author: MILLER, District Judge.

text:
    WALLING, Adm’r of Wage and Hour Division, U. S. Dept. of Labor, v. FRANK et al.
    No. 724.
    District Court, W. D. Kentucky, Louisville Division.
    Sept. 11, 1945.
    Douglas B. Maggs, Sol., of Washington, D.C., Jeter S. Ray, Regional Atty., of Nashville, Tenn., Geo. W. Jansen, Supervising Atty., of Washington, D. C., and David V. Manker, Atty., of Nashville, Tenn., all of U.S. Dept, of Labor, for plaintiff.
    Morris & Garlove, of Louisville, Ky., for defendants.
   MILLER, District Judge.

The plaintiff, L. Metcalfe Walling, Administrator of the Wage and Hour Division, United States Department of Labor, brought this action to enjoin the defendants, who are engaged in the manufacture, sale and distribution of men’s topcoats and overcoats, from violating provisions of Sections 15(a) (1), 15(a) (2) and 15(a) (5) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. In a stipulation filed on May 9, 1945, the defendants admitted their failure to comply with the provisions of the Act with respect to many of their employees and agreed to the entry of a judgment against them restraining such further practices on their part. The stipulated facts and the tendered agreed conclusions of law with reference thereto are adopted by the Court with respect to that portion of the case. The stipulation provides that the Court shall make additional findings of fact and conclusions of law with respect to two remaining issues not covered by the stipulation, which is now done.

Findings of Supplemental Facts

1. The defendants are engaged in the manufacture, sale and distribution of men’s top coats and overcoats at their establishment at 709 West Market Street, Louisville, Kentucky. Their employees involved in this phase of the case operate sewing machines, are employed by the defendants on a piecework basis, and are paid for various “operations” at rates ranging from fifty cents to $4.10 per hundred. Each employee is required to take care of the machine assigned to her, to clean it and oil it. The employee spends approximately ten minutes each day in doing such cleaning and oiling. Ordinarily the employee arrives at the plant at about 7:45 a.m. and punches the timeclock before proceeding upstairs to the room where she works. The employee usually goes to the dressing room and changes her clothes and then checks over the machine, cleaning, dusting and oiling it, before the current is turned on at 8:00 a.m. There is a 30-minute lunch period at Noon. Sometimes the employee spends part of the lunch period in cleaning and oiling her machine, particularly if she has not done so before starting work in the morning. Work stops at 4:30 in the afternoon. The employee does not work on Saturday unless an accumulation of work requires it, which is very infrequent. The work day is computed by the defendants as beginning at 8:00 a.m. rather than from the time shown by the timeclock.

2. As the various “operations” are performed by the piecework employee a ticket is detached from the garment for each item or “operation” performed. Approximately 700 tickets on an average are detached by the worker each week. The employee is required to sort these tickets and attach them to a gummed record sheet and compute the amount of piecework wages due. This work is performed weekly by the employee outside the regular working hours, usually at home on Sunday afternoon. Each Monday the previous week’s tickets and computations are turned in to defendants who check them and pay the employee. Ordinarily, approximately three hours each week are spent by the employee in this work.

3. The tirhe spent in cleaning and oiling their machintes and sorting and attaching piecework tickets and computing piecework wages due them is not recorded by defendants and is not counted by defendants as hours worked. The employee is guaranteed a minimum of fifty cents an hour for the 40-hour work week consisting of five days of eight hours each, as above computed. At times the piecework does not total as much as fifty' cents an hour for the 40-hour week, but in such instances the employee nevertheless receives the guaranteed minimum of fifty cents an hour. In the weeks in which the employee works more than 40 hours she is paid not less than time and a half for all hours in excess of forty.

4. With respect to the dusting and oiling of machines, it is an established custom in the trade that each worker take care of her machine, and compensation for such work is included under the established piecework rates. The established piecework rates also allow for the time which would be consumed in the pasting of the work tickets on gummed sheets, and compensation for such work is also included under the established piecework rates. The piecework rates are established by contract between the employees’ Union and the defendants.

Conclusions of Law and Memorandum

The stipulation provides that under the foregoing facts the only issues submitted to the Court are as follows:

(a) Whether or not time consumed by defendants’ employees in cleaning and oiling their machines is working time which should be so recorded by defendants and which should be counted as hours worked for the purposes of determining compliance with Section 6 of the Act and computing overtime compensation under the provisions of Section 7 of the Act.

(b) Whether or not time consumed by defendants’ pieceworkers in sorting and attaching to record sheets work tickets detached by such pieceworkers from garments upon which they have worked, where said record sheets are necessary for defendants’ use in making up pay rolls, is working time which should be so recorded by defendants and which should be counted as hours worked for the purposes of determining compliance with Section 6 of the Act and computing overtime compensation under the provisions of Section 7 of the Act.

Jurisdiction of the parties hereto and of the subject matter of this action exists under Section 17 of the Act, Section 217, 29 U.S.C.A.

The Act provides that no one who is engaged in commerce or in the production of goods for commerce, shall be employed at less than the minimum hourly wage prescribed or for a work-week longer than the prescribed hours unless the employee receives compensation for excess hours at a rate not less than one and one-half times the regular rate. Sections 6 and 7 of the Act; Sections 206 and 207, 29 U.S. C.A. Under Section 3(g) of the Act the word "employ” “includes to suffer or permit to work.” The questions involved appear controlled by the two decisions of the United States Supreme Court in Tennessee Coal Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014, and Jewell Ridge Coal Corporation v. Local No. 6167, United Mine Workers of America, 1945, 324 U. S.-, 65 S.Ct. 1063. These two cases considered whether or not underground travel in iron ore mines and in Bituminous coal mines constituted work or employment within the meaning of the Fair Labor Standards Act of 1938. Both cases held that underground travel time from the portal to the working face of the mine constituted work or employment for which compensation must be paid under the Act. They defined work or employment under the Act “as meaning physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” [321 U.S. 590, 64 S.Ct. 703.] They specifically -held that it was not necessary that such travel time or work be directly productive in its nature. Both the oiling of the machines and the sorting and attaching the work tickets are activities included in the foregoing definition. The fact that the sorting and attaching work tickets takes place at the employees’ home without immediate supervision by the employer does not change the result. The Circuit Court of Appeals for this Circuit so held in Walling, Adm’r, v. American Needlecrafts, Inc., 6 Cir., 139 F.2d 60.

Defendants concern themselves chiefly in attempting to differentiate the facts in the two Supreme Court cases referred to from the facts in the present case, pointing out the hazardous nature of the underground travel in the two mine cases as compared with the relatively quick and simple operations involved in this case. Although the Court stressed the character of work involved in the two mine cases, yet it seems clear from the opinion and from the wording of the Act itself that there is no requirement that the work be hazardous in order to constitute work within the meaning of the Act. The definition above referred to does not include any such requirement.

Defendants also contend that the Act should not be so construed as to invalidate or supersede any agreement between the employer and the employees arrived at by the practice of collective bargaining through the employees’ Union. This same contention was urged upon the Supreme Court in the two cases above referred to and rejected by the majority opinion in each instance. See Tennessee Coal Company v. Muscoda Local, supra, 321 U.S. 590, at page 602, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014. The majority rulings in these two cases are vigorously dissented from by several members of the Court and these dissenting views are urged upon us by the defendants in this case. However, the construction given to the Act by the majority of the Court should of course be followed and applied in a proceeding of this kind in the District Court.

The time consumed by defendants’ employees in cleaning and oiling their machines and the time consumed by defendants’ piece workers in sorting and attaching to record sheets work tickets detached by such piece workers from garments upon which they have worked is work time or hours worked and should be counted for the purpose of determining compliance with Section 6 of the Act and computing overtime compensation under the provisions of Section 7 of the Act. See also Walling v. Blue Mt. Logging Co. No. 380, W.D. Wash. Oct. 13, 1942; Travis v. Ray, D.C.W.D.Ky., 41 F.Supp. 6; Walling v. Allied Messenger Service, D.C.S.D. N.Y., 47 F.Supp 773; Walton v. Southern Package Corporation, 320 U.S. 540, 64 S. Ct. 320, 88 L.Ed. 298.

       No opinion for publication.


source: Caselaw Access Project

author: DUFFY, District Judge.

license: Public Domain

text:
    ECKERT v. BRAUN.
    Civil Action No. 2473.
    District Court, E. D. Wisconsin.
    Sept. 6, 1945.
    Brennan & Brennan, by Martin J. Brennan, all of Milwaukee, Wis., for plaintiff.
    Olwell & Brady, by Bernard V. Brady, all of Milwaukee, Wis., for defendant.
   DUFFY, District Judge.

Defendant moves to dismiss the action on the ground that this court lacks jurisdiction. The complaint, asserting that this action is brought under the Declaratory Judgment Act, 28 U.S.C.A. § 400, Judicial Code, Sec. 274(d), alleges that defendant illegally and wrongfully obtained possession of certain designs, drawings and formulas belonging to plaintiff’s deceased husband, and that defendant used same in applying for two patents which were issued upon defendant’s misrepresentations that he was the inventor. The relief asked for is that the defendant be enjoined from making any use of U. S. Patents Nos. 1,-839,530 and 1,839,531; that such patents be adjudged invalid in the name of the defendant and that they belong to the plaintiff; that defendant be adjudged a trustee ex maleficio; that the court adjudge the designs, drawings and formulas were wrongfully converted and used by defendant; that defendant be required to account for all profits from the use of said designs, drawings and formulas; and that plaintiff recover damages for the conversion and fraud on the part of the defendant. Plaintiff admits that diversity of citizenship does not exist.

Plaintiff claims that this is a suit under the patent laws of the United States. Of course this court has jurisdiction of all suits at law or in equity arising under the patent laws in this district. 28 U.S.C.A. § 41(7). Such jurisdiction is exclusive. 28 U.S.C.A. § 371.

It is my opinion that the cause or causes of action which the complaint sets forth do not arise under the patent laws of the United States. Where diversity of citizenship is lacking, the fact that questions and issues are raised in connection with a patent is not sufficient to invoke the jurisdiction of this court.

In Friedman v. Washburn Co., 7 Cir., 145 F.2d 715, plaintiff sought to have defendant declared a trustee ex maleficio of a certain patent and also asked for an assignment of the patent and for an accounting and damages. The complaint alleged diversity of citizenship, and the requisite jurisdictional amount. The district court granted a motion made by defendant for judgment on the pleadings. The appellate court said, 145 F.2d at page 717: “ * * * But is it clear that appellant’s complaint stated no cause of action? So far as we can see, this is true in only one respect, no facts were stated which entitled him to relief under the Declaratory Judgment Act. However, appellant also asserted jurisdiction on the ground of diversity of citizenship and the involvement of over $3000 in controversy. * * * ”

In Becher v. Contoure Laboratories, Inc., et al., 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752, the action was brought in a New York State court, asking that defendant be adjudged a trustee ex maleficio of an invention and patent issued to him, and asking further relief similar to that asked in the case at bar. The proof established that one Oppenheimer, having conceived the invention, employed Becher as a machinist to construct the invented machine, and Becher agreed to keep secret and confidential the invention thus disclosed. Becher then applied for and obtained a patent based upon the invention. The Supreme Court said, 279 U.S. at page 390, 49 S.Ct. at page 357, 73 L.Ed. 752:

“It is not denied that the jurisdiction of the Courts of the United States is exclusive in the case of suits arising under the patent laws, but it was held below that the suit in the State Court did not arise under those laws. It is plain that that suit had for its cause of action the breach of a contract or wrongful disregard of confidential relations, both matters independent of the patent lam, and that the subject matter of Oppenheimer’s claim was an undisclosed invention which did not need a patent to protect it from disclosure by breach of trust. * * * ” (Italics supplied)

The rule has been stated: “Where, in advance of the granting of a patent, an invention is disclosed to one who, in breach of the confidence thus reposed, manufactures and sells articles embodying the invention, such person shall be held liable for the profits and damages resulting therefrom, not under the patent statutes, but upon the principle that equity will not permit one to unjustly enrich himself at the expense of another.” (Italics supplied) Hoeltke v. C. M. Kemp Mfg. Co., 4 Cir., 80 F.2d 912, 923; Chesapeake & O. Ry. Co. v. Kaltenbach, 4 Cir., 95 F.2d 801, 806; Saco-Lowell Shops v. Reynolds, 4 Cir., 141 F.2d 587, 598.

Nor can jurisdiction by this court be based upon the allegation that the patent is void because procured by fraud. Only the United States can maintain a suit for the annulment of a patent on the ground of its procurement by fraud. Briggs v. United Shoe Mach. Co., 239 U.S. 48, 36 S. Ct. 6, 60 L.Ed. 138. See also: Howard v. Archer et al., 9 Cir., 115 F.2d 342.

In Engler v. General Electric Co., D.C., 29 F.Supp. 421, it was held that while a private litigant may allege facts which constitute fraud or which make the granting of a patent a mistaken one as a defense to an infringement suit, only the government may sue to repeal a patent which the United States officials have fraudulently been induced to grant. The court further held that, lacking diversity of citizenship, an action for damages for alleged fraud in the prosecution and issue of a patent could not be maintained.

The motion to dismiss the complaint will be granted.


author: FORD, District Judge.

text:
    THE BARBARA. THE ANTONINA.
    Nos. 1069, 1105.
    District Court, D. Massachusetts.
    June 27, 1945.

      Nathan W. Thompson, of Portland, Me., and Thomas H. Walsh, of Boston, Mass., for Leo G Pyne.
    William J. Maclnnis, of Gloucester, Mass., for Benedetto Randazza, and the Antonina.
    Harry Kisloff, of Boston, Mass., for John P. Madruga, Salvatore Arcoleo, Guy Ciamataro, Mercurio Ciamataro, Serafino Favazza, Peter J. Lovasco, Philip Parisi, Salvatore Randazzo, Seraphino Randazzo, Joseph Zappa, Frank Favazza, John Fron-tero.
   FORD, District Judge.

In these proceedings Leo C. Pyne, owner of the Barbara, petitions for limitation of liability; Benedetto Randazza, owner of the Antonina, petitions for limitation of and exoneration from liability. At the hearing the proctor for all the claimants who had appeared and made claims assented to the allowance of the petition of Leo C. Pyne. The court, however, took all the evidence offered with respect to the issues involved therein, and, independently of the concession, reaches the conclusion that although the Barbara was clearly at fault, privity or knowledge of the fault on the part of the petitioner Pyne was lacking.

The questions involved in the petition of the Antonina remain.

The facts are as follows:

During the night of May 18, 1944, a dark, clear night with a light northerly wind and no moon, at approximately 11:20 p. m., the Antonina and the Barbara, two fishing vessels, collided opposite Butler Flats in a north-south channel leading to the port of New Bedford, Massachusetts.

The Antonina, a wooden schooner of forty-five gross tonnage, cast off from State Pier at New Bedford at 11:00 p. m. on said date and proceeded southerly. She was sailing through the channel at eight knots, or three-fourths speed, bound for Dumpling Rocks and Hen and Chicken Lightship, which are in a southwesterly direction from the southern end of the channel, and had passed almost through the channel when the collision occurred. The Barbara’s bow struck the Antonina amidships — just forward of the pilot house — on the port side, and the Antonina sunk just east of mid-channel where the channel, of almost uniform width from one end to the other, is three hundred feet wide. At the time of the accident Captain Randazza of the Antonina was in the pilot house; Ma-druga, his engineer, was in the engine room; Ciamataro, another crewman, was aft letting out the seine boat; and Parisi, the Antonina’s lookout, was allegedly in the bow. The remainder of the crew, nine in number, was in the forecastle, presumably asleep.

The Barbara, a vessel of thirty-five gross tonnage, left Georges Banks at 2:45 a. m. on the date of the collision to return to New Bedford after a fishing expedition. At the time of the accident she was sailing northerly at a speed of seven to seven and one-half knots, or seven-eighths to fifteen-sixteenths of her normal speed. The Barbara was piloted by Captain Kohler, who was in the pilot house at the time of the collision. Swain, the Barbara’s watch, and Thomas, the cook, were forward. Thomas was standing on the dog house, and Swain was by the companionway, ten to twelve feet aft of the bow. The only light the Barbara displayed during the night in question was a common standard lantern which was forward, hanging from the jumbo stay five to six feet above the deck. At dusk the Barbara’s lights had been found not to function, and when attempts to repair them had failed, Captain Kohler ordered a lantern tied forward. The An-tonina, on the other hand, had all the required running lights illuminated from 11:00 p. m. to the time of the accident.

The Antonina measures over all seventy-two feet long and seventeen feet wide, and is equipped with a one hundred twenty horse power Cooper Diesel engine with its controls in the engine room. The pilot controls the motor by means of bell signals which are sent from the pilot house to the engine room. The pilot house is forty feet from the bow, and is situated behind a five-foot high dog house which obstructs the view of the pilot looking through the center window of the pilot house with respect to the water ahead, but leaves his view through the starboard and port window unimpeded.

According to Captain Randazza’s testimony, the Antonina was proceeding southerly on a straight course through the channel just right of center. Somewhere between number five and three can buoys (a distance approximately one-half to one mile from the point of collision) he testified he passed the inward bound Wanderer, port to port, the vessels passing forty to fifty feet apart. As he reached Butler Flats, he looked out the starboard window of the pilot house at the flashing white light on Butler Flats, whose interval is five seconds; then he looked out the port window whereupon he saw a spar on the mast of the Barbara sixty feet ahead heading for the An-tonina just forward of her foremast, about eighteen feet aft of her bow. Instantly, Randazza signalled Madruga to throw the engine out of gear, and gave the Antonina a three-quarter starboard rudder. The Antonina veered to starboard, and then the collision occurred. The Barbara, however, continued on and pushed the Antonina for about seven minutes in a semi-circular course toward a flashing red buoy on the opposite shore. When the Antonina sunk, her bow was pointed northwards toward New Bedford, and she was at about mid-channel, south of the point of collision. Captain Randazza just prior to the accident got no warning from Parisi, whom he saw at all times forward after leaving State Pier, or anyone else; he saw no lantern light, heard no signal blasts, and was unaware of the approaching Barbara until he saw the spar. Captain Randazza also testified that as he boarded the Barbara he noticed a dirty lantern hanging from the jumbo stay.

Parisi, a fisherman at sea since 1927, standing watch aboard the Antonina at the time of the collision, testified he was in the bow of the Antonina at all times since she left State Pier to the time of the accident, and that he saw no sign of the Barbara, nor was he aware of her presence until she struck the Antonina. Captain Randazza, as stated above, also testified that Parisi was forward at all times.

Ciamataro, a fisherman aboard the An-tonina, who was aft behind the pilot house at the time of the accident letting out the seine boat, testified that when the boat first left port he was at the bow talking to Parisi, but later went aft; that he talked to the engineer for a short time prior to the accident, and was astern alone when the accident occurred. He also testified that he heard no whistle prior to the accident and that the Antonina was on the west side of the channel when the accident occurred.

Madruga testified he was below at all times after the departure from State Pier to the time of the accident; that four to five minutes before the collision he went for approximately two minutes to the companionway, leading from the engine room to the deck, where he heard two unidentified men conversing on the deck at the stern. He returned to his engine, and while oiling the valves, he received a signal to throw the motor out of gear, which he did. Soon thereafter the crash occurred.

Captain Kohler testified he saw the An-tonina’s lights when she was two miles distant from the Barbara, and that as he entered the channel heading for the flashing red buoy on the east side of the channel, he saw by the relationship of the channel buoy lights with those of the Antonina that the Antonina was approaching on the wrong side of the channel. When he was two hundred yards away, his course was such that he would have passed the An-tonina starboard to starboard if he had proceeded straight ahead; however, according to his testimony, he turned the Barbara a little to port to ensure a safe passage, signalled two short blasts, and attempted to pass starboard to starboard. He got no response. Later, he saw the red running light aboard the Antonina flash across his bow, and was quite certain he was going to hit her; however, he made hard to starboard in an attempt to pass safely port to port; but it was too late, and the collision occurred. He further testified that he did not slow down until after the collision and that at that time his motor was turning. The Antonina, he stated, was pushed very little, if at all, and she sank where she was hit. He also testified the lantern aboard the Barbara was clean.

Both Swain and Thomas testified they saw the Antonina when she was at least one-fourth mile distant from the Barbara, that they heard the two blasts, and that the Barbara, having slowed down directly after the collision, pushed the Antonina very little. Swain’s testimony was that the Barbara first went to port and then when the ships were eighteen to twenty feet apart, to starboard. With regard to the locus of the collision Swain testified it was at mid-channel, but he was not sure, and Thomas stated it was in the eastern side of the channel.

Very important testimony, that of Michael Gonsalves, skipper on the Wanderer, was introduced in evidence by way of deposition. Captain Gonsalves stated in part: “On May 18, 1944, about midnight, the Wanderer was sailing into New Bed-ford and I was in the wheelhouse on deck. As we were passing Butler’s Flat light we passed the Antonina port to port. She was on her right side of the channel and I was on my right.”

It is the contention of the claimants that on this evidence a finding should be made that the Antonina was at fault in two main particulars: (1) she was on the wrong side of the channel, and (2) Parisi, the watch aboard the Antonina, was not at the bow of the Antonina at the time of the collision but was aft conversing with Ciama-taro, and his failure to perform his duty as watch was partly the cause of the collision.

I find as a fact that both the Antonina and the Barbara at the time of the collision were on the western side of the channel. All the circumstances of the case point to this conclusion. The testimony of Captain Kohler that the Antonina was on the eastern side of the channel as she came toward the point of collision may be disregarded. In fact, I had no confidence whatsoever in his testimony. I was not impressed with his testimony as to how he determined the Antonina was on the wrong side of the channel. I believe he miscalculated the position of the Antonina, and this circumstance was the primary cause of the collision. The decisive testimony supporting the fact the Antonina was on her starboard side of the channel as she proceeded was that of the captain of the Wanderer. It is hardly probable that the Antonina, which when one-half to one mile away from the scene of the collision was on her right side of the channel, was proceeding on her port side of the channel at the time of the collision. There was no adequate reason for such an eventuality. The fact the An-tonina sank about mid-channel is not at all inconsistent with the finding she was on the western side of the channel before the collision occurred, as I find it to be a fact she was pushed a considerable distance by the Barbara whose bow struck the An-tonina on the latter’s port side and pushed the Antonina in a semi-circular course, causing the Antonina’s bow to point, after the collision, toward New Bedford. The point of impact, the facts that the Barbara did not slow down and her engine was still running, the Barbara’s speed, and the position of the Antonina after the collision, evidence the fact that the Antonina- was pushed some distance.

Common sense compels this court to find the Barbara had a reckless disregard for the rights of other vessels as she proceeded toward New Bedford Har^ bor. She was plainly at fault, proceeding without required lights. Unless the An-tonina was clearly at fault, any doubt should be resolved in the Antonina’s favor. General Seafoods Corporation v. J. S. Packard Dredging Co., 1 Cir., 120 F.2d 117, 119.

Further, it is plain here that the grievous fault of the Barbara was a sufficient cause of the collision even though the Antonina was at or slightly to the east of mid-channel. There was ample room for the Barbara, whose captain saw her two miles away and knew his ship might not be seen by the Antonina, to pass port to port and thus avoid a collision. Why Captain Kohler did not do this is hard to explain except on the theory, as stated above, he miscalculated the position of the Antonina. Cf. Black Point S. S. Co. v. Reading Co., D.C., 14 F.Supp. 43, affirmed 1 Cir., 87 F.2d 1014.

Captain Randazza could hardly be expected under the circumstances to see the Barbara’s lantern light before he did. The lantern was too low for him to see it over the Antonina’s dog house. Moreover, this flickering lantern light, flickering from the motion of the Barbara and whatever northerly wind was blowing, was not too easy to distinguish. Nor could it be expected that a reasonably prudent skipper who saw the lantern light under such circumstances would judge that such a light indicated the presence of a vessel proceeding toward him. The lantern light might have indicated a great many stationary objects, e. g., a boat at anchor, or a buoy.

Another important consideration: Kohl-er, the Barbara’s captain, who knew the danger to which he was likely to subject other vessels without his lights, testified he expected to meet no other vessels. In this state of mind it is not surprising he sailed toward the harbor on the wrong side of the channel. It is rather difficult to picture a more careless master of a boat with all the opportunity necessary to determine the position of the Antonina and with space aplenty to pass her port to port, making no attempt to do so until it was too late. That the Barbara swung to port just before the collision is another indication that Captain Kohler, who had seen the An-tonina for some distance, made very little effort to avoid a collision with the Antonina until a collision was imminent.

Nor do I think the Antonina was in any way at fault after she found herself in a position of apparent danger. Captain Ran-dazza saw the Barbara only sixty feet away and hardly more than a second elapsed thereafter before the collision. Immediately after seeing the spar, he threw his motor out of gear to slow down the An-tonina and thus minimize the force of impact should a collision occur, and gave her a three-quarters starboard rudder in an attempt to avoid a collision. I find he did all that any reasonable captain would be expected to do under the circumstances to avoid a collision.

The claimants’ second contention, that the lookout Parisi was aft at the time of the collision and that his failure to see the Barbara was a contributory cause of the collision, is not supported by the preponderance of the evidence. The witness Madruga, a claimant, was relied upon in the main to support this contention. As is set forth above, he said he heard two voices. However, he failed to identify them, and since there were others in the crew of the Antonina, it could well have been another member of the crew talking to Ciamataro. I conclude the respondents have not supported the contention that Parisi was at the stern of the Antonina at the time of the collision. The flimsy circumstantial evidence upon which the claimants rely does not justify the finding the court is asked to make. The evidence is too meager. I find, as Parisi and Captain Randazza testified, that Parisi was at the bow of the boat at the time of the collision and was performing his duties as a lookout; and I cannot find he was derelict in the performance of that duty. It is not necessary to repeat what has already been said with respect to Captain Randazza’s failure to discover the Barbara approaching. Other than the presence of the dog house the same considerations are present as respects Parisi. Even though a lookout should be held to a high degree of vigilance, I cannot find that Parisi failed to see what an ordinarily careful and competent lookout would have seen under the circumstances. The failure to see what was unquestionably a flickering light from a dirty lantern located six feet above the Barbara’s deck cannot be said to constitute fault. I do not believe that the Captain of the Barbara gave any blast signals before the collision occurred. With these findings in view, even if it be assumed that Parisi was not at his post, it could not be said that a failure on the part of the Antonina to provide a lookout could have contributed in any way to the collision.

Conclusion.

I find the claimants have failed to sustain their burden of showing by a fair preponderance of the evidence, the John H. Starin, 2 Cir., 191 F. 800; The Suduffco, D.C., 33 F.2d 775; The Linseed King, D. C., 24 F.2d 967, 970, that the Antonina was at fault. On the contrary, I find the evidence adequate to warrant the determination that the Antonina was not at fault, and the sole cause of the collision was the fault of the Barbara.

The Antonina is exonerated. The petition of the Barbara for limitation of liability is allowed.


author: PICARD, District Judge.

text:
    WEADOCK et al. v. KAVANAGH.
    No. 4192.
    District Court, E. D. Michigan, S. D.
    May 25, 1945.
    Armstrong, Weadock, Essery & Helm, ■ of Detroit, Mich., for plaintiff.
    C. Dinu, Asst. Dist. Atty., of Detroit, Mich., and Samuel O. Clark, Jr., Asst. Atty. Gen., for defendant.
   PICARD, District Judge.

Action brought for recovery of a portion of Federal estate taxes paid on behalf of Philip H. Grennan, deceased, estate. The question involved is whether certain property transferred by decedent in trust August 25th, 1931 was properly included as taxable under Section 302(c), Revenue Act 1926, as amended, 26 U.S.C.A. Int.Rev. Acts, page 227.

The facts are that Philip H. Grennan died September 4, 1936, having on August 25, 1931, placed certain assets valued the date of his death at $65,074.76 into a double trust — one for the benefit of his daughter, Evelyn, the other for his son Paul.

The wording of the trust is decisive of the questions involved. By its terms Evelyn was to receive $65 per month during the donor’s life, subject to the provision that donor could “during his lifetime give written instructions to the Trustees to increase the amount of said payments to his daughter, or to decrease such payments, or to make no payments of income to her but instead add the said income to the principal of her trust estate.” (Italics ours)

Paul was to receive the income from his half in monthly or quarterly installments subject to the provision that the Trustees should pay Paul as “the donor may in writing direct,” adding any undistributed income from Paul’s share to the principal of Paul’s half.

Two other clauses materially affect the interpretations to be placed upon this trust and they are, first,

“Paragraph Six: If either or both of the Donor’s children should predecease him, the Trustees shall terminate the trust estate of such deceased child or children forthwith, and assign and transfer said trust estate or estates to the Donor absolutely.” and

“Paragraph Six B: That if Paul Gren-nan should die leaving neither wife nor children, and if Evelyn Grennan should die without leaving issue, then the trust estate shall be terminated, and assigned and transferred absolutely and forthwith to the Donor’s heirs-at-law.”

It will be noted therefore—

(a) That right up to the date of his death donor could have withheld any money being paid to either Paul or Evelyn ;

(b) That any income not distributed from either trust became part of the principal of that trust;

(c) That if either Evelyn or Paul died before the donor, her or his share reverted to donor; and

(d) That even after grantor’s death, if Paul should die leaving no wife or issue and if Evelyn died leaving no issue, the principal as accumulated would be distributed to the heirs at law of the donor — not to the heirs at law of Evelyn or Paul.

The Issue

The entire trust properties were included as part of the taxable gross estate of deceased, Philip H. Grennan, and plaintiff claims, first, that the Collector of Internal Revenue erred in including therein the value of the life estates of Evelyn and Paul Grennan; second, that the reversion taxable might possibly have included the undistributed income from the trust estate; and third, that no part of the value of the trust or trusts as of the date of death should have been included as taxable.

Plaintiff practically abandons his third point upon defendant’s contention sustained by great weight of authority that the filing of a claim for refund setting forth the grounds relied upon is a necessary and indispensable prerequisite to maintenance of suit for recovery of federal taxes either against the United States or the Collector of Internal Revenue. Rev. St. § 3228, 26 U.S.C.A. Int.Rev.Code, § 3313; Kings County Savings Institution v. Blair, 116 U.S. 200, 6 S.Ct. 353, 29 L.Ed. 657; United States v. Felt and Tarrant Co., 283 U.S. 269, 51 S.Ct. 376, 75 L.Ed. 1025; Tucker v. Alexander, 275 U.S. 228, 48 S.Ct. 45, 72 L.Ed. 253; Maryland Casualty Co. v. United States, 251 U.S. 342, 40 S.Ct. 155, 64 L. Ed. 297; United States v. Memphis Cotton Oil Co., 288 U.S. 62, 53 S.Ct. 278, 77 L.Ed. 619.

Plaintiff in his claim as filed did contend that the only part of the trust includable was decedent’s “reversionary interest” in the alleged amount of $15,466.64.

Conclusions of Law

The statutes and regulations suggested as being involved are in the footnote.

Both sides rely on Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 450, 84 L.Ed. 604, 125 A.L.R. 1368, where the Supreme Court tried to settle once and for all the affect of remote control on gifts inter vivos and to determine whether future court decisions should be governed by the convey-ancer’s ability to manipulate the English language so as to squeeze his client’s hidden intention behind flimsy phrases or to enunciate a broad principle of dealing with an abstract problem. As Justice Frankfurter said, if we are to depend upon the former:

“Such an essay in linquistic refinement would still further embarrass existing intricacies. It might demonstrate verbal ingenuity, but it could hardly strengthen the rational foundations of law. * * * There are great diversities among the several states as to the conveyancing significance of like grants; sometimes in the same state there are conflicting lines of decision, one series ignoring the other.”

The Hallock case goes into the question fully, boldly facing the issue of whether the doctrine of stare decisis embodies an important social policy and determines that while it should not, on tenuous grounds, dissipate former decisions, the Supreme Court has never accepted the theory of “disability at self-correction.” In the Hallock case the main question was— Should the court adhere to the rule of law laid down in Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L. Ed. 29, 100 A.L.R. 1239, and Becker v. St. Louis Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35 — which incidentally Justice Roberts said in his dissenting opinion was not a legal innovation but had been the law since 1927 — or should it follow Klein v. United States, 283 U.S. 231, 51 S.Ct. 398, 399, 75 L.Ed. 996, decided in 1931? In following the Klein decision the Supreme Court does theorize that where the fruit of any court’s interpretation has not been secured by remedial legislation that court should not hesitate to make the correction itself in the light of past and anticipated events. It adheres therefore to the doctrine that where a transfer is made by decedent in his life time, “intended to take effect in possession or enjoyment at or after his death,” he still maintaining a rever-sionary right in the event of donee’s death, the gross estate should be taxed. This overrules the St. Louis Trust Company cases, which held that such a provision “was a mere possibility of a reverter” [296 U.S. 39, 56 S.Ct. 76], and property so slightly affected should not be included in the gross estate.

There is some maneuvering in Helvering v. Hallock as to whether the court should follow the Klein case and disown the St. Louis cases or whether they could be reconciled. Justices Roberts and McReynolcL held they could and should be reconciled. But in our opinion the effect of the Hallock decision is to overrule the St. Louis Trust cases. As stated by Justice Frankfurter they are “untenable because they drastically eat into the principle which those cases professed to accept and to which we adhere.”

In short the court in the Hallock case adopted the views of the four dissenting Justices in the St. Louis Trust cases, supra, that such a reversional clause could “be resorted to, as a substitute for a will, in making dispositions of property operative at death” [309 U.S. 114, 60 S.Ct. 449], and such gifts inter vivos which Congress intended to include for tax purposes would be exempt.

Incidentally, the Supreme Court’s decision in the Hallock case found reinforcement in Fidelity-Philadelphia Trust Co. v. Rothensies, 3 Cir., 142 F.2d 838, and its own action on the same case, 1945, 324 U. S, 108, 65 S.Ct. 508. See also Commissioner of Internal Revenue v. Field’s Estate, 324 U.S. 113, 65 S.Ct. 511.

Broadly speaking the distinction seems to be that whenever a settlor or testator by trust creates express conditions or contingencies upon .the happening of which he might regain the corpus, such a gift is testamentary in character and intended to take effect in possession or enjoyment at or after his death. As the Court of Appeals in the Fidelity-Philadelphia Trust Company case said, “Since the disposition of the estate was held in suspense until her death, that event compels the imposition of the tax.” [142 F.2d 841] And we so hold.

Life Estate

Having disposed of this question we approach plaintiff’s contention that the life estate existent after donor’s death should not be included as part of the estate to be taxed to support which he emphasizes the distinctions between the case at bar and recent decisions by four notations:

First, in the Hallock case the life estate was a definite one and in computing the tax the court accepted the exemption merely taxing the balance of his estate as the re-versionary interest of the donor;

Second, in the Klein case, which was supported by United States v. Hallock, there was no question about a “conditional” life estate; that also was definite;

Third, in the case at bar, there is a “conditional” life estate; that is, it remains conditional up to the death of the donor and from that day on there is no restraint upon the trustees. They must pay Evelyn the entire net income from her trust in quarterly or monthly installments and they must “make wise provision for the use and maintenance” of Paul out of the income from his half; and

Fourth, nothing the donor could have done during his life could have changed that part of the life estate given to those two children; that is as to their interests in the trust after his death.

But the objection is immediately met by the Commissioner v. Field case, supra, that there is always the “possibility” —we emphasize the word “possibility”— that neither Evelyn nor Paul will ever enjoy the life estate or any part of it since either or both may die before the donor has permitted them to receive a single cent from the trust.

The court in the Field case, supra, uses this illuminating language:

“Thus until decedent’s death it was uncertain whether any of the corpus would pass to the beneficiaries or whether it would revert to the decedent. Decedent retaining a string attached to all the property until death severed it, the entire corpus was swept into the gross estate and was taxable accordingly. * * *
“It makes no difference how vested may be the remainder interests in the corpus or how remote or uncertain may be the decedent’s reversionary interest. If the corpus does not shed the possibility of reversion until at or after the decedent’s death the value of the entire corpus on the date of death is taxable.” [324 U.S. 113, 65 S.Ct. 512.]

The Field case is very close to being on all fours with the case at bar on the facts, and since there was a “possibility” that the life estate might never come into existence we feel that we must hold with the defendant on all its claims.

       Revenue Act of 1926, c. 27, 44 Stat. 9:
      Sec. 302, as amended by Joint Resolution of March 3, 1931, c. 454, 46 Stat. 1516 and by Section 404 of the Revenue Act of 1934, c. 277, 48 Stat. 680:
      “The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside the United States. # * *
      “Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the first sentence of subdivision (c) of section 302 of the Revenue Act of 1926 is amended to read as follows:
      “(c) To the extent of any interest therein of which the decedent has to any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, including a transfer under which the transferor has retained for his life or any period not ending before his death (1) the possession or enjoyment of, or the income from, the property or (2) the right to designate the persons who shall possess or enjoy the property or the income therefore; except in case of bona fide sale for an adequate and full consideration in money or money’s worth. (Italics ours)
      “(d) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, whore the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death, except in case of a bona fide sale for an adequate and full consideration in money or money’s worth. * * ”
      Treasury Regulations SO (1834 ed.):
      “Art. 17. Transfers conditioned on sur-vivorship — The expression, ‘a transfer * * * intended to take affect in possession or enjoyment at or after his death’, includes a transfer resulting from the execution of a written instrument, or the making of an oral arrangement, without an adequate and full consideration in money or money’s worth, whereby title was not to pass from the decedent to the beneficiary (or, if title passed it was to be defeated) unless he survived the decedent, and should he not so survive, the property is to be restored to the decedent or become a part of his estate. The tax applies without regard to the time when the instrument was executed or the oral arrangement was made, whether before or after the enactment of the Revenue Act of 1916. Thus the gift of a life estate with provision made that upon the death of the life tenant the property is to be returned to the decedent, if then living, otherwise to pass to another, the value of the entire property (less the value at the decedent’s death of the life estate, if such estate was then outstanding and had not been transferred by the decedent in contemplation of his death) constitutes a part of the gross estate. It is unimportant whether the decedent’s interest be denominated a reversion or a possibility of reverter, and whether the interest of the remainderman is contingent or vested subject to be divested.” (Italics ours)


author: BRIGHT, District Judge.

text:
    METALLIZING ENGINEERING CO., Inc., v. METALLIZING CO. OF AMERICA et al.
    District Court, S. D. New York.
    Aug. 1, 1945.

    Burgess & Dinklage, of New York City, for plaintiff.
    Morris Kirschstein, of New York City, for defendant Metallizing Co. of America.
   BRIGHT, District Judge.

Plaintiff seeks an injunction pendente lite restraining defendants, who are partners doing business as the Metallizing Company of America, from infringing United States Letters Patent No. 2,320,327 (applied for August 6, 1942, and issued May 25, 1943) and the Reissue Patent No. 22,397 (applied for August 14, 1943, and issued November 30, 1943), directly or indirectly, and from contributorily infringing the reissue patent.

Defendants move to dismiss or strike paragraphs 13 and 14 of the complaint, which allege contributory infringement, or if that is denied, for a more definite statement or bill of particulars as to those and other paragraphs of the complaint.

The facts are not in substantial dispute. Both parties sell materials and equipment used in metallizing, that is the application of metal in spray form, and plaintiff also licenses patented processes of metallization. The patents mentioned, the second being the reissue of the first, both contain eleven identical claims, and relate to a process by which a metal surface, to which spray metal is to be applied with a high degree of bond, is conditioned for the spray step by establishing contact between such surface and a metal electrode, electrically heating the contacting surfaces of the electrode and metal surface by means of an electric current flowing through the contacting surfaces to firmly bond the electrode material to the metal surface, and causing small amounts of electrode material to be left deposited on the metal surface. These small metal protuberances are means by which the spray material is bonded to the metal surface being treated.

The particular basis of the present suit seems to be the plaintiff’s contention that the defendants, for the purpose of advancing the sale of its Mogul Electric Bonder, a transformer which may be used for the purpose of treating the metal surface in the manner mentioned, as well as for other purposes, has engaged in direct infringement of plaintiff’s process patent by practicing the process claimed and described in demonstrating to others how the transformer may be so used, and in addition has engaged in a contributory infringement by inciting others so to infringe, by instructing them how to do it, by distributing written instructions to that end, by advising others that the patents mentioned are invalid and should be disregarded, and by advising and agreeing with purchasers of their transformer that defendants would safeguard and indemnify purchasers of their transformer against the consequences of such infringement.

One of the purchasers of defendants’ Mogul Electric Bonder was the Kenyon Bearing & Auto Parts Co., Inc. Plaintiff brought suit against it in the United States District Court for the District of Connecticut for infringement of the process claims of the reissue patent. The defense of that suit was assumed and conducted by defendants here who had sold the apparatus to Kenyon. The case was tried before Judge Hincks and resulted in a decree in favor of plaintiff. D.C., 62 F.Supp. 42. A final decree was entered in favor of plaintiff on April 17, 1945, which held the patent good and valid, that all of its claims, except 8, 9 and 10, had been infringed, and granted an injunction against Kenyon from practicing or causing to be practiced the process involved in the patent, with costs and damages to be ascertained. An appeal has been taken from the decree and is now pending.

In view of the fact that defendants here assumed and conducted the defense of that litigation in behalf of the Kenyons, they are bound by the adjudication then made and it must now be assumed that the patentability of the process is no longer a question between the parties to this suit. Caterpillar Tractor Co. v. International Harvester Co., 3 Cir., 120 F.2d 82-84, 139 A.L.R. 1. That an appeal is pending does not militate against the efficacy or binding effect thereof. Deposit Bank of Frankfort v. City of Frankfort, 191 U.S. 499-511, 24 S.Ct. 154, 48 L.Ed. 276; Reed v. Allen, 286 U.S. 191; Cohen v. Superior Oil Corporation, 3 Cir., 90 F. 2d 810.

Contributory infringement, of course, was not involved in the Kenyon case. Defendants there were held to be direct infringers. During the trial discussion was had looking to defendants here becoming co-defendants there, after it appeared that they had assumed and were conducting the defense. Their counsel offered to make the defendant company here a co-defendant in the other suit if plaintiff would charge it with contributory infringement. The offer was accepted by plaintiff’s counsel, who stated that plaintiff charged it with both direct and contributory infringement, and further stated that it was his understanding that if the defendant lost in the Kenyon case, defendants here would, therefore, be precluded from infringing. Whereupon defendant’s counsel stated that he did not agree to that, that there was a difference between making the Metallizing Company a defendant and intervening; that it was not intervening, but that if plaintiff wished to charge it with infringement it should do so, and that charge would be denied and litigated. It contended that there was a serious question whether contributory infringement could exist at all, particularly in view of the fact that defendants only sold the Mogul Electric Bonder, which was an unpatented apparatus capable of use not only in carrying out the patented process but also for many other purposes. Nothing, however, seems to have been done except the making of the admission that the Metallizing Company had an understanding with the Kenyon Company that it would be held harmless and that all costs, expenses and damages in that suit would be paid by the Metallizing Company. In view of this situation it is obvious that contributory infringement was not at issue or litigated in the Kenyon case.

But even if it might be said that the mere fact that the subject was not litigated would not preclude the binding effect of the judgment, if it could have been litigated, a court of equity might refuse to enjoin if it were obvious that the patent was being used to enforce or direct the sale of an unpatented article. Failure to litigate under those circumstances, it was said by Mr. Justice Douglas in Mercoid Corporation v. Mid-Continent Inv. Co., 320 U.S. 661-669, 64 S.Ct. 268, 88 L.Ed. 376, would not foreclose the court’s discretion to deny injunctive relief.

Application for the original patent was filed August 6, 1942. The patent issued May 25, 1943. Plaintiff published in the Jan.-Feb. 1943 edition of its “Metco News” an advertisement of its “Fuse Bond” unit, by means of which a controllable rough deposit of electrode metal could be fused right into the base metal, providing an ideal bond for coatings of any sprayed metal, and further stating that the equipment was available for a nominal rental, and its process was likewise available under an exceedingly reasonable licensing arrangement. Again in the March-April, 1943, issue of “Metco News,” further reference was made to the fuse bond method which was described fully with illustrations.

About May 1, 1943, defendants came out with their announcement of the Mogul transformer, called an electric bonder, capable, among other things, of accomplishing bonding in the manner claimed by plaintiff’s patented process.

It seems obvious, from the papers now presented, that the information thus obtained by defendants from the publication by plaintiff, prompted the claim, new to them, that their Mogul transformer could accomplish what plaintiff’s “fuse bond” unit would do. It obviously made no difference that such accomplishment would require the appropriation of plaintiff’s patented process. Defendants went ahead and developed the obvious infringement which was enjoined in the Kenyon case.

That defendants used plaintiff’s process in demonstrating their transformer and teaching others how to use it for that purpose is not denied. Nor is it denied that in divers ways they have advertised their transformer for use in the process claimed in the patent, have issued instructions how it could be so used, have had their representatives practice and demonstrate the process, have advised purchasers and potential purchasers of their transformer that no license was required to practice the process, that the validity of the patent was doubtful, and have promised to hold those practicing the process with their transformer harmless from whatever consequences might follow.

Obviously defendants have directly infringed the patent and should be enjoined from so doing. Harvey Hubbell Inc. v. General Electric Co., 2 Cir., 267 F. 564-571; Westinghouse E. & M. Co. v. Precise Mfg. Corporation, 2 Cir., 11 F.2d 209-212.

Infringement, direct or contributory, is a tort, the invasion of a right of the patentee. Carbice Corporation of America v. American Patents Dev. Corporation, 283 U.S. 27-33, 51 S.Ct. 334, 75 L.Ed. 819.

Defendants contend, notwithstanding this admitted previous practice, that no claim for contributory infringement can be sustained. It urges that plaintiff has used its process patent to enforce the purchase by others of its unpatented “fuse bond” unit, and, therefore, runs foul of the principle stated in the Mercoid case. As proof of this they annex to their opposing papers a copy of the license granted by plaintiff. The publicity in the Metco News had clearly stated that the fuse bond equipment was not sold outright and that the process was available under a license. The license fixes a monthly rental of $6. for the unit, and a monthly license charge of $51. per unit. The user is given the right of obtaining a process license “on equipment furnished by the user, independent of the above stated equipment rental * * * upon written application” to plaintiff. The rental is placed at $6. on the theory that the life of the fuse unit would be five years and in that period of time its total cost — $360—would have been paid by the rental. The license charge is based upon the full load amperage capacity of the transformer unit and is to be paid whether the unit is used to its full capacity, or less, or not at all.

Defendants have, in my judgment, failed entirely to sustain this contention. Nowhere does it appear, as it did in the Mer-coid case, that the use of the process is contingent upon the rental of plaintiff’s unit. The license agreement is to the contrary. It does not appear that plaintiff has refused a license unless its unit is used. In the Mercoid case the patent was held unenforceable because the exclusive licensee conditioned the grant of a license to the use of unpatented stoker switches made by and purchased from it. The case held there could be no enforcement against contributory infringement under such circumstances; and it was said at page 669 of 320 U.S., at page 273 of 64 S.Ct., 88 L. Ed. 376, “The result of this decision, together with those which have preceded it, is to limit substantially the doctrine of contributory infringement. What residu-ttm may be left we need not stop to consider. It is sufficient to say that in whatever posture the issue may be tendered courts of equity will withhold relief where ths patentee and those claiming under him are using the patent privilege contrary to the public interest.”

I cannot see that that decision limits the right of this court to enjoin a bare faced infringement, and the inciting of others to pull defendants’ chestnuts out of the fire, such as is here revealed by practically undisputed evidence. In fact, it almost seems to me that to call some of the acts of the defendants contributory infringement is a misnomer; they are causing and encouraging others to infringe which might well make them direct rather than contributory infringers. They have accomplished more than the mere sale of an instrument by which the patented process may be practiced; they have sold it for that express purpose. While thus they do not practice the process, they knowingly cause and promote its practice. They not only make possible the commission of the tort; they become active and joint participants in it. They do not contribute, in the ordinary sense; they jointly infringe.

Plaintiff’s motion for an injunction will be granted substantially as outlined in subdivisions a, b, and c of its motion. But such injunction must not enjoin the manufacture and sale of defendants’ transformer where it is to be used other than in the process claimed and outlined in plaintiff’s reissue patent; and as the reissue has replaced the original patent the order should not restrain a violation of the original. That defendants claim to have, or have, ceased many of what is called contributory infringements is no reason why such injunction should not issue. And defendants’ apprehension that they might violate any such injunction if thev sell their transformer to licensees of plaintiff does not present a real worry. That may easily be taken care of.

Whenever their Mogul transformer is sold, they should give notice to the purchaser that it is not to be used in the practice- of plaintiff’s patented process except with plaintiff’s consent.

In view of what has been written, defendants’ motion to dismiss or to strike paragraphs 13 and 14 of the complaint is denied. The issues of contributory infringement raised thereby should not be determined in such a summary manner, but after a full hearing of the evidence.

The motion for a bill of particulars is also denied, except that plaintiff shall state on which of the claims in the patents it will rely upon the trial, and also when it gave notice to defendants of their acts of infringement and whether such notice was oral or written, and which of the defendants or their representatives they did so notify.

The order will be settled on notice.


author: LEAHY, District Judge.

text:
    UNITED STATES v. 1010.8 ACRES IN SUSSEX COUNTY, DEL., et al.
    No. 2.
    District Court, D. Delaware.
    Sept. 5, 1945.

      John J. Morris, Jr., U. S. Atty., and W. Thomas Knowles, Asst. U. S. Atty., both of Wilmington, Del., and Charles M. Irelan, Atty., Department of Justice, of Washington, D. C., for petitioner.
    James M. Tunnell, Jr., and James B. Carey, both of Georgetown, Del., for Sussex Sand Co., Martin C. Black, and Harry Draper.
    David S. Keil, of Wilmington, Del., for Cape Henlopen Surf Club.
   LEAHY, District Judge.

The United States of America took title to a plot of land by filing a declaration of taking pursuant to 40 U.S.C.A. § 258. It has heretofore been determined that the State of Delaware was the owner in fee, subject to various leasehold interests. See United States v. 1010.8 Acres, etc. 56 F. Supp. 120.

The government filed a motion to dismiss Black and Draper, Sussex Sand Company and Cape Henlopen Surf Club as parties respondent because (1) the court is deprived of jurisdiction since the State of Delaware cannot be sued under the Eleventh Amendment and the claims of the respondents, citizens of Delaware, are, in substance, assertion of rights against the State; and (2) the parties respondent should be dismissed because of the terms of their leases which release the lessor from liability in the event the lessor should be prevented from abiding by the terms of the lease “by decision of a Court of Law or a decree of a Court of Equity.” The points are treated in inverse order.

The terms of the lease do not bar recovery by the lessees-respondents in the case at bar. This provision looks to liability of the lessor and not to the termination of the lease under any circumstances. The contention of the government is rejected that the clause in question operates as a termination of the lease on the day of taking by the government since the language of the lease is broad enough to cover termination in case of condemnation. If this be so, then, under such cases as In the Matter of Mayor of New York, 168 N.Y. 254, 61 N.E. 249, and In re Third Street Improvement in City of St. Paul, 178 Minn. 552, 228 N.W. 162, the leases are terminated upon the filing of the declaration of taking or the condemnation and the lessees would have no compensable interest. The cases cited by the government to support its point involved leases with provisions that the tenure shall terminate in the event of condemnation. It is clear that such a specific provision deprives the tenant of any rights in the eminent domain proceedings. See Annotation, 98 A.L.R. 254. But, this authority only operates where the provision in the lease so specifies. Here, there is neither the express provision for seizure or condemnation nor for termination on the happening of stated contingencies. On the contrary, it is merely provided that the Town Commissioners of Lewes (the lessors) shall be absolved and released from liability (i.e., cannot be sued), as distinguished from termination of the lease, in the event that some court decides they— the Commissioners- — could not carry out the lease. Condemnation by the government is in no sense “an adverse court decision” Town Commissioners vis-a-vis the lessees. The background against which the leases were drawn indicates that seizure or condemnation were not within the contemplation of the parties. See 56 F. Supp. 120 for the substantial doubt which existed over the legal right of the Commissioners to enter into any leases. Up to the time of the execution of the leases no court decision had ever decided the question. Obviously, the provision was inserted for the benefit of the individual Commissioners to guard against liability in the event of a court decision invalidating the leases. There is nothing inherent in this situation to relieve the government from compensating the holder of a leasehold.

Of necessity, the government must conclude, as it does, that in the ordinary case a leasehold interest in condemned property is part of what is taken and the lessee is a necessary party to the condemnation suit. But, the government claims, the owner of the fee, here, is the Sovereign State of Delaware, and the joinder of the lessees contravenes the rule of the Eleventh Amendment that a citizen cannot sue a State. The point is, however, the lessees are not claiming against the State of Delaware. The damage to each lessee by the deprivation of its right to enjoy its lease was caused by the government — not by the State. Their claim is against the government, Trustees of Internal Improvement Fund of Florida v. Southwest Tampa Storm Sewer Drainage District, 5 Cir., 142 F.2d 637, certiorari denied 323 U.S. 732, 65 S.Ct. 69; and the compensation which is sought for the destruction of the leasehold interests cannot be said to constitute, in effect, a suit by a citizen against a State. Although not conclusive, it is interesting to note that the State of Delaware does not claim that insofar as the leaseholders seek compensation from the government that this is a suit against Delaware. Delaware, in fact, has interposed no objection to these proceedings.

The government’s motion is denied.

      In the lease between Black and Draper and the Commissioners of Lewes dated May 20, 1940, paragraph 5 contains the following clause:
      “5. Party of the second part hereby agrees to absolve and release party of the first part from all liability whatsoever under this lease in the event that it, the said party of the first part, should he prevented from abiding by any or all of the conditions herein contained, including the actual leasing of the premises herein demised, by a decision of the Oourt of Law or a decree of a Oourt of Equity.”
      As similar provisions are found in all the leases, the Black and Draper lease merely will be discussed.

       Quaere whether the government does not have mere legal title and does not possess government powers over the property taken. Article 1, Section VIII, Clause 17 of the Constitution provides:
      “To exercise exclusive Legislation in all Cases whatsoever, over such District * * *, and to exercise like Authority over all Places purchased by the consent of the Legislature of the State in which the Same shall be, for the Erection of Ports, Magazines, Arsenals, Dock Yards, and other needful Buildings; * *

      There is nothing to indicate that the government ever got the consent of the Delaware Legislature.


author: WILKIN, District Judge.

text:
    PRINCIPE v. AULT, Inspector In Charge of Cleveland Office, et al.
    Civil Action No. 23225.
    District Court, N. D. Ohio, E. D.
    Aug. 30, 1945.

      Geo. D. Costello and Geo. A. Costello, both of Cleveland, Ohio, for plaintiff-relator.
    Don C. Miller, U. S. Atty., and William C. Graves, Asst. U. S. Atty., both of Cleveland, Ohio, for defendant-respondent.
   WILKIN, District Judge.

This case came on for hearing on the application of the defendant-respondent for continuance and on the application of the plaintiff-relator for bail.

The plaintiff-relator was brought into court in response to the alternative writ of habeas corpus issued by this court on August 17.

In his application for writ of habeas corpus the plaintiff alleged that he had been arrested in March, 1941, on an order or warrant of deportation issued by the Commissioner of Immigration and Naturalization and approved by the Attorney General of the United States; that thereafter he was released on bail of $500. On August 14, 1945, he was again taken into custody for the purpose of being deported from the United States to Italy. He further alleged that the reason for such order of arrest and deportation was the claim of the defendant-respondent that his presence violated the immigration law because he had been found guilty of a felony involving moral turpitude within five years of the time of his last entry into the United States. But the plaintiff denied that said conviction was. within such five-year period. Plaintiff further alleged that he has lived in this, country for 25 years, is married, has three children, and that the order of deportation is arbitrary and contrary to law.

Upon -the return date of the writ the defendant requested postponement of the hearing to allow time for the production of required witnesses and evidence. The application of the defendant was granted, and the plaintiff thereupon filed his application for. bail. The question now to be determined therefore is whether this court has authority to grant bail to an alien ordered deported pending the hearing of his application for writ of habeas corpus.

Because of the conflict of authorities and general confusion regarding the question of bail in such cases, the issue was argued by counsel and memo, of authorities submitted.

It has long been the practice of this court to grant bail when the circumstances of such cases so warrant. It has been the view of the judges of this court that persons brought into court in response to its preliminary writ were in the custody of the court and that there was inherent power in the court to release or enlarge them on bail pending final disposition of the case. Because a number of other courts have expressed contrary views, the same legal arguments arise every time bail is requested. This court therefore felt obliged to set down the reasons for its views so that the law would be settled so far as this court is concerned, unless some higher authority reverses the ruling. Until such reversal, subsequent cases can be disposed of on the facts.

There is no statute expressly authorizing the court to grant bail in such cases. Congress has provided, in Title 8, Sec. 156 U.S.C.A. that the Attorney General may do so. Sections 591 and 596 of Title 18 U.S. C. A. provide for bail by courts in criminal cases, but all authority recognizes that an application for a writ of habeas corpus is not a criminal case. Ex parte Tom Tong, 108 U.S. 556, 2 S.Ct. 871, 27 L.Ed. 826. The statutes dealing with habeas corpus, 28 U.S.C.A. § 451 to 466, inclusive,’ do not mention bail. The power of the court to admit to bail, if it exists, must therefore be inherent, unless Sec. 461 of such title is an inferential grant of such power.

On the question of inherent power to grant bail in such cases, the courts have divided themselves into two groups. The following cases support the contention that the power to admit to bail is incident to the power to hear and determine the case: United States v. Evans, 6 Cir., 1880, 2 F. 147; In re Gannon, D.C.Pa.1928, 27 F.2d 362; In re Chow Goo Pooi, 9 Cir., 25 F. 77; In re Ah Kee, 9 Cir., 1884, 21 F. 701; In re Ah Tai, D.C.Mass., 125 F. 795; In re Chin Wah, D.C.Or., 1910, 182 F. 256; United States v. Yee Yet, D.C.N.J.1911, 192 F. 577; Whitfield v. Hanges, 8 Cir., 222 F. 745; Ewing v. United States, 6 Cir., 1917, 240 F. 241.

The following cases support the view that there is no such inherent power in the federal courts and that they cannot admit a person to bail unless such power is expressly conferred by statute: In re Carrier, D. C.Colo.1893, 57 F. 578; Case of Chinese Wife, C.C.Cal.1884, 21 F. 808; Chin Wah v. Colwell, 9 Cir., 1911, 187 F. 592; United States v. Curran, 2 Cir., 1924, 297 F. 946, 36 A.L.R. 877; United States v. Pizzarus-so, D.C., 28 F.Supp. 158; In re Hanoff, D.C.Cal.1941, 39 F.Supp. 169; Ex parte Perkov, D.C.Cal.1942,45 F.Supp. 864; United States v. Longo, D.C.Conn.1942, 46 F. Supp. 169; Bongiovanni v. Ward, D.C.Mass. 1943, 50 F.Supp. 3.

The privilege of both the writ of hab-eas corpus and of bail have Constitutional recognition. Constitution of the United States, Art. 1, Sec. 9, and Amendment VIII. It is generally conceded that the American colonists brought with them to this country the remedy by habeas corpus as it existed in England as part of the common law. 39 C.J.S., Habeas Corpus, § 3, p. 427. The power to grant bail was very broad at common law. Chitty (I Criminal Law, 2d Ed., p. 97,) states:

“The Court of King’s Bench, or any judge thereof in vacation, * * * in the plenitude of that power which they enjoyed at common law, may, in their discretion, admit persons to bail in all cases whatsoever, though committed by justices of the peace or others, for crime in which inferior jurisdictions would not venture to interfere, and the only exception to their discretionary authority is where the commitment is for a contempt, or in execution.”

This was conceded even in the Curran case, supra [297 F. 954]:

“It is true that courts of common law have power to admit to bail and that they possess it independently of statute. In Queen v. Spilsbury, 2 Q.B.Div. (1898) 615, Lord Chief Justice Russell in a criminal case declared:
“ ‘This court has, independently of statute, by the common law, jurisdiction to admit to bail.’ ” (Not criminal, but extradition case.)

See also Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 47 L.Ed. 948.

The 'earlier cases in this country seem to recognize the inherent power of courts to grant bail in habeas corpus proceedings. The power seems to have been recognized by the Supreme Court in Ex parte Bollman, 1807, 8 U.S. 75, 4 Cranch 75, 2 L.Ed. 554. Warren in “The Supreme Court in U. S. History,” Vol. I, at p. 397, comments:

“The day after the close of the arguments, the court stated that it ‘had not yet been able to make up a decisive opinion; in the meantime, as the situation of the prisoners might be irksome to them, if they could find bail, they might be bailed until tomorrow’ ”.

It therefore seems that the court at that early time sua sponte exercised such inherent power. In the case of Wright v. Henkel, supra [190 U.S. 40, 23 S.Ct. 787], the Supreme Court said:

“We are unwilling to hold that the circuit courts possess no power in respect of admitting to bail other than as specifically vested by statute, or that, while bail should not ordinarily be granted in cases of foreign extradition, those courts may not in any case, and whatever the special circumstances, extend that relief.”

It has very generally been thought that the custody of the prisoner is entirely under the direction and control of the court to which the return is made. 39 C.J.S., Habeas Corpus, § 94, p. 659; Barth v. Clise, 79 U.S. 400, 12 Wall. 400, 20 L.Ed. 393; In re Hamilton, F.Cas.No.5,976; Mahler v. Eby, 264 U.S. 32, 45, 46, 44 S.Ct. 283, 68 L.Ed. 549. And it has been recognized as a general rule that the court may admit to bail the person detained, pending the determination of the habeas corpus proceeding. 39 C.J.S., Habeas Corpus, § 95, n. 64, p. 660 (citations to state authorities); United States v. Doss et al., Fed.Cas.No. 14,985; In re Chow Goo Pooi, C.C.Cal., 25 F. 77, 78. As was stated by Mr. Justice Nelson in the case of In re Kaine, 14 How. 103, at page 133, 14 L.Ed. 345:

“And pending the examination or hearing, the prisoner, in all cases, on the return of the writ, is detained, not on the original warrant, but under the authority of the writ of habeas corpus. He may be bailed on the return de die in diem, or be remanded to the same jail whence he came, or to any other place of safe keeping under the control of the court, or officer issuing the writ, and by its order brought up from time to time, till the court or officer, determines whether it is proper to discharge or remand him absolutely.”

If this were not the law, the very purpose of the writ might be defeated. The person deprived of his liberty requires some freedom for the preparation of his case. If there is a protracted hearing or a postponement, peculiar circumstances might make it cruel and unjust to leave the applicant for the writ in the custody of the person against whom the application is directed.

Judge Learned Hand, in the case of United States v. Sisson, D.C., 220 F. 538, 540, said:

“A writ of habeas corpus does not put the relator into the custody of this court. It does not assume to disturb the custody of the person then detaining the relator. It requires his production and examines the legality of the custody. This court has no proper power to enlarge the relator while the inquiry proceeds, and less power to do so after the writ has been dismissed.”

The language used by this honored judge should be restricted to the case then before him. He was dealing with an application for bail pending appeal after the application for writ of habeas corpus had been dismissed. Judge Hand further said:

“If the writ be sustained, and the person discharged, then the court might provide for bail to insure his appearance if the ruling were reversed, but only in that case.”

With the ruling in that case this court does not disagree, but if the language employed is to be extended to such a case as the one now before this court, we doubt the correctness of the statement. It seems that when Judge Hand recognized that “the court might provide for bail to insure his appearance if the ruling were reversed,” he recognized the inherent power of the court in the premises. We concur in Judge Hand’s statement that the “question of bail depends entirely upon the rules regulating the relator’s custody where he already is” when a prompt hearing on the preliminary writ is had and the writ is dismissed. We would not agree, however, that the court is without any authority to grant bail “till the writ be sustained.”

It seems to this court that the authorities which limit the courts to such grants as have been made by statute fall into error through confusion of the words “jurisdiction” and “power.” The opinion in the case of United States v. Curran, 297 F. 946, at page 954, 36 A.L.R. 877, says:

“But the Circuit Courts of Appeals and the District Courts of the United States are not possessed of the jurisdiction of courts of the common law, and they have such jurisdiction only as is conferred on them by acts of Congress. * * * In considering the right of a federal court to admit to bail it is necessary to keep in mind the fundamental fact that the federal courts do not derive their jurisdiction and their powers from the common law, and that such powers as these courts possess they get from the Constitution and from acts of Congress.”

So far as jurisdiction is concerned there is no doubt that the language of the statutes controls. This court has only such jurisdiction as Congress has prescribed. The jurisdiction of this court in this case is provided for in Section 41(14) and (22) and in Chap. 14 of Title 28 U.S.C.A. But in determining the powers of the court within that grant of jurisdiction we must consider the words used in the light of their historic background. When the court was granted authority to issue writs of “habeas corpus” and “to dispose of the party as law and justice require”, it was given power impliedly to do those things which courts generally had done in habeas corpus proceedings.

As Judge Dickinson said in In re Gan-non, D.C., 27 F.2d 362, 363:

“The ‘judicial power’ is conferred by the Constitution upon the courts of the United States. The framers of the Constitution were familiar with common-law concepts and the words and phrases employed by common-law lawyers. The words chosen are ‘courts’ and ‘judicial power’. Whatever else may be said of the jurisdictional authority (in the power sense) of the judiciary, the meaning of the words and phrases used must be sought for in the literature of what we call the common law. Courts cannot function without the use of process, and any tribunal which has judicial powers can enforce attendance by holding the party to bail.”

There is a tendency in recent cases to deny and restrict the authority of federal trial courts. It is frequently stated that the District Court “is a court of limited jurisdiction and can do only those things that Congress has prescribed.” Prompted by the modern desire to extend and enhance the administrative function, prompted also by the popular inclination to restrict all authority, prompted also no doubt by the inclination of many judges to do nothing except what is expressly commanded or for which there is a specific precedent and influenced probably by the legal positivism until recently quite popular, there has been a noticeable and growing tendency to restrict the powers of courts to the lex scripta and deny all inherent powers. To one familiar with the growth and development of our law, this tendency is alarming and regrettable. We cannot with impunity divorce our trial court from its evolution. If the attempt to do so should succeed, it would reduce the court to the status of the mule— a creature “without pride of ancestry or hope of posterity,” whose whole course is controlled by command. Human affairs are too complex to be confined entirely within a code. Some latitude of discretion must be allowed for growth and for the varying circumstances of succeeding cases.

This court takes no exception to the statement of other courts that the applicant for the writ has no inherent right to bail. Neither the Constitution nor the statutes expressly grant the right of bail to aliens. And this court also concedes that the authority of administrative officers to grant bail is dependent on statutory grant. Prentis v. Manoogian, 6 Cir., 16 F.2d 422. The action of this court in granting bail in certain cases is based not upon the inherent right of the applicant but the inherent power of the court to control the proceedings before it and to dispose of the party as justice shall require.

Many of the courts that deny the power to grant bail do so upon the ground that the statutes provide for bail only in criminal cases, 18 U.S.C.A. §§ 581, 596, and in those cases where the “process or execution issued from any court of the United States.” 28 U.S.C.A. § 844. Because the application for a writ of habeas corpus is a civil action and the process for the arrest of the applicant in a case like this issues from the office of the Immigration Service, such courts conclude that there is no power to order the applicant released on bond. But the writ of habeas corpus is never a proceeding in the original criminal prosecution or in the original deportation proceeding. The application for writ of habeas corpus is an independent civil suit. Ex parte Tom Tong, 108 U.S. 556, 559,2 S.Ct. 871, 27 L.Ed. 826; Riddle v. Dyche, 262 U.S. 333, 336, 43 S.Ct. 555, 67 L.Ed. 1009. The power to order bail must be determined entirely by the law applicable to habeas corpus without regard to the law applicable to the proceeding which led to the arrest. On the final hearing, criminal statutes or the deportation statutes will have to be considered to determine the validity of the arrest, but the proceedings in the habeas corpus action are controlled entirely by the law governing habeas corpus.

For reasons stated, it seems to this court peculiarly its responsibility to determine whether or not an applicant for the writ should be enlarged upon bond. Because the applicant is in the custody of the court, the court should not attempt to impose the responsibility of granting bond on the Immigration Service or the Attorney General. The Service and the Attorney General very properly decline to grant release on bond after the person arrested for deportation has gone into court with his application for a writ. Pending the determination of the issues raised by that application the Immigration Service and the Attorney General should leave the disposition of the applicant to the court.

As was pointed out by Lord Russell in the case of The Queen v. Spilsbury, supra, we are not to conclude that the court is without power because no power was expressly granted, but we are to conclude that the court has the power to admit to bail unless we find that the exercise of such power is forbidden by statute. “Therefore”, says Lord Russell, “the case ought to be looked at in this way: Does the Act of Parliament either expressly or by necessary implication deprive the court of that power?” Because he found the power inherent and not denied he concluded that the court possessed the power, although he refused, for reasons peculiar to that case, to exercise the power. And so this opinion concludes, as did that case, that, “This inherent power to admit to bail is historical, and has long been exercised by the court, and if the legislature had meant to curtail or circumscribe this well-known power, their intention would have been carried out by express enactment.”

Application for bail allowed. Plaintiff ordered released on bond in the sum of $1500.


author: CAFFEY, District Judge.

text:
    THE WOLLASTON. THE BERMUDA.
    District Court, S. D. New York.
    April 25, 1945.
    Macklin, Brown, Lenahan & Speer, of New York City (Leo F. Hanan, of New York City, of counsel), for libellant.
    Bigham, Englar, Jones & Houston, of New York City (Charles A. VanHagen, Jr., of New York City, of counsel), for claimant.
   CAFFEY, District Judge.

The action sounds in negligence. The essence of the libellant’s statement of its claim is in paragraphs third and fourth of the libel.

At the inception, we should note what is the function of a presumption of negligence. This is well described in South-gate v. Eastern Transp. Co., 4 Cir., 21 F.2d 47. The court made the following statement (21 F.2d at page 49): “The happening of an accident to a tow does not of itself raise any presumption of negligence on the part of the tug; and the burden of proof is upon the party seeking to charge the tug with liability therefor. The towage contract requires no more than that one who undertakes the service shall carry out his undertaking with the degree of caution and skill which prudent navigators usually employ in similar services.”

So also what are the duties of the master of a tug should be kept in mind. A good definition of those duties is given in The Garden City, 6 Cir., 127 F. 298, and The Lizzie D. Shaw, 3 Cir., 47 F.2d 820. The former case has been cited with approval in The Mary T. Tracy, 2 Cir., 8 F.2d 591, 593.

A pertinent description of the position of the master of the tug, contained in The Garden City, 127 F. at page 300, is this: “ * * * ¿e test of liability is not the result which occurred, but is whether the master possessed and exercised a reasonable degree of skill and jüdgment, such as might fairly be expected of a man of his' calling in the circumstances in which he was placed. He was bound to this measure of duty, and, if he failed to discharge it, his ship would be responsible for the damages ensuing. But this responsibility is not that of an insurer. Nor is he to be held at fault simply because a disaster or loss has happened, if, being qualified, he has fairly exercised his best judgment in the emergency, and behaved as a prudent man would in similar affiairs of his own.”

Again, in The Lizzie D. Shaw case, 47 F.2d at page 823, a like thought was expressed in these words: “Here was a marine situation in which according to the libellants the ‘Shaw’ should not have gone on and according to the circumstances she could not stop. Even if she could have stopped, she would have done so at the risk — almost the certainty- — of her tow becoming snarled with the other tow and increasing the blockade. The master saw one way out, namely, to pass the stranded ‘Diggs’ in the narrow space of doubtful depth between her starboard side and the northern bank. In taking the chance he is not to be charged with negligence unless he made a decision which in the circumstances nautical experience and good seamanship would condemn. The result of the decision is not the test of liability.”

If the foregoing opinions governed in the case at bar, then it would seem plain that (1) no presumption of negligence follows from the mere infliction of an injury and (2) the burden of disproving guilt is not imposed on the accused by a mere showing that an accident happened. So here the master of the tug involved was a mariner of many years experience. Doubtless it will be conceded, as I am persuaded, that he was well qualified to perform the duties which the record disclosed were assigned to him. Under the rules laid down in the authorities cited, a charge of liability would not be sustained unless it appeared that he lacked or failed to exercise “a reasonable degree of skill and judgment, such as might fairly be expected of a man of his calling in the circumstances in which he was placed.”

Assuming the ultimate test to be as prescribed by cases which have been approved by our Circuit Court of Appeals, the crux of the controversy with respect to an accusation of negligence is upon whom rests the burden of proof. On the one hand, upon that issue the libellant argues that when the barge Wollaston stranded while in tow of the tug Bermuda, there is a presumption that the result was the fault of the tug and her owner can exempt himself from blame only by affirmatively establishing freedom from negligence. Among the cases relied on for support of this proposition are The Nat Sutton, 2 Cir., 62 F.2d 787, 789, first part of paragraph in left hand column, and The Scipio, D.C.E.D. N.Y., 1938 A.M.C. 1207, 1210. See also The Reichert Line, 2 Cir., 64 F.2d 13, 14. On the other hand, the fundamental basis for the contention of the claimant to the contrary is Stevens v. The White City, 285 U.S. 195, 202, 203, 204, 52 S.Ct. 347, 76 L.Ed. 699.

Discussion of the divergent theories just referred to has been extensive; but I do not think it would be profitable to indulge in it further. A District Judge owes obedience to the holdings of the Circuit Court of Appeals for the circuit in which is located the District Court in which he sits. Applying that principle, for me the question has been settled by B. Turecamo Towing Corporation v. United States, 2 Cir., 125 F.2d 1001, 1002. There in definite terms it was said that “Under the ordinary towing contract like that between these parties [the petitioner and the respondent] the liability of the petitioner is not that of a bailee and recovery for such loss as alleged in the counterclaim, must be upon the allegation and proof of negligence.” This holding rests on Stevens v. The White City, supra. It is also supported by The G. A. Stillwell, D.C.E.D. N.Y., 46 F.Supp. 770, 771, fifth paragraph of the right hand column.

Furthermore, that there was no bailment of the Wollaston seems to be established by the cases cited in The White City, 2 Cir., 48 F.2d 557, last paragraph of right hand column and 559 last paragraph of left hand column, affirmed in Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699. See also The Edward W. Parkhill, D.C.E.D.N.Y., 53 F.2d 87, 88, third full paragraph of left hand column; but read also The Joseph J. Hock, 2 Cir., 70 F.2d 259, 260, first full paragraph of left hand column.

Lastly, I believe that, in and of itself and standing alone, the extract quoted from the Turecamo case is adequate to sustain the view that the burden of establishing negligence in the case at bar rests entirely on the shoulders of the libellant. Nevertheless, the ruling in The Thomas Wilson, D.C.N.D.N.Y., 124 F. 649, made as long ago as 1903, should not be overlooked. There, dealing with facts which in essence are indistinguishable, the court said (124 F. at pages 653, 654): “There is no presumption that the tug was negligent. Her negligence must be proved as a fact, and the proof must be such as to warrant the inference, at least, that such negligence caused, or at least contributed to, the injury and damage. * * * Negligence which did not cause or contribute to the injury is of no account in this case. When a tow is in charge of her own officers and crew, as in this case [and as in the instant case], the tug has the right to demand and expect the exercise by them of ordinary care and skill. * * * The tow must follow the course of the tug, and conform to her movements.”

I shall take it, therefore, that, in order for the libellant to prevail, it will be necessary for it to show that the damages it suffered were the consequence of the tug’s negligence. I shall not go into the details of what has been proved with respect to that issue, for the reason that the same must be covered by the findings; and repetition is useless.

Other features of the evidence have significance of varying merits and should be pointed out: (1) A good deal of the testimony turned out to be irrelevant or was never connected. It would be wasteful to comment on it. (2) Estimates of numerous items of time and distance, difficult to measure with accuracy, may be taken into account from some angles. All have been considered, but discussion of them (which if indulged in would unavoidably be lengthy) is not deemed worthwhile. (3) The obligation to examine into and to weigh the relative credibility of witnesses has not been overlooked. (4) It seems to me manifest that some aspects of the testimony contribute nothing toward reaching a just result. Nevertheless, in framing the findings I have endeavored to review every part of the evidence that is pertinent.