author: JOYCE, District Judge.

text:
    BOWLES, Administrator, Office of Price Administration, v. WARNER HOLDING CO.
    Civ. No. 884.
    District Court, D. Minnesota, Fourth Division.
    Oct. 26, 1944.

      Arnold A. Karlins, Chief Atty., Minneapolis-St. Paul Defense Rental Area Office, of Minneapolis, Minn., Alex Elson, Regional Atty., of Chicago, 111., and Ralph M. McCareins, District Enforcement Atty., Twin Cities District Office, Office of Price Administration, of St. Paul, Minn., for plaintiff.
    R. H. Fryberger and 3VL R. Keith, both of Minneapolis, Minn., for defendant.
   JOYCE, District Judge.

This is a suit under the Emergency Price Control Act of 1942, § 205(a), 50 U.S.C.A.Appendix § 925(a), hereinafter called the Act, by the Administrator of the Office of Price Administration, against Warner Holding Company, to enforce compliance with the Act and the applicable price regulations. A preliminary injunction has been granted. See Brown v. Warner Holding Co., D.C., 50 F.Supp. 593. Plaintiff also seeks an order compelling restitution to certain tenants of rents collected by defendant in excess of “ceilings”. These questions present different considerations and will be discussed separately.

I. Injunction of Violations of the Act and Regulations.

The pertinent provisions of section 205 (a) of the Act are: “Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of section 4 of this Act [see footnote] he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the Administrator that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond.”

The power of this court under this section has been carefully resolved in Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754. The Supreme Court there held that although “the cessation of violations, whether before or after the institution of a suit by the Administrator, is no bar to the issuance of an injunction under § 205(a)”, 321 U.S. 327, 64 S.Ct. 591, 88 L.Ed. 754, the statute is not mandatory and the type of order and whether one should issue is within the discretion of the court in the exercise of its historic equity powers. This discretion must be exercised “ * * * in light of the large objectives of the Act. For the standards of the public interest not the requirements of private litigation measure the propriety and need for injunctive relief in these cases. That discretion should reflect an acute awareness of the Congressional admonition that 'of all the consequences of war, except human slaughter, inflation is the most destructive’ (S.Rep. No. 931, supra, p. 2) and that delay or indifference may be fatal.” 321 U.S. 331, 64 S.Ct. 592, 88 L.Ed. 754.

With these principles in mind the facts of the case must determine whether plaintiff should be granted the relief asked. The following grounds are specified in the complaint: (a) demanding or receiving or attempting to demand or receive rents in excess of the maximum as prescribed by the regulations; (b) attempting to evict tenants in violation of the regulations; (c) failure to properly register rental units with the rent control office.

(a) Defendant is a corporation owning eight apartment buildings in the city of Minneapolis that are involved in these proceedings. The buildings contain approximately 280 rental units. The local rent control office made a “spot check” of defendant’s books and records and prepared tabulations covering twenty rental units, some in each apartment building. The tabulations disclose collection of rents in excess of the ceiling in 155 instances. The amount of each overcharge varies from $1.50 to $16.50 per month and totals $807.75. It is conceded that these computations are correct.

Defendant’s principal contention is that “in practically every instance” the apartment was rented under a lease for a definite term with a designated sum as rent for that term, and although this sum was payable monthly in advance, there can be no violation until defendant collects an amount in excess of the total specified in the lease on the base date. (The “base” or “maximum rent” date was March 1, 1942, for accommodations rented on that date, with other provisions for accommodations subsequently rented). Therefore, defendant contends that this action is premature. Defendant argues that as it had the established practice on the maximum rent date of renting on a contractual basis for a fixed term and amount, “maximum rent” as used in the regulations must be defined as the term total prescribed in the lease and not the monthly instalment actually paid by the tenant. I cannot agree with this contention. There is no evidence in this case that any tenant paid his “rent” more than one month in advance. Although a tenant might have the right to pay for a full year in advance under his lease, I do not see what effect that would have on the rent ceiling unless on the maximum rent date some tenant had actually done so. The leases provided for monthly payments in specific amounts. These amounts were paid by the tenants and accepted by the landlord on a monthly basis and are controlling in determining the maximum rents. Although defendant marked its receipts “on account” of rent, it is apparent that monthly payments were considered as the “rent”. The following rider is attached to one of the leases and will suffice: “It Is Understood And Agreed that retroactive to November 1, 1942 to the expiration of the office of Price Administration rent control act, your rent is hereby reduced $2.50 per month.’’ (Italics supplied).

Section 2(h) of the Act as amended June 30, 1944, 50 U.S.C.A.Appendix § 902(h), now reads: “(h) The powers granted in this section shall not be used or made to operate to compel changes in the business practices, cost practices or methods, or means or aids to distribution, established in any industry, or changes in established rental practices, except where such action is affirmatively found by the Administrator to be necessary to prevent circumvention or evasion of any regulation, order, price schedule, or requirement under this Act.”

Defendant contends that under the above-quoted provision, before it can be found in violation, there must be an affirmative finding by the Administrator that the monthly instalments under the term lease are the ceilings. This argument is predicated on the assumption that defendant is compelled to change its business practice of renting by leases for a fixed term with monthly instalment payments. This is not the case. Nothing in the statute or regulations compels defendant to abandon this practice so long as it does not increase the amount of the term total or the monthly instalments due above the provisions in the lease in effect on the maximum rent date. As there is no compulsion to change rental practices, there is no need for an affirmative finding by the Administrator in this case.

Even if defendant’s contention were valid it has little factual basis here. On only four apartments was there a lease during both the base and violation periods. The later leases all showed increases both in the term total and the monthly payments. Whatever definition might be given to “maximum rent” in these cases, the execution of the leases and ■the collection of the monthly instalments under them were violations of rent control. On ten apartments there were no leases on the maximum rent date although there were during the violation period, all calling for higher monthly payments than the maximum. On at least two apartments there were no leases either on the maximum rent date or during all or part of the violation period. To these situations defendant’s argument is not applicable.

Defendant introduced testimony for several days including some 184 exhibits, consisting of correspondence, leases, petitions for adjustments in rent, registration forms, evidence of defendant’s rental practices such as charging more for additional occupants including infants, evidence of improvements, redecorating, and of continued jousting with the rent control office. This mass of evidence was marshalled with commendable thoroughness and ably presents defendant’s position that in many instances an increase in rental was justified because of increased services and improvements. Whatever views this court might have on these problems, the maximum rent on any particular dwelling unit is determined by the Administrator of the Office of Price Administration and the regulations issued pursuant to the Emergency Price Control Act. Judicial review of these determinations is exclusively vested in the Emergency Court of Appeals and the Supreme Court of the United States by section 204 of the Act, 50 U.S.C.A.Appendix § 924. This court has no jurisdiction to pass upon the validity or effectiveness of regulations or orders promulgated pursuant to this Act. Henderson v. Kimmel, D.C.Kan., 47 F.Supp. 635; Henderson v. C. Thomas Stores, D.C.Minn., 48 F.Supp. 295. The record discloses that in comparatively few instances did defendant avail itself of the procedure prescribed in section 203 of the Act, 50 U.S.C.A.Appendix § 923, for appeal from adverse determinations by the local area rent director, and in no instance did defendant seek judicial review by the Emergency Court of Appeals. In the few cases where an appeal was .taken defendant was not entirely without success. Defendant’s president explained the failure to protest other adverse determinations by testifying that he felt it would be useless and that he felt “frustrated”. In any event the determination by the regulations and the Administrator of the ceilings for the rental units involved must be accepted as final in this court. It is therefore beyoncj dispute that these violations occurred.

(b) The second count charges defendant with “evicting or attempting to evict tenants” in violation of the regulations. There is no evidence of actual evictions and the attempts consisted of a series of letters written by defendant to various tenants in September and October, 1943, some time after the preliminary injunction was effective. The letters are similar in wording and tone. The following excerpt is illustrative:

“Inasmuch as we require to obtain an apartment for the writer’s daughter * * *, and assuming that the Emergency Price Control Act of 1942 is unconstitutional in whole, or in part respecting rents, we formally request the apartment you are now occupying to be vacated November 30, 1943.

sk sjs jJ: $ ‡

“This is to notify you that if the Emergency Price Control Act of 1942, as respecting rents is finally adjudged unconstitutional, and you elect to stay in our apartment against our wishes, beyond November 30, 1943, that you are obligated to us for eleven months’ rent at a cost to you of $1200, plus 40% extra for attorney’s fees, if necessary to employ an attorney to collect the same, * * *.

“As and if the Emergency Price Control Act of 1942 is finally adjudged constitutional in its entirety, or as respecting rents, you would be safe in arbitrarily staying in our building, contrary to our wishes and notices in the matter.

“If you elect to remain in the premises in spite of this notice, we require you to furnish us with suitable financial guarantee satisfactory to us on demand.

“However, we have no desire to have you continue to reside in our premises, and much prefer that you vacate the apartment on November 30, 1943, as requested.”

Section 205 (a) of the Act, 50 U.S.C.A. Appendix § 925(a), gives the Administrator the right to seek an injunction for any violation of section 4 of the Act. Section 4(a) (see footnote, supra) defines as unlawful any “attempt * * * to do any of the foregoing.” Section 1388.286 (a) of Maximum Rent Regulation 53 states: “So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations, by action to evict or to recover possession, by exclusion from possession or otherwise, nor shall any person attempt such removal or exclusion from possession, * * * ” (italics supplied).

In providing for injunotive relief for attempted violations the Act and regulations are consistent with historic equity practice.

The purpose and intent of these letters is self-evident. The tenant is told to move or if the Act is held invalid he will become liable to defendant for a sum varying from $750 to $1200 plus 40% attorney’s fees in addition to the maximum rent. This is clearly an attempt to force the tenant to move or gamble with the landlord at the latter’s terms upon the validity of the law. The uncertain position of the tenant upon the receipt of such a letter and the “pressure” on him to move can easily be imagined. My conclusion is that these letters were attempts at eviction without compliance with the regulations.

The letters are also a violation of the spirit of the injunction issued by this court June 29, 1943. Defendant was therein enjoined “directly or indirectly, from demanding or receiving, or attempting to demand or receive, rent” above the maximum. By conditioning its demand upon the invalidity of the Act defendant is not immune from the consequences of the attempt. Although the injunction was not technically violated, the incident is indicative of defendant’s attitude and persuasive on the question of the propriety of making the injunction permanent.

(c) The failure to file proper registration forms was a matter of much controversy at the trial. Practically all of the leases contain a discount clause. That is, the gross amount was specified as the monthly payment with a provision for a $5 discount if paid on or before a certain date of the month. On the registration forms in the spaces provided for the rent on March 1, 1942 (the base date if the premises were then rented) and for the “Maximum Legal Rent”, defendant inserted the gross monthly payment and added “as per lease” without specific mention of the discount clause or its terms. As there is no space specifically provided for a discount clause, defendant contends there has been no violation and can be none until such a form is provided. Plaintiff contends, with justification, that defendant’s registrations do not disclose sufficient information to ascertain the ceiling. Defendant counters that there is no obligation to disclose the “net” rent and that “maximum” can mean only the “gross” rent.

Section 302(g) of the Act, 50 U.S.C.A. Appendix § 942(g), defines rent: “The term ‘rent’ means the consideration demanded or received in connection with the use or occupancy or the transfer of a lease of any housing accommodations.”

Section 1388.293 (10) of Maximum Rent Regulation 53 (7 Fed.Reg. 8602) defines the term: “The term ‘rent’ means the consideration, including any bonus, benefit, or gratuity, demanded or received for the use or occupancy of housing accommodations * *

It should be apparent that the discount clause is part of the consideration received for rent within the meaning of these definitions and must be taken into consideration in determining the maximum rent where such an agreement was in effect on the maximum rent date. The situation could and should be disclosed on the registration form. This is not the insurmountable obstacle that defendant contends it is. For example, in the appropriate space the maximum monthly rental could be stated:

“ $50.00 $45.00, if paid on or before the 5th of the month.”

This is simple and clearly discloses the rental terms.

Enough has been recited to show that violations occurred. The remaining consideration is whether there is likelihood of their resumption if the present injunction is dissolved. The violations continued for four and one-half months, from the time the Act became effective until the temporary injunction issued. Although almost a year passed before this trial there was no evidence that defendant had refunded or intended to refund any of the overcharges. The attitude of defendant’s president as exemplified by his testimony and by numerous letters and petitions over his signature is one of belligerence and antagonism toward everything connected with rent control. In writing letters to tenants above referred to he came perilously close to contempt of this court. There is nothing in this record to lead me to believe defendant will voluntarily comply with the act and regulations. The situation is almost the antithesis of that described in Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754, where the violations were inadvertent and were corrected as soon as discovered and where every co-operation was given to the enforcing officials. In passing, as bearing upon many of the activities and some of the issues here involved, the court would suggest a reading of Henderson v. Morgan, D.C., 54 F.Supp. 441.

It is the opinion of this court that the injunction should be made permanent with an additional prohibition against evictions or attempted evictions, and an order that within sixty days registration forms be filed substantially in accordance with this memorandum.

II. Restitution of Overcharges to Tenants.

Plaintiff seeks .to have the order compel restitution of overcharges to all tenants excepting those who have commenced a triple damage action against defendant under section 205(e) of the Act. The question is squarely presented as .to whether this court has the power to grant such relief in a suit by the Administrator. The question is a new one and no case in point has been called to my attention. Plaintiff relies principally upon an analogy .to the enforcement provisions of the Fair Labor Standards Act as interpreted in Walling v. Miller, 8 Cir., 138 F.2d 629, reversing Fleming v. Miller, 47 F.Supp. 1004, decided by this court. That case involved a motion to vacate or modify a consent decree which included a provision for restitution of back wages to employees. This court modified only this part of the decree on the ground that section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216(b), gave employees the exclusive right of action to recover unpaid wages and therefore there was a lack of jurisdiction to order restitution in a suit by the Administrator under section 17 of that Act, 29 U.S.C.A. § 217.

In reversing this holding the Circuit Court of Appeals, Walling v. Miller, supra, pointed out that at the time the consent decree was entered into this court had jurisdiction of both the parties and the subject matter; it was so found and defendants did not challenge this finding on appeal. Therefore, the inherent power of this court was not involved but only a question going to the merits, i.e., the Administrator’s capacity as plaintiff. It was held that by entering into the consent decree, defendants had waived the right of the Administrator to attack the modifying order. A careful reading of the opinion leaves no doubt that the Circuit Court of Appeals did not decide or intend to decide that the Administrator was authorized to bring a restitution suit. It is even stated that the contention that he has no such authority “may be sound.” 138 F.2d 632. That this was the intention of the court is shown by Judge Woodrough’s concurring opinion. He was of the view that an employer was in violation of the Aot as long as he wrongfully withheld wages due and that Section 17, 29 U.S.C.A. 217, giving the United States District Courts power to “restrain violations”, included the power to order restitution. He points out that the Administrator represents the public interest, and that the employees also have a private right to recover back wages is immaterial. Plaintiff adopts this reasoning in the case at bar by way of analogy. But no analogy exists because the majority opinion does not hold that the right of restitution under the Fair Labor Standards Act is lodged in this court.

Section 205(e) of the Act, 56 Stat. 33) 50 U.S.C.A.Appendix § 925(e), provides a remedy which I believe was intended to be exclusive of other remedies. It is there provided that one who buys a commodity sold in violation of a price ceiling, other than in the course of trade or business (the definition includes tenants of housing accommodations in defense rental areas): “may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is the greater, plus reasonable attorney’s fees and costs as determined by the court.”

If such buyer or .tenant is not entitled to bring such action the Administrator is given authority to bring it on behalf of the United States. Congress was careful to provide that no landlord or seller of any commodity could violate price ceilings without subjecting himself to these stringent penalties. If it were the intent of Congress to give the Administrator the right to seek an order for restitution in a case where the purchaser or .tenant also had a right of action for treble damages, section 205(e) would have been the logical section wherein to express such intent.

Plaintiff finally relies on the language of section 205(a) wherein the Administrator is empowered: “[to] make application to the appropriate court for an order enjoining such acts or practices, or for cm order enforcing compliance * * * and upon a showing * * * a permanent or temporary injunction, restraining order, or other order shall be granted without bond.” 50 U.S.C.A.Appendix section 925(a). (Italics supplied).

Plaintiff argues that the italicized words are surplusage unless construed to refer to a type of relief corrective of past conduct as distinguished from the conceded power to enjoin future violations. In Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754, the meaning of this language was considered. The Supreme Court said: “Though the Administrator asks for an injunction, some ‘other order’ might be more appropriate, or at least so appear to the court. Thus in the present case one judge in the Court of Appeals felt that the District Court should not have dismissed the complaint but should have entered an order retaining the case on the docket with the right of the Administrator, on notice, to renew his application for injunctive relief if violations recurred. It is indeed not difficult to imagine that in some situations that might be the fairest course to follow and one which would be as practically effective as the issuance of an injunction. Such an order, moreover, would seem to be a type of ‘other order’ which a faithful reading of § 205(a) would permit a court to issue in a compliance proceeding.” 321 U.S. 328, 64 S.Ct. 591, 88 L.Ed. 754.

In view of this language I do not believe an extension of the meaning of “other order” to include the kind of relief asked here is justified.

Defendant argues that granting restitution in this proceeding would be a denial of legal rights without a jury trial. There is some evidence in this case that in a treble damage action defendant may have valid counter-claims against certain tenants for damage to or theft of its property. The tenants are not parties to this proceeding. One might well pose the question: Could this court, without a jury, adjudicate the amount of restitution in each of the twenty rental units involved here, some of which have had several different tenants, without the tenants before it and without the defendant having an opportunity to interpose valid counterclaims as a defense?

My conclusion is that this court lacks the power to grant an order compelling restitution of overcharges to tenants at the suit of the Administrator. I therefore do not reach the question of the propriety of such an order under the facts of this case.

The permanent injunction will issue in accordance with the conclusions expressed in part I of this memorandum.

This memorandum is made a part of the findings of fact and conclusions of law which will be filed herein. Exceptions will be preserved to all parties aggrieved.

       Section 4(a) of the Act, 50 U.S.C.A. Appendix § 904(a) provides: “It shall be unlawful, regardless of any contract, agreement, lease, or other obligation heretofore or hereafter entered into, for any person * * * to demand or receive any rent for any defense-area housing accommodations, or otherwise to do or omit to do any act, in violation of any regulation or order under section 2 * * * or of any regulation, order, or requirement under section 202(b) or section 205(f), or to offer, solicit, attempt, or agree to do any of the foregoing.”


source: Caselaw Access Project

author: SCHWELLENBACH, District Judge.

license: Public Domain

text:
    INLAND MOTOR FREIGHT et al. v. UNITED STATES (INTERSTATE COMMERCE COMMISSION et al., Interveners).
    Civ. A. No. 427.
    District Court, E. D. Washington.
    April 27, 1945.

      J. M. Hickson and C. E. Holbrook, both of Portland, Or., for plaintiffs.
    Edward Dumbauld, Sp. Asst, to Atty. Gen., Wendell Berge, Asst, to Atty. Gen., and Edward M. Connelly, U. S. Atty., of Spokane, Wash., for defendant.
    Nelson Thomas, of Washington, D. C., for Interstate Commerce Commission.
    James H. Ganoe, of Portland, Or., for intervenor defendant Tocco.
    Before STEPHENS, Circuit Judge, and SCHWELLENBACH and CLARK, District Judges.
   SCHWELLENBACH, District Judge.

This suit is brought under the Urgent Deficiencies Act of October 22, 1913, 38 Stats. 216, 28 U.S.C.A. § 41(28), §§ 46-48, by a number of motor carrier operators to set aside a certain order of the intervening defendant Interstate Commerce Commission granting the intervening defendant John W. Tocco a certificate of convenience and necessity under the provision of Sec. 207 of the Motor Carrier Act, 49 U.S.C.A. § 307, authorizing operations by irregular routes as a common carrier of freight by motor vehicle within portions of the States of Washington, Oregon and Idaho. The Commission’s Order, which became effective November 8, 1943, granted Tocco the right to transport general merchandise except dangerous explosives, bulk liquids and commodities of unusual value between Seattle and Tacoma, Washington, and Portland and Salem, Oregon, and the territory which may roughly be described as the south half of Eastern Washington and the north half of Eastern Oregon and points in Idaho and between those portions of Oregon and Washington and points in Idaho.

The original application out of which this order grew was filed in 1936 for a “grandfather” certificate or permit. Upon the filing by these plaintiffs and others of protests against such application and various hearings thereon exclusively under the “grandfather” clause, the Commission, on June 22, 1940, denied the application under the “grandfather” clause but, on its own motion, converted the application to one under the public convenience and necessity provisions of the Act. This order became effective November 4, 1940, and thereupon plaintiffs in this suit commenced an action in this Court to set aside such order alleging that they had been deprived of a fair hearing. On March 18, 1941, the Commission, recognizing that the suit was well founded, vacated its previous order and reopened the hearing to consider the application both under the “grandfather” clause and the public convenience and necessity provisions of the Act. Thereupon the previous suit was dismissed. In July, 1941, complete hearings on both phases of the proceedings were held before the Commission’s joint Board. Voluminous testimony was presented both by Tocco and the protestants. Tocco submitted (1) his own oral testimony, (2) the testimony of shippers and (3) a voluminous Exhibit 13 which contained an abstract or summary of shipments between September, 1933, and May, 1941. Of the 1400 shipments included in the summary, all but 150 were moved after September 11, 1936. On June 19, 1943, the Commission made its Report and Order, which is the basis of the present action. In this Order Tocco was denied relief under the “grandfather” clause but his application was granted upon the basis of public convenience and necessity. On November 8, 1943, plaintiffs’ petition for rehearing was denied and the Order became effective. This action was commenced August 23, 1944. Later the defendants Interstate Commerce Commission and Tocco intervened.

At the threshold of the ca.se, we are met with the defense of laches. The defendant and intervening defendants contend that the nine months delay between the effective date of the Order and the commencement of this suit was so unreasonably long as to deprive plaintiffs of the benefit of the relief they here seek. In support of this defense, there was submitted the testimony of Tocco. He testified that during the months of February, March, and April, 1944, relying upon the Order, he purchased $81,318.41 worth of trucks, trailers, etc. He improved his terminal facilities by installing hoists, tools and welding outfits at an expense of approximately $3000 and that he spent a few hundred dollars in improving his terminal building and grounds. Assuming arguendo the availability of this defense in an action of this kind, we are convinced that the facts here submitted do not justify its application in this case. The mere lapse of time, in itself, is not sufficient to justify the interposition of the defense of laches. Such lapse of time must have worked to the disadvantage of the party relying upon the defense. Southern Pacific Co. v. Bogert, 250 U.S. 483, 490, 39 S.Ct. 533, 63 L.Ed. 1099; O’Brien v. Wheelock, 184 U.S. 450, 493, 22 S.Ct. 354, 46 L.Ed. 636; Galliher v. Cadwell, 145 U.S. 368, 373, 12 S.Ct. 873, 36 L.Ed. 738; Leonard v. Gage, 4 Cir., 94 F.2d 19, 25. Professor Pomeroy states the rule (1 Pomeroy Equitable Remedies, Sec. 21) : “Laches, in legal significance, is not mere delay, but delay which works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law, but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right.” Tocco readily admitted that the few hundred dollars spent by him in changing his terminal building and grounds was of value to him even though this certificate had not been granted. He also admitted that the trucks, trailers and equipment which he purchased were readily saleable. He based his contention on the fact that they were not saleable “at a premium.” That is not a sufficient disadvantage to be used as a basis for the defense of laches.

After full consideration of the Order and the testimony received by the Commission in support thereof, we are convinced that the case must be remanded to the Commission so that the necessary basic or essential findings in proper and definite form may be made. While it is true that under the provisions of the Interstate Commerce Act, which expressly requires findings only where reparations or damages are awarded, 49 U.S.C.A. § 14(1), the Commission is relieved of the necessity of making findings similar to those required by the equity rules, this does not obviate the necessity of making basic or quasi jurisdictional findings essential to the statutory validity of the order. Eastern-Central Motor Carriers Association v. United States, 321 U.S. 194, 211-212, 64 S.Ct. 499, 88 L.Ed. 668; United States v. Carolina Freight Carriers Corporation, 315 U.S. 475, 489, 62 S.Ct. 722, 86 L.Ed. 971; Howard Hall Co., Inc. v. United States, 315 U.S. 495, 499, 62 S.Ct. 732, 86 L.Ed. 986; United States v. Baltimore & Ohio R. Co., 293 U.S. 454, 464, 55 S.Ct. 268, 79 L.Ed. 587. The reason for this rule was stated by Justice Douglas in United States v. Carolina Freight Carriers Corporation, supra, as follows [315 U.S. 475, 62 S.Ct. 729]: “Congress has made a grant of rights to carriers such as appellee. Congress has prescribed statutory standards pursuant to which those rights are to be determined. Neither the Court nor the Commission is warranted in departing from those standards because of any doubts which may exist as to the wisdom of following the course which Congress has chosen. Congress has also provided for judicial review as an additional assurance that its policies be executed. That review certainly entails an inquiry as to whether the Commission has employed those statutory standards. If that inquiry is halted at the threshold by reason of the fact that it is impossible to say whether or not those standards have been applied, then that review has indeed become a perfunctory process. If, as seems likely here, an erroneous statutory construction lies hidden in vague findings, then statutory rights will be whittled away. An insistence upon the findings which Congress has made basic and essential to the Commission’s action is no intrusion into the administrative domain. It is no more and no less than an insistence upon the observance of those standards which Congress has made ‘prerequisite to the operation of its statutory command.’ Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 144, 61 S.Ct. 524, 532, 85 L.Ed. 624. Hence that requirement is not a mere formal one. Only when the statutory standards have been applied can the question be reached as to whether the findings are supported by evidence.” The findings by the Commission must be specific and definite so as to enable a reviewing court to know from a reading of the findings which facts were used by the Commission as the basis for the conclusions which it reached. Wichita R. & Light Co. v. Public Utilities Commission, 260 U.S. 48, 58, 43 S.Ct. 51, 67 L.Ed. 124; Beaumont, Sour Lake & Western R. Co. v. United States, 282 U.S. 74, 86, 51 S.Ct. 1, 75 L.Ed. 221; State of Florida v. United States, 282 U.S. 194, 214, 51 S.Ct. 119, 75 L.Ed. 291. The findings of the Commission must be at least sufficiently simple and clear as not to leave the Court in the position of being compelled to spell out, to argue and to choose between conflicting inferences. United States v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 294 U.S. 499, 510, 55 S.Ct. 462, 79 L.Ed. 1023. The Order of any administrative board or commission must be sufficiently definite to enable the court to determine upon which part of the record the findings are based. National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469, 479-480, 62 S.Ct. 344, 86 L.Ed. 348.

In the Order here under consideration, there is no finding to the effect that there was no existing service in operation over the area applied for or that such service was inadequate or that the existing carriers could not furnish and are not satisfactorily furnishing the sendee required. The state courts universally have recognized the necessity for some such conclusion as a basis for public convenience and necessity certificates under state statutes. An extensive note covering decisions of the state courts on this question is to be found in 67 A.L.R. p. 957. The language of Section 207 of the Motor Carrier Act was taken verbatim from the state statutes in existence at the time of the adoption of the Act. Concerning that language, Senator Wheeler, who had charge of the bill in the Senate, said this: “This is a provision which is in practically every State law at the present time. There was some objection to it, and a suggestion was made that we should not use the word ‘future’ in connection with ‘public convenience and necessity’, and that we should not use the words ‘public convenience and necessity.’ But those words have been adopted by almost every State in the Union where there is a law, they have been interpreted by the courts, and the committee felt that, while perhaps some other language might have been just as appropriate, nevertheless, that language having been construed by the courts, it would be unwise for the committee to write some other language in the law which would have to be passed upon by the courts.” Congressional Record, Vol. 79, pt. 5, p. 5653. (74th Cong. First Session). The Commission itself has recognized the rule enunciated by the state courts. Bluenose Bus Company Application, 1 M.C.C. 173, 176; Pan American Bus Lines, 1 M.C.C. 190, 203; Richards Extension of Operation, 6 M.C.C. 80, 81.

The defendants attempt to excuse the failure to include findings on the question of the inadequacy of existing services by contending that proof that long continued and successful operation is proof that there is a public need for the operation and that, upon that showing alone, the Commission may find that the public convenience and necessity require the same. In support of this position, they cite Beard Truck Lines Co. Common Carrier Application, 34 M.C.C. 395; Hoover Motor Express Co., Inc. etc., 42 M.C.C. 315; Fish Common Carrier Application, 42 M.C.C. 695; Transamerican Van Service, Inc. 43 M.C.C. 815; and Crichton v. United States, D.C., 56 F.Supp. 876. Those cases do not support defendant’s contention. In them, all that was held was that proof of long continued and successful operation should be taken into consideration in determining the present or future public convenience and necessity. The holding in those cases is tersely stated in the opinion in Beard Truck Lines Co. Common Carrier Application, supra, as follows: “Where, as here, the past operations have been conducted under the claims of ‘grandfather’ rights, openly and without subterfuge, we conclude that they should be given consideration in determining the issue of public convenience and necessity. The weight to be accorded such operations, however, must be determined upon the basis of their relation to the other evidence of public convenience and necessity and cannot be considered controlling of such matter.” (Emphasis added.) In other words, all that these cases hold is that prior successful operation under the “grandfather” clause adds a new element to be considered in reaching the necessary basic conclusion that the existing motor carriers are not reasonably capable of transporting the available traffic.

Defendants also urge that necessity for a finding upon this question is obviated by the recital in the Order that “we are not satisfied that such a need has been shown for applicant’s service in the remainder of the territory sought. Such territory is adequately served by present carriers.” This contention runs counter to the rule that basic or essential findings cannot be supplied, by inference or implication. Wichita R. & Light Co. v. Public Utilities Commission of the State of Kansas, 260 U.S. 48, 58-59, 43 S.Ct. 51, 67 L.Ed. 124; Panama Refining Co. v. Ryan, 293 U.S. 388, 433, 55 S.Ct. 241, 79 L.Ed. 446; Atchison, Topeka & Santa Fe R. Co. v. United States, 295 U.S. 193, 201-202, 55 S.Ct. 748, 752, 79 L.Ed. 1382. In the latter case the Court said this: “This court will not search the record to ascertain whether, by use of what there may be found, general and ambiguous statements in the report intended to serve as findings may by construction be given a meaning sufficiently definite and certain to constitute a valid basis for the order.”

The Commission’s reluctance to make definite and detailed findings is strikingly apparent in this case. Actually the findings as to public convenience and necessity in the Report and Order are limited to the two following sentences: “This long continued and successful past operation, begun in 1928 and continued continuously, except for the interruptions described, strongly suggests public need which the service has been meeting. * * * In the circumstances, we conclude that application has shown the need for its operation in the transportation of general commodities except dangerous explosives, bulk liquids and commodities of unusual value between Portland, Salem, Seattle and Tacoma on the one hand, and, on the other, points in Idaho and in those portions of Oregon and Washington designated above and between points in Idaho and those in the indicated portions of Oregon and Washington.” It was on the basis of these indefinite and rather feeble statements that this exceptionally broad certificate was granted. From a practical viewpoint it might well be said that Tocco received almost a roving commission within the area described. It is not the function of this Court to pass upon the wisdom of the Commission’s Order. The breadth of the Order, however, makes imperative the inclusion in it of the basic findings upon which it rested if this Court is to ascertain whether or not the Order is in conformity with Congressional standards. The paucity of findings here makes pertinent the Supreme Court’s observation in Beaumont, Sour Lake & Western R. Co. v. United States, supra, 282 U.S. 74 at page 86, 51 S.Ct. 1, at page 6, 75 L.Ed. 221: “The Commission’s failure specifically to report the facts and give the reasons on which it concluded that under the circumstances the use of the average or group basis is justified leaves the parties in doubt as to a matter essential to the case, and imposes unnecessary work upon the courts called upon to consider the validity of the order. Complete statements by the Commission showing the grounds upon which its determinations rest are quite as necessary as are opinions of lower courts setting forth the reasons on which they base their decisions in cases analogous to this.”

The most difficult task with which the Court has been confronted in this case has been to attempt to ascertain whether the Commission’s Order was based upon all of the evidence submitted or whether it was based exclusively upon applicant’s Exhibit No. 13. It is our belief, after careful examination of the Order, that the Commission considered only Exhibit No. 13. We express that belief raher hesitatingly. In this we are in the position similar to that of the Supreme Court in National Labor Relations Board v. Virginia Power Co., supra, 314 U.S. 469 at pages 479, 480, 62 S.Ct. 344, at page 349; 86 L.Ed. 348, in which the Court was unable to determine whether the Board based its conclusion upon the whole course of conduct revealed in the record or whether the Board “rested heavily upon findings with regard to the bulletin and speeches the adequacy of which we regard as doubtful.” Concerning a similar situation in which the Supreme Court found itself, in Phelps Dodge Corporation v. National Labor Relations Board, 313 U.S. 177, 197, 61 S.Ct. 845, 853, 85 L.Ed. 1271, 133 A.L.R. 1217, the Court said: “Since Congress has defined the authority of the Board and the procedure by which it must be asserted and has charged the federal courts with the duty of reviewing the Board’s orders (§ 10(e) and (f) [29 U.S. C.A. § 160(e, f)]),' it will avoid needless litigation and make for effective and expeditious enforcement of the Board’s order to require the Board to disclose the basis of its order.”

The defendants insist that we must consider the entire record. They assert that for us to do otherwise would involve the court in the activity of probing the psychological processes of the Commission. That is precisely what the Court is attempting to avoid. The three cases the defendants cite in support of this contention (United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131; Lewis v. United States, 279 U.S. 63, 73, 49 S.Ct. 257, 73 L.Ed. 615; Pacific States Box & Basket Co. v. White, 296 U.S. 176, 186, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853), do not support the position defendants here take. They each involve merely the question of the presumption of regularity which attaches to the actions of public officials. Since we cannot be certain of the basis upon which the Commission acted, necessity requires that we remand it in order that the Commission, with certainty, may indicate the extent to which it considered the record.

However, if we are correct in our belief that the Commission’s Order was based exclusively upon Exhibit No. 13, we have no hesitancy in deciding that that Exhibit contains no substantial evidence to support the conclusion of long continued and successful operations throughout the territory and between the points for which the certificate was granted. Our approach to this phase of the question is necessarily extremely limited. What public convenience and necessity require in the premises is a matter which Congress has confided to the judgment of the Commission and not of the Court’s determination. Carolina Scenic Coach Lines v. United States, D.C., 56 F.Supp. 801, 803. The function of weighing the evidence is one peculiarly for the Commission and not for the Courts, and Orders of the Commission will not be set aside if they are supported by substantial evidence. Interstate Commerce Commission v. Union Pacific R. Co., 222 U.S. 541, 547, 32 S.Ct. 108, 56 L.Ed. 308. The decision of an administrative commission must have warrant in the record and a reasonable basis in the law. But the judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body. Dobson v. Commissioner of Internal Revenue, 320 U.S. 489, 501, 64 S.Ct. 239, 88 L.Ed. 248.

Space will not permit of a complete analysis of Exhibit No. 13 in this opinion. We feel that it should suffice to point out that Exhibit No. 13 discloses no operation between Tacoma, Washington, or Salem, Oregon, and any of the points or territory designated in the Order. It showed no operations between Seattle and Spokane. It showed only one shipment from Eastern Washington to’ Seattle. It showed only 9 shipments from Seattle to Idaho points and only 5 shipments from Seattle to Eastern Oregon points. During the entire 7% year period covered by Exhibit No. 13, it showed no shipments from Idaho points to Seattle, no shipments from Eastern Washington points to Seattle and only 2 shipments from Oregon points to Seattle. Shipments to and from Portland were limited to the Milton and Freewater district in Oregon and to the Walla Walla and Yakima valley points in Eastern Washington. During the years 1936 to 1940, inclusive, the shipments from Portland to Idaho points consisted exclusively of 17 shipments of which 15 were to Lewiston. During the years 1936 to 1941, inclusive, shipments from Idaho to Portland consisted of 3 shipments from Lewiston in 1940 and 1 shipment from Lewiston in 1941. Surely this is not any substantial evidence of “long continued and successful past operation * * * conducted continuously which would ‘strongly suggest a public need which the service had been meeting.’ ” The sporadic servicing which Exhibit No. 13 evidenced in most of the area covered by the certificate was not substantial proof upon which to base the conclusion of public convenience and necessity. The fact is the defendants have not attempted seriously to deny this conclusion in their oral arguments or in their briefs. They urge that we should supply that which is lacking by reference to the oral testimony of Tocco and the shippers. When they seek to have us do this, they ask us to do that which we cannot do. We do not know what weight, if any, the Commission accorded the testimony of Tocco and his shipper witnesses and we do not know why it gave credence to or withheld credence from such testimony. To pass upon the weight of that testimony would require the Court to test the credibility of the witnesses, to probe into the extent that their direct testimony was negatived by cross-examination and to evaluate that testimony as compared with the testimony offered by the protestants at the hearings. Those tasks lie exclusively within the province of the Commission.

This case has been pending before the Interstate Commerce Commission and before this Court since 1936. The disposition we are making of it will require further consideration by the Commission. This Court is anxious to assist in preventing any further unnecessary delay. Therefore, we have examined all of the evidence submitted by Tocco and his witnesses. In this examination, we have assumed arguendo that the Commission gave full weight and credit to all of Tocco’s evidence. We are convinced that, even viewing the record in this posture, there is no substantial evidence sufficient to support the Commission’s broad Order. Under the Order Tocco’s authority to operate includes all of the State of Idaho, the south half of Eastern Washington and the north, half of Eastern Oregon. As to a part of that area, there is no testimony to support the Order. As to some of the remainder, there is no substantial evidence to support the Order. It is not the function of this Court to fix any limits beyond which the Commission cannot grant authority to operate. We are not now attempting so to do. We make this observation solely for the assistance of the Commission when it has the matter before it for reconsideration.

The Commission’s Order of June 19, 1943, is set aside and the case is remanded to the Interstate Commerce Commission with instructions that the Commission shall take such action as to it shall seem proper and in accord with this opinion.


author: HOLLAND, District Judge.

text:
    THE CACHALOT III.
    No. 913-M Misc.
    District Court, S. D. Florida, Miami Division.
    May 4, 1945.

      Herbert S. Phillips, U. S. Atty., of Tampa, Fla., and Ernest L. Duhaime, Asst. U. S. Atty., of Miami, Fla., for the Government.
    Joe Brown Booth and Vincent C. Giblin, both of Miami, Fla., for claimant and owner.
   HOLLAND, District Judge.

This cause was instituted by a petition for a warrant of detention subscribed by the Local Inspector of Customs on March 9, 1945, wherein he recites that on March 1, 1945, he seized a certain motor vessel, to-wit, The Cachalot III, bearing official British registry No. 152571; that cause to file such petition for the warrant was that he found the vessel moored at the west side of the McArthur Causeway in the City of Miami, laden with 31,631 board feet of pine lumber and 15 kegs of galvanized nails; that no export license for the exportation of said merchandise was presented, which was required under the provisions of the Act of July 2, 1940, Section 6, 54 Stat. 714, 50 U.S.C.A. Appendix, § 701; and that he had cause to believe that said merchandise was being, or was intended to be, exported, shipped from, or taken out of the United States in violation of law; and that he therefore seized the vessel under the authority of 22 U.S.C.A. § 401, and that he had delivered the same into the custody of the Collector of Customs, Tampa, Florida, for disposition according to the provisions of 22 U.S.C.A. §§ 401 to 408, inclusive.

An order was entered in this Court, dated March 9, 1945, commanding the Collector of Customs to detain the vessel in custody in order that the same might be dealt with in accordance with law.

Subsequently, on March 21, 1945, Sylvain Ledee, owner of the vessel, filed a petition asking that an opportunity to secure an exr port license for the export of said lumber and other materials be allowed, and for the ultimate restoration of the vessel and the seized cargo. The said petition of said owner admitted that the vessel was laden with 21,000 board feet of lumber and 15 kegs of galvanized nails, but denied he, the owner, had sought to export the lumber in violation of the laws of the United States.

A commissioner was appointed to take the testimony and make his recommendations and findings of fact and conclusions of law. The commissioner filed his report on May 2, 1945, and the Court has granted immediate hearing on exceptions of the Government to the report of the commissioner. The commissioner found that the Government had failed to sustain its burden of proof that at the time of the detention of the vessel the owner intended to export lumber from the United States in violation of law. The report discloses that the lumber loaded on the vessel at the time of the seizure was included within the materials prohibited from exportation under Presidential Order authorized under 50 U.S.C.A. Appendix, § 701. Such materials could not be exported except in accordance with a license as provided for in prescribed regulations. No license had been obtained by the owner of the vessel at the time the lumber was loaded on the vessel. 22 U.S.C.A. § 401 provided ample basis for the issuance of the warrant of detention under Section 402. The owner of the vessel has filed his petition for restoration under Section 403, and the inquiry to be made and the results of which are to be determinative of the outcome of the proceedings based on said petition of the owner are not, as determined by the commissioner, whether the owner intended to export the lumber from the United States in violation of law, but rather are to be inquired into as to whether the property seized shall appear to have been about to be so unlawfully exported, shipped from, or taken out of the United States. The evidence taken before the commissioner affirmatively supports a finding that the property seized did appear to be about to be so unlawfully exported.

The commissioner recommended that the Cachalot III be returned to the owner. No recommendation is made by the commissioner with reference to the forfeiture to the United States of the lumber and other materials. I agree with the recommendation of the commissioner that the vessel should be returned to the owner, but because of far different reasons than those which formed the recommendation of the commissioner. While I agree that the vessel should be returned to the owner, I find from the evidence that the lumber and materials should be forfeited to the United States.

The distinction between the lumber and the vessel itself as is here determined follows from a consideration of the language of said Section 401. The several Collectors and other Government officials enumerated in said Section are authorized to seize and detain (1) any articles or munitions of War about to be exported or shipped from or taken out of the United States, in violation of law, and (2) the vessels or vehicles containing the same. The matter of forfeiture is dealt with in the last sentence of Section 401, and it is quite apparent that “property” as there used includes only “any arms or munitions of war, or other articles.” It does not include the vessels or vehicles containing the same. The statute very clearly limits the word “property” to property which shall appear to have been about to be so unlawfully exported, shipped from or taken out of the United States. I realize that the District Court in Texas, in United States v. 251 Ladies Dresses, D.C., 53 F.Supp. 772, authorized the forfeiture of the truck in which the merchandise was being transported as well as the merchandise itself, but I am of the opinion that the construction that I have here given to the statute with reference to the forfeiture of the vessel is the right conclusion.

The commissioner refers to United States v. Fernandez, 1918, 5 Cir., 254 F. 302, where certain gold coin was adjudged to be forfeited, it having been alleged to have been delivered for export and shipment, and for the purpose of being taken out of the United States in violation of Title VII of the Act of June 15, 1917, Chap. 30, 40 Stat. 225, and of the President’s proclamation of September 7, 1917, 40 Stat. 1694. The claimant as a condition of redelivery to him was authorized to execute a bond conditioned that the gold coin would not be exported or employed contrary to law. Title VII of the said Act of June 15, 1917, dealt with exports during World War I. Title VII does not appear in United States Code, but I take it that Title VII has expired by its own self-termination date. I do not have the United States Statutes at Large in mv library further back than those of the 70th Congress, 1927-1929. The Circuit Court of Appeals held that the said Title VII, the only law under which a forfeiture could be had in the said Fernandez case, did not provide for the giving of a bond and the release-of the property, and being of the opinion that the forfeiture would not have been adjudged except as the predicate for a bond, remanded the case for further consideration of the questions of law and fact involved in the alleged forfeiture. I do not think that the Fernandez case is helpful in construing the provisions of Title VI of said Act, but I am very clear that there is nothing in the Fernandez decision holding contrary to the conclusion that I have reached herein. It is further to be observed that the Fernandez case was dealing with gold coin and did not involve in any manner a vessel or the means of carriage involved in the alleged exportation out of the United States of the said gold coin.

The matter of the commissioner’s fee will be considered in the final order.

Let proper order consistent herewith be submitted.


author: KALODNER, District Judge.

text:
    GINN v. BIDDLE, Atty. Gen., et al.
    Civil Action No. 4067.
    District Court, E. D. Pennsylvania.
    May 7, 1945.
    Reuben Singer, of Philadelphia, Pa., for complainant.
    Gerald A. Gleeson, U. S. Atty., and Charles P. Mirarchi, Asst. U. S. Atty., both of Philadelphia, Pa., for the Government.
   KALODNER, District Judge.

This is an action to declare the citizenship of the complainant, Ben J. Ginn. The original complaint also sought a decree enjoining the defendants from “asserting and/or ruling that he, complainant, is not an American citizen and from refusing to issue him a certificate of derivative citizenship.” The complaint is based upon admitted allegations that Ben Ginn, in February, 1944, applied for a certificate of derivative citizenship pursuant to Section 339 of the Nationality Code of 1940, 54 Stat. 1160, 8 U.S.C.A. § 739, claiming to have derived his citizenship as a minor through the naturalization of his father on November 9, 1928. Following hearings, the Commissioner of the Immigration» and Naturalization Service denied the application on the ground that complainant had failed to establish the fact that he was a minor at the time his father was naturalized.

That part of the complaint praying for injunctive relief was withdrawn at the time of trial, and a stipulation was entered to strike the name of Karl I. Zimmerman, District Director of the Immigration and Naturalization Service, from the record as a defendant. The only question on the merits that remains, therefore, is one of fact: Whether, on November 9, 1928, the complainant was a minor.

The Service, however, has raised a preliminary question as to the proper act under which this case may be prosecuted. The complaint seeks to establish his remedy under the Federal Declaratory Judgment Act, 48 Stat. 955 (1934), 28 U.S.C.A. § 400, “and/or” under Section 503 of the Nationality Code of 1940, 54 Stat. 1171, 8 U.S. C.A. § 903. The latter act specifically permits any person denied the rights of citizenship by a governmental department or agency on the ground that he is not a citizen to institute an action against the head of such department or agency, in the district court for the district in which such person claims a permanent residence, for a judgment declaring him to be a national of the United States.

In naming both statutes, the complainant presumably had in mind the record in the case of Watkins v. Morgenthau, D.C.E.D.Pa., 1944, 56 F.Supp. 529. In that case, however, no question of procedure was raised. Obviously, the complainant wished to proceed under the Declaratory Judgment Act of 1934 because of his original prayer for injunctive relief, for which Section 503 of the Nationality Code apparently does not provide. It is equally clear that he wished the protection of Section 503 of the Nationality Code for the reason that, insofar as the Attorney General is concerned, a challenge to this court’s jurisdiction over the person could not succeed under the wording of the Section. See Haaland v. Attorney General, D.C.Md., 1941, 42 F.Supp. 13; Schaufus v. Attorney General, D.C.Md., 1942, 45 F.Supp. 61.

Since the complainant has withdrawn his prayer for additional relief, it is patently immaterial to him which Act is considered appropriate here, but the respondent has devoted a great deal of his brief to denying the propriety of proceeding under the Declaratory Judgment Act of 1934.

The Declaratory Judgment Act was invoked to determine a citizenship question in Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. That no additional relief is now requested in the instant case does not constitute a bar, since the Act specifically applies “whether or not further relief is or could be prayed.” Moreover, the present existence of another adequate remedy does not preclude a judgment for declaratory relief under that Act. Rule 57, Rules of Civil Procedure, 28 U.S. C.A. following section 723c; see also 18 Hughes, Federal Practice, Sec. 25387. Had it been desirable to force the use of Section 503 of the Nationality Code, a challenge should have been made, at the proper time, to this court’s jurisdiction over the person. Such a motion was indeed made at the time of trial, but respondent had already answered on behalf of the defendants without raising the question, and hence the motion at that time cannot avail it. It is true that the traditional distinction -between general and special appearances was abolished by the Rules of Civil Procedure, Rule 12. Nevertheless, “if the defense of lack of jurisdiction of the person is not raised by motion before answer or in the answer itself it is by the express terms of paragraph (h) of Civil Procedure Rule 12 to be treated as waived, not because of the defendant’s voluntary appearance, but because of his failure to assert the defense within the time prescribed by the rules”. Orange Theatre Corp. v. Rayherstz Amusement Corporation, 3 Cir., 139 F.2d 871, 874, certiorari denied 1944, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573; and see 1 Moore’s Federal Practice (1938), Sections 12.03 and 12.10. There is therefore no reason to preclude procedure here under the Declaratory Judgment Act, and consequently it does not become necessary to drop, as improper parties under Rule 21, all defendants except the Attorney General, as may otherwise be required under Section 503 of the Nationality Code, which limits the remedy thereunder to action against the head of the department or agency.

The issue on the merits may now be considered.

Mr. Ginn, a native of Lithuania, arrived in the United States, as a child, on May 10, 1912, on the steamship “Barcelona”. His father, Aaron Hillel Ginn, was naturalized as a citizen of the United States on November 9, 1928. The complainant eventually entered the employ of the Immigration and Naturalization Service; he served in the Armed forces from May to September, 1942, and upon receiving an honorable discharge, returned to the Immigration and Naturalization Service where, just prior to these proceedings, he held the position of Examiner.

The complainant maintains that he was born on February 27, 1908. It is conceded that if he has successfully carried the burden of proving that as the date of his birth, he is entitled to a judgment declaring him to be a citizen of the United States through the naturalization of his father by virtue of Section 2172, Revised Statutes, then in force, which provided that:

“The children of persons who have been duly naturalized under any law of the United States * * * being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof.”

The evidence adduced by the parties is as follows:

On behalf of the complainant, one Samuel Ginn, a teacher, testified that he is the half-brother of the complainant; that at the time Ben Ginn was born he was living in a little town near Rebuk, Lithuania,where Ben was born; that Ben was born in the month of February in 1908; that he officiated at a religious ceremony for Ben eight days after the latter’s birth; that he kept records of the religious ceremonies he performed, but that these were destroyed by fire during World War I; that he recalls the year particularly because his daughter was born in the same year in September, and also because 1908 was rare in that it was a leap year in both the Hebrew and English calendars.

.One Alex Rubin also testified that he was living in Rebuk, Lithuania, at the time of Ben’s birth; that Ben was born in 1908, about six or seven weeks after he, Alex Rubin, was confirmed in January, 1908; that he also attended the religious ceremony for Ben shortly after the latter’s birth; and that he recalls the time of Ben’s birth because of its proximity to his own confirmation. Mr. Rubin further stated that he was present at the party held for Ben following Ben’s confirmation in 1921, when Ben was 13 years old, and that he recalled that year because in 1921 he had made a trip to Europe, and also attended the wedding of Ben’s sister.

Three other witnesses also asserted that Ben was confirmed in 1921. Mr. Harry Brodsky, a commercial artist, said he had attended the party following the confirmation, and that he recalls the fact because he was confirmed in the same year, having been prepared for the ceremony by Ben’s father. Mr. Adolph Laskin, a schoolteacher, stated that the year of Ben’s confirmation was 1921, that he had attended, and that the ceremony was performed by Ben’s father. Finally, Jacob S. Cooper, Ben’s brother-in-law, testified that he had attended Ben’s confirmation in February, 1921, and that he can recall the fact because a few months later, on April 17, 1921, he had married Ben’s sister. It may be noted, in passing, that Ben has been living in Mr. Cooper’s home since 1933 or 1934.

On behalf of the Immigration and Naturalization Service, there was introduced an original registration card of Temple University Teacher’s College which recites that Ben was born on February 27, 1908, and that his father was naturalized in 1927, the year of the registration. This information was supplied by Ben himself. The manifest record of the Ginn family’s entrance into this country shows that on May 11, 1912, Aaron Hillel Ginn gave the age of his son, Ben, as five years. The 1920 census records Ben’s age as thirteen years, and recites the year of his immigration as 1913. The original records of the Philadelphia public schools show that Ben’s date of birth was given as January 12, 1906, and that he entered the Sharswood school on September 16, 1912. An alleged certified copy of this record, which had been in Ben’s possession, gives the date of his birth as February 12, 1908, and the date of entry into the school as September 16, 1913. Complainant denied any knowledge of altering this copy, although the fact of alteration is apparent.

It was conceded that the application for citizenship of Ben’s father notes February 27, 1908, as Ben’s birth date. Aaron Hillel Ginn’s naturalization certificate, which, according to the record, is prepared from the application, recites Ben’s age as twenty. The certificate is dated November 9, 1928.

Respondent further succeeded in showing that the testimony of Samuel Ginn relating to his own birthdate and to the dates of birth of his two daughters does not agree with the statement in his application for citizenship. The witness testified that the dates given in his application were wrong, and that he knew they were wrong when he supplied them.

Having given careful consideration to all the evidence, oral and documentary, I am of the opinion that the complainant has sustained the burden of establishing that he was born on February 27, 1908.

Leaving out the testimony of the complainant, even though it is conceded that testimony as to one’s own age is competent, there remains the testimony of two witnesses, Samuel Ginn and Alex Rubin, who were able to testify concerning the date of birth of the complainant of their own knowledge, and with persuasive reasons for their ability to recollect at this time. As to Samuel Ginn, his conduct on the stand rules out any argument that the discrepancy between the dates given on the stand and those contained in his petition for naturalization is due to “incipient senility”. I give full credence to the statements of Samuel Ginn and Alex Rubin. Furthermore, Rubin, Cooper, Laskin and Brodsky testified that Ben was confirmed in 1921. Each of these men has a satisfactory reason for being able to recall this event, and there is no good reason for not crediting their testimony. The religious ceremony of confirmation, known as the “barmitzvah”, takes place only when the Jewish boy reaches his thirteenth year. Such evidence is clearly relevant, having a logical relation to the date of birth, and affording a reasonable inference upon the matter in issue.

The documentary evidence, while it tends to support the complainant’s position, seems less reliable. Although the Temple University records disclose Ben’s date of birth as February 27, 1908, it also contains the untrue statement that Ben’s father was naturalized in 1927. The census record demonstrates its own unreliability in that it recites the year of Ben’s immigration as 1913, whereas it is undisputed that the correct year is 1912. While the public school record gives Ben’s date of birth as January 12, 1906, it is nevertheless susceptible to the suggestion that his parents fixed a date which would permit him to enter school prior to his sixth birthday. Finally, the naturalization certificate of Ben’s father states that Ben was twenty years old then, but this certificate was prepared from an application which was written in Ben’s handwriting. Nevertheless, they are in support of the complainant: a letter of November 28, 1928, which Ben wrote to the Service asking for evidence of his citizenship because he had applied for a position as Junior Stenographer, is of little value to the respondent as an attack on the credibility of the information contained in Ben’s father’s application for citizenship in the absence of evidence concerning' the date of execution of the application, for the application may have been made before Ben had any idea of its importance to him.

In consonance with the above, I therefore make the following o

Findings of Fact

1. The complainant, Ben J. Ginn, was born in Rebuk, Lithuania, on February 27, 1908.

2. The complainant’s father, Aaron Hillel Ginn, was naturalized as a citizen of the United States on November 9, 1928. 3. The complainant, Ben J. Ginn, was a minor on November 9, 1928.

Accordingly, I state the following

Conclusions of Law

1. The complainant, Ben J. Ginn, derived his citizenship through the naturalization of his father, Aaron Hillel Ginn, on November 9, 1928, at which time complainant was a minor.

2. The complainant, Ben J. Ginn, is therefore a citizen of the United States of America, and is entitled to all the rights and privileges of a citizen of the United States of America.

An order may be submitted in accord anee with this Opinion.

       As amended 58 Stat. 4 (Pub.Law 221, Jan. 20, 1944).

       This section was repealed by Section 504 of the Nationality Code of 1940, 54 Stat. 1172, 8 U.S.C.A. § 904, -which provides that such repeal should not terminate nationality heretofore granted.


author: WILLIAM C. COLEMAN, District Judge.

text:
    WHEELING STAMPING CO. et al. v. STANDARD CAP & MOLDING CO.
    Civil Action No. 2198.
    District Court, D. Maryland.
    April 12, 1945.

      Edward A. Smith, of Baltimore, Md., and Christy, Parmelee & Strickland, of Pittsburgh, Pa. (by William H. Parmelee, of Pittsburgh, Pa., E. B. Gale, of Boston, Mass., and J. Preston Swecker, of Washington, D. C.), for plaintiffs. '
    Harry N. Baetjer, of Baltimore, Md., and Pennie, Davis, Marvin & Edmonds, of New York City (by Dean S. Edmonds and Roger T. McLean, both of New York City), for defendant.
   WILLIAM C. COLEMAN, District Judge.

This is a patent infringement suit. Three machine patents are involved, which may be collectively described as embracing means for removing plastic articles from molding machines after the molding operation is completed, especially threaded bottle caps and vials. The alleged invention in the patents resides in avoiding the necessity of removing the threaded mold with the molded object attached, from the molding machine, and thereafter, by a separate operation, unscrewing and releasing the molded object from the threaded mold.

The earliest of these three patents is that to Rahm, No. 1,944,571, issued January 23, 1934, on application filed July 30, 1932. Only two of the eight claims in this patent are in suit, namely, claims 1 and 2. In this patent the upper part of the mold is in two parts, (1) a threaded force pin and (2) a sleeve through which the pin is inserted, the sleeve being used to hold the molded product in position while the unscrewing operation of the force pin, which is rotated in a fixed plane, takes place. As the lower portion of the mold is lowered, the molded product is unscrewed from the pin and is ejected out of the mold, falling into a receptacle placed under the upper mold sections. Claim 1 thus describes the machine for performing this operation: “In combination with a molding machine of the class described adapted to form a threaded portion in the object to be molded, of a thread forming member mounted and adapted to be rotated in a fixed plane, and means mounted and incorporated in the molding machine for unscrewing the thread forming member from the molded object and ejecting the same from the mold.” Claim 2 is the same as claim 1, except claim 2 relates to a plurality of simultaneous molding operations.

The second patent, that to Scott, No. 2,-226,326, was issued December 24, 1940, on application filed October 28, 1936. Of the nineteen claims in this patent, only four are in suit, namely, 8, 11, 13 and 17. The alleged novelty of this patent lies in the fact that it introduces into the molding machine a separate stripping element. That is to say, it provides for sliding under the molded products, while they are still fast to the molds to which they are attached by screw-headed connections, a separate unit for unscrewing each molded product by a multiplicity of rotary cylindrical heads made of rubber which fit over the molded products, unscrew them and then the molded products are knocked out of these cylindrical heads into another receptacle.

Suffice it to quote claim 8 of those in suit as typical of the machine through which the operation just described is effected: “In a molding machine of the charaiter described, the combination of separable molds for molding products therebetween with screw threaded connections between said products and a mold, means for unscrewing the products from the molds, and means for moving the unscrewing means into the space between said molds after separation for engaging the products to remove the same.”

The third patent is that to Webb, No. 2,225,672, issued December 24, 1940, on application filed August 8, 1936. Although bearing the same issue date as Scott, the Patent Office, recognizing the similarity between the two patents, had put them in interference, and as a result, Scott was found to be prior in time. Of the 14 claims of this patent, only one is in suit, namely, claim 14. In this patent the alleged novelty lies in a separate stripping or unscrewing element, but it is different from that of Scott in that it consists of a belt which, by friction against the caps, accomplishes the final stage of unscrewing them, after which they are dropped into a receptacle. Claim 14 reads as follows: “In a molding machine of the character described, the combination of a plurality of separable molds arranged in a plurality of parallel rows for molding a plurality of separate products therebetween with a screw threaded connection between each product and a mold, movable means constructed to engage a single row only of the products at a time normally positioned to one side of the separable molds and adapted to be progressively moved to successive rows of said products, and means for progressively moving said last-named means across the space between said molds after separation thereof for engaging successive rows of the products to remove the same.”

One of the plaintiffs, the Wheeling Stamping Company, is the licensee, and the other plaintiff, the Burrason Corporation, is the owner of the Rahm patent. The other two patents are owned by the Wheeling Stamping Company.

The weight of the credible evidence requires the conclusion that infringement of none of these patents by the defendant has been proved. Therefore the question as to the validity of the patents need not be considered, except in so far as it may be appropriate to do so, in clarifying questions bearing upon the alleged infringement.

The three patents will now be taken up in their chronological order, and the reasons given for our conclusion as respects infringement.

First, as to the Rahm patent, the two claims in suit embrace two basic elements: (1) A thread-forming member rotated in a fixed plane; and (2) means for unscrewing this thread-forming member from the molded object and ejecting the latter from the mold. As to the first element, the thread-forming member rotated in a fixed plane, Rahm would not have been entitled to the patent merely on the use of this, because it appears that this mechanical device was old, and used in a number of operations, although it may be true that no prior art patent or prior use has been shown where such had been applied to molding objects such as those here involved. See patent to Gray, No. 590,145, issued September 14, 1897; to Martindell, No. 1,875,071 filed March 14, 1929, issued August 30, 1932; and French patent to Roussell, No. 523,-976, published August 27, 1921. Therefore, if there is novelty in Rahm, it is to be found in the method which Rahm employed for completely unscrewing the molded object from the thread-forming member, that is for accomplishing the complete release and ejection of the molded object. This Rahm did through a two-piece upper mold, i.e. by operating the thread-forming member in a collar or sleeve, which serves as the element that holds the molded object so that its unscrewing and complete release from the thread-forming member can be accomplished.

Next, as to the Scott patent, the four claims in issue likewise embrace the same two basic elements as Rahm, but the thread-forming member in the upper part of the mold is a one-piece, instead of a two-piece type, as in Rahm, and does not rotate. In addition, Scott has a third, distinct element for ejecting the molded object from the thread-forming member. This consists of a stripping device, slid under the molded objects while they are still fast to the molds, which is in the form of a separate unit, for unscrewing each molded product, having a multiplicity of rotary, cylindrical rubber-lined heads, which fit over the molded products, and unscrew them, whereupon the molded products are knocked down through these cylindrical heads into another receptacle and conveyed away.

Lastly, the patent to Webb likewise has the two basic elements, as in the Scott patent, and also a third, but this, unlike Scott, consists of an endless belt which operates, with the molded objects between it, to unscrew them from the thread-forming member.

Plaintiffs claim that the defendant’s device infringes all three of these patents by reason of the combination in which it employs the three elements, namely, first, the thread-forming member; second, means for unscrewing this member from the molded object; and, third, means for ejecting the molded object from the mold. Yet, at the outset, it is obvious that neither Scott nor Webb can be used with Rahm, because Rahm accomplishes the complete operation, including final ejection of the molded obj ect, without using any means to unscrew the thread-forming member from the molded object except a part of the mold mechanism itself, whereas Scott and Webb each introduce another and distinct element to accomplish the final stage of unscrewing and ejecting the molded object.

Turning to an analysis of the defendant’s device, known as the Stokes machine, we find that, first, the thread-forming member is not operated in connection with a sleeve or collar, but that the lower mold cavity is used to hold the molded object while the unscrewing takes place, thus serving the same purpose as the sleeve or collar in the upper mold in the Rahm patent; and, second, that the unscrewing operation remains incomplete until perfected by the use of a separate element in the form of a so-called stripper, that is, an arm constructed on the lower mold plate which is drawn across one side of the molded object, thus frictionally unscrewing it and causing it to drop down upon a pan which is moved laterally by the lower mold plate to receive it as the lower mold plate is slid from its molding position, and is carried thereby out from the space between the two mold plates and discharged from the pan, whereupon the lower mold plate is returned and the operation repeated.

We find no similarity between the defendant’s device and the Rahm patent such as we think can amount to infringement of the latter, first, because of the definite difference in the construction of, and the manner in which the thread-forming member is employed for unscrewing it from the molded object in the two cases; and, second, because in Rahm the entire unscrewing and complete release of the molded object is performed without the aid of any element distinct from the thread-forming member and the sleeve through which it operates, whereas in the defendant’s device the ejection and complete release is accomplished by the use, frictionally, of a stripper, namely, through contact with the molded object by a rubber-faced arm that is drawn across one side of the molded object, causing it to be completely unscrewed and released, and to drop to the lower mold plate, which forms a carriage for this stripping device, and which operates back and forth from the space between, to the outside of, the mold plates.

Second, we can see no similarity such as amounts to infringement between defendant’s device and the Scott patent, because although the molding elements are similar, and there is, also, as in Scott, a third element for unscrewing and releasing the molded object, that element is distinctly different in both construction and operating principle from the one in Scott. That is to say, Scott, as we have seen, employs a multiplicity of rotary cylindrical rubber-lined heads fitted over the molded products which are completely unscrewed by force applied to these heads; whereas, in the defendant’s device, only the final stage of unscrewing remains and this is accomplished by relatively slight friction of a stripper arm against one side of the molded object.

Finally, what has been said as respects lack of basic similarity between Scott and defendant’s device is to a large extent true as respects Webb and the defendant’s device. However, the similarity here is closer as respects the ejection feature; but we can hardly say it is really close, because the use of an endless belt by Webb embodies certainly a substantial difference in mode of construction, as well as operation from the construction and operation of a stripper, particularly where, as in defendant’s device, the stripper is employed merely to dislodge the molded object from its very loosely held position on the threads of the thread-forming member, whereas the belt in the Webb patent, just as the cylindrical heads in the Scott patent, is used to accomplish the entire unscrewing of the molded object from a tight position.

The following facts are also indicatives that, in view of the lack of basic similarity between the combination and operation of the elements in defendant’s device and those in any of the patented devices, we should not give to the patents that extreme breadth of interpretation for which plaintiffs contend: First, Rahm has never been commercially operated; second, no Scott machine was ever commercially successful; and, third, only one Webb machine is shown ever to have been in commercial use, and that one was restricted to the production of a particular type of plastic articles, namely, vials, not bottle caps. That machine never made products with inside threads, but only those with external threads, which shrink and therefore become loosened from the thread-forming member, in the molding, whereas the internal threads, when they shrink, become tighter on the threads forming member. It is further significant that the specifications of Webb say that this patent is particularly applicable to the removal of elongated articles such as vials or bottles.

Broadly summarized, the history of the three patents indicates that, assuming they are operable, nevertheless, they are of extremely doubtful commercial utility. This fact alone may not be entirely conclusive against the plaintiffs, but, nevertheless, it is of great significance and weight, when added to the fact, as explained, that there is very definite dissimilarity between the mechanism and operation of defendant’s device and the devices constructed in accordance with the claims and specifications of the patents. In other words, to summarize and conclude, this Court is being asked to give a very broad interpretation to all of these patents, on the ground that Rahm is the pioneer inventor, and that the two succeeding patents of Scott and Webb indicate broad, valid improvements thereon. But to do this would be tantamount to reading into these patents what is not there. It would be tantamount to allowing the plaintiffs to preempt the field in this particular art, and to do so through patents which not only are not broad enough to warrant giving them that status, but which, so far, have proved to be little more than paper patents; whereas, on the other hand, the defendant’s device, while not patented, not only has features as respects both construction and operation that are distinctly different from any described in the claims or specifications of plaintiffs’ patents, but is now in extensive commercial use.

The rule which must apply here is firmly established in our patent law. It was stated thus by the Supreme Court nearly fifty years ago in Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, at pages 568, 569, 18 S.Ct. 707, at page 722, 42 L.Ed. 1136, and has been many times since repeated:

“The patentee may bring the defendant within the letter of his claims, but if the latter has so far changed the principle of the device that the claims of the patent, literally construed, have ceased to represent his actual invention, he is as little subject to be adjudged an infringer as one who has violated the letter of a statute has to be convicted, when he has done nothing in conflict with its spirit and intent. ‘An infringement,’ says Mr. Justice Grier in Burr v. Duryee, 1 Wall. 531, 572, [17 L.Ed. 650], ‘involves substantial identity, whether that identity be described by the terms, “same principle,” same “modus operandi,” or any other. * * * The argument used to show infringement assumes that every combination of devices in a machine which is used to produce the same effect, is necessarily an equivalent for any other combination used for the same purpose. This is a flagrant abuse of the term “equivalent.” ’

“We have no desire to qualify the repeated expressions of this court to the effect that, where the invention is functional, and the defendant’s device differs from that of the patentee only in form, or in a rearrangement of the same elements of a combination, he would be adjudged an infringer, even if, in certain particulars, his device be an improvement upon that of the patentee. But, after all, even if the patent for a machine be a poineer, the alleged infringer must have done something more than reach the same result. He must have reached it by substantially the same or similar means, or the rule that the function of a machine cannot be patented is of no practical ❖alu'e. To say that the patentee of a pioneer invention for a new mechanism is entitled to every mechanical device which produces the same result is to hold, in other language, that he is entitled to patent his function. Mere variations of form may be disregarded, but the substance of the invention must be there.”

Among many recent decisions to the same effect, see Craftint Mfg. Co. v. Baker, 9 Cir., 94 F.2d 369.

A decree will be signed, in accordance with this opinion dismissing the complaint.


author: BOWEN, District Judge.

text:
    UNION S. S. CO. OF NEW ZEALAND, Limited, v. STANDARD OIL CO. OF CALIFORNIA.
    No. 14367.
    District Court, W. D. Washington, N. D.
    Feb. 28, 1945.
    Edward G. Dobrin, Stanley B. Long, and Bogle, Bogle & Gates, all of Seattle, Wash. (J. V. Clyne and MacRae, Montgomery & Clyne, all of Vancouver, B. C., of counsel), for libelant.
    Frank P. Helsell and Hulbert, Helsell &. Paul, all of Seattle, Wash., and Wallace L. Kaapcke and Pillsbury, Madison & Sutro, all of San Francisco, Cal., for respondent.
   BOWEN, District Judge.

It seems to the Court, since the fault of the Awatea has been admitted, that it makes no difference in how many respects she was at fault; and that the sole question for consideration here is whether or not the Lombardi likewise was at fault.

The chief difficulty that the Court has found with the. evidence in the trial of this case has been due to some confusion resulting from the statements and real evidence which came from those engaged on the Lombardi and from the navigating instruments and records kept on that vessel.

The principal instance of the confusion on the part of the witnesses occurred in the case of the master of the Lombardi. He seemed to the Court to be an honest man, one who would be fair to his men on board that ship and to his responsibility to the ship owner and cargo owners and others concerned.

But, as indicated by his manner of testifying, there seemed to be some disturbing or other embarrassing stimulus operating upon him during the time he was testifying. He acted like a man who was very uneasy on the witness stand and his explanations of discrepancies were not convincing. No satisfactory reason appeared to the Court as to why he would give the Court that impression.

Of all the witnesses expected to be clear and direct and unconfused in their statements on the witness stand, the master of the ship, who was in charge of the operation at the critical times connected with the collision, would ordinarily be expected to relate clearly the important facts.

For some reason, including what I have just said, the testimony of the Lombardi’s master, particularly that relating to visibility before his vessel, has not been as helpful to the Court as it might have been under conditions different from those mentioned; but I do not wish in any way to cast reflection upon his integrity, because I believe that he manifests the highest integrity.

In my opinion the issues readily become narrowed to one principal issue.

I do not take any stock in the evidence, by reason of its lack of convincing power, introduced to prove that the Lombardi was on an improper course while sailing through the Strait of Juan de Fuca.

As to the charge that the Lombardi violated Article 32 [33 U.S.C.A. § 142], when the master gave the “hard aport the helm” order just before the collision, I do not think any harm or effect came from the unlawful order made by the Captain at that time. At least, there is no proof that any effect whatever came from it. All the proof on this issue is to the effect that the order was unheard and unexecuted. Therefore, there could not possibly have been any contribution from that cause to any fault of the Lombardi.

Nor do I think that the libelant sustained the burden of showing that the Lombardi failed to stop her engines immediately upon hearing the fog whistle. There is some evidence, and possibly there are some circumstances, that might support argument upon that issue; but I do not feel that the affirmative of that issue was established by the libelant by a preponderance of the evidence or by clear and convincing evidence.

The one remaining issue, which I think was regarded by both sides as the central and by far the most substantial issue in the case, is that of whether the Lombardi violated that part of Rule 16, [33 U.S.C.A. § 92], requiring a vessel in a fog to proceed at a moderate speed, “having careful regard to the existing circumstances and conditions.” In the Silver Palm, 94 F.2d 754, 757, the 9th Circuit Court of Appeals interpreted that rule to mean “that a vessel shall not proceed in a fog at a speed at which she cannot be stopped dead in the water in one-half the visibility before her.”

The scope of the testimony could inspire extended discussion of the various aspects of the testimony of the several witnesses, but in my opinion that would not serve any more useful purpose than for the Court to simply announce what the Court finds from a consideration of all the evidence, and from its preponderance. I have heard and considered all the testimony. I have observed the demeanor of all the witnesses who have testified before the Court. I have read and considered all the briefs of counsel, and have heard and considered the able and exhaustive oral arguments of counsel on both sides.

From these considerations, and from a preponderance of the evidence and by the clear and convincing evidence, the Court finds and decides that the visibility of the Lombardi before her, when the approach of the Awatea was first made known to the Lombardi by sound or sight was no more than 450 feet; and that the Lombardi, under the circumstances surrounding her movement and situation at that time, could not have stopped dead in the water in one-half of that 450 feet, the visibility then before her.

Under the rule of this Circuit the Lombardi was at fault for thus breaking the rule of Article 16 as interpreted in the Silver Palm, and the damages in this case should be divided between the two colliding vessels.