claimants first except upon the ground of the bar of the two-year statute of limitations of the state of Oregon and section 33 of the Merchant Marine Act of 1920 (41 Stat. 1007, title 46, USCA § 688), and the three-year period prescribed by the laws of the state of Washington and for insufficiency of the excuses set out in the libel for such delay. These exceptions are overruled. Lincoln v. Cunard S. S. Co. (C. G. A.) 221 F. 622; The Alabama (C. C. A.) 242 F. 431; The Adour (D. C.) 21 F.(2d) 858 at page 860; Christianssand Shipping Co. v. Marshall (C. C. A.) 31 F.(2d) 686 at page 687; Stiles v. Ocean S. S. Co. (C. C. A.) 34 F. (2d) 627 at page 629.

Claimants, in support of their exceptions, have cited the case of Plamais v. The Pinar Del Rio, 277 U. S. 151, 48 S. Ct. 457, 458, 72 L. Ed. 827, in which it was said:

“ * * * To subject vessels during all the time allowed by the statute of limitations to secret liens to secure undisclosed and unlimited claims for personal injuries by every seaman who may have suffered injury thereon would be a very serious burden. One desiring to purchase, for example, could only guess vaguely concerning the value. ‘An act to provide for the promotion and maintenance of the American merchant marine’ ought not to be so construed in the absence of compelling language. * * * ”

This case, however, was one brought not on account of unseaworthiness of .the vessel, "for it is therein stated:

“ * * * He was being hoisted up to paint the smoke stack; a rope broke; he fell to the deck and sustained serious injuries. The aceident resulted from the negligence of the mate, who selected a defective rope. Am abundant supply of good rope was on board. * * *
The record does not support the suggestion that the Pinar Del Rio was unseaworthy. The mate selected a bad rope when good ones were available. * * *”

Claimants have also filed separate and further exceptions. These the court deems do not require discussion. Each one of them will be overruled.

Claimants also move for an order requiring libelant to elect whether he will seek to obtain recovery on account of unseaworthiness or of negligence, and that libelant amend his libel and eliminate allegations material to the theory and cause of action abandoned by him in making such election.

As disclosed by article VII, supra, the negligence of which complaint is made is not negligence separate and apart from unseaworthiness.

The motion will be denied.


author: BREWSTER, District Judge.

text:
    THE PERTH AMBOY. THE ROCKHAVEN.
    Nos. 253, 310.
    District Court, D. Massachusetts.
    April 9, 1931.
    In case No. 253:

      Blodgett, Jones, Burnham & Bingham, of Boston, Mass., for libelant.
    Elbridge R. Anderson, of Boston, Mass., for garnishee.
    Maeklin, Brown, Lenahan & Speer, of New York City, for claimant.
    Storey, Thorndike, Palmer & Dodge and Raymond S. Wilkins, all of Boston, Mass., for American Cyanamid Co.
    In case No. 310:
    Burnham, Bingham, Gould & Murphy, of Boston, Mass., for libelant.
    Maeklin, Brown, Lenahan & Speer, of New York City, for claimant.
    Storey, Thorndike, Palmer & Dodge, of Boston, Mass., for American Cyanamid Co.
   BREWSTER, District Judge.

On December 24,1929, the barge Rockhaven, carrying a cargo of copper concentrates and crude ore, was stranded while being towed through Arthur Kill by the steam tug Perth Amboy. Libels, to recover resultant damages, have been brought by the owner of the barge and by the owner of the cargo against the Perth Amboy. The two causes were tried together.

Statement of Facts.

The barge Roekhaven, carrying about 1,-330 long tons of copper concentrates and crude ore, was bound on a voyage from Maine to Chrome, N. J., which lies near the southerly end of Arthur Kill, west of Staten Island. The barge was 188.9 feet long and had a draft at the time of the stranding of 14 feet. She had no motive power. The steam tug Perth Amboy is 138 feet long, and her wheelhouse was about 20 feet abaft her stem.

On the evening of December 24, 1929, at Poor House Anchorage, East River, N. Y., the barge Roekhaven was made fast in the usual way alongside of the tug on the latter’s port side. The bow of the barge was about 59 feet forward of the bow of the tug and 79 feet forward of the wheelhouse. Around 8 o’clock in the evening, the tug with her tow left Poor House flats and proceeded down through the channel in Arthur Kill, which lies between the New Jersey shore and Staten Island. They proceeded down the westerly side of Prall’s Island through what is known as the Northwest Reach. As the channel rounds Tremley Point on the New Jersey shore, its course changes, first near the southerly end of Prall’s Island, and about 1,000 feet below at the northerly entrance of the Southwest Reach, so called, it again changes to SW%S. The Southwest Reach begins about 1500 feet northeasterly of the plant of the American Cyanamid Company, impleaded in these proceedings, and the channel runs in a straight line as it passes the Cyanamid Company’s works.

At a point on the easterly side of the Kill and opposite the plant of the American Cyanamid Company, there is a charted and well-known shoal known as the “11-foot roek.” The_ chart also shows that northerly of this rock and narrowing the channel at this point there is shallow water of only 14 feet depth at mean low tide. The average depth of the channel through the Kill is approximately 27 feet. Just above the narrow portion of the channel, on the Staten Island side of the Southwest Reach, was a red buoy which not only served to mark the easterly bank of the channel, but to warn mariners of the 11-foot shoal and the shallow waters lying northerly of the rocks.

The night was clear and cold, with light, westerly, or northwesterly winds. The tide was ebb, and the current favored the tow. As the captain of the tug navigated his tow around Tremley Point, proceeding at a rate of 7 knots an hour through the water, he encountered a cloud of vapors and smoke.

The captain testified that, when he ran into the smoke, he reduced his speed to half speed, but was unable to say at what rate he continued on down the channel. Others on the tug and barge failed to notice any appreciable reduction in speed after the smoke was reached.

According to the evidence of the captain of the barge, the tow had proceeded “just a little way” after encountering smoke when the barge hit the easterly bank of the channel. . The location of the stranded barge was about 100 feet from the red buoy which then appeared off the starboard quarter. At this point, according to the chart, the area of shallow water projects into the channel just above the 11-foot shoal. The tide was unusually low at about 10:30 o’clock p. m. when the barge stranded, and soundings showed a depth of only 12 to 13 feet. That the level of the water at the time of the stranding would be below mean low water was predicted by government tide tables. After the barge struck, she began to fill in the forward compartment, and it was impossible to float her even at high tide. She was not taken off until the next day. That the barge ran upon a well-known shoal cannot be doubted.

The captain of the tug was unable to state definitely what course he followed in rounding Tremley Point. The best he can give is that he was within the limits of the channel. Prom all the evidence I find that he was not shaping his course down the westerly, or starboard, side of the channel. On the contrary, the location of the stranded barge admits of only one conclusion, and that is that the tug had adopted a course in rounding Tremley Point which brought the tow over to the extreme easterly edge of the channel at a point where the charted depth of the water at mean low water was only 14 feet, which was precisely the draft of the barge, and where, on the day in question, the water being below mean low level, was of insufficient depth to enable the barge to pass without striking the bank:

Navigators had been cautioned by the United States Army engineers to use the New Jersey side of the dredged canal when passing Tremley Point because “numerous rocky shoals lie in the easterly or Staten Island side of this stretch of channel commencing opposite the mouth of the Rahway River and extending upstream.”

The captain of the tug testified that when he first encountered the smoke he was some distance from the red buoy, and that he immediately sent one of the crew to look for lights along the shore while he himself looked for the red buoy. He had run past the buoy because, when he first saw it, it w,as some 35 feet away on the port side and very near amidships on the barge. He then swung his tug to the westward. • At this time he must have been well over on the port side of the channel, because, notwithstanding his attempt to turn the barge to the starboard side of the channel, the barge struck the easterly bank.

The witnesses indicated on the chart the point where the tow first entered the smoke as about 1,200 feet northerly of the plant of the Cyanamid Company. It is difficult to reconcile this evidence with the government weather reports, which showed that on the night in question the wind was light and coming from the northwesterly diréetion, and the testimony of witnesses that the wind was westerly. A westerly wind might have carried the smoke from the Cyanamid plant across the channel at or near the buoy. The buoy was between 800 and 900 feet below the indicated point, and it is extremely unlikely that smoke drifted as far up the stream as is claimed by the witnesses. The conclusion follows that the tow was nearer the buoy before any smoke interfered with the visibility. This fact, together with the position of the stranded barge as it lay immediately after she struck, would clearly indicate that the master had, even before he reached the smoke, so navigated his tow as to bring the barge over to the extreme easterly side of the channel.

In December, 1929, the Cyanamid Company was principally engaged in making fertilizer. Whatever smoke drifted across the channel must have come from nine fertilizer driers, each of which had a stack approximately 40 feet from the ground. Between these drier stacks and the Kill were a number of other buildings of the company, the lowest of which was 50 feet high and one 80 feet high. Strictly speaking, it was not smoke, but steam vapor, which came from the driers, but which, in cold weather, would condense sufficiently to form a cloud of more or less density. This vapor was diluted with fresh air, and, in the nature of things, could not at any time have been of sufficient density to seriously interfere with navigation on the channel.

There was a conflict in the evidence as to the extent to which this cloud of vapor cut down visibility. The captain of the tug said it w.as impossible to see lights on the shore, and he was therefore unable to determine in what direction he was going or how far he had deviated from the usual course. It is but natural that the captain, in his desire to find excuse for his conduct, should somewhat exaggerate the density of the smoke. The captain made no mention of any smoke in his log. The captain of the barge testified that there was never a time after they entered the smoke that he could not see lights. “They would be very dim, but I think we could see them all the time.” Other witnesses testified that lights could be seen on vessels tied up to the docks of the Cyanamid Company, and nearly all but the captain agreed that, with the exception of intermittent intervals of short duration, it was possible to discern objects on the New Jersey shore. There was also evidence that the smoke was high, so that the nearer the water one stood the greater the visibility.

As to lookouts, I find that, up to the time the tug ran into the smoke, no lookout had been stationed on the bow of the tug, and at no time was a lookout stationed on the bow of the barge. The master of the barge was in the wheelhouse with the captain. The wheel of the barge had been lashed a little to port in order to overcome the tendency of the tug to twist her to, port. A member of her crew was on the barge near the wheelhouse awaiting any orders from the tug, but none were received from either the captain of the tug or of the barge. Some doubt arises from the testimony as to whether a sufficient lookout was at any time maintained on the tug, but, in view of my conclusions, this question does not become important.

The captain of the tug had full charge of the navigation of the tow, and he admitted that he was aware of the 11-foot shoal and shallow water in the vicinity of it, and that prudent navigation would not admit of any attempt to tow the barge through 14 feet of water. He also testified that he had previously encountered smoke at the same place, and from other witnesses, produced by the claimant, it appeared that such encounters were not to be wholly unexpected.

Conclusions of Law.

I accept the proposition, urged upon the court by the owner of the tug, that the burden is upon the barge, which alleged a breach of duty to show that there had been negligence and unskillfulness in performing the contract undertaken to its injury (The W. H. Baldwin [C. C. A.] 271 F. 411), and that the liability of the tug is not that of insurer, but it is only held to the exercise of reasonable skill and care such as a prudent navigator would exercise under similar circumstances (Aldrich v. Pennsylvania R. R. Ca. [C. C. A.] 255 P. 330). But when the damage is caused by the stranding of the barge upon well-known shoals, on the wrong side of a charted channel, a prima facie case of negligence is made out, and the burden then passes to the tug to explain the cause of the disaster in such a way as to exonerate it from liability. Susquehanna Coal Co. v. Eastern Dredging Co. (D. C.) 200 P. 817; Burr v. Knickerbocker Steam Towage Co. (C. C. A.) 132 P. 248; Lehigh Valley Transp. Co. v. Knickerbocker Steam Towage Co. (C. C. A.) 212 P. 708; The Neponset (D. C.) 251 P. 752; The Coastwise (C. C. A.) 233 P. 1; The Taurus (D. C.) 91 P. 796.

Upon the facts above recited, I have reached the conclusion that the captain of the tug was at fault in two respects: (1) In his failure to adopt a proper course as he came into the Southwest Reach; and (2) his failure to station proper lookouts.

Before the captain of the tug had encountered the difficulties which he seeks to hold responsible for the accident, he, if he had acted prudently, would have rounded the point closer to the New Jersey shore and would not have allowed his tow to swing far over to the port side of the channel. As was said in The Mascot (D. C.) 48 P. 917, 918: “The general knowledge that a certain course was the proper course to take in consequence of some obstructions, and that it was the custom uniformly to adhere to that course, is sufficient to put upon the tug the risk of departing from it without reason.”

No adequate excuse can be found for the-failure of the tug to observe applicable rules of navigation or to heed the published warning of the United States engineers. The John L. Hasbrouck, 93 U. S. 405, 23 L. Ed. 962; The Arlington (C. C. A.) 19 F.(2d) 285, 54 A. L. R. 101; The Coastwise, supra; The S. W. Morris (D. C.) 59 P. 616.

The master of the tug was required to know the width and course of the channel at Tremley Point and to be aware of the existence of the dangers along the bank on the Staten Island side. The Robert H. Burnett (D. C.) 30 P. 214; The Henry Chapel (D. C.) 10 P. 777; See, also, The Mercury (D. C.) 291 P. 797.

The master must be held equally at fault whether this deviation from the usual and customary course was due to inattention or to excessive speed aided by the force of the current. A duty rested on the tug to keep the barge within the limits of the channel. The Westerly (C. C. A.) 249 P. 938; The Convoy (D. C.) 12 F.(2d) 93.

As to the failure to maintain an adequate and proper lookout, we must consider that the tow was proceeding in the nighttime down the Kill, approaching a point where the direction of the channel changed more or less abruptly, and where it was prudent to keep on the starboard side of the channel and also that at this point the captain, from past experience, had reason to anticipate that visibility might be obscured by drifting clouds of smoke or vapor coming from the works of the Cyanamid Company or other plants on the New Jersey shore. Under such circumstances the reasonably prudent and skillful navigator would have deemed it necessary to have stationed at the bow of the tug or barge a competent lookout to warn the captain in case he was getting too near the port side of the channel. The Oradel-Pittsburgh, 1928 A. M. C. 806 (Oral); The Sagamore (C. C. A.) 247 P. 743; The Williamsport (C. C. A.) 74 P. 653; Dahlmer v. Bay State Dredging & Contracting Co. (C. C. A.) 26 F.(2d) 603; The Oregon, 158 U. S. 186, 15 S. Ct. 804, 39 L. Ed. 943. .

Furthermore, when the captain found that the smoke was interfering with the visibility, reasonable care and prudence would dictate the necessity of placing on the bow of the barge an attentive lookout. The Lyndhurst (D. C.) 92 F. 681; Eastern Dredging Co. v. Winnisimmet Co. (C. C. A.) 162 F. 860; British Columbia Mills Tug & Barge Co. v. Mylroie, 259 U. S. 1, 42 S. Ct. 430, 66 L. Ed. 807.

It is my opinion that, if he had stationed such a lookout, the disaster would have been averted because the lookout would have been some 90 feet forward of the wheelhouse on the tug and nearer the water, and would have picked up the buoy sometime before the barge came .abreast of it and in ample time to have enabled a reasonably skillful navigator to keep off of the shoals of the easterly bank.

His failure to take this ordinary precaution, in my opinion, was one of the principal causes contributing to the stranding, and, for this failure to take the usual and reasonable precaution, no adequate explanation is forthcoming. The defense of inevitable accident, therefore, cannot avail the tug. The Osceola (D. C.) 18 F.(2d) 415; The Mabey, 14 Wall. 204, 20 L. Ed. 881.

As to the liability of the Cyanamid Company, impleaded on the petition of the claimant, the evidence does not disclose that the company had knowledge that the vapors coming from its plant constituted a menace to navigation. Nor does the evidence warrant a finding that the company, in its method of drying fertilizer, was guilty of any negligent aet or omission.

I am unable to see how it violated any duty which it owed the owners of the tug. It is unnecessary, however, to inquire further into this matter because of my conclusion that the smoke emanating from the factory of the Cyanamid Company was not the proximate cause of the damages done to the barge and cargo.

In conclusion, therefore, I find that the Perth Amboy is liable to the Roekland Transportation Company for damages done to the barge, and to the International Minerals & Metals Corporation for damage done to the cargo.

Decrees for the libelants in both cases may be entered, and the cases referred for assessment of damages.


text:
    THE M. VIVIAN PIERCE.
    No. 339.
    District Court, D. Massachusetts.
    March 24, 1931.

      R. Chandler Davis, of Gloucester, Mass., for libelant.
    John W. Lowrance, of Boston, Mass., for petitioners Crowell & Thurlow and Doane Commercial Touring Co.
   BREWSTER, District Judge.

The above-entitled matter is before the court on the intervening libel of Crowell & Thurlow, Inc., which seeks to establish a maritime lien against the schooner M. Vivian Pierce for $700, advanced to the master, which was used in paying the wages of the crew of said schooner.

Findings of Fact.

The New England Maritime Company was the owner of the M. Vivian Pierce and other vessels. Crowell & Thurlow, Inc., was the managing agent of the ships of the New England Maritime Company, including the M. Vivian Pierce. They chartered these vessels and received a commission- for their services. They did not disburse the vessel out of their own bank account, and the freights received were, as a rule, deposited in the account of the maritime company and disbursed directly by it.

Mr. Lewis E. Thurlow was treasurer of the New England Maritime Company and also of Crowell & Thurlow, Inc., and Mr. Richard R. Freeman was secretary of both the New England Maritime Company and Crowell & Thurlow, Inc. Crowell & Thur-low, Inc., held no stock in the New England Maritime Company,- but both Mr. .Thurlow and Mr. Freeman were stockholders in the New England Maritime Company, holding less than a majority. They were also stockholders in Crowell & Thurlow, Inc., holding more than a majority. Both corporations occupied the same offices, but each kept separate books.

The M. Vivian Pierce arrived in Boston in November, 1930, with insufficient funds to pay the crew, and, in order to comply with the navigation laws and discharge the cargo and thereby earn the balance of the freight, Crowell & Thurlow, Inc., advanced $700 to the master, which sum was paid to the crew on account of the wages due them. If it be material, I find that a necessity existed for the advancement. Within a day or two after this money was advanced, the balance of the freight, in the sum of $400, was received and applied by the New England Maritime Company to the general purposes of that corporation, and was not paid over to this intervenor.

Conclusions of Law.

There can be no question concerning the right of seamen to assert a lien upon the vessel for their wages. The Minnie and Emma (D. C.) 21 F.(2d) 991. And it has long been the established rule in admiralty that one advancing money to discharge a valid lien gets a lien of equal dignity with the one discharged. The Emily Souder, 17 Wall. 666, 21 L. Ed. 683; The Ruth E. Merrill (C. C. A.) 286 F. 355; The Snetind (D. C.) 276 F. 139; The Commack (D. C.) 8 F.(2d) 151; The Little Charley (D. C.) 31 F.(2d) 120.

The controlling question is whether such a lien can be asserted by a libelant who is the managing agent of the ship. The established rule is that a general agent does not have a maritime lien for advances which he makes on behalf of vessels belonging to his principal during his agency. The Gyda (D. C.) 235 F. 266, 269; The Ascutney (D. C.) 278 F. 991; The West Irmo (C. C. A.) 1 F.(2d) 87, 88.

In the ease of The Puritan (D. C.) 258 F. 271, Judge Morton observes that “as a general rule the agent of a vessel is not entitled either to a lien for advances or to be subrogated to the liens of creditors whom he has paid in the regular course of his agency. * * * The question is essentially one of fact, the decisions referred to proceeding upon the presumption that in such cases the advance or the payment is made on the credit of the owner, not of the vessel.” This presumption is not affected by the Liens on Vessels Act of 1910 (36 Stat. 604), or the Ship Mortgage Act of 1920, § 30, subsec. S (46 USCA § 974). This presumption, however, may be rebutted, but the courts have consistently held that, in order to do so, the agent “must affirmatively prove the existence of an express agreement giving him a lien or such circumstances as justifies the implication of one.” The West Irmo, supra. See, also, The Puritan, supra; The City of Camden (D. C.) 147 F. 847.

In the case at bar, the evidence discloses no express agreement. Do the stated facts justify the court in finding an implied agreement? While the libelant corporation owned no stock in the corporation owning the vessel, there was such an interlocking of interest between the two corporations, both having the same individual as treasurer, that the relationship of the agent to the principal must, in its bearing upon the presumption that credit was given to the owner, have the same effect as if the libelant were a part owner of the vessel. Clearly, the libelant had complete control over the management of the vessel and the disbursement of her freights. Such ownership and control, however,’ does not necessarily defeat the right to lien if the facts of the case were sufficient to maintain the libel-ant’s burden of showing that advances were made upon the credit of the vessel and not upon the credit of the owner. The City of Camden, supra; The Puritan, supra.

In the case of The Puritan, supra, the libelants were in the general shipping business, were agents of the schooner, and stockholders in the corporation owning her, and in that case Judge Morton sustained the lien on the ground that the parties had expressly stipulated that the libelants relied entirely upon the credit of the vessel and upon the security of existing liens (which were to be paid off), and not upon the credit of the owner.

In the ease of The City of Camden, supra, it is intimated that, while a stockholder or treasurer is not prevented from contracting with the company owning the vessel and thereby acquiring a lien on it, the fact that he is the legal custodian of its funds is strong evidence that the advances were made upon the credit of the .owner. In that case the libelant was both a stockholder and treasurer of the company owning the boat, but it appeared that the company had no funds, at the time he loaned the money to the company, .to pay for the claims against the boat, and has had no funds in his' custody since that time. The lien was established, but postponed to those of other creditors.

In the case of The West Irmo, supra, the facts are more nearly parallel to those of the ease at bar. In that ease there was the same close identity between the libelant and the company owning the boats without actual part ownership. The court dismissed the intervening libel of the agent.

It is urged by the libelant that, although it was the managing agent of the vessel, it did not disburse the vessel, but, on the contrary, kept separate books and paid into and disbursed from the funds of the maritime company, and that these facts warrant the court in holding that the advances were made upon an implied agreement giving the libelant a lien therefor. In my opinion, however, these circumstances are not sufficient to establish an implied agreement that the vessel was to be held liable.

Any agreement for such a lien must of necessity be found to exist, if at all, between two corporations which, though distinct entities, were for all practical purposes identical. The financial officer in each corporation was the same person. Such circumstances leave little room for the law to imply an agreement. The law looks to the substance and not to the form. I take this to be as true in admiralty as in other fields.

The intervening libel of Crowell & Thur-low, Inc., is therefore dismissed.


text:
    THE HALL. THE SELWYN EDDY.

      No. 165.

    District Court, D. Massachusetts.
    Feb. 20, 1931.

      Robert A. Terry, of New Bedford, Mass., for plaintiff.
    John W. Lowrance and Ray Henry, both of Boston, Mass., for defendant.
   BREWSTER, District Judge.

This is a libel in admiralty to enforce a maritime lien upon a steam screw, known at the time as the Selwyn Eddy.

Statement of Facts.

The steamer ran ashore at Naushon island, in this district, some time prior to February 23, 1927, on which date the wreck was sold to one Osgood S. Gilbert, who obtained a bill of sale of the entire interest in the steamer.

On or about July 7,1927, Gilbert requested the libelant to furnish him with a diver and with a boiler and pump, to be used by Gilbert and his crew in floating the vessel.

The libelant complied with this request, furnishing a diver for 11 days and the boiler and pump for six weeks. The equipment and the services of the diver were employed in raising the Selwyn Eddy and bringing her to New Bedford on August 12, 1927. The charges for these services were made to the Selwyn Eddy and owners, and the total amount charged was $601.09, according to the following statement rendered by the libel-ant to the owners on September 10, 1927:

“Frank C. Taylor
“General Contractor
* * * * «
“New Bedford, Mass., September 10, 1927 “In account with S. S. ‘Selwyn Eddy’ and owners
Labor ..................................... $ 72 83
Insurance @ 5.00%....................... 3 64
Services of Diver 11 days @ $25.00....... 275 00
Teaming 3 brs. @ $2.00................... 6 00
$357 47
15% 53 62
Rental of boiler 6 weeks @ $15.00........ 90 00
Rental of 6" pump 6 weeks @ $15.00.... 90 00
Use of lighter 4 hrs. @ $2.50............. 10 00
$601 09”

The prices charged for the labor and for the rental I find to be reasonable. The bill rendered shows charges for labor amounting in the aggregate to $72.83 which was principally charges for transporting by truck the machinery and equipment and the diver’s apparatus to the water front.

On the date when Gilbert parted with his interest in the boat, July 23, 1927, there was due for such labor and rent at the prices above noted the sum of $190.

On the 23d day of July, 1927, Gilbert transferred his interest in the stranded steamer to Philip C. Heald, who subsequently transferred the entire interest in the steamer to the Heald-Hall Transportation Company, the claimant in this proceeding. Heald paid Gilbert $600 for the steamer, and agreed to advance from time to time further sums as they might be required by Gilbert in raising and repairing the vessel, with the understanding that, when the vessel was sold, Heald would be reimbursed for whatever he had advanced, including the $600 paid for the steamer, and the net profits were to be divided between him and Gilbert. Heald advanced, between July 23 and July 28, 1927, $1,550 on account of this work, and subsequently he advanced other sums for the same purpose. Gilbert was supposed to present Heald with vouchers covering all disbursements in connection with the work, but he failed to furnish vouchers sufficient to cover all of the advancements made by Heald. The difference between the amount advanced and the amount covered by vouchers would be more than sufficient to cover the libelant’s claim.

When Gilbert requested the libelant to furnish the labor and equipment, he represented that he was the owner of the steamer, and the libelant knew that the steamer was on the rocks in a damaged condition on Naushon Island. The libelant had reason to believe, and did believe, that Gilbert was not undertaking the repairs of the Selwyn Eddy without financial assistance, and when he extended the credit he did so in the belief that Gilbert was the owner, but he was not advised as to whether Gilbert was the sole owner or only a part owner. The libelant was also ignorant of the fact that Heald had advanced money to Gilbert sufficient to enable the latter to pay the libelant’s bill.

The libelant had never been advised of the transfer from Gilbert to Heald until after he had fully performed his contract with Gilbert. He did not, during the progress of work, consult the records at the Custom House in Boston or make other inquiries to ascertain whether Gilbert was the true owner or whether he had parted with his title.

Conclusions of Law.

I am unable to accept the theory of the claimant that the case presents a salvage operation with the owner as salvor. It seems clear to me that Gilbert purchased the steamer while it. was stranded and entered upon the task of repairing her so that she would be able to function as a seagoing vessel. The first step in this work of repairing was necessarily the raising of the vessel, and to that end the libelant furnished labor and equipment to the vessel which could be found to be reasonably necessary in this work of repair.

The items for hauling the apparatus to the water front do not give rise to a maritime lien and must be excluded. The William Leishear (D. C.) 21 F.(2d) 862; The American, 1931 A. M. C. 197, 203. The same would he true of the item of insurance. The Wabash (D. C.) 279 F. 921.

Respecting the items for the services of the diver and rental for the use of the boiler, pump and lighter, I have no doubt that these items constituted labor and materials furnished to the vessel and come within the scope of the act, which gives to any person furnishing repairs to a vessel a maritime lien which may be enforced by a suit in rem. Title 46, U. S. C. § 971 (46 USCA § 971). See The City of Atlanta (D. C.) 17 F.(2d) 308.

The services performed by the diver were necessary in order to render the hull sufficiently water-tight to enable the owner to float the vessel. These services were distinctly as necessary as that of an architect who is held to have a lien for work in preparing plans for repairs. The Schuylkill (D. C.) 249 F. 781. See, also, The Susquehanna (C. C. A.) 295 F. 322.

That one furnishing a pump and boiler to a vessel to he used in the work of floating her in order that she may undergo repairs has a lien under the statute is hardly open to dispute. See The Dredge A (D. C.) 217 F. 617; The Convoy (D. C.) 257 F. 843.

In conclusion, I find that the libelant would be entitled to assert a maritime lien for the sum of $506.25, made up as follows:

Services of diver..................$275.00
15 per cent, of same.............. 41.25
Rent of boiler.................... 180.00
Use of lighter ...•................ 10.00
Total $506.25

The claimant has advanced two reasons why the rights of the libelant to enforce this maritime lien cannot be now enforced in this court. These are: First, that, while the work was in progress, to wit, July 23, 1927, Gilbert sold his interest in the vessel to Heald; and, second, that the new owner put Gilbert in funds sufficient to pay the libelant’s claim.

In my opinion neither of these facts operate to defeat the rights of the libelant. When the work was ordered, Gilbert was the sole owner, and, after the transfer from Gilbert to Heald, Gilbert was acting as agent for the new owner with full authority to bind the vessel for necessary repairs and supplies. Moreover, the libelant was in possession of no knowledge which would put him upon inquiry respecting a change of ownership. When the work was ordered, Gilbert was the sole owner, and a careful investigation by the libelant would have only disclosed that fact. Section 972 of title 46 U. S. C. (46 USCA § 972) provides that the managing owner, or any person to whom the management of the vessel at the port of supply is intrusted, shall he presumed to have authority from the owner to procure repairs, supplies, etc., and I do not find in section 973 anything that requires the person furnishing the repairs or supplies to keep constantly on the watch to see that there has been no change of ownership during the performance of the contract. It is sufficient that the contract under which the supplies were furnished was made with the true owner of the vessel, and it is immaterial, as I view it, that a portion of the services was rendered after Gilbert parted with his title to the vessel.

The second objection to the libelant’s lien is apparently based upon the doctrine of the earlier maritime law that there is no presumption that credit was extended to the vessel when it appears that the master has funds on hand, or at his command, which he ought to have applied to the payment of the repairs or supplies, and that the material-man knew of that fact, or was in possession of knowledge sufficient to put him upon inquiry so that due diligence on his part would have revealed the fact that the master had no authority to contract on the credit of the vessel. Merchants’ Mutual Insurance Co. v. Baring, 20 Wall. 159. 22 L. Ed. 250.

Whether that doctrine still obtains under the existing statute which obviates the necessity of alleging and proving that 'credit was given to the vessel is a question which need not be determined, because, under the earlier rule, it was held that, whenever the necessity for the repairs and supplies is once made out, it is incumbent upon the owner, if he alleged that the funds could have been obtained upon his personal credit, to establish by competent proof that fact and that the materialman knew the same or was put upon inquiry. Merchants’ Mutual Insurance Co. v. Baring, supra.

In the ease at bar this burden is not sustained by the evidence. On the contrary, I ■have found affirmatively that the libellant had no knowledge respecting the advances which had been made by Heald to Gilbert. To say that an undisclosed owner could, by putting his agent in funds, defeat the maritime lien of a materialman, who was ignorant of the fact, is to lay down a proposition so astounding that I am loathe to believe it can have any place in the maritime laws of this country, regardless of the statute.

The libellant therefore has a good and valid maritime lien for the sum of $506.25 which can be enforced in these proceedings,, and I so rule.

       Commissioner’s report.


text:
    THE MARGE.
    No. 4379 Civil.
    District Court, D. Massachusetts.
    March 24, 1931.
    Frederick H. Tarr, U. S. Atty., and Ellen L. Buckley, Asst. U. S. Atty., both of Boston, Mass.
    F. H. Jackman and Abbott & Carroll, all of Boston, Mass., for claimant.
   BREWSTER, District Judge.

This is a petition for the forfeiture of the speed boat Marge, which the government alleges has become liable to forfeiture under 46 USCA § 103 (Rev. St. § 4214, as amended) and 46 USCA § 325 (Rev. St. § 4377).

Findings of Fact.

The Marge is a speed boat of 60.9 feet in length, 11.5 feet beam, and 6.5 feet deep. = It is equipped with three engines of 450 horse power each and capable of making a speed of 30 to 35 knots. She has two cargo holds, one fore and one aft; the aft hold having two hatches. The pilot house forward of amidships and the trunk cabin over the engine room about amidships were both covered with heavy armor plate, and the glass in the pilot house was of unusual thickness. There were no accommodations on the boat for sleeping, messing, or lounging. The Marge had for some years been under the surveillance of the Coast Guard and customs officers and had never been seen to have any of these accommodations or any yacht fittings or furnishings of any kind. She was enrolled and licensed as a pleasure vessel under said section 4214 as amended (46 TJSCA § 103).

On October 22, 1930, the Marge came through the Cape Cod Canal from New Bed-ford, and at 2.15 o’clock p. m. -on that day the Coast Guard officers at Sandwich boarded and examined the boat and saw no cargo of any kind on board. The Marge was seen to go to the eastward in Cape Cod Bay until she disappeared from sight, but was later sighted off Provincetown, going out to sea at full speed. The next morning, October 23, 1930, about 8:30 o’clock, Coast Guard officers approached the Marge in their picket boat, when they observed a sack lying on the deck of the Marge under a hatch cover which was only part way over the hold. There were two small dories on the deck. In the smaller dory were a pair of oars which were bound with cotton gloves where the oars fitted into the thole pins. Upon opening the sack the officers found that it contained 12 bottles of liquor labeled “Peach Brandy,” “Marie Brizard Bordeaux Prance.” The master of the boat appeared shortly after, and his comments and conduct were not at all consistent with the innocence or ignorance which he professed when on the witness stand. Two gaffs were also found in the pilot house of the Marge. About 9 o’clock on the evening of October 22, police officers in Marblehead, who were stationed near the water, heard the sound of a motor and saw a boat without lights entering Salem Harbor. As she came between the officers and the lights on the SaI an side of the harbor, it was possible to get a fairly accurate outline of the motorboat that was passing, and this outline corresponded with that of the Marge. She was then headed toward that part of the harbor known as Wyman’s Cove, A little after midnight, a boat was seen going out of the harbor which answered to the same description as the one that was seen to come in, except that the boat going in had two dories on the deck, and the boat going out had one dory on the deck and one in tow. The witnesses testified that the boat went in laden and came out light. Shortly after the boat was seen going out, the police officers discovered on the shore at Wyman’s Cove 646 sacks of whisky, brandy, and liqueur. Among this liquor were 25 sacks of Peach Brandy identical in appearance with brandy found on board the Marge, and on complete chemical analysis it was found to be absolutely identical, and Dr. Adams testified that ordinarily there would be a variance if they were not of the same lot. There was also found near the liquor overcoats, rubber boots, robes, burlap bags and canvas, and a gaff similar to those found on the Marge but with a longer handle. Two of these police officers, who had observed the boat as she passed in and out of the harbor, later identified the Marge as one corresponding in all particulars with the boat they had seen on the night of October 22.

The owner of the Marge did not attend the trial, but it did appear in evidence that his home was in the vicinity of Salem. It also appeared that this boat had been purchased of the United States marshal in May, 1929, and that the present owner had made alterations in the vessel including covering the engine house with armor plate, and from the cross-examination of the master the inference is warranted that both he and the boat had been involved previously in transactions violative of the federal laws.

The master of the vessel testified and failed to satisfactorily account for the presence of the Marge as a pleasure vessel at Provincetown on that particular morning. His testimony and that of his witness was not of a kind to inspire confidence.

The controlling question of fact in this ease is whether the Marge was the boat which brought into Salem Harbor, and landed at or near Wyman’s Cove, the whisky and other liquors that were found by police officers on the morning of October 23.

While the evidence offered by the libelant tending to connect the Marge with this transaction is largely circumstantial, there is such an array of proved circumstances, all pointing in the same direction, that it is difficult to escape the conclusion that it was the Marge that brought the liquor to Wyman’s Cove. There is the evidence of Dr. Adams that the peach brandy was presumably of the same lot as that found at Wyman’s Cove. This evidence, standing alone, would hardly be sufficient to connect the Marge with the landing, but, when taken in connection with all the other facts and circumstances of the case, a special significance attaches to the testimony of Dr. Adams, and the whole abundantly warrants a finding of fact that the Marge was the boat that brought the liquor into Salem Harbor on the night of October 23. •

The structure, equipment, and history of the boat was such that it taxes one’s credulity to believe that it was being used for purposes purely innocent; on the contrary, it is impossible to escape the conviction that the vessel was a rum-runner, masquerading on' the high seas as a pleasure vessel, and when such a vessel is discovered with a quantity of liquor- on board, which corresponds in all particulars with that landed on shore in the nighttime, and this from a boat which, in outline and dimensions, is similar to the Marge, it is enough to throw the burden upon the claimant to show that it was not the Marge that was engaged in this unlawful enterprise. This burden the claimant has not sustained.

Whether this liquor was of foreign origin or not is immaterial in view of my conclusions of law, and I make no finding respecting its origin.

Conclusions of Law.

46 USCA § 103 (Rev. St. § 4214 as amended) provides that yachts used and employed exclusively as pleasure vessels may be licensed, and further provides that: “Such vessels, so enrolled and licensed, shall not be allowed to transport merchandise or carry passengers for pay. * * * Such vessels shall, in all respects” (with immaterial exceptions) “be subject to the laws of the United States, and shall be liable to seizure and forfeiture for any violation of the provisions of this chapter.”

46 USCA § 107 (Act of Jan. 16,1895, c. 24, § 4, 28 Stat. 625) also provides that: “No licensed yacht shall engage in any trade, nor in any way violate the revenue laws of the United States; and every such yacht shall comply with the laws in all respects.”

It has been held in this jurisdiction that a yacht enrolled as a pleasure vessel, engaged in the transportation of large quantities of liquor, must be presumed to have been engaged in the transportation of merchandise for pay, even though there is no direct evidence that such was the fact. The Herreshoff (D. C.) 6 F.(2d) 414; Bush v. The Conejo (D. C.) 10 F.(2d) 256; see, also, The Rosemary (D. C.) 23 F.(2d) 103.

In a forfeiture proceeding under the statutes invoked in this case, it is immaterial whether the liquor was, or was not, of foreign origin. The Conejo (C. C. A.) 16 F.(2d) 264.

I rule, in conclusion, that the vessel is liable to forfeiture under 46 USCA § 103, and a decree of forfeiture may be entered accordingly.


author: SCHOONMAKER, District Judge.

text:
    In re HOLTZMAN.
    No. 14699.
    District Court, W. D. Pennsylvania.
    Nov. 14, 1930.
    H. J. Schlesinger and A. H. Kaufman, both of Pittsburgh, Pa., for petitioning creditors.
   SCHOONMAKER, District Judge.

This ease comes before the court on certificate to review the action of the referee in bankruptcy in allowing the claim of Grant Berkstresser, tax collector of the county, borough, and school taxes in the borough of Windber, Somerset- county, Pa., for the years 1927, 1928, 1929, as a preferred claim entitled to payment out of the proceeds of the sale of bankrupt’s real estate subject to these taxes, free and clear of liens.

Objection was filed to the allowance of this elaim by the United States National Bank of Johnstown, for the reason that there was personal property on the premises sufficient to cover the amount of these taxes, had this personal property been sold by the tax collector on a tax warrant, and therefore the tax collector was not entitled to this tax as a prior tax claim. The referee overruled these objections, and allowed the tax elaim as a claim entitled to priority of claim out of proceeds of sale of the taxed property.

We are of the opinion that the referee ruled this ease correctly. By the Pennsylvania Tax Act of May 16, 1923, P. L. 207 (53 PS §§ 2021 — 2061), all taxes thereafter lawfully imposed or assessed on any property in Pennsylvania become a first lien upon the property and entitled to priority in payment over the proceeds of any judicial sale of the property before all other liens and obligations, excepting only the cost of sale. By provisions of this act, section 9 (53 PS § 2029), a municipal elaim for such taxes was required to be filed in the court of common pleas of the proper county on or before the last day of the third calendar year after that in which the taxes are first payable. In the instant case, bankruptcy-intervened before it had been necessary under the provisions of this act to file any of the tax claims in the court of common pleas of Somerset county. Therefore, under the clear provisions of this act, at the time of the adjudication in bankruptcy in this case, these taxes were a first lien on the real estate of the bankrupt.

The exceptant claims, however, that the failure on the part of the tax collector to make these taxes out of the. sale of the personal property on the taxed property by a distress warrant takes away the. right of the tax collector to collect these taxes out of the proceeds of the sale in bankruptcy.

We cannot so hold. The tax lien provided for in the act of 1923 is not dependent upon the failure of the tax collector to make the amount of taxes out of the personal property upon the premises. The fact that the personal property may be liable for this tax does not in- any way affect the statutory lien given for the taxes. The right of the taxing municipality to the first lien is not affected by any dereliction in the duty on the part of the tax collector in getting tax out of personal property.

Although not mentioned in the exceptions filed by the United States National Bank of Johnstown, it appears in the proceedings before the referee that there was some evidence that the tax duplicates placed in the hands of the collector by the taxing authorities of the county had been settled by the tax collector. The evidence that the tax collector may have settled these tax duplicates with the county would not- change the status of the tax lien had these taxes not been paid. Beginning in the year 1923, and coming down to the last session of the Legislature in 1929, there are each session remedial acts passed by the Pennsylvania Legislature extending the time of tax warrants to tax collectors for the collection of taxes where warrants have expired at the time of the passage of these respective acts, so that at the time of filing the tax elaim with the referee in bankruptcy in this ease, the tax collector had a legal right to elaim the taxes involved in this case. Then, too, in our opinion, these taxes might properly have been ordered paid by the referee in bankruptcy under the provisions of section 64 of the Bankruptcy Act (11 USCA § 104), awarding payment of taxes owing by the bankrupt to a municipality in advance of payments of dividends to creditors.

Am order of the referee directing payment of these taxes as a preferred claim should therefore be approved.


author: MOSCOWITZ, District Judge.

text:
    Petition of HOROWITZ.
    No. 149153.
    District Court, E. D. New York.
    March 18, 1931.

      Max Seidenbaum, of Brooklyn, N. Y., for Louis Horowitz..
    Merton A. Sturges, District Director of Naturalization, of New York City.
   MOSCOWITZ, District Judge.

Louis Horowitz has presented a petition to become a citizen. The facts set forth in his affidavit, verified October 30, 1930; are as follows:

“Louis Horowitz, residing at 1527-40th St., Brooklyn, N. Y., after being duly sworn, deposes and says:
“I am the identical Louis Horowitz who filed petition for naturalization, No. 149153, in the U. S. District Court, Brooklyn, N. Y., on September 29, Í930.
“I was bom in Nasielsk, Poland, on or about January 4, 1892, my European name being Leib Jozefowiez. On or about May, 1918, I married Pessa Schwarzberg at Nasielsk, Poland, in accordance with the Jewish ritual. There was no civil marriage. I came to New York, N. Y., SS Lapland, on or about October 1, 1923, leaving Pessa in • Poland, as she did not want to come to America. I requested her several times to come to this country, but in the early part of 1928 she wrote me that she liked someone. else and wanted a divorce and would agree to one for a settlement of $1,000. I-accordingly went to a Rabbi in New York and had him prepare the necessary papers in accordance with the Jewish ritual and forwarded the divorce papers and $1,000 to Pessa which she acknowledged at Nasielsk, Poland, on March 26, 1928, and agreed to a civil divorce which was to be obtained within one year at my expense. So far as I am aware no civil divorce has ever been obtained. I have never been in Poland since I came here in 1923 and Pessa has never been in the United States.
“On June 24, 1928 I married Dora Mare-son in New York City by a Rabbi on a marriage license obtained at the City Hall, New York City.”

Petitioner’s first marriage was not dissolved by a civil divorce. It is not claimed that an ecclesiastical divorce was consummated. Whether or not the divorce was valid in accordance with the Jewish ritual is beside the question, as such alleged divorce as claimed by the petitioner is not recognized under the laws of the state of New York. The second' marriage performed after the procurement of a rabbinical divorce is bigamous under the laws of the state of New York. Chertok v. Chertok, 208 App. Div. 161, 203 N. Y. S. 163.

Under the Naturalization Act a person shall not be admitted to citizenship unless he has behaved as a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness 'of the United States.

The Naturalization Act provides among other things that:

“No alien shall be admitted to citizenship unless (1) immediately preceding the date of his petition the alien has resided continuously within the United States for at least five years * • í (2) he has resided continuously within the United States from the date of his petition up to the time of his admission to citizenship, and (3) during all the periods referred to in this subdivision he has behaved as a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.” Section 6 (b), Act of March 2,1929; 45 Stat. 1513,1514; U. S. C. Sub. 3, title 8, § 382 (8 USCA § 382).

The petitioner having contracted a -bigamous marriage cannot be considered as one who has behaved as a person of good moral character for a period of at least five years immediately preceding the filing of his application. In re William Spencer, 5 Sawyer, 195 Fed. Gas. No. 13234; Matter of Ephraim Spiegel (D. C.) 24 F.(2d) 605, decided by Judge Bondy on February 16, 1928.

The petition is denied.


text:
    UNITED STATES v. ONE NASH COUPÉ.
    No. 2035.
    District Court, W. D. Pennsylvania.
    March 23, 1931.

      James H. Dilley, Asst. to Louis E. Graham, U. S. Atty., both of Pittsburgh, Pa.
    Abraham Pervin, of Pittsburgh, Pa., for intervener C. I. T. Corporation.
   SCHOONMAKER, District Judge.

This ease was heard on forfeiture libel, intervening petition of the C. I. T. Corporation to establish a lien against the libeled automobile, and proofs.

From these we find that the allegations under the libel had been sustained,' and that the automobile is forfeitable under section 26, title 2, of the National Prohibition Act (27 USCA § 40).

As to the intervening petition of the C. I. T. Corporation, we find that that corporation has an established lien under a bailment contract with one Morris Silverman in the sum of $743.20, which, under the law, should be paid out of the proceeds of the sale of the property at public auction, after deducting the expenses of keeping the property, the fee for the seizure, and the cost of the sale. Let an order be submitted accordingly.

Discussion.

. The government offered as against the intervening petition of the C. I. T. Corporation, the record of two convictions against •Silverman — Record at 4480-C, criminal, on April 5, 1928, and record at No. 3290, criminal, on January 31, 1928, for violation of the National Prohibition Aet — for the purpose of establishing that the C. I. T. Corporation had notice that the vehicle would be used in violation of i the National Prohibition Aet.

There was no evidence that the C. I. T. Corporation had actual notice of these convictions of Silverman; but the government seeks to charge that corporation with constructive notice, contending that ■ it should have searched the criminal records before dealing with Silverman to ascertain whether or not he was an offender against the National Prohibition Aet.

This contention we decide against the government on the authority of Shelliday v. United States, 25 F.(2d) 372, adopting the conclusions of Circuit Judge Parker. It may be noted that District Judge Symes has decided exactly the opposite in the ease of United States v. Bailey, 42 F. (2d) 908; but we believe that Judge Parker has correctly ruled the legal point involved.


text:
    UNITED STATES v. ONE BUICK COUPÉ.
    No. 2069.
    District Court, W. D. Pennsylvania.
    March 21, 1931.
    Louis E. Graham, U. S. Atty., of Pittsburgh, Pa.
    Robert Mellin, of Pittsburgh, Pa., for defendant.
   SCHOONMAKER, District Judge.

This case was heard on libel to condemn on Buiek coupé seized in the possession of Charles Burger while transporting liquor, in violation of the National- Prohibition Act, and on petition of the North Side Buiek Company to establish a lien against said automobile in the sum of $350 under a bailment contract between Burger and the petitioner.

We find that the facts set forth in the forfeiture libel are true, and that .the plaintiff is entitled to a decree forfeiting the automobile in question and providing for the sale thereof under the provisions of section 26, title 2, of the National Prohibition Aet (27 USCA § 40).

We further find that the intervening petitioner, North Side Buiek Company, has an established lien under the provisions of said act in the sum of $350, to which it is entitled out of the proceeds of public sale of said automobile, after deducting the expenses of keeping the property, the fee for seizure, and the cost of the sale.

Let a decree be submitted accordingly.

Discussion.

The only question involved in this ease is whether or not the North Side Buiek Company should be refused relief by reason of their alleged laches.

The facts with reference to this claim of laches are as follows:

The ear was seized by federal prohibition agents on November 30, 1929. Burger secured its release on December 6, 1929, upon giving bond to the government, as required by section 26, title 2, of the National Prohibition Act (27 USCA § 40). The car continued in his possession until February 17, 1931, when it was delivered to the United States after sentence had been imposed upon Burger on the 13th day of February, 1931, in the criminal case against him.

The contention of the government was that the North Side Buiek Company should have proceeded against this automobile on its bailment contract while the car was released to Burger under bond. The North Side Buiek Company made known its claim to an attorney for the prohibition unit on the seizure of the car and was told by an attorney in the writ that nothing could be done until the disposal of the criminal ease against Burger. We cannot say, under those circumstances, that the intervener has slept on its rights to such an extent that it should be precluded from establishing its lien, as was the ease in United States v. Kane (D. C.) 273 F. 275.

We conclude that the North Side Buiek Company was not guilty of laches and is entitled to its lien of $350, as an intervening lienor.


author: COXE, District Judge.

text:
    BIRKS v. UNITED FRUIT CO., Inc.
    District Court, S. D. New York.
    May 7, 1930.
    See also 48 F.(2d) 656.
    Allen Caruthers, of New York City, for plaintiff.
    W. Dale Williams, of New York City, for defendant.
   COXE, District Judge.

This complaint is not only technically insufficient in failing to allege facts showing that a death action may be maintained by the administratrix, The La Bourgogne, 210 U. S. 95, 138, 28 S. Ct. 664, 52 L. Ed. 973, but also is probably fatally defective in that under the maritime law the master has no action against the owners of the vessel for damages for willful assault committed on the high seas by members of the crew. Cain v. Alpha S. S. Corp. (C. C. A.) 35 F.(2d) 717, 1929 A. M. C. 1484; certiorari granted December 2, 1929, 280 U. S. 549, 50 S. Ct. 86. 74 L. Ed. 607, 1929 A. M. C. 1788 ; The Osceola, 189 U. S. 158, 23 S. Ct. 483, 47 L. Ed. 760; Carlisle Packing Co. v. Sandanger, 259 U. S. 255, 42 S. Ct. 475, 66 L. Ed. 927; Davis v. Green, 260 U. S. 349, 43 S. Ct. 123, 67 L. Ed. 299.

The motion to dismiss is therefore granted; and although it is doubted whether the defects in the complaint can be cured, the plaintiff may have twenty days within which to amend.

       For opinion on merits, see 281 U. S. 642, 50 S. Ct. 443, 74 L. Ed. 1086.


author: BONDY, District Judge.

text:
    BIRKS v. UNITED FRUIT CO., Inc.
    District Court, S. D. New York.
    Nov. 13, 1930.
    See also 48 F.(2d) 655.
    Allen Caruthers, of New York City, for plaintiff.
    W. Dale Williams, of New York City, for defendant.
   BONDY, District Judge.

This is a motion to dismiss the second amended complaint on the ground that it does not state facts sufficient to constitute a cause of action, and on the further ground that the alleged cause of action is barred by the statute of limitations.

The first amended complaint which was dismissed by Judge Coxe is stated to have alleged that the crew of a vessel owned and operated by the defendant, willfully and wantonly stabbed and assaulted plaintiff’s intestate, the master, and that he was either thrown from the ship, or in his helpless condition fell therefrom into the high seas and lost his life.

In the second amended complaint this last clause has been changed to read, “or in his helpless condition from such assault, fell therefrom by reason of the faulty construction of the ship into the high seas.”

The second amended complaint further alleges that the defendant failed to provide a seaworthy ship, in that among the crew there were men of vicious and criminal propensities to the imminent danger of the passengers and other members of the crew.

If, as is plaintiff’s contention, the action is based on the statutes of the State of New York, it must be dismissed because the Merchant Marine Act 1920, § 33 (46 USCA § 688), so far as applicable, supersedes all state legislation. Lindgren v. United States, 281 U. S. 38, 50 S. Ct. 207, 74 L. Ed. 686.

It cannot be regarded as having been brought under the Death on High Seas Act, § 1 (46 USCA § 761), because the action is at-law.

It cannot be sustained on the theory that the vessel was unseaworthy‘because under the Merchant Marine Act no right of action survives the death of a seaman by reason of unseaworthiness. Lindgren v. United States, supra.

Nor can it be sustained on the theory of negligence. Though an assault by a foreman on a stevedore to hurry the stevedore in his work may be held to have taken place in the course of employment and in furtherance of the master’s business, Jamison v. Encarnacion, 281 U. S. 635, 50 S. Ct. 440, 74 L. Ed. 1082, a felonious assault cannot be held to have taken place in the course of employment or in the furtherance of the master’s business when it is committed by the crew upon the master, whom the crew must obey. Davis v. Green, 260 U. S. 349, 43 S. Ct. 123, 67 L. Ed. 299.

The allegation that members of the crew had felonious and criminal propensities does not sustain a cause of action in negligence in the absence of an allegation that the defendant knew of these propensities or had knowledge of facts putting it on notice. See The Rolph (C. C. A.) 299 F. 52, certiorari denied 266 U. S. 614, 45 S. Ct. 96, 69 L. Ed. 468.

Nor is there a sufficient allegation that the injuries were caused by the negligent construction of the ship in the statement in the alternative that plaintiff’s intestate “was either thrown from said S. S. ‘Tivives’ by the agents, servants and employees of defendant, or, in his. helpless condition from such assault, fell therefrom by reason of faulty construction of said ship into the high seas, and lost his life.”

The objection to the complaint on the ground of the statute of limitations also seems to be well taken. The original complaint apparently was based on the right to recover for the willful misconduct of the crew in assaulting the master. Basing the amended complaint on unseaworthiness or on negligence in providing a crew among whom were men of felonious and criminal propensities, or in providing a ship that was improperly constructed, constitutes in legal effect a change in the cause of action. See D’Allesandro v. United Marine Contracting Corp. (D. C.) 30 P.(2d) 718.

The motion to dismiss accordingly must be granted with usual leave to amend.


author: HATPIELD, Associate Judge.

text:
    In re ANHALTZER.
    Patent Appeal No. 2672.
    Court of Customs and Patent Appeals.
    April 15, 1931.
    John E. Jackson, of New Orleans, La. (Edward W. Shepard, of Washington, D. C., of counsel), for appellant.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   HATPIELD, Associate Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Primary Examiner rejecting all of the claims in appellant’s application for a patent for an alleged invention relating to a food product and a method of making the same.

The involved claims read as follows:

“7. A dry food product composed mainly of malt and sugar and having small amounts of cornstarch, casein, sodium chloride, calcium lacto phosphate, calcium suerate, calcium phospho suerate, and magnesium phospho suerate, said product being the result of forming a mixture of from 50 to 60 per cent, malt extract, 26 to 45 per cent, cane sugar, 3 to 4 per cent, cornstarch, .75 to 2.25 per cent, hop extract, .50 to 1.50 per cent, casein, .25 to .75 per cent, calcium sulfate, .25 to .75 per cent, sodium chloride, .125 to .325 per cent, powdered milk, and .03 to .06 per cent, magnesium sulfate, heating said ingredients while they are being mixed, and then drying said mixture by heating said mixture in vacuo.
“8. In the manufacture of concentrated food products of the class described, the steps consisting of forming a mixture composed of from 50 to 60 per cent, malt extract, 25 to 45 per cent, cane sugar* 3 to 4 per cent, cornstarch, .75 to 2.25 per cent, hop extract, .50 to 1.50 per cent, casein, .25 to .75 per cent, calcium sulfate, .25 to .75 per cent, sodium chloride, .125 to .375 per cent, powdered milk and .03 to .06 per cent, magnesium sulfate, agitating said mixture while maintaining it at a temperature of not under 30 and not over 60 degrees Centigrade so as to cause said calcium sulfate to be dissolved by said sodium chloride and the lactic acid of the malt and milk and thereby react and combine with the sugar contents of said: mixture and also with the phosphate of said malt extract and with at least some of the lactic acid 'to form ealciuin suerate, calcium phospho suerate, and calcium lacto phosphate, and said magnesium sulfate being caused to combine and react with the sugar content of said mixture and with a phosphate of said malt extract to form magnesium phospho suerate, then desiccating the product resulting from said mixture in vacuo, then' cooling the desiccated mixture, and then comminuting the cooled mixture.”

The references are: Horliek, 278,967, June 5, 1888; Rollheuser, 596,945, January 4, 1898; Dodd, 620,645, March 7, 1898; Eiger, 1,100,176, June 16, 1914; Barwell, 1,409,435, March 14,1922.

The character of the product and the method of producing the same is clearly set forth in the claims.

The Primary Examiner held that the applicant had “merely selected and assembled substances which are old in the same relation, i. e., as beverage constituents and united them in a single compound; and it does not appear that any unusual or unobvious co-operative relationship exists among the respective ingredients nor does it appear that the steps of the process involve and' [an] unobvious procedure for the preparation of a product of the kind herein disclosed.”

In affirming the decision of the Primary Examiner, the Board of Appeals, among other things, said: “The patents to Dodd and Horliek show that malt and starch have been used in beverages or foods and that the starch is converted under the action of the heat into dextrin and maltose or grape sugar. The patent to Eiger mixes malt extract with casein ealeium which prevents hygroscopic action and mold. It is well known that cane sugar, sodium chloride and powdered milk are used in beverages and this leaves only calcium and magnesium sulphate unaccounted for. These ingredients are added, according to the specification, as antiseptics to destroy .bacteria.”

The Board further said that it was unable to find any authority to the effect that calcium and magnesium sulphates possessed the properties claimed in appellant’s application.

Thereafter, appellant filed a petition for rehearing in which it was pointed out that calcium and magnesium sulphates have antiseptic properties and have been used for such properties in medical and chemical sciences; that “ealeium sulfate when dissolved will combine with sugar to form calcium suerate, and with phosphate and lactic acid to form ealeium phospho suerate and ealeium lacto phosphate, * * * That magnesium sulfate will combine and react with sugar and phosphate to form magnesium phospho suerate”; that “magnesium phosphal suerate” is a laxative and digestive; that ealeium is a bone and tissue builder; and that magnesium phosphate is readily formed in mixtures such as claimed in appellant’s application.

In support of the above statement, counsel for appellant cited the following authorities: “Materia Medica and Therapeutics— Fourth Edition — Shoemaker—published .by the F. A. Davidson Company, Dictionary of Applied Chemistry — ’Thorpe—Vols. 1 and 3, and General and Industrial Chemistry— Molinari.”

The petition for rehearing was denied by the Board of Appeals.

It is contended by counsel for appellant that the involved product is new; that it results from the application of a novel method of manufacture, whereby “certain chemical reactions are caused to take place forming ealeium suerate, ealeium phospho suerate, calcium lacto phosphate and magnesium phospho suerate, all of which are compounds not even suggested by the references and compounds not possible to form by combining any or all of the ingredients of any or all of the references”; and that appellant has produced a bacteria proof product possessing both medical and food values heretofore unknown.

Counsel for appellant attached to his brief copies of affidavits. In view of the fact that they were not presented to, and were not considered by, the tribunals of the Patent Office, this court will not consider them'. In re Fisher, 37 F.(2d) 628, 17 C. C. P. A. 864.

In his| petition for rehearing, filed with the Board of Appeals, counsel for appellant said: “The chemistry involved in this application is complicated and beyond the grasp of those not skilled in the art as set forth in the specification and claims.”

In cases involving intricate and highly technical questions, especially in the absence of the evidence of those expert in the art, concurring decisions of the Patent Office tribunals will not be disturbed, unless it appear that they are manifestly wrong. Stern et al. v. Sehroeder et al., 36 F.(2d) 515, 17 C. C. P. A. 670; Stern et al. v. Sehroeder et al., 36 F.(2d) 518, 17 C. C. P. A. 690; Beidler v. Caps, 36 F.(2d) 122, 17 C. C. P. A. 703; Clancy v. DeJahn, 36 F.(2d) 131, 17 C. C. P. A. 714; In re Moulton, 38 F.(2d) 359, 17 C. C. P. A. 891; In re Demarest, 38 F.(2d) 895, 17 C. C. P. A. 904; In re Wietzel, 39 F.(2d) 669, 17 C. C. P. A. 1079; Pengilly v. Copeland, 40 F.(2d) 995, 17 C. C. P. A. 1143.

It is true that the references cited by the tribunals of the Patent Office do not show the use of calcium and magnesium sulphates in combination with other substances for producing food products, nevertheless, the authorities cited by counsel for appellant disclose that the use of calcium and magnesium sulphates in combination with other substances for the precise purposes claimed by appellant is old in the art.

We are in accord with the conclusion reached by the tribunals of the Patent Office, and, for the reasons stated, the decision of the Board of Appeals is affirmed.

Affirmed.


author: GARRETT, Associate Judge.

text:
    CROSS v. WILLIAMS OIL-O-MATIC HEATING CORPORATION.
    Patent Appeal No. 2676.
    Court of Customs and Patent Appeals.
    April 15, 1931.
    Thomas E. Scofield, of Kansas City, Mo. (Henry H. Snelling, of Washington, D. C., of cbunsel), for appellant.
    Langdon Moore, of Washington, D. C. (James Atkins, of Washington, D. C., of counsel), for appellee.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   GARRETT, Associate Judge.

Appellant seeks to register “Coal-O-Matic” as a trade-mark for use on devices for automatically feeding solid fuel, in the form of pulverized coal, to fumaees. Opposition to his application was made by appellee, who alleges ownership, registration, and prior use of “Oil-O-Matic” as a trade-mark for application to devices which automatically feed fuel oil to fumaees.

The opposition was sustained and registration denied by decisions of both the Examiner of Interferences and the Commissioner of Patents and the matter is before us on appeal.

Appellant alleges use of his mark since April, 1926. Appellee’s registrations pleaded were dated June 16, 1925, and December 28, 1926, respectively. Use was alleged pri- or to the registrations.

No proof was taken by either party, but a stipulation as to facts was filed in lieu thereof.

This stipulation, among other things, shows the volume of business done by appellee over a period of several years, the amount of its advertising, etc.

Appellant insists before us that the goods of the parties are dissimilar. If by this he means that they are not of the “same descriptive properties,” we are unable to agree thereto. Both devices are for feeding fuel to furnaces — one feeds oil and the other eoal. It is not the particular materials whieh they feed, however, that must furnish the test in this ease; the issue is not whether oil -and coal are of the same descriptive properties, but whether the devices that feed them into the furnaces are.

Surely there can be no serious question about this. Obviously, they are of the same class and, being so, they are of the same deseriptive properties under the doctrine of Cheek-Neal Coffee Co. v. Hal Dick Mfg. Co., 40 F.(2d) 106, 17 C. C. P. A. 1103, and numerous other eases decided by us since jurisdiction in trade-mark registration appeals was transferred to this court. California Canneries Co. v. Bear Glacé Co., 44 F.,(2d) 866, 18 C. C. P. A.-, and eases reviewed therein.

We think, too, that the marks are of such close resemblance as that when applied to goods of the same descriptive properties confusion — particularly confusion as to origin — would likely result.

Without being descriptive, both words are suggestive. By the suffix “matie” it is suggested in each instance that there is something automatic in the device.

The public might easily conclude from the marks, standing alone and nothing further appearing, that the articles were both products of the same manufacturer, since both are in the same field of activity — feeding fuel to furnaces.

We, of course, must consider only the marks, and not such other matter as may accompany them in their use upon the products.

After this case had been passed upon by the Examiner of Interferences and the appeal taken to the Commissioner of Patents, appellant gave notice that under the provisions ■ of rule 154 of the Patent Office he ■would refer to certain registrations which had not been theretofore introduced into the record and set out a list of 33 such registrations which do now appear in the record before us, and which are commented on in. appellant’s brief filed in this court.

We do not observe any expression in the opinion of the commissioner which indicates that he gave these any consideration. It was proper that he not do so.

Rule 154 did not authorize their introduction in the manner proposed by appellant. It provides that any official record may be used as evidence at the hearing upon notice given to the opposite party before the closing of the testimony. In the interest of orderly, procedure and proper practice we once more invite attention to this fact, and refer to what was said and held by us in Standard Oil Co. v. Epley, 40 F.(2d) 997,17 C. C. P. A. 1224.

While, as indicated, we are in agreement with the final conclusion reached by the assistant commissioner in this case that appellant is not entitled to the registration sought, we deem it proper and necessary to say that we are not wholly in. accord with his reasoning.

As we understand his decision, he held that the specific structures of the respective parties are radically different; that the word “ ‘Coal’ serves to sharply distinguish from opposer’s goods and its trade mark,” and that confusion would not be likely, in part, because of the high prices of the articles, but nevertheless denied the registration because “the applicant has not only adopted the op-poser’s terminology, but has adopted its precise form ‘-O-Matie’ — the hyphens separating the ‘O’ and giving this peculiar character to the mark.”

It may be here said that if the matter turned upon the hyphens, appellee’s mark in the record does not show hyphens, but small circles instead.

We do not understand that registration may be denied -appellant simply upon the ground that his mark simulates or elosely resembles or contains a part, however prominent, of the mark of appellee. There must be the additional feature that the goods to which the marks are applied are of the same descriptive properties so that confusion would likely result when the marks are applied.

Being of the opinion that the latter situation exists, we concur in the assistant commissioner’s conclusion, and same is affirmed.

Affirmed.