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11 F.(20) 39 this be true, it follows that an indictment intended to be considered by the Commischarging the act to have been done with both sioner as a part of the claim in passing upon intents charges but a single crime, and can- the demand for refund. Claims against the not be held bad for duplicity. And this has government invariably and necessarily conbeen decided. McKnight v. U. S., 97 F. 208, sist of statements of fact in connection with 38 C. C. A. 115; Boone v. U. S., 257 F. 963, demands for payment, and it would be a 169 C. C. A. 113.

version of language to say that a false state[3] But, even if the count were held bad, it ment of fact, made in connection with the would not benefit the defendant, as he has demand and as the basis thereof, does not received a less sentence than might have been constitute it a false claim within the meaning imposed under the first count alone. "Noth- of the statute. ing is better settled than that a verdict and The only remaining assignments of error judgment upon an indictment containing sev- relate to the charge of the court on the third eral counts should not be reversed, if any one count of the indictment; but, as the defendof the counts is good and warrants the judg- ant was acquitted on this count, these assignment.” Woods v. U. S. (C. C. A.) 279 F. ments need not be considered. Upon a care70S.

ful review of the entire record we are of [4, 5] The third assignment of error raises opinion that there was no error, and that the the point of the statute of limitations. This judgment of the District Court should be afpoint is not properly before us, for no at- firmed. tempt was made to raise it in the court be

Affirmed. low, 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.

CHANDLER v. PENNSYLVANIA R. CO. Greene v. U. S., 154 F. 401, 85 C. C. A. 251. We are of opinion, however, that none of the

(Circuit Court of Appeals, Fourth Circuit. offenses charged in the indictment are barred

January 20, 1926.) by the statute of limitations, as the six-year and not the three-year period of limitations

No. 2430. is the one applicable. Act Nov. 17, 1921 (U.

1. Carriers C30—Shipments from points S. Comp. Stat. 1923 Supp., § 1708); U. S. v.

within state to seaport for export are subDunten (D. C.) 4 F.(20) 616.

ject to interstate rates, where schedule filed [6] The fourth assignment of error is direct- with Interstate Commerce Commission apply. ed to that part of the charge wherein the jury ing from points of shipment to seaport included were instructed on the first count that a claim

all shipments with exception of those made in

intrastate commerce (Act March 2, 1889, 0. consists of all the facts set forth in the de

382, as amended by Transportation Act 1920, mand which are material to the validity of

88 409_413 [Comp. St. Ann. Supp. 1923, $ the claim, and that, if such facts are untrue 8569]). and are known to be untrue, it is a false

Where schedule of rates filed with Interclaim. The criticism of defendant is that the

state Commerce Commission, under Act March falsity of facts set forth in support of a 2, 1889, c. 382. as amended by Transportation claim cannot convert a claim for money to

Act 1920, 88 409 413 (Comp. St. Ann. Supp.

1923, $ 8569), applying from points within state which a party believes himself entitled into

to seaport, were general in terms, including all a false and fraudulent claim. This position shipments between those points, and expressly of defendant, even as a general proposition, excluding shipments made in intrastate comwould seem to be unsound. U. S. v. Wal- merce, shipments made from such ports for exlace (D. C.) 40 F. 144. But it has no appli- ject to the general rates on file.

port, not being intrastate shipments, were subeation here, for the reason that, in view of the regulations of the Commissioner of In- 2. Carriers am 30—Carrier must file with inter

state Commerce Commission schedule coverternal Revenue, the statements made by de

ing transportation in commerce with foreign fendant in the paper entitled "Reasons for

countries as well as between several states Refund" and the fictitious copies of letters

(Transportation Act 1920, § 400[2]; Comp. and cards attached thereto constituted the St. Ann. Supp. 1923, § 8563[2]). only possible basis for the refund asked.

Under Transportation Act 1920, § 400(2), The statements were obviously made and the being Comp. St. Ann. Supp. 1923, § 8563(2), copies attached for the purpose of showing carrier must file with the Interstate Commerce compliance with the regulations, which would portation in commerce with foreign countries

Commission schedule of rates covering transalone entitle claimant to the refund, and were as well as between several states.


3. Appeal and error e909 (1)-Circuit Court with the Interstate Commerce Commission a of Appeals will assume schedule filed with in

rate from the point of shipment to Norfolk terstate Commerce Commission applied to shipments moving in commerce with foreign of 38 cents per barrel. The through rate was countries as well as those in interstate com- determined by adding to this 38-cent rate merce, in absence of limitation to that effect the rate of the Seaboard Air Line or At

In absence of limitation in schedules filed lantic Coast Line from Norfolk to Jacksonwith Interstate Commerce Commission, limiting ville, of the Florida East Coast from Jackschedules to strictly interstate shipments as distinguished from shipments in foreign com

sonville to Key West, and the ferry charge merce, Circuit Court of Appeals will assume from Key West to Havana. The steamer that schedules were intended to comply with rates from Norfolk to Havana were paid by full duty imposed upon carrier, so that rates therein would apply to shipments moving in plaintiff

, and were a matter of contract, and commerce with foreign countries as well as

were changed from time to time. shipments in interstate commerce.

The plaintiff properly concedes that these

were not intrastate shipments. They were In Error to the District Court of the admittedly shipments in commerce with a United States for the Eastern District of Vir- foreign country, as to which it is conceded ginia, at Norfolk; D. Lawrence Groner, that the rate filed with the Interstate ComJudge.

merce Commission will apply, if in fact Action by J. W. Chandler against the such rate has been filed. Texas & N. 0. R. Pennsylvania Railroad Company. Judg

Co. v. Sabine Tram Co., 33 S. Ct. 229, 227 ment for defendant (9 F.[28] 703), and U. S. 111, 57 L. Ed. 442; Southern Pacific plaintiff brings error. Affirmed.

Terminal Co. v. Interstate Commerce ComJ. Brooks Mapp, of Keller, Va., and Ed. 310; B. & 0. S. W. R. R. v. Settle,

, J. Brooks Mapp, of Keller, Va, and mission, 31 S. Ct. 279, 219 U. S. 498, 55 L. James G. Martin, of Norfolk, Va., for plain- 43 S. Ct. 28, 260 U. S. 166, 67 L. Ed. 189. tiff in error.

The plaintiff contends, however, that no rate Thomas H. Willcox, of Norfolk, Va. (George R. Allen and Willcox, Cooke di governing the shipments in question has been

filed with the Interstate Commerce ComWillcox, of Norfolk, Va., on the brief), for defendant in error.

mission, for that there is no rate on file which

purports to cover shipments from the eastern Before ROSE and PARKER, Circuit shore points to Norfolk "for export,” or Judges, and WATKINS, District Judge. for shipment by boat to Cuba, that the

through rate by rail via Jacksonville and PARKER, Circuit Judge. This action Key West has no application, and that consewas brought to recover an alleged over- quently there is no rate on file governing the charge in freight on 78,716 barrels of pota- shipments except the intrastate rate. toes shipped from points on the eastern [1] We agree with plaintiff that the through shore of Virginia to Norfolk, for export to rate via Jacksonville and Key West has no Cuba. The facts were not in dispute, and, a application, for the reason that the shipments jury trial being waived, judgment was en- were not made by that route; and, if there tered in behalf of the defendant railroad were no rates prescribed except the intracompany. The sole question is one of law, state rate and the rate via Jacksonville and that is to say, whether the rate applicable is Key West, we should feel constrained to the 3112-cent rate prescribed for intrastate hold the intrastate rate applicable in the abshipments in the tariff filed with the Corpo- sence of any other rate to apply. But we ration Commission of Virginia, or the 38-cent cannot agree that there is no other rate prerate prescribed in the tariff filed with the scribed. From the copies of schedules filed Interstate Commerce Commission.

with us and made a part of the record, we The potatoes were shipped by plaintiff find that the defendant railroad company from stations on the line of defendant on the has filed with the Interstate Commerce Comeastern shore of Virginia to Norfolk, for mission schedules of rates applying from transportation by steamer to Havana. A con- the points of origin of these shipments to siderable quantity of the potatoes had been Norfolk. These schedules are general in sold before shipment for delivery in Havana, terms, including all shipments moving beand the remainder were intended to be sold tween the points on the eastern shore of upon arrival there. The defendant had no Virginia and Norfolk, and excluding no class rate from point of shipment to Havana by of shipments except those made in intrastate boat from Norfolk, but did have a through commerce, which, however, are expressly exrate via Norfolk, Jacksonville, and Key Westcluded. As the shipments in question are and thence by ferry to Havana. It had filed admittedly not intrastate shipments, they do 11 F.(20) 41 not come within the exception to the gen- tation in commerce with foreign countries as eral rate, and consequently the general rate well as transportation in commerce between applies. It is true that the schedules do not the several states. It has filed schedules of in so many words specify shipments to Nor- rates covering the transportation in quesfolk "for export," but there is nothing ex- tion, which schedules are not limited to cluding shipments intended for export from strictly interstate shipments as distinguished the general rate, or applying any other or from shipments in foreign commerce; and, in special rate to shipments of that class, and the absence of such limitation, we must asthe language of the schedules filed is suf- . sume that the schedules were intended to ficiently broad to cover them.

comply with the full duty imposed upon the [2, 3] When the duty of the carrier with re- carrier, and that consequently the rates emspect to the filing of rates is considered, we braced therein apply to shipments moving in think that there can be no doubt that these commerce with foreign countries as well as rates filed with the Interstate Commerce Com- shipments in interstate commerce proper. mission apply to shipments intended for ex- We think, therefore, that the learned trial port as well as to shipments in commerce be- judge was correct in holding that the 38tween the states. The Interstate Commerce cent rate prescribed in the schedules filed Act, as amended by the Transportation Act with the Interstate Commerce Commission, of 1920, provides that: “(1) Every common and not the intrastate rate, was the rate apcarrier subject to the provisions of this act plicable, and the judgment of the District shall file with the Commission

Court is accordingly affirmed. schedules showing all the rates, fares, and Affirmed. charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by AMERICAN-HAWAIIAN S. S. co. V. KING

COAL CO. et al. pipe line, or by water when a through route and joint rate have been established. If no

(Circuit Court of Appeals, Ninth Circuit.

February 23, 1926.) joint rate over the through route has been established, the several carriers in such

No. 4688. through route shall file, print and keep open Collision Em71(3)--Violation of harbor rules to public inspection as aforesaid, the sep- as to docking held not proximate cause of arately established rates, fares and charges injury, where docked vessel was out of chanapplied to the through transportation.

nel, and not an obstruction to navigation. (7) No carrier, unless otherwise

Violation by the P. of harbor commissioner's provided by this act, shall engage or partici- it was docked, held not proximate cause of col

rule, by projecting beyond end of pier to which pate in the transportation of passengers or lision with it of the H., where the P. was docked property, as defined in this act, unless the out of the channel, and not an obstruction to rates, fares, and charges upon which the navigation, and efficient cause of collision was same are transported by said carrier have negligence of H. in running at full speed, wild,

and wholly out of control. been filed and published in accordance with the provisions of this act.” Act of March 2, 1889, c. 382, as amended by Transporta- United States for the Southern Division of

Appeal from the District Court of the tion Act of 1920, 41 Stat. 483, U. S. Comp. the Northern District of California; Frank Stat. 1923 Supp. $ 8569, Barnes’ Federal H. Kerrigan, Judge. Code, 1924 Supp. § 7890. And it is provided that the act shall apply to transportation

Libel by the King Coal Company against of passengers or property in so far as such the United States and others, with the Amertransportation takes place within the Unit- ican-Hawaiian Steamship Company as third ed States, expressly excepting transportation party respondent, with cross-libels by the wholly within one state, “and not shipped United States and the Steamship Company to or from a foreign country from or to any

against each other. Decree for libelant (7 place in the United States.” 41 Stat. 474, F. [20] 153), and the third party respond400 (2), U. S. Comp. Stat. 1923 Supp.

ent appeals. Decree modified. $ 8563 (2), Barnes' Fed. Code, 1924 Supp. § King Coal Company, owner of the barge 7884 (2); Texas & N. 0. R. Co. v. Sabine Ruth, filed a libel in personam against UnitTram Co., supra.

ed States of America, United States ShipIt was the duty of the carrier, therefore, ping Board, and United States Shipping to file with the Interstate Commerce Commis- Board Emergency Fleet Corporation, owners sion a schedule of rates covering transpor- of the steamer Hagan, to recover damages for the destruction of the Ruth in a collision at this point. The swing was insufficient to with the Hagan. The United States filed enable the Hagan to clear the Pennsylvaa petition under the Fifty-Sixth Admiral- nian, which was moored to the municipal pier ty rule, praying that American-Hawaiian on the north side of the estuary. The bluff Steamship Company, owner of the Pennsyl- of the starboard bow of the Hagan struck vanian, be made a party respondent, and that the starboard quarter of the Pennsylvanian the United States have judgment over against 50 or 60 feet from her stern. The after part this latter corporation for any damages ad- of the Hagan then struck the Pennsylvanian judged against it in favor of libelant. This in the same place. This threw the Hagan petition was granted. A cross-libel was filed over onto the barge Ruth, which was cut by the United States against American-Ha- through and sunk. waiian Steamship Company, and another No question is made on this appeal as cross-libel was filed by the latter corporation to the fault of the Hagan, and it is therefore against the United States. These cross-libels unnecessary to state with more particularity claimed recovery of the damages suffered, re- the trouble with the steering gear and the spectively, by the Hagan and the Pennsyl- respects in which the Hagan is charged with vanian. The damages suffered by these lat- negligence. The question presented by this ter vessels were comparatively small; the record is whether the court properly divided large loss being due to the sinking of the the damages between the Hagan and the Ruth. The cause was tried on the merits, Pennsylvanian. and the Hagan and the Pennsylvanian were The stern of the Pennsylvanian extended held jointly responsible. American-Hawai- 25 or 30 feet beyond the end of the municiian Steamship Company, owner of the Penn- pal pier. Item 270 of the Port Regulations sylvanian, brings the case here on appeal. of Oakland is as follows: “Vessels, while

Louis T. Hengstler and Frederick W. lying across the end of any pier or wharf, or Dorr, both of San Francisco, Cal., for ap- pier or wharf, will be responsible for any or

whose sterns extend beyond the end of any pellant.

Ira S. Lillick, of San Francisco, Cal. all damage to themselves or to any other ves(Theodore M. Levy, of San Francisco, Cal., sel while occupying that position.” Item 200 of counsel), for appellee King Coal Co.

of the same regulations provides that vessels Geo. J. Hatfield, U. S. Atty., and Frank must not run within 100 feet from and parMaytham, Sp. Asst. Atty. Gen., both of San allel to the pierhead line. Francisco, Cal. (J. J. Dwyer, of San Fran

Giving the port regulations the construccisco, Cal., of counsel), for appellees United

tion contended for by appellee, it follows

that the Pennsylvanian was improperly States and others.

moored, but she was not lying in a channel Before HUNT, RUDKIN, and McCAM

or fairway. She was visible from the HagANT, Circuit Judges.

an at all times after the latter vessel had

passed the Webster Street bridge, a distance McCAMANT, Circuit Judge (after stat- of 3,100 feet. Capt. Sorenson of the Hagan ing the facts as above), The accident out of testifies that his vessel struck the Pennsylwhich this litigation has arisen took place in vanian a glancing blow, and that 2 feet more Oakland Estuary, which opens into the east of space would have enabled the Hagan to side of San Francisco Bay. On the morn- clear the Pennsylvanian. ing of May 15, 1924, the tanker Hagan was Appellant contends that item 270 of the docked at the Hanlon Shipyards, in the es- Port Regulations, supra, is an attempt by tuary east of the Webster Street bridge. She the department of public works to determine started down the estuary in charge of a pilot the responsibility for certain maritime casand under her own steam. When she reach- ualties, that this function belongs to the aded the drawbridge at Webster street, the pi- miralty courts, and the regulation is therelot noticed that something was wrong with fore void. In The Nettie Sundberg, 100 F. the steering gear. On investigation it was 886, the District Court for the Northern Disdiscovered that the rudder was amidships trict of California had occasion to pass on and the steering gear was not functioning. the following provision found in the harbor The vessel was on the north side of the chan- regulations of San Francisco: “Vessels, nel, and had a slight swing to the left; her while lying across the end of any pier or speed was about 4 or 5 miles an hour. For wharf, will be responsible for any and all the purpose of increasing the swing of the damage to themselves or to any other vessel vessel, the pilot ordered her full speed ahead. while occupying that position.” The court The channel of the estuary bent to the left said: “The most natural construction of the


11 F.(20) 43 rule is that it is an attempt upon the part of fied, so as to charge the United States, as the board of state harbor commissioners to owner of the Hagan, with sole responsibility prescribe what the rule of damages shall be and also with the costs of the suit. in case of a collision between vessels when one of them is moored at the end of a wharf, and it is only in the event of such a collision that the rule is to have any operation what

PROTEX SIGNAL CO. V. FENIGER et al. ever; and, thus construed, it is invalid for any purpose.”

(Circuit Court of Appeals, Sixth Circuit. It is not necessary to go so far in this

February S, 1926.) case in order to sustain appellant's conten

No. 4282. tions. We may concede that item 270 of the

1. Patents m328–1,432,872, for lens for use Oakland Harbor Regulations is a declaration

in stop signals to be used on rear end of auof local policy, which the courts should re- tomobiles, claims 2 and 3, held invalid. spect, and that the Pennsylvanian should not Patent No. 1,432,872, for lens for use in have been berthed with her stern extending op signals to be used on rear end of automobeyond the municipal pier. It does not fol. biles, claims 2 and 3, held invalid. low that the Pennsylvanian should be charg- 2. Patents Emo 328–1,432,873, claims 1, 4, 5, 7, ed with half of this damage. The collision and 9, for lens for use in stop signals to be took place in daylight. The Pennsylvanian

attached to rear end of automobiles, held

invalid. was visible from the Hagan for more than a

Patent No. 1,432,873, claims 1, 4, 5, 7, half mile. The Pennsylvanian was at least

and 9, for lens used in stop signals attached to 70 feet out of the channel, and was not an

rear end of automobiles, held invalid. obstruction to proper navigation. The efficient cause of the trouble was the Hagan run

3. Patents On 328–1,432,873, claims 3, 6, and

10, for lens for use in stop signals to be atning at full speed in the estuary, wild and

tached to rear end of automobiles, held valid wholly out of control.

and infringed. The principles of law applicable to this Patent No. 1,432,873, claims 3, 6, and 10, case are those announced by this court in The for lens for use in stop signals to be attached

to rear end of automobiles, held valid and inYucatan, 226 F. 437, 141 C. C. A. 267. This

fringed. was a libel brought to recover damages sustained by the United States steamship Bos. 4. Patents am 28—Reassembling or regrouping ton, leased to the state of Oregon. The Bos

of familiar forms and decorations may consti

tute patentable design. ton was moored in the channel of the Willa

The reassembling or regrouping of familiar mette river at Portland. The Yucatan, in

forms and decorations may constitute a patentleaving her berth and endeavoring to pass able design. through the Broadway Bridge, collided with the Boston. This court, speaking through 5. Patents en 15Design patent may not be

utilized for securing monopoly on mechanical Judge Rudkin, said: "Assuming that the

devices, but grouping of features of mechani. state of Oregon was guilty of negligence in cal patent in attractive ornamental design mooring the Boston in the fairway, and in does not make it invalid. permitting her guns to extend beyond the A design patent may not be utilized for purrail, in violation of the ordinances of the city pose of securing a monopoly on mechanical de

vices, but arrangement and grouping of features of Portland, such negligence would not bar a

of mechanical patent in an attractive ornarecovery if the collision could have been mental design does not make design patent inaverted or avoided by the exercise of rea

valid. sonable diligence on the part of the officers 6. Patents am 252—First patented structure is of the Yucatan. A person does not invite infringed by another, which resembles it so as the destruction of his property simply by

to deceive observer sufficient to induce him leaving it exposed in a public place, even

to purchase it. though his act in so doing may create a pub- blance of another device is such as to deceive

A design patent is infringed, where resemlic nuisance. • The negligence of the an observer and induce him to purchase the latstate, if negligent at all, would not bar a re

ter supposing it to be the former, covery, unless such negligence caused or con

7. Patents 328-58,916 held valid and intributed to the injury." These conclusions

fringed. are also supported by The Canima (C. C.) 32

Design patent No. 58,916 held valid and F. 302, The Mary Powell (C. C.) 36 F. 598, infringed. and The Daniel McAllister, 258 F. 549, 552, 169 C. C. A. 489.

Appeal from the District Court of the It follows that the decree should be modi. United States for the Eastern Division of

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