this be true, it follows that an indictment charging the act to have been done with both intents charges but a single crime, and cannot be held bad for duplicity. And this has been decided. McKnight v. U. S., 97 F. 208, 38 C. C. A. 115; Boone v. U. S., 257 F. 963, 169 C. C. A. 113.

[3] But, even if the count were held bad, it would not benefit the defendant, as he has received a less sentence than might have been imposed under the first count alone. "Nothing is better settled than that a verdict and judgment upon an indictment containing several counts should not be reversed, if any one of the counts is good and warrants the judgment." Woods v. U. S. (C. C. A.) 279 F. 70S.

[4,5] The third assignment of error raises the point of the statute of limitations. This point is not properly before us, for no attempt was made to raise it in the court below, except by demurrer; and the statute of limitations cannot be taken advantage of in this way. U. S. v. Cook, 17 Wall. 168, 21 L. Ed. 538; U. S. v. Brace (D. C.) 143 F. 703. Greene v. U. S., 154 F. 401, 85 C. C. A. 251. We are of opinion, however, that none of the offenses charged in the indictment are barred by the statute of limitations, as the six-year and not the three-year period of limitations is the one applicable. Act Nov. 17, 1921 (U. S. Comp. Stat. 1923 Supp., § 1708); U. S. v. Dunten (D. C.) 4 F. (2d) 616.

[6] The fourth assignment of error is directed to that part of the charge wherein the jury were instructed on the first count that a claim consists of all the facts set forth in the demand which are material to the validity of the claim, and that, if such facts are untrue and are known to be untrue, it is a false claim. The criticism of defendant is that the falsity of facts set forth in support of a claim cannot convert a claim for money to which a party believes himself entitled into a false and fraudulent claim. This position of defendant, even as a general proposition, would seem to be unsound. U. S. v. Wallace (D. C.) 40 F. 144. But it has no application here, for the reason that, in view of the regulations of the Commissioner of Internal Revenue, the statements made by defendant in the paper entitled "Reasons for Refund" and the fictitious copies of letters and cards attached thereto constituted the only possible basis for the refund asked. The statements were obviously made and the copies attached for the purpose of showing compliance with the regulations, which would alone entitle claimant to the refund, and were

Affirmed.

CHANDLER v. PENNSYLVANIA R. CO. (Circuit Court of Appeals, Fourth Circuit. January 20, 1926.)

1. Carriers

No. 2430.

30-Shipments from points within state to seaport for export are subject to interstate rates, where schedule filed with Interstate Commerce Commission apply. ing from points of shipment to seaport included all shipments with exception of those made in intrastate commerce (Act March 2, 1889, c. 382, as amended by Transportation Act 1920, S$ 409-413 [Comp. St. Ann. Supp. 1923, § 8569]).

Where schedule of rates filed with Interstate Commerce Commission, under Act March 2, 1889, c. 382, as amended by Transportation Act 1920, §§ 409-413 (Comp. St. Ann. Supp. 1923, § 8569), applying from points within state to seaport, were general in terms, including all shipments between those points, and expressly excluding shipments made in intrastate commerce, shipments made from such ports for export, not being intrastate shipments, were subject to the general rates on file.

2. Carriers 30-Carrier must file with interstate Commerce Commission schedule covering transportation in commerce with foreign countries as well as between several states (Transportation Act 1920, § 400[2]; Comp. St. Ann. Supp. 1923, § 8563[2]).

Under Transportation Act 1920, § 400(2), being Comp. St. Ann. Supp. 1923, §8563(2), carrier must file with the Interstate Commerce Commission schedule of rates covering transportation in commerce with foreign countries

as well as between several states.

3. Appeal and error 909(1)-Circuit Court of Appeals will assume schedule filed with Interstate Commerce Commission applied to shipments moving in commerce with foreign countries as well as those in interstate commerce, in absence of limitation to that effect.

In absence of limitation in schedules filed with Interstate Commerce Commission, limiting schedules to strictly interstate shipments as distinguished from shipments in foreign commerce, Circuit Court of Appeals will assume that schedules were intended to comply with full duty imposed upon carrier, so that rates therein would apply to shipments moving in commerce with foreign countries as well as shipments in interstate commerce.

In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk; D. Lawrence Groner, Judge.

Action by J. W. Chandler against the Pennsylvania Railroad Company. Judgment for defendant (9 F.[2d] 703), and plaintiff brings error. Affirmed.

J. Brooks Mapp, of Keller, Va., and J. Brooks Mapp, of Keller, Va., and James G. Martin, of Norfolk, Va., for plain

tiff in error.

Thomas H. Willcox, of Norfolk, Va. (George R. Allen and Willcox, Cooke & Willcox, of Norfolk, Va., on the brief), for

defendant in error.

Before ROSE and PARKER, Circuit Judges, and WATKINS, District Judge.

PARKER, Circuit Judge. This action was brought to recover an alleged overcharge in freight on 78,716 barrels of potatoes shipped from points on the eastern shore of Virginia to Norfolk, for export to Cuba. The facts were not in dispute, and, a jury trial being waived, judgment was entered in behalf of the defendant railroad company. The sole question is one of law, that is to say, whether the rate applicable is the 312-cent rate prescribed for intrastate shipments in the tariff filed with the Corporation Commission of Virginia, or the 38-cent rate prescribed in the tariff filed with the Interstate Commerce Commission.

The potatoes were shipped by plaintiff from stations on the line of defendant on the eastern shore of Virginia to Norfolk, for transportation by steamer to Havana. A considerable quantity of the potatoes had been sold before shipment for delivery in Havana, and the remainder were intended to be sold upon arrival there. The defendant had no rate from point of shipment to Havana by boat from Norfolk, but did have a through rate via Norfolk, Jacksonville, and Key West and thence by ferry to Havana. It had filed

with the Interstate Commerce Commission a rate from the point of shipment to Norfolk of 38 cents per barrel. The through rate was determined by adding to this 38-cent rate the rate of the Seaboard Air Line or Atlantic Coast Line from Norfolk to Jacksonville, of the Florida East Coast from Jacksonville to Key West, and the ferry charge from Key West to Havana. The steamer rates from Norfolk to Havana were paid by plaintiff, and were a matter of contract, and were changed from time to time.

The plaintiff properly concedes that these were not intrastate shipments. They were admittedly shipments in commerce with a foreign country, as to which it is conceded that the rate filed with the Interstate Commerce Commission will apply, if in fact such rate has been filed. Texas & N. O. R. Co. v. Sabine Tram Co., 33 S. Ct. 229, 227 U. S. 111, 57 L. Ed. 442; Southern Pacific

Terminal Co. v. Interstate Commerce Com

mission, 31 S. Ct. 279, 219 U. S. 498, 55 L. Ed. 310; B. & O. S. W. R. R. v. Settle, 43 S. Ct. 28, 260 U. S. 166, 67 L. Ed. 189. The plaintiff contends, however, that no rate governing the shipments in question has been filed with the Interstate Commerce Commission, for that there is no rate on file which purports to cover shipments from the eastern shore points to Norfolk "for export," or for shipment by boat to Cuba, that the through rate by rail via Jacksonville and Key West has no application, and that consequently there is no rate on file governing the shipments except the intrastate rate. [1] We agree with plaintiff that the through rate via Jacksonville and Key West has no application, for the reason that the shipments were not made by that route; and, if there were no rates prescribed except the intrastate rate and the rate via Jacksonville and Key West, we should feel constrained to hold the intrastate rate applicable in the absence of any other rate to apply. But we cannot agree that there is no other rate prescribed. From the copies of schedules filed with us and made a part of the record, we find that the defendant railroad company has filed with the Interstate Commerce Commission schedules of rates applying from the points of origin of these shipments to Norfolk. These schedules are general in terms, including all shipments moving between the points on the eastern shore of Virginia and Norfolk, and excluding no class of shipments except those made in intrastate commerce, which, however, are expressly excluded. As the shipments in question are admittedly not intrastate shipments, they do

for the destruction of the Ruth in a collision with the Hagan. The United States filed a petition under the Fifty-Sixth Admiralty rule, praying that American-Hawaiian Steamship Company, owner of the Pennsylvanian, be made a party respondent, and that the United States have judgment over against this latter corporation for any damages adjudged against it in favor of libelant. This petition was granted. A cross-libel was filed by the United States against American-Hawaiian Steamship Company, and another cross-libel was filed by the latter corporation against the United States. These cross-libels claimed recovery of the damages suffered, respectively, by the Hagan and the Pennsylvanian. The damages suffered by these latter vessels were comparatively small; the large loss being due to the sinking of the Ruth. The cause was tried on the merits, and the Hagan and the Pennsylvanian were held jointly responsible. American-Hawaiian Steamship Company, owner of the Pennsylvanian, brings the case here on appeal.

Louis T. Hengstler and Frederick W. Dorr, both of San Francisco, Cal., for appellant.

Ira S. Lillick, of San Francisco, Cal. (Theodore M. Levy, of San Francisco, Cal., of counsel), for appellee King Coal Co.

Geo. J. Hatfield, U. S. Atty., and Frank Maytham, Sp. Asst. Atty. Gen., both of San Francisco, Cal. (J. J. Dwyer, of San Francisco, Cal., of counsel), for appellees United

States and others.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

McCAMANT, Circuit Judge (after stating the facts as above). The accident out of which this litigation has arisen took place in Oakland Estuary, which opens into the east side of San Francisco Bay. On the morning of May 15, 1924, the tanker Hagan was docked at the Hanlon Shipyards, in the estuary east of the Webster Street bridge. She started down the estuary in charge of a pilot and under her own steam. When she reached the drawbridge at Webster street, the pilot noticed that something was wrong with the steering gear. On investigation it was discovered that the rudder was amidships and the steering gear was not functioning. The vessel was on the north side of the channel, and had a slight swing to the left; her speed was about 4 or 5 miles an hour. For the purpose of increasing the swing of the vessel, the pilot ordered her full speed ahead. The channel of the estuary bent to the left

at this point. The swing was insufficient to enable the Hagan to clear the Pennsylvanian, which was moored to the municipal pier on the north side of the estuary. The bluff of the starboard bow of the Hagan struck the starboard quarter of the Pennsylvanian 50 or 60 feet from her stern. The after part of the Hagan then struck the Pennsylvanian in the same place. This threw the Hagan over onto the barge Ruth, which was cut through and sunk.

No question is made on this appeal as to the fault of the Hagan, and it is therefore unnecessary to state with more particularity the trouble with the steering gear and the respects in which the Hagan is charged with negligence. The question presented by this record is whether the court properly divided the damages between the Hagan and the Pennsylvanian.

The stern of the Pennsylvanian extended 25 or 30 feet beyond the end of the municipal pier. Item 270 of the Port Regulations of Oakland is as follows: "Vessels, while lying across the end of any pier or wharf, or pier or wharf, will be responsible for any or whose sterns extend beyond the end of any all damage to themselves or to any other vessel while occupying that position." Item 200 of the same regulations provides that vessels must not run within 100 feet from and parallel to the pierhead line.

Giving the port regulations the construction contended for by appellee, it follows that the Pennsylvanian was improperly moored, but she was not lying in a channel or fairway. She was visible from the Hagan at all times after the latter vessel had passed the Webster Street bridge, a distance of 3,100 feet. Capt. Sorenson of the Hagan testifies that his vessel struck the Pennsylvanian a glancing blow, and that 2 feet more of space would have enabled the Hagan to clear the Pennsylvanian.

Appellant contends that item 270 of the Port Regulations, supra, is an attempt by the department of public works to determine the responsibility for certain maritime casualties, that this function belongs to the admiralty courts, and the regulation is therefore void. In The Nettie Sundberg, 100 F. 886, the District Court for the Northern District of California had occasion to pass on the following provision found in the harbor regulations of San Francisco: "Vessels, while lying across the end of any pier or wharf, will be responsible for any and all damage to themselves or to any other vessel while occupying that position." The court. said: "The most natural construction of the