and in the transfer from one pier to another, which was apparently done with great indifference to the safety of the cases. All this was properly damage for which the Cunard -Company is responsible. Therefore, on a new reference, the libelant may show, if he can, the damage done by these two causes; the burden resting on him to distinguish it from that done in the holds. [7] The bills of lading in the clause quoted above exempted the company from any claim, notice of which was not given before the removal of the goods. This clause has been so often the subject of discussion in this court that we content ourselves with a reference to the last case, very recently decided, of Anchor Line v. Jackson, 9 F. (2d) 543 November 9, 1925. It is valid and must be enforced. The bills were issued by the company and required notice to it or its agents. A libel filed in rem against the ship was not a compliance with the requirement; it did not advise the company to prepare against the claim. Rather it indicated a purpose to hold only the ship, with which, at least primarily, the company had nothing to do. Hence we hold that no damages may be recovered for any goods removed before some notice was given to the company, and that the libel will not answer as such. It is argued that the company has raised no such point and did not plead it. But the cause must in any case go back for a new hearing, and we need not decide whether it would have been ground for a reversal, had it stood alone. We can see no reason, especially in a case drawn out as this has been, why the respondent should not amend its answer, even at this late stage, and prove any defense it may have upon the new reference. This we say quite independently of our express ruling in the General George W. Goethals, 298 F. 935. [8] Next we will allow the amendment, asked by the respondent, setting up the clause in limitation of liability. This the respondent asked leave to plead, and was denied below, unwarrantably in our judgment. We do not say that, if the clause had gone to a defense, properly pleadable before trial, the District Judge might not have been right; but it sought to set up matters relevant only on the reference, which it was clearly erroneous to refuse, when application had been made before the reference had begun. Delays ought not to prevent the very right from appearing, unless the other side will be prejudiced. Upon the new reference the company may limit its recovery according to that clause. [9, 10] As to the lemons seized and condemned by the board of health, the clause did not apply which required notice before removal; the shippers did not themselves remove the goods, and had no power to prevent their removal. So far as the breakage in the slings or on the wharf and the delay due to the confusion of marks contributed to the decay which resulted in the seizure, the company is responsible. So far as it occurred in the Bencleuch's holds, it is on the libelant's account. It may be impossible to show how much was caused by the company's fault so limited, but we leave the question open for proof. It must be observed, however, that the admission in the bills of lading, received “in apparent good order and condition," goes no further than to create prima facie proof that to the eye the boxes were secure and sufficient, and that the lemons, so far as visible, were not damaged. It does not prove that the fruit was inherently sound. The Oriflamme, Fed. Cas. No. 10,571; The California, Fed. Cas. No. 2,314; The Peter der Grosse, L. R. 1 P. D. 414. There is no such proof in the record, but the libelant may be able to supply it. [11] We do not think that there should be full interest in such a case. The libel was filed on August 10, 1917; the answer of the claimant six months later. No doubt the libelant had little control over the petitions, and the delays in filing the answers of the company till September, 1918, and of the stevedores till February, 1919, are not chargeable to him. Delays are indeed involved in the fifty-sixth rule. But no notice of trial was given till April, 1920, a delay of over 13 months after the cause was at issue. Moreover, after the interlocutory decree was filed on the last day of the year 1920, the hearings were not brought on till September, 1921, and were drawn out till November 10, 1922, quite unnecessarily. There was here a delay of at least two years, for which the libelant is certainly responsible. The interest will therefore begin to run on August 10, 1919, two years after the libel was filed. The Arpillao, supra. The decree is affirmed as to the claimant with costs in the District Court against the libelant, and with costs in this court against the Cunard Steamship Company. The decree is reversed as to the Cunard Steamship Company, and the cause referred to William Parkin, Esq., as commissioner of this court, to fix the damages in accordance with the foregoing opinion, unless the parties can come to some agreement as to their amount. 271 26 68 707 THE ELLERDALE 1148, 46. Sup Ct. 63110 F.(20) 5343 THE ELLERDALE. (Circuit Court of Appeals, Second Circuit. December 14, 1925.) No. 72. 1. Shipping 131-As respects liability from breakage by handling on wharf, usual amount of breakage in holds may be considered, in absence of proof of actual breakage in holds. In absence of any proof as to how much breakage of boxes of lemons occurred in holds, libelant, seeking to recover for negligent handling of the boxes on the wharf on unloading, may take, as one term in its calculation, the usual amount of breakage in such cargo. 2. Shipping 209 (3)-Shipping company, liable for breakage to lemons, may limit liability by invoice value as provided in bills of lading, although no motion to amend to include limitation was made after defeat of motion in companion case. Shipping company could limit its liability for damages to cargo of lemons by declared or invoice value of lemons, as provided by bills of lading, notwithstanding that motion to amend to set up such limitation clause was not made after having been refused in companion case, tried at same term. 3. Shipping132 (3)—Libelant has burden of showing what goods were removed after notice required by bills of lading was given. Where bills of lading exempted company from liability from any claim for goods removed before giving of notice, libelant has burden of showing what goods were removed after the giving of notice. 4. Shipping 132(3)-Libelant must show condition of lemons when shipped, when not shown by bills of lading, to recover for lemons removed by board of health. Where bills of lading did not show condition of lemons when shipped, libelant, to recover value of lemons condemned by board of health and removed at landing wharf, must show such condition and is entitled to recover value of lemons condemned, so far as he succeeds in showing what decay was caused by breakage in handling on pier, or by delay due to confusion in marks or breakage. Appeal from the District Court of the United States for the Eastern District of New York. Libel by Charles L. Fuller against the steamship Ellerdale, her engines etc., Edgar Calvert, claimant, wherein the Cunard Steamship Company, Limited, and another, were impleaded. From a decree dismissing the libel against the ship, and holding the Cunard Steamship Company liable (3 F. [2d] 824), the Cunard Steamship Company appeals. Decree affirmed as to claimant, and reversed as to the Cunard Steamship Company, with directions. 53 Franklin Grady, of New York City, for Cunard S. S. Co., respondent-appellant. Frank I. Finkler, of New York City, for libelant-appellee. Robert S. Erskine, of New York City, for claimant-appellee. Before ROGERS, MANTON and HAND, Circuit Judges. HAND, Circuit Judge. This case is a companion to The Bencleuch, 10 F.(2d) 49, decided herewith. The lemons were shipped under similar bills of lading and the relations of the parties to the ship and cargo were the same. The outturn was, however, much better, for what reason it does not appear, and no claim is made for any damage done during the voyage, the amount of which was not shown. Moreover, the discharge was in platforms and caused no breakage. The only liability was predicated upon the handling of the boxes upon the wharf, especially on the chute by which they were delivered to waiting trucks. The ship was exonerated, and no one complains of so much of the decree, except that she was allowed no costs. The stevedores were not joined, and the substance of the dispute is between the Cunard Steamship Company and the libelant. [1] We see no reason to disturb the finding of the District Court that some boxes were broken on the pier, nor that of the commissioner as to their number and the salved or resold values. We think, moreover, that, in the absence of any proof as to how much breakage occurred in the holds, the libelant might take, as one term in its calculation, the usual amount of breakage in such a cargo. Nor are we disposed to consider de novo the evidence on which the commissioner found that the usual breakage was only one-half of 1 per cent. That finding has been confirmed by the District Court, and it was confessedly on conflicting proof. As the cause must go back for a rehearing, we will, however, allow the Cunard Company to prove, if it can, the amount of actual breakage in this cargo in answer to the case made by the libelant, based upon the presumption that the actual breakage was the same as the usual breakage. [2] In estimating damages the new commissioner will allow the appellant, as in The Bencleuch, to limit its liability by the declared or invoice value of the lemons under the same clause of the bills of lading. It is true that Mr. Grady, after being defeated on his motion to amend in The Bencleuch, did not move in this suit. We think it was un necessary for him to go through the idle form again. This appeal being a new trial, we now allow the amendment. [3] Similarly as to the requirement that notice must be given before removal. We need say no more than we said in The Bencleuch, except that the letter of August 8, 1917, was a compliance with the requirement from the time of its receipt. The libelant has the burden of showing what lemons were removed after that receipt. [4] As to the parcel seized by the board of health, we hold that the bills of lading did not show the condition of lemons when shipped, and that the libelant must show that condition. If he does, he may show, at the new hearing, if he can, what was the decay caused by breakage in handling on the pier, or by the delay, if any, due to confusion in the marks or breakage. So far as he succeeds he will recover the value of the lemons condemned, subject to the limitation of liability clause. The cause was somewhat more inexcusably delayed than The Bencleuch, but we recognize that the two cases should have gone pari passu, and we will make no different disposition of the interest charge; that is, interest will run from August 10, 1919. Decree affirmed as to the claimant, with costs against the libelant in the District Court, and no costs in this court. Decree reversed as to the Cunard Steamship Company, and cause referred to William Parkin, Esq., as commissioner of this court, to reassess the damages in conformity with the foregoing opinion. 726 11 J. 634, 727 Ed 479,48. Sup (1 420. For opinion below, see 3 F. (2d) 1006. Hudges & Hughes, of Memphis, Tenn. (Allen Hughes, of Memphis, Tenn., on the brief), for plaintiffs in error. Bruce Barnett, of Kansas City, Mo., and Metcalf & Metcalf & Apperson, of Memphis, Tenn., and H. B. Houston, of Dallas, Tex. (Collins & Houston, of Dallas, Tex., on the brief), for defendant in error. Before DONAHUE and MOORMAN, Circuit Judges, and SESSIONS, District Judge. SESSIONS, District Judge. These two cases were tried together in the court below and have been heard together in this court. Each of the insurance companies (plaintiffs in error) issued and delivered to the Jacksonville Oil Mill (defendant in error) a policy insuring it against loss by fire of the use and occupancy of a cotton seed oil mill at Jacksonville, Tex., for a term expiring March 31, 1922. The two policies are alike, except as to the amount of insurance and the premium paid; one being for an amount not exceeding $10,000, and the other for an amount not exceeding $13,400. The material provisions of the policies are as follows: "The Stuyvesant Insurance Company STUYVESANT INS. CO. V. JACKSONVILLE (the Globe & Rutgers Fire Insurance Compa 276 x 635, 23 784. us OIL MILLCL 420 % But GLOBE & RUTGERS SAME. INS. CO. v. (Circuit Court of Appeals, Sixth Circuit. January 5, 1926.) Nos. 4407, 4408. Insurance 500-Policies of insurance on use and occupancy of mill held open, and not valued; "not exceeding." Policies of insurance on use and occupancy of mill, which fixed insurer's liability at "not exceeding" a certain amount per day, held open and not valued policies; "not exceeding" usually being a term of limitation only, denoting uncertainty of amount, which is chief characteristic distinguishing an open from a valued policy.] [Ed. Note. For other definitions, see Words and Phrases, Not Exceeding.] ny) in consideration of the stipulations herein named and of $155.50 ($208.37) premium does insure Jacksonville Oil Mill for the term of one year from the 15th day of August, 1922, at noon, to the 15th day of August, 1923, at noon, against all direct loss or damage by fire as hereinafter provided, to an amount not exceeding ten thousand dollars, to the following described property: $23,400 on the use and occupancy (including fixed charges) of all of their buildings and machinery used or for use in their business and manufacturing the products of cotton seed, situate at or near Jack sonville, Texas. "It is a condition of this contract that, if the above described buildings and machinery, or either of them, or any part thereof, 10 F.(2d) 54 shall be destroyed or damaged by fire or lightning occurring during the term of this policy, so that the assured is entirely prevented from operating, this company shall be liable for not exceeding one hundred fifty dollars ($150) for each and every working day of any year between and including October 1st to March 1st from the date of said destruction or damage to the date when, with reasonable diligence, said building or buildings can be repaired or rebuilt, and the machinery thereof be repaired or replaced therein, as such property existed before the said destruction or damage. But if, as a result of said destruction or damage, the production capacity of the plant be only diminished, then shall the assured's loss per diem be estimated as that proportion of not exceeding $150 in which the assured's daily capacity is diminished for each and every working day of any year between and including the date above mentioned, from the date of said destruction or damage to the date when, with reasonable diligence, said building or buildings can be repaired or rebuilt, and the machinery thereof be repaired or replaced therein as such property existed before the said destruction or damage. "It is understood that no claim for loss shall be made under this policy because of cessation of operations of the within described premises between dates of April 1st, and September 30th for any cause whatso ever. "It is understood that for the purpose of this insurance all days are to be considered working days, excepting Sundays, and that this company's liability for loss and payment for days between and including the dates above mentioned is not limited by the expiration of this policy, but that this company is liable, in accordance with the conditions and stipulations above, for total or partial loss of use and occupancy for all working days between and including the dates above mentioned, providing said total or partial loss is caused by destruction or damage by fire or lightning occurring within the term of this policy. Other insurance permitted without notice until required. "This policy covers pro rata of each of the above amounts and aggregates $10,000 ($13,400). "This policy is made and accepted subjeet to the foregoing stipulations and conditions.” On October 16, 1922, the oil mill properties described in the policies were totally destroyed by fire, and the insured was com pletely deprived of the use and occupancy thereof during the entire period of 143 working days covered by the policies. Upon the refusal of the insurance companies to pay the amounts claimed to be due upon the policies, these suits were brought. At the trial evidence was introduced by both parties as to the value of the use and occupancy of the mill during the period from the date of the fire to the expiration of the policy. At the conclusion of the evidence, the trial judge ruled that the policies were valued policies and, in each case, directed a verdict for the plaintiff for the full amount claimed. The controlling question here presented is whether these policies, when correctly construed, are open or valued policies. Insurance on "use and occupancy" is of comparatively recent origin, and has not been extensively developed. It is also true that, owing either to statutory requirements in force in several of the states or to the little difficulty usually experienced in expressing accurately in that respect the intention of the contracting parties, the courts have seldom been called upon to consider or to define the differences between open and valued insurance policies. Consequently there are few helpful precedents to be found in the books. The leading cases cited and relied upon by defendant in error to sustain the judgment in its favor are: Michael v. Prussian National Insurance Co., 171 N. Y. 25, 63 N. E. 810; Tannebaum v. Freundlick, 39 Misc. Rep. 819, 81 N. Y. S. 292; Tannebaum v. Simon, 40 Misc. Rep. 174, 81 N. Y. S. 655; Wilson & Toomer Fertilizer Co. v. Automobile Insurance Co. (D. C.) 283 F. 507; Lite v. Firemen's Insurance Co., 119 App. Div. 410, 104 N. Y. S. 434; St. Paul Fire & Marine Insurance Co. v. Pipkin (Tex. Civ. App.) 207 S. W. 360; Fidelity Union Fire Insurance Co v. Mitchell (Tex. Civ. App.) 249 S. W. 536. Of these cases, it is sufficient to say that none of them, in its facts and surrounding conditions so closely resembles the present case as to furnish much assistance in determining whether the insurance policies here under consideration are valued policies. In each of the cited cases wherein the policy there involved was held to be valued, the amount of the liability of the insurance company was either definitely fixed or required merely a mathematical computation for its determination. An examination of the contract of insurance here in controversy, both as a whole and in its several parts, leads directly to the conclusion that the parties contemplated and intended an open rather than a valued policy. Any other construction does violence to the plain and unambiguous language employed. The term "not exceeding" is of frequent use, and, in the absence of qualification, is usually, if not always, one of limitation only. These words, when found in an insurance policy as a part of the statment of the amount of insurance, necessarily mean that the liability of the insurer shall not be more, but may be less, than the amount stated. In other words, the term "not exceeding" in a policy of insurance denotes that uncertainty of amount which is the chief characteristic distinguishing an open from a valued policy. Cooley's Briefs on the Law of Insurance, vol. 1, p. 823. In the policy here under consideration the parties have expressed with unusual emphasis their intention not to fix definitely the value of the thing insured and the consequent liability of the insurer. The amount of insurance is referred to three times, and in each instance is preceded by the words "not exceeding." The gross amount of insurance is stated to be "not exceeding $10,000" ($13,400); in case of total loss the per diem liability of the insurance company is fixed at "not exceeding $150"; and in case of partial destruction of the plant the per diem loss is "to be estimated as that proportion of not exceeding $150 in which the assured's daily capacity is diminished." The words "not exceeding," in connection with the statement of the gross or inaximum amount of insurance, is common to both open and valued policies, and hence has no special significance; but the construction of the policy for which defendant in error contends, and which was adopted by the trial court, requires the elision of such words from those parts of the instrument which set forth the conditions and extent of the insurer's liability. This cannot be done without running counter to the plainly expressed intention of the parties. The value of the use and occupancy of the insured premises during the period from the date of the fire to the 1st day of April of the following year constituted the actual loss suffered by the insured, for which, under the provisions of the contract, the insurers were liable, provided such actual loss did not exceed $150 per day for each and every working day during that period. Subject to this limitation, the amount of such loss should have been left to the jury to determine. MYERS et al. v. HADFIELD-PENFIELD STEEL CO. (Circuit Court of Appeals, Sixth Circuit. January 8, 1926.) 1. Patents No. 4390. 328-1,399,570, claims 12, 14, and 15, for frame structure for attachment with tractors, held not infringed. Myers patent, 1,399,570 claims 12, 14, 15, for frame structure for attachment with tractors, held not infringed. 2. Patents-41-Rights under patent cover. ing new and novel combination of old elements stated. Patent covering new and novel combination of old elements does not grant a monopoly on any of elements included in combination, and inventor is entitled only to protection on specific form and arrangement of such elements in their relation to each other. and to a fair range of equivalents within scope and purpose of invention. 3. Patents 91 (4)-Evidence held to sustain defense of prior invention. Evidence held to sustain defense of prior invention, in suit for infringement of patent covering frame structure for attachment with The claimed invention "relates to tractors and particularly to industrial or lumber tractors." It further appears from the specifiThe judgment is reversed, and a new trial cations that the main object of the invention ordered. is "to provide a special frame structure form |